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Title: Environmental Institutions and Law


1
ES167 ENVIRONMENTAL ASSESSMENT
November 15, 2009 Lecture 18 Environmental
Institutions and Law
Guest Speaker Professor John A. Boyd
2
Environmental Institutions and Law
Source Antonio A. Oposa Jr.
3
Environmental Institutions and LawBy John A.
Boyd
  • Formerly a lawyer at the Asian Development Bank
    (ADB) and U.S. Department of State
  • currently a Lecturer in the Graduate School of
    Law, San Beda College, Manila, Philippines,
  • a member of the Commission on Environmental Law
    of IUCN (World Conservation Union) and
  • President of the Glen Educational Foundation, a
    Philippine corporation with a focus on
    Governance, Law, and Environmental Networks
  • views expressed are not necessarily those of ADB,
    U.S. Government, or IUCN

4
ENVIRONMENTAL INSTITUTIONS AND LAW
I. INTRODUCTION II. ENVIRONMENTAL
INSTITUTIONS A. NATION STATES B. TREATY
ORGANIZATIONS INCLUDING THE UN C. PRIVATE
SECTOR D. FOUR EXAMPLES III. ENVIRONMENTAL
LAW A. INTRODUCTION B. FOUR QUESTIONS IN
INTERNATIONAL LAW C. SUSTAINABLE DEVELOPMENT AS
A CONCEPT D. MULTILATERAL ENVIRONMENTAL
AGREEMENTS (MEAs) E. JOHANNESBURG PRINCIPLES ON
THE ROLE OF LAW AND
SUSTAINABLE DEVELOPMENT IV. CONCLUSION
5
ENVIRONMENTAL INSTITUTIONS AND LAW
  • I. INTRODUCTION
  • Your questions are welcome, but I may not be able
  • to answer every good question.
  • B. Many environmental institutions are based on
    law.
  • The aim of environmental law is to reduce the
    anthropogenic sources of environmental harm by
    modifying human behavior. Kiss Shelton,
    International Environmental Law, (2007), p. ix.
  • C. Environmental law is like a layer cake, with
  • i) international law the top layer,
  • ii) national law the next layer down,
  • iii) local law further below,
  • iv) but the bottom layer is based on experience
    and actions by scientists and others,
    including lawyers.

6
ENVIRONMENTAL INSTITUTIONS AND LAW
  • INTRODUCTION
  • An example of the evolution of environmental law
    from the Philippine Supreme Court--Oposa v.
    Factoran, described on page 188 of An
    Introduction to Sustainable Development ISD
  • The Petitioners, minors represented by their
    parents, and a Philippine NGO, sought to have the
    defendant, the Philippine Secretary of the
    Department of Environment and Natural Resources,
    ordered to rescind all existing Timber License
    Agreements, and desist from approving new
    agreements.
  • Professor Oposa argued in behalf of children that
    a right to the environment had been breached.

7
Inter-Generational Responsibility
Source Antonio A. Oposa Jr.
8
RESPONSIBILITY TO FUTURE GENERATIONS
  • The case has a special and novel element.
    Petitioners claim that they represent their
    generation as well as generations yet unborn.
  • Capacity Building for Environmental Law in the
    Asian and Pacific Region Approaches and
    Resources, Donna Craig, Nicholas A. Robinson, and
    Koh Kheng Lian, eds., ADB 2003, Vol. I, pages
    720-726.

9
RESPONSIBILITY TO FUTURE GENERATIONS
  • Chief Justice Hilario Davide Jr. for Philippine
    Supreme Court
  • Their personality to sue in behalf of the
    succeeding generations can only be based on the
    concept of inter-generational responsibility.
    (Ibid)

Source Antonio A. Oposa Jr.
10
RESPONSIBILITY TO FUTURE GENERATIONS
  • Philippine Supreme Court
  • We find no difficulty in ruling that they can,
    for themselves, for others in their generation
    and for their succeeding generations, file a
    class suit. (Ibid)

Source Antonio A. Oposa Jr.
11
RESPONSIBILITY TO FUTURE GENERATIONS
  • Davide If the present generation failed to
    represent future generations,
  • the day would not be too far when all else would
    be lost not only for the present generation, but
    also for those to come-- generations which stand
    to inherit nothing but a parched earth incapable
    of sustaining life. (Ibid)

Source Antonio A. Oposa Jr.
12
RESPONSIBILITY TO FUTURE GENERATIONS
  • Davide for the Philippine Supreme Court
  • The right to a balanced and healthful ecology
    is no less important than any of the civil and
    political rights of human beings. (Ibid)

Source Antonio A. Oposa Jr.
13
Davide Such a right to a balanced and
healthful ecology concerns nothing less than
the right to self-preservation and
self-perpetuation, a right that may even be said
to predate all governments and constitutions.(Ib
id)
Source Antonio A. Oposa Jr.
14
Thus the Philippine Supreme Court declared that
all citizens have a fundamental right to a
balanced and healthy ecology and a duty to
protect the environment for future generations.
Dan Tarlock, Ecosystems, The Oxford Handbook
of International Environmental Law, edited by
Daniel Bodansky, Jutta Brunee and Ellen Hey
(2007), page 585.
Source Antonio A. Oposa Jr.
15
RESPONSIBILITY TO FUTURE GENERATIONS
  • Davide held that, without the forests which were
    threatened by the Timber License Agreements, a
    balanced and healthful ecology would not be
    achievable.
  • Subsequently, all Timber License Agreements were
    cancelled. (Ibid)

Professor Antonio A. Oposa Jr.
16
RESPONSIBILITY TO FUTURE GENERATIONS Bruntland
Commission Report
  • "Humanity has the ability to ensure that it
    meets the needs of the present without
    compromising the ability of future generations to
    meet their own needs."
  • Making the difficult choices involved in
    achieving sustainable development will depend on
    the widespread support and involvement of an
    informed public and nongovernmental
    organizations, the scientific community, and
    industry."
  • Capacity Building for Environmental Law
    Approaches and Resources, Donna Craig, Nicholas
    Robinson, and Koh Kheng Leng (ADB 2nd-2003)"
    pages 93 and 96.

17
A. NATION STATESEXAMPLES FROM BRITAIN
  • Britains first recorded legislation dates from
    1273 when King Edward I, known better for
    fighting the Scots Sir William WALLACE and
    Robert the Bruce and the Welsh, prohibited the
    burning of Sea Coal in order to protect the
    health of its subjects. In the 1500s, it is
    understood that Elizabeth I banned the use of
    coal while Parliament was sitting with the
    penalty of death in default.
  • Paul Stookes, A Practical Approach to
    Environmental Law (Oxford University Press,
    2005), page 13 (Paul Stookes).

18
A. NATION STATESEXAMPLES FROM BRITAIN
  • 2. By the 1840s, Victorian England had to
    tackle the adverse consequences of the industrial
    revolution. During this period, the UK government
    began to legislate more generally for public
    health including the introduction of the Alkali
    Act 1863 to deal with heating common salt with
    sulfuric acid to produce salt cake (sodium
    sulfate) and hydrochloric acid for the glass,
    textile, and soap industries to try and reduce
    the heavy build up of acid in the local
    atmosphere
  • Paul Stookes, page 13 http//pubs.acs.org/s
    ubscribe/journals/tcaw/11/i01/html/01chemchron.htm
    l

19
A. NATION STATESEXAMPLES FROM BRITAIN
  • 3. Sustainable Development was introduced into
    UK Legislation in the Environmental Act 1995,
    which, among other things, established the
    Environment Agency and the Scottish Environment
    Protection Agency. Section 4(1) of the Act
    provides that
  • It shall be the principal aim of the Agency
    (subject to and in accordance with the
    provisions of this Act or any other enactment
    and taking into account any likely costs) in
    discharging its functions so to protect or
    enhance the environment, taken as a whole, as to
    make the contribution towards attaining the
    objective of achieving sustainable development.
  • Paul Stookes, page 14

20
II. ENVIRONMENTAL INSTITUTIONS
  • A. NATION STATES--EXAMPLE FROM USA
  • 1. Congress and the President
  • a. National Environmental Policy Act (NEPA) of
    1969
  • b. Environmental Protection Agency, est'd 1970
  • c. Departments of Interior, Commerce,
    Transportation, Labor, the Council on
    Environmental Quality, State Dept.
  • d. Multilateral Environmental Agreements such
    as the UN Framework Convention on
    Climate Change
  • 2. Federal Courts
  • 3. State and Local Legislation, Institutions,
    and Courts (cont'd)
  • (S. Ferry, Environmental Law (2nd Ed. 2001)
    EL)

21
II. ENVIRONMENTAL INSTITUTIONS
  • A. NATION STATES--EXAMPLE FROM USA (cont'd)
  • 4. Nongovernmental Organizations--such as the
    Sierra Club and the Natural Resources Defense
    Council (both of which have international
    aspects)
  • 5. Scientific Organizations and Educational
    Institutions such as the Massachusetts Institute
    of Technology
  • 6. Industry
  • 7. The Media including newspapers and television
  • 8. Civil Society

22
II. ENVIRONMENTAL INSTITUTIONS
  • 1. Congress and the President (cont'd)
  • The Environmental Protection Agency (NEPA)
    administers
  • nine major environmental statutes including
    legislation dealing with Clean Air Clean Water
    Marine Protection, Research and Sanctuaries
    Solid Waste, Insecticides, Fungicides and
    Rodenticides Toxic Substances Noise Control
    Safe Drinking Water
  • Departments of Interior, Commerce,
    Transportation, Labor,and the Council on
    Environmental Quality are responsible for much
    more environmental legislation dealing with such
    topics as
  • Coastal Zone Management, Deepwater, Endangered
    Species, Federal Land, Fishery Conservation,
    Forests,Wildlife, Occupational Safety and
    Health, Rivers
  • (EL)

23
II. ENVIRONMENTAL INSTITUTIONS
  • 1. Congress and the President (cont'd)
  • c. Department of State and U.S. Agency for
    International Development (USAID)
  • 1) Department of State negotiates treaties,
    monitors international organizations
  • 2) USAID provides grants to foreign governments,
    schools, NGOs others

24
II. ENVIRONMENTAL INSTITUTIONS
  • A. NATION STATESAN EXAMPLE FROM USA
  • 2. Federal Courts
  • a. Common Law Environmental Remedies including
    nuisance, trespass, negligence, strict liability,
    public trust doctrine
  • b. Federal Environmental Legislation (NEPA,
    etc.)
  • c. Administrative Procedure Act, Freedom of
    Information Act, Federal Tort Claims Act, etc.
  • d. Constitutional Issues such as the Federal
    Commerce Clause versus State Power and
    Legislation

25
  • A. NATION STATESAN EXAMPLE FROM USA
  • 3. State Courts--An example
  • a. Common Law
  • 1). "Nuisance is the most frequently pled common
    law tort action in environmental litigation.
    Nuisance law traditionally protected the right of
    a landowner to use and enjoy property. This is a
    broad interest that can be violated without
    direct physical invasion." (EL p. 33).
  • 2). In Village of Wilsonville v. SCA Services
    (1981), the court granted an injunction and
    ordered a site clean-up of the "defendant's
    hazardous chemical landfill" which presented "a
    substantial danger of groundwater contamination
    and explosions from chemical reaction." (EL p 26)

26
A. Nation StatesAn Example from South Africa
  • Article 24 of the South African Constitution
    1994 states that everyone has the right to
  • Have an environment, that is not harmful to his
    or her health or well-being
  • An environment protected for the benefit of
    present and future generations, through
    reasonable legislative and other measures that
  • (i) prevent pollution and ecological
    degradation
  • (ii) promote conservation and
  • (iii) secure ecologically sustainable
    development and use of natural
    resources, while promoting justifiable
    economic and social development.
  • (Paul Stookes, page 28 emphasis added.)

27
II. ENVIRONMENTAL INSTITUTIONS
  • B. TREATY ORGANIZATIONS
  • 1. United Nations System
  • a. General Assembly and the Security Council
  • b. International Court of Justice
  • c. UN Environmental Programme (UNEP)
  • d. UN Development Programme
  • e. UN Division for Sustainable Development
  • f. Committee on Economic, Social and Cultural
    Rights
  • g. Other committees and commissions on women,
    etc.
  • h. World Health Organization
  • i. UN Educational, Scientific and Cultural
    Organization
  • j. World Trade Organization

28
II. ENVIRONMENTAL INSTITUTIONS
  • B. TREATY ORGANIZATIONS
  • 1. United Nations System (cont'd)
  • k. World Meteorological Organization, others
  • l. Secretariats of Multilateral Environmental
  • Agreements
  • m. International Financial Institutions
  • 1). The World Bank including its Inspection Panel
  • 2). The International Finance Corporation
  • including its Compliance Advisor Ombudsman

29
II. ENVIRONMENTAL INSTITUTIONS
  • 2. Non-UN System such as the Asian Development
    Bank (ADB) and its Accountability Mechanism
  • a. Program loans for poverty eradication such as
    "Access to Justice Program in Pakistan" see
    Rogers, Jalal, Boyd, An Introduction to
    Sustainable Development ISD at page 194
  • b. Project loans for water, sanitation, health
  • c. Grants for reform of the land administration
    law of the People's Republic of China
  • d. Monitoring of sustainable development aspects
    throughout the project cycle

30
II. ENVIRONMENTAL INSTITUTIONS
  • C. PRIVATE SECTOR
  • 1. NON-GOVERNMENT ORGANIZATIONS
  • a. International NGOs such as IUCN, known as the
    World Conservation Union, WWF, The Nature
    Conservancy, World Resources Institute
  • b. Industrial NGOs such as World Business
    Council for Sustainable Development.
  • 2. Educational Organizations such as the UN
    University
  • 3. The Media including cable news networks and
    international newspapers such as the
    International Herald Tribune and Financial Times

31
II. ENVIRONMENTAL INSTITUTIONS
  • 4. Private Foundations
  • a. Bill and Melinda Gates Foundation
  • b. David and Lucile Packard Foundation
  • c. MacArthur Foundation
  • d. Pew CharitableTrusts
  • e. Ted Turner/UN Foundation
  • f. Others
  • SourceWBCSD, Finding Capital for Sustainable
    Livelihoods Business ltwbcsd.orggt

32
II. ENVIRONMENTAL INSTITUTIONS
  • D. FOUR EXAMPLES
  • 1. UN Environment Programme (UNEP)
  • a. Established by UN General Assembly in 1975
  • b. Governing Council has 58 Member States
  • c. The UNEP secretariat consists of 890 staff
    members, roughly 500 of whom are international
    staff while the remaining are hired locally.
  • http//en.wikipedia.org/wiki/UNEP
  • d. Expended about 171,000 million for 2008-2009
    (www.unep.org/gc/gcss-x/download.asp?ID979 )
  • e. Programs include focus on Climate Change,
    Disasters and Conflicts, Ecosystem Management,
    Environmental Governance, Harmful Substances,
    Resource Efficiency, Freshwater, Biodiversity.

33
  • D. FOUR EXAMPLES (cont'd)
  • 2. World Conservation Union (IUCN)
  • a. Founded in 1948 as a Swiss corporation.
  • b. Members include 83 state members, 108 Gov.
    agencies, 766 NGOs, including 81 international
    NGOs
  • c. Total expenses in 2008 were 135.264 million
    (http//www.conservation.org/discover/annual_repor
    t/Documents/CI20Financials.pdf)
  • d. Has 1,100 professional staff in 60 offices
    worldwide about 10,000 scientists and experts
    from 160 countries. (http//en.wikipedia.org/wiki/
    World_Conservation_Union)
  • e. Enjoys observer status at the UN
  • The first publicly visible use of the term
    sustainable development was most probably in
    1980, when it appeared in a document prepared by
    IUCN.
  • Daniel Barstow Magraw Lisa D. Hawke,
    Sustainable Development, The Oxford Handbook of
    International Environmental Law(2008), page 615.

34
II. ENVIRONMENTAL INSTITUTIONS
  • D. FOUR EXAMPLES (cont'd)
  • 3. World Business Council for Sustainable
    Development lthttp//www.wbcsdgt
  • a. First publication in 1992 formally
    established 1994.
  • b. Coalition of 200 international companies in
    such sectors as cement, electricity, forest
    products, mining and minerals
  • c. Members include Alcoa, Bayer, BP, Caterpillar,
    Chevron, China Petrochemical Corporation
    (SINOPEC), Deutsche Bank, Deloitte Touche
    Tomatsu, Dow Chemical, Dupont, Johnson Johnson,
    JSC Gazprom, Michelin, Mitsubishi Corporation,
    Nokia, Proctor and Gamble, Rio Tinto, Royal Dutch
    Shell, Sumitomo Chemicals, Sony, Toyota Motors,
    and Volkswagen

35
  • 3. World Business Council for Sustainable
    Development
  • c. Mission Statement Our mission is to provide
    business leadership as a catalyst for change
    toward sustainable development, and to support
    the business license to operate, innovate and
    grow in a world increasingly shaped by
    sustainable development issues.
  • d. Focus Areas Energy Climate, Development,
    Business Role, Ecosystems
  • e. Projects Water, Energy Efficiency in
    Buildings, Forest Products, Cement, Electricity
    Utilities, Tire Industry, Mobility, Mining
    Minerals

36
  • D. FOUR EXAMPLES (cont'd)
  • 4. 1992 UN Conference on Environment and
    Development resulted in part in the United
    Nations Framework Convention on Climate Change.
  • U.S. Government ratified this Convention on
  • 15/10/92, and the Convention entered into force
    on 21/03/94.
  • UNFCCC Core programme budget for 2008 was 27
    million, supporting 144 staff of which 88 are
    professional or above. (http//unfccc.int/files/me
    etings/cop_13/application/pdf/cp_budg_eigh_ni.pdf)
  • UNFCC is committed to
  • Making a contribution to sustainable development
    through support for action to mitigate and to
    adapt to climate change at the global, regional
    and national level.
  • Providing high-quality support to the
    intergovernmental process in the context of the
    Convention and the Kyoto Protocol. 
    http//unfccc.int/secretariat/items/1629.php

37
III. ENVIRONMENTAL LAW
Sourcelthttp//www.bbc.co.uk/nature/wildfacts/fact
files/174.shtmlgt
38
III. ENVIRONMENTAL LAW A. Introduction
  • 1. Why study environmental law?
  • a. Of what legal force is a "Declaration"?
  • b. What has the International Court of Justice
    said about the environment and sustainable
    development?
  • c. What is "customary international law" and can
    it be enforced?
  • d. What is "soft law"?
  • e. When did "the law" of sustainable development
    begin?

39
III. ENVIRONMENTAL LAW A. Introduction
  • PACIFIC FUR SEALS CASE
  • From the legal point of view, the concept of
    sustainable development began more than 100 years
    ago with the Behring Sea Fur Seals Fisheries
    case, decided in international arbitration. (ISD
    p 211)

Sourcelthttp//www.bbc.co.uk/nature/wildfacts/fact
files/174.shtmlgt
40
PACIFIC FUR SEALS CASE
  • According to Professor Phillippe Sands "Indeed,
    the inherent features of the concept of
    sustainable development have been an aspect of
    international legal relations since at least
    1893, when the United States asserted a right to
    protect Pacific fur seals, for the benefit of
    mankind, from wanton destruction, in opposition
    to the assertion by Great Britain that its
    nationals were entitled to exploit these
    resources for their own developmental purposes.
    (ISD p 211 emphasis added.)

41
III. ENVIRONMENTAL LAW A. Introduction 2. Law
  • Oxford English Reference Dictionary (1966)
    defines law as "a rule enacted or customary in a
    community, and recognized as enjoining or
    prohibiting certain actions, and enforced by the
    imposition of penalties."
  • Mark Twain "Laws are sand, customs are rock.
    Laws can be evaded and punishment escaped, but an
    openly transgressed custom brings sure
    punishment."
  • (ISD p 184.)

42
III. ENVIRONMENTAL LAW A. Introduction
  • 3. INTERNATIONAL LAW
  • In a well known US State Department publication,
    international law is defined as a standard of
    conduct pertaining to both states and other
    entities
  • International law is the standard of conduct,
    at a given time, for states and other entities
    subject thereto. It comprises the rights,
    privileges, powers, and immunities of states and
    entities invoking its provisions, as well as the
    correlative fundamental duties, absence of
    rights, liabilities, and disabilities.
    (Whiteman, 1963, Vol.1, p. 1, quoted in
  • ISD p 185)

43
  • 4. "ENVIRONMENT"
  • International treaty law describes
  • the word environment. Professors of law
  • Alexandre Kiss and Dinah Shelton point out
  • that the European Convention on Civil Liability
  • for Damage Resulting from Activities Dangerous
  • to the Environment describes the environment
  • as including the following
  • natural resources both abiotic and biotic, such
    as air, water,
  • soil, fauna and flora and the
    interaction between the same factors
  • property which forms part of the cultural
    heritage and
  • the characteristic aspects of the landscape
    footnote omitted.
  • ( ISD p 185)

Source Antonio A. Oposa Jr.
44
4. ENVIRONMENT--a social dimension Furthermore,
as Kiss and Shelton note, the International Court
of Justice (ICJ) in its opinion on the Legality
of the Threat or Use of Nuclear Weapons includes
a social dimension in the definition of the
environment", stating that the environment is
not an abstraction, but represents the living
space, the quality of life, and the very health
of human beings, including generations unborn.
(International Environmental Law p 2)
45
5. SOURCES OF INTERNATIONAL LAW(a)
international conventions (b) international
custom (c) general principles of law (d)
judicial decisions and teachings
Source Antonio A. Oposa Jr.
46
5. SOURCES OF INTERNATIONAL LAW Article 38(1)
of the international agreement establishing the
ICJ, which forms the apex of the judicial branch
of the UN, describes the following four sources
of international law (a)
international conventions, general or particular,
establishing rules
expressly recognized by the contesting
States (b) international custom, as
evidence of a general practice
accepted as law (c) the general principles
of law recognized by civilized
nations (d) subject to the provisions of
Article 59, judicial decisions
and the teachings of the most highly qualified
publicists of the various
nations, as subsidiary means for the
determination of rules of law Emphasis
added. (ISA p. 186-187)
47
I. INTRODUCTION 5. SOURCES OF INTERNATIONAL
LAW a. .INTERNATIONAL CONVENTIONS OR
TREATIES Blacks Law Dictionary (1999) states,
A convention is an agreement or compact among
nations. Thus, an international convention
includes agreements which are often called
treaties. The Vienna Convention on the Law of
Treaties (1969) states in part For the purposes
of the present Convention (a) treaty means
an international agreement concluded between
States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related
instruments and whatever its particular
designation. (ISD p 186)
48
5. SOURCES OF INTERNATIONAL LAW (cont'd) a.
INTERNATIONAL CONVENTIONS OR TREATIES Since a
treaty may exist whatever its particular
designation, and since such agreements have been
negotiated for thousands of years, treaties have
been designated with a wide variety of titles,
including agreement, compact, protocol, and the
like. One of the earliest treaties, written on a
clay tablet, was between King Silis of the
Hittites and Ramses II of Egypt. Italics added
That was in 1269 B.C. (ISD p 186)
http//un.org
49
5. SOURCES OF INTERNATIONAL LAW b. CUSTOMARY
INTERNATIONAL LAW International law that derives
from the practice of states and is accepted by
them as legally binding. This is one of the
principle sources or building blocks of the
international legal system. Blacks Law
Dictionary, Bryan A. Garner, Editor in Chief,
eighth edition (1999) p. 835. The approach
attempts to describe the existing norms that
govern the relations among states, but does not
advocate or prescribe new norms. Customary norms
depend not only on state practice (that is, on
observable regularities of behavior), but also on
acceptance of these regularities as law by
states. ISD 187
50
5. SOURCES OF INTERNATIONAL LAW c. GENERAL
PRINCIPLES Hunter, Salzman, and Zaelke quote
Professor of Law Ian Brownlie, who states that
general principles may refer to rules accepted
in the domestic law of all civilized states, or
alternatively, to the general principles of
private law used within all or most States,
insofar as those principles are applicable to
relations of States. General principles, then,
fill in the gaps in international law that have
not already been filled by treaty or custom.
General principles include principles which
have emerged from municipal legal systems. (ISD
pp 188)
51
5. SOURCES OF INTERNATIONAL LAW c. GENERAL
PRINCIPLES--an example
  • The environmental impact assessment (EIA)
    procedure began in the United States at the end
    of the 1960s in Michigan.
  • EIA procedure was adopted in the Kuwait Regional
    Convention for Cooperation on the Protection of
    the Marine Environment from Pollution in 1978.
  • EIA procedure was adopted at the global level in
    the 1982 Convention of the Law of the Sea
    (UNCLOS). (Kiss and Shelton p 44)

52
5. SOURCES OF INTERNATIONAL LAW d. JUDICIAL
DECISIONS AND THE TEACHINGS OF THE MOST
QUALIFIED Law Professor Antonio A. Oposa, Jr.
gives the following description of the role of
Judicial Decisions and Scholarly Writings in
the articulation of international
law "International Law may also be expressed
through the judicial decisions of international
courts and tribunals, and of national courts. It
must be noted that a judicial decision is not, by
and of itself, the International Law. Rather,
the judicial decision is said to be only an
expression or an articulation of the principle of
International Law which is applied to a
particular controversy or case at hand. In other
words, it is not International Law itself but
only evidence of the existence of the legal
principle involved. (ISD p 187)
53
5. SOURCES OF INTERNATIONAL LAW d. JUDICIAL
DECISIONS AND THE TEACHINGS OF THE MOST QUALIFIED
(cont'd) Teachings of the Most Qualified Law
Professor Antonio A. Oposa, Jr. So also with
the writings and learned explanations of the
most highly qualified scholars. The writings
of these scholars, who through years of labor,
research, and experience, have become intimately
acquainted with the principles and practice of
international law are in a position to explain
what it is. (ISD p 187)
54
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 1. Armed with these definitions, we can go
back to our original questions about how
international law would interpret a) the
Stockholm Declaration of 1972, b) UN General
Assembly resolutions, c) UN Security Council
Resolutions, and d) the Rio Declaration at the
World Summit on Sustainable Development in
1992. First, would any of these satisfy
the definition of a convention or treaty, the
first source of international law?
55
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 2. Would "Declarations" usually be considered
an international convention? No, they would not.
When states have acted on these three
instruments through their representatives, they
usually do so without the requisite intent to be
bound to an international convention or treaty.
However, this is not to suggest that Declarations
and like instruments are unimportant.
56
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 3. Declarations as Soft Law Documents such
as the Rio Declaration are often referred to as
soft law, which Blacks Dictionary defines in
part as Guidelines, policy declarations, or
codes of conduct that set standards of conduct
but are not directly enforceable.
57
  • Hard law compared to Soft Law
  • Hard Law (legally binding)
  • 1. Treaties (or conventions or agreements)
  • 2. Custom (Implicit Agreements)
  • 3. Generally recognized principles of law.
    generally fills in gaps not already filled by
    treaty or custom They are mostly used to
    identify basic rules of procedure..(e.g. evidence
    is admissible)use of EIAs. They are not to be
    confused with principles of International
    Environmental Law which are contained either in
    treaties or which may be distilled from
    treaties)
  • Bell McGillivray, page 153.
  • 4. Judicial decisions and the teachings of the
    most qualified
  • b. Soft Law (sets standards of conduct but are
    not legally binding)
  • 1. Declarations
  • 2. Principles contained in Treaties such as The
    Parties have a right to, and should promote
    sustainable development from Article 3 of the
    Climate Change Convention
  • 3. Recommendations
  • 4. Standards also Guidelines, Codes of Conduct,
    etc. (Stuart Bell Donald MsGillivray,
    Environemental Law (Sixth Edition) Oxford
    University Press 2006, pp 152-154)

58
Stockholm
http//images.google.com.ph/images?svnum10hlen
lrqstockholm
59
a) However, the Stockholm Declaration of 1972
  • Principle 21 of the Stockholm Declaration
    declaring no state may "cause damage to the
    environment of other States" has "evolved into
    international customary law. Italics added.
    Capacity Building p 87.
  • "States have, in accordance with the Charter of
    the United Nations and the principles of
    international law, 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." (ISD p 189)
  • lthttp//www.unep.org/Documents/Default.asp?Documen
    tID97ArticleID1503gt

60
b) However, the Stockholm Declaration of 1972
  • Principle 24 of the Stockholm Declaration
    concerning the "duty to cooperate" "also appears
    to have acquired this status" of a customary rule
    of international environmental law. (Kiss and
    Shelton p 43)
  • Principle 24"Cooperation through multilateral
    or bilateral arrangements or other appropriate
    means is essential to effectively control,
  • prevent, reduce and eliminate adverse
    environmental effects resulting from activities
    conducted in all spheres, in such a way that due
    account is taken of the sovereignty and interests
    of all States. http//www.unep.org/Do
    cuments.multilingual/Default.asp?DocumentID97Art
    icleID1503

61
U.N. General Assembly
http//update.unu.edu
62
1.b) UN General Assembly resolutions
  • "A General Assembly resolution may contribute to
    the development of international law
  • if the resolution gains virtually universal
    support,
  • if the members of the Generally Assembly share a
    lawmaking or law-declaring intent --
  • and if the content of that resolution is
    reflected in general state practice." (ISD p 190)

63
UN Security Council
www.un.org
64
1.c) UN Security Council Resolutions
  • Unlike UN General Assembly resolutions, UN
    Security Council resolutions adopted pursuant to
    Chapter VII of the UN Charter are "legally
    binding on all member states of the United
    Nations."
  • Chapter VII is entitled "Action with Respect to
    Threats of Peace, Breaches of the Peace, and Acts
    of Agression" (ISD p 190)

65
Rio de Janeiro
www.millennium-ride.com
66
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 1.d. RIO DECLARATION ON ENVIRONMENTAL AND
DEVELOPMENT The Rio Declaration on Environment
and Development., adopted at the 1992 UN
Conference on Environment and Development, is one
of three nonbinding instruments that emerged in
Rio de Janeiro. The other two are Agenda 21 and
the Forest Principles. (ISD p 190)
67
  • B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
    LAW
  • 5. RIO DECLARATION ON ENVIRONMENTAL AND
    DEVELOPMENT (CONT'D)
  • a. The Rio Declaration of 1992 consists of a
    preamble and 27 principles.
  • Kiss and Shelton suggest that the Rio Declaration
    contains principles that may be placed under four
    categories legal, policy, economic, and public
    policy.
  • (International Environmental Law p 71 ISD p.
    190)

68
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 5. RIO DECLARATION ON ENVIRONMENTAL AND
DEVELOPMENT (CONT'D) c. Concerning those
principles, Kiss and Shelton point out that
Principle 2 concerns transboundary effects.
Principle15 concerns the formulation of
then-emerging principle of the precautionary
principle. Principle 17 the emerging polluter
pays principle, requires internationalization of
environmental costs. (ISD p 191)
69
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 5. RIO DECLARATION ON ENVIRONMENTAL AND
DEVELOPMENT (CONT'D) d. Kiss and Shelton In the
view of many, the key to the Rio Declaration is
found in Principle 3, which is a restatement of
the definition of sustainable development
proposed in the Brundtland Report. Principle 3
states that The right to development must be
fulfilled so as to equitably meet developmental
and environmental needs of present and future
generations. (ISD p 191)
70
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 5. RIO DECLARATION ON ENVIRONMENTAL AND
DEVELOPMENT (CONT'D) e. Kiss and Shelton
Principle 5 declares that All States and all
people shall cooperate in the essential task of
eradicating poverty as an indispensable
requirement for sustainable development, in order
to decrease the disparities in standards of
living and better meet the needs of the majority
of the people of the world." (ISD p 191)
71
5. RIO DECLARATION ON ENVIRONMENTAL AND
DEVELOPMENT (CONT'D)
  • The famous Brundtland definition footnote
    omitted
  • contains two ethical elements that are widely
    accepted as
  • being essential to the idea of sustainable
    development
  • concern for the poor (intragenerational justice
    or equity) and Principal 5 of the Rio
    Declaration
  • concern for the future (intergenerational
    justice or equity). Principal 3 of the Rio
    Declaration
  • The concern for the poor includes all social and
    minority
  • groups discriminated against by the social and
    economic
  • system.
  • Klaus Bosselmann, The Principle of
    Sustainability Transforming Law and Governance,
    Ashgate (2008) p. 99.

72
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 5. RIO DECLARATION ON ENVIRONMENTAL AND
DEVELOPMENT (CONT'D) Kiss and Shelton f.
Other legal norms can be found in Principle 10,
affirming rights of public information,
participation, and remedies Principle 13
calls for the development of liability
rules. Principle 11 stresses the importance of
enacting effective environmental legislation.
(ISD p. 191)
73
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW 5. RIO DECLARATION ON ENVIRONMENTAL AND
DEVELOPMENT g. Principle 20 indicates that Women
have a vital role in environmental management and
development and that Their full participation
is therefore essential to achieve sustainable
development. h. Principle 22 of the Rio
Declaration provides that Indigenous people and
their communities and other local communities
have a vital role in the achievement of
sustainable development. (ISD p 190)
74
B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL
LAW
  • 5. i. DOES THE RIO DECLARATION ON ENVIRONMENTAL
    AND DEVELOPMENT
  • CONSTITUTE INTERNATIONAL LAW?
  • NO, NOT AS HARD LAW. BUT IT IS CONSIDERED TO BE
    SOFT LAW, AND IT HAS THE POLITICAL ENDORSEMENT OF
    MORE THAN 170 GOVERNMENTS PARTICIPATING IN THE
    RIO CONFERENCE.
  • AS SUCH, THE "RIO DECLARATION" IS VERY
    IMPORTANT, CONTAINING MANY KEY PRINCIPLES
    RELATING TO THE ENVIRONMENT AND DEVELOPMENT,
    INCLUDING SUSTAINABLE DEVELOPMENT.

75
II. FOUR QUESTIONS IN THE CONTEXT OF
INTERNATIONAL LAW
  • 6. RIO'S LEGALLY BINDING INSTRUMENTS
  • The legally binding instruments that emerged in
    Rio were two international conventions
  • the UN Framework Convention on Climate Change
    and
  • the Convention on Biological Diversity --both of
    which were signed in Rio and subsequently entered
    into force.
  • (ISD p 190)

76
III. C. Sustainable Development as a Concept
Source Antonio A. Oposa Jr.
77
International Court of Justice, The Hague, The
Netherlands
www.aijac.org.au
78
  • C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR
    PRINCIPLE OF INTERNATIONAL LAW?
  • Gabcikovo-Nagymaros Project (Hungary/Slovakia)
    (1997)
  • This ICJ case concerned a system of dams on the
    Danube River designed to produce electrical
    energy and improve the navigability of the
    Danube, flood control and regulation of
    ice-discharge, and the protection of the
    environment.
  • (ISD p 193)
  • Hungary attempted to invoke an environmental
    emergency to justify its withdrawal from a treaty
    involving a large dam project. However, the ICJ
    found that there was not a sufficient state of
    necessity at the time that Hungary withdrew. Dan
    Tarlock, Ecosystems, The Oxford Handbook of
    International Environmental Law, p.583.

79
Gabcikovo-Nagymaros Project (Hungary/Slovakia)
www.icj-cij.org
80
  • C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR
    PRINCIPLE OF INTERNATIONAL LAW?
  • Gabcikovo-Nagymaros Project (Hungary/Slovakia)
    (1997)
  • The International Court of Justice judgment,
    delivered by the 15 Judges of the Court, with
    Stephen M. Schwebel, appointed by the US, serving
    as President, included the following paragraph
    dealing with effects upon the environment,
    risks for mankind for present and future
    generations, and the concept of sustainable
    development
  • (ISD p 193)

81
III. C.. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR
PRINCIPLE OF INTERNATIONAL LAW? Gabcikovo-Nagymaro
s Project (Hungary/Slovakia) Paragraph
140. Owing to new scientific insights and to a
growing awareness of the risks for mankind for
present and future generationsnew norms
and standards have been developed, set forth in a
great number of instruments during the last two
decades. Such new norms have to be taken into
consideration, .This need to reconcile economic
development with protection of the environment is
aptly expressed in the concept of sustainable
development. Italics added.(ISD p 193)
(continued)
82
C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR
PRINCIPLE OF INTERNATIONAL LAW?Gabcikovo-Nagymaro
s Project (Hungary/Slovakia) (1997)
  • International Court of Justice decided that
  • For the purposes of the present case, this means
    that the Parties together should look afresh at
    the effects on the environment of the operation
    of the Gabcikovo power plant. Italics added
  • In particular they must find a satisfactory
    solution for the volume of water to be released
    into the old bed of the Danube and into side-arms
    on both sides of the river.
  • David Hunter, James Salzman, Durwood Zaelke,
    International Environmental Law and Policy, 2d
    Edition, Foundation Press (2002), p. 338

83
III. C.. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR
PRINCIPLE OF INTERNATIONAL LAW?
Gabcikovo-Nagymaros Project (Hungary/Slovakia)
(1997) As pointed out by Kiss, in the case
concerning the Gabcikovo-Nagymaros Project
(Hungary/Slovakia) in 1997, the ICJ explained the
concept of sustainable development, though in a
dissenting opinion, argued that sustainable
development is a principle of international
law. (ISD p 194)
84
III. C. SUSTAINABLE DEVELOPMENT A DUTY AND SIX
PRINCIPLES These are the duty and six principles
of international law in the field of sustainable
development that Professor Kiss indicates have
been proposed to establish its concrete
content 1. The duty of the States to ensure
sustainable use of natural resources. The
principles of 2. equity and the eradication of
poverty. 3. common but differentiated
responsibilities. 4. the precautionary
approach to fields such as health, natural
resources and ecosystems. 5. public
participation and access to information and
justice. 6. good governance. 7.
integration and interrelationship, in particular
in relation to human rights and social, economic
and environmental objectives. (A.Kiss,"Ac
ademy Public Lectures on International
Environmental Law,"IUCN Academy of Environmental
Law p. 9 ISD pp 196-198)
85
III. C. SUSTAINABLE DEVELOPMENT IMPLEMENTING
THE SIX PRINCIPLES As Kiss points out these
principles must be implemented through policies
dealing with such matters as land-use planning,
energy, soil protection, education, and capacity
building. Kiss further points out that
implementation of each such policy involves a
legal measures, b good institutions, and c
good norms, and that among these legal measures
are international conventions, constitutional
provisions, statutes providing basic services
such as water, statutes protecting the
environment, relevant regulations, and
judicial decisions. (A.Kiss,"Academy Public
Lectures on International Environmental Law,"IUCN
Academy of Environmental Law pp. 14-15 ISD p
199)
86
SUSTAINABLE DEVELOPMENT A DUTY AND SIX
PRINCIPLES
  • In the Gabcikovo-Nagymaros Dam case, the ICJ
    agreed that for the purposes of the present
    case, this need to reconcile norms dealing with
    economic development with norms for the
    protection of the environment means that the
    Parties together should look afresh at the
    effects on the environment of the operation of
    the Gabcikovo power plant. Bosselmann, The
    Principle of Sustainability, p. 56. Italics
    added.
  • Klaus Bossermann While the Court stopped short
    of saying that sustainable development is a
    principle with normative value, footnote
    omitted it did certainly confirm its guiding
    function, which Peter Sands interprets as the
    Courts recognition that the term has a legal
    function. Bosselmann, The Principle of
    Sustainability, p. 56.

87
III. C. SUSTAINABLE DEVELOPMENT A GENERAL
CONCEPT Sustainability is a general concept
and should be applied in law in much the same way
as other general concepts such as liberty,
equality and justice. New Zealand Ministry for
the Environments Working Paper November 24, 1989,
quoted by Klaus Bosselmann, New Zealand Centre
for Environmental Law, The University of
Auckland, Faculty of Law in The Environmental
Jurisprudence of International Tribunals making
sustainability count
88
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS
Source Antonio A. Oposa Jr.
89
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS 1.
CHARACTERISTICS OF ENVIRONMENTAL TREATIES Kiss
and Shelton describe seven main features of
environmental treaties 1.an emphasis on national
implementing measures being taken by the
states parties 2. the creation of international
supervisory mechanisms to review compliance by
states parties 3. simplified procedures to
enable rapid modification of the treaties 4. the
use of action plans for further measures 5. the
creation of new institutions or the utilization
of already existing ones to promote continuous
cooperation 6. the use of framework agreements
and 7. interrelated or cross-referenced
provisions from other environmental
instruments. (ISD p 201)
90
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS
  • 2. The UNEP Global Judges Symposium Status
    (2002)
  • (ISD, p. 203) lists 5 Multilateral Environmental
    Agreements to be ratified
  • Amendment to the Basel Convention on the Control
    of Transboundary Movements of Hazardous Wastes
    and their Disposal,
  • Basel Protocol on Liability and Compensation for
    Damage Resulting from Transboundary Movements of
    Hazardous Wastes and their Disposal now
    ratified,
  • Kyoto Protocol to the United Nations Framework
    Convention on Climate Change now ratified,
  • Rotterdam Convention on the Prior Informed
    Consent Procedure for Certain Hazardous Chemicals
    and Pesticides in International Trade (PIC) now
    ratified, and
  • Stockholm Convention on Persistent Organic
    Pollutants (POPs) now ratified.

91
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS
  • 3. UNEPs Global Judges Symposium Status lists
    13 Multilateral Agreements which have been
    ratified but need assistance in implementation
  • Convention on the Conservation of Migratory
    Species of Wild Animals,
  • Convention on International Trade in Endangered
    Species of Wild Fauna and Flora (CITES),
  • Convention on Biological Diversity,
  • Cartegena Protocol on Biosafety to the Convention
    on Biological Diversity,
  • Basel Convention on the Control of Transboundary
    Movements of Hazardous Wastes and their
    Disposal,
  • Vienna Convention for the Protection of the Ozone
    Layer, (continued on next slide)
  • (ISD p 203)

92
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS
  • 3. The UNEP Global Judges Symposium Status
    lists 13 Multilateral Agreements which have been
    ratified but need assistance in implementation
    (cont'd)
  • 7. Montreal Protocol on Substances that Deplete
    the Ozone Layer,
  • 8. United Nations Framework Convention on
    Climate Change (UNFCCC),
  • 9. UN Convention to Combat Desertification in
    those Countries Experiencing Serious Drought
    and/or Desertification, Particularly in Africa
    (UNCCD),
  • 10. UN Convention on the Law of the Sea (UNCLOS),
  • 11. Convention for the Protection of the World
    Cultural and Natural Heritage,
  • 12. Convention on Wetlands of International
    Importance Especially as Waterfowl Habitat
    (RAMSAR), and
  • 13. Convention on Access to Information, Public
    Participation in Decision-Making and Access to
    Justice in Environmental Matter (AARHUS). (ISD p.
    203)

93
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS
  • Beyond this list of Multilateral Environmental
    Agreements from UNEP Global Judges Symposium, the
    following agreements dealing with nuclear issues
    are relevant to the protection of the
    environment
  • Vienna Convention on Civil Liability for Nuclear
    Damage 1963
  • Treaty on the Non-Proliferation of Nuclear
    Weapons (1968)
  • Convention on Early Notification of a Nuclear
    Accident (1986)
  • Convention on Assistance in the Case of a Nuclear
    Accident or Radiological Emergency (1986).
  • Linda A. Malone, Environmental Law, 2nd Edition,
    Emanuel Law Outlines, Wolters Kluwer, p. 213.

94
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS
4. SUSTAINABLE DEVELOPMENT AND TREATIES a.
Perhaps the most significant MEA in support of
sustainable development is the UN Framework
Convention on Climate Change, a treaty that has
been signed by more than 175 nations and for
which the total number of ratifications/accessions
/ acceptances near 170 throughout the world. As
he first sentence of paragraph 4 of Article 3 of
this UN Convention states, The Parties have a
right to, and should, promote sustainable
development. Italics added for emphasis. (ISD
p 203) (Note that this reference to sustainable
development does not in itself make sustainable
development a legal principle because to become
a legal principle a law-creating act or process
is necessary. Klaus Bossermann, The Principle
of Sustainability Transforming Law and
Governance, Ashgate (2008), page 45.)
95
III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS 4 .
SUSTAINABLE DEVELOPMENT AND TREATIES b. The UN
Framework Convention on Climate Change further
provides in paragraph 1(d) of Article 4 that
Parties to this Convention must promote
sustainable management emphasis added, and
promote and cooperate in the conservation and
enhancement, as appropriate, of sinks and
reservoirs of all greenhouse gases not
controlled by the Montreal Protocol, including
biomass, forests and oceans as well as other
terrestrial, coastal and marine ecosystems.
Thus, the concepts of sustainable development
and sustainable management have a firm foundation
in a treaty with almost universal acceptance.
(ISD p 201)
96
  • III. D. PROBLEMS ASSOCIATED WITH MEAs
  • GOVERNANCE
  • a. One of these problems arises from the large
    number of MEAs. Professor Daniel Estes and Maria
    Ivanova, Director of the Global Environmental
    Governance Project at Yale, indicate that there
    are more than 500 multilateral environmental
    agreements, more than a dozen international
    agencies share environmental responsibilities,
    and yet environmental conditions are not
    improving across a number of critical
    dimensions.
  • (ISD p 202)

97
III. D. PROBLEMS ASSOCIATED WITH MEAs 1.
GOVERNANCE--scattered financial
mechanisms b. Estes and Ivanova suggest that the
implementation gap may be the biggest single
obstacle to environmental progress at the global
scale and that this gap is caused by the lack
of an action orientation. They also indicate
that the implementation gap arises in part from
the existing financial mechanisms scattered
across the Global Environment Facility, UNEP,
the World Bank, and separate treaty-based funds
such as the Montreal Protocol Finance
Mechanisms. (ISD p 202) They explain that few
international environmental agreements contain
serious enforcement provisions. (ISD p 202)
98
III. D. PROBLEMS ASSOCIATED WITH MEAs--c.
scattered financial mechanisms for Multilateral
Environmental Agreements for example, the Global
Environmental Facility (GEF),which finances the
Convention on Biological Diversity, UN Framework
Convention on Climate Change, UN Convention to
Combat Desertification, and Stockholm Convention
on Persistent Organic Pollutants
  • The GEF-4 funding period began in November 2006.
    32 donor countries pledged 3.13 billion to the
    fourth GEF Replenishment, which will fund
    operations until June 30, 2010.
  • The 32 donors to the fourth replenishment are
    Australia, Austria, Belgium, Canada, China, Czech
    Republic, Denmark, Finland, France, Germany,
    Greece, India, Ireland, Italy, Japan, Korea,
    Luxembourg, Mexico, Netherlands, New Zealand,
    Nigeria, Norway, Pakistan, Portugal, Slovenia,
    South Africa, Spain, Sweden, Switzerland, Turkey,
    the United Kingdom, and the United States.
  • Strategies for the six focal areas of the GEF and
    for two cross-cutting areas (sustainable forest
    management and sound chemicals management)
    include
  • Biodiversity
  • Climate Change
  • International Water
  • Land Degradation
  • 5) Ozone Layer Depletion
  • 6) Persistent Organic Pollutants 
  • (gefweb.org)

99
What are some key MEA problems (contd.)
  • d. UNEPs annual budget of 171,000 million
    for 2008-2009 is comparable to and sometimes less
    than that of many environmental non-governmental
    organizations (NGOs). www.unep.org/gc/gcss-x/downl
    oad.asp?ID979
  • i) UNEP does not possess executive powers
    instead, its primary function is to monitor and
    coordinate environmental governance, which
    includes engaging in partnerships with other
    intergovernmental and non-governmental
    organizations. footnote omitted
  • Klaus Bosselmann, The Principle of
    Sustainability Transforming Law and
    Governance,Ashgate (2008) p. 181.
  • ii) Perceived ineffectiveness of UNEP has been
    linked primarily to the organizations
    geographical isolation in the UN system Kenya,
    an insufficient mandate engage in partnerships,
    lack of support from governments and a low
    budget. footnote omitted
  • Klaus Bosselmann, The Principle of
    Sustainability Transforming Law and
    Governance,Ashgate (2008) p. 181.
  • (See ISD pp 205 and 207)

100
What are some key MEA problems (contd.)
  • 2. Lack of public participation. When governments
    are reluctant to complain about another
    governments failure to comply with an
    environmental standard established in an MEA,
    people need to speak up, perhaps through an
    environmental NGO. Our future depends on public
    vigilance!
  • 3. Lack of environment compliance indicators
  • -- measuring and reducing pollution
  • --measuring improved environmental conditions
    such as water quality

101
4. RATIFICATION OF TREATIES--Problems An
environmental law professor Amber Pant of the
Tribhuvan University Faculty of Law notes that
Nepal has more than 100 sector legislative acts
that bear on the environment. Of these, 20 are
environmental treaties to which Nepal has become
a signatory. However, Pant points out, It
would be wrong to say that we have legislation
for every treaty to which Nepal is a party. He
goes on to state that this would not be
possible unless we suggest to the Government
that they draft legislation. emphasis added
Pant closes by suggesting the need is to find
funds to engage experts to prepare draft
legislation for the consideration of governmental
authorities. (ISD p 205)
102
III. D. PROBLEMS ASSOCIATED WITH MEAs 4.
RATIFICATION OF TREATIES Some countries
have a two-step procedure wherein a treaty may
become binding under international law, but years
may pass before appropriate implementing domestic
legislation is enacted. The case of Nepal
provides an example. (ISD p 205)
103
III. D. PROBLEMS ASSOCIATED WITH MEAs 5. WORLD
TRADE ORGANIZATION (WTO), AGRICULTURAL SUBSIDIES,
AND TRADE BARRIERS The treaty establishing WTO
is likely one of the most important multilateral
environmental agreements in the world, because
it deals with a great many environmental issues
under the heading of trade. Note the preamble to
the treaty establishing WTO states the
Parties...recognize that their relations in the
field of trade and economic endeavor should be
conducted with a view to raising the standards
of living while allowing for optimal use of the
worlds resources in accordance with the
objective of sustainable development. (ISD p
207 emphasis added) Professor Klaus Bosselmann
The trump card of the WTO is efficiency of
free trade, although the principle of
sustainability is indirectly referred to in the
Preamble of the GATT p.69.
104
III. D. PROBLEMS ASSOCIATED WITH MEAs 4. WORLD
TRADE ORGANIZATION (WTO), AGRICULTURAL SUBSIDIES,
AND TRADE BARRIERS (contd)
  • For example, there is legislation in the US
    about net fishing, enacted to save the dolphin,
    the sea turtle, and other endangered marine
    species. However, these laws can be construed as
    a restriction on trade and thus subject to the
    jurisdiction of the WTO emphasis added (ISD p
    209)

105
III. D. PROBLEMS ASSOCIATED WITH MEAs 4. WORLD
TRADE ORGANIZATION, AGRICULTURAL SUBSIDIES, AND
TRADE BARRIERS a. Dolphins If Mexico ships
fish to the US that were caught in violation of
US legislation, someone can appear before the
relevant bodies of WTO, which might decide the
case in a manner not pleasing to environmental
advocates. In this regard it is of interest
to note that in cases involving net fishing for
tuna that resulted in catches of dolphins, recent
WTO decisions have recognized the role of NGOs in
advancing rules implementing international law.
In these WTO cases, the US sought to require
Thailand and others to certify that techniques
for catching tuna were safe for dolphins.
emphasis added (ISD p. 207)
106
4. WORLD TRADE ORGANIZATION, AGRICULTURAL
SUBSIDIES, AND TRADE BARRIERS b. Effect on the
Environment A second example relates to the
rules permitting agricultural subsidies and the
creation of trade barriers. These rules can have
a profound effect on the environment. For
example, subsidies can often result in wasteful,
overproduction of goods and services that
unnecessarily deplete natural resources in the
country providing such subsidies. Similar
problems may arise from trade barriers, which can
prevent the sale of economically and
environmentally sound goods and services
originating in countries outside of such trade
barriers. emphasis added (ISD p 208)
107
III. D. JOHANNESBURG PRINCIPLES ON THE ROLE OF
LAW AND SUSTAINABLE DEVELOPMENT On August 20,
2002, judges representing 59 countries at the
Global Judges Symposium on Sustainable
Development and the Role of Law adopted the
Johannesburg Principles on the Role of Law and
Sustainable Development. (ISD p 213)
108
III. D. JOHANNESBURG PRINCIPLES ON THE ROLE OF
LAW AND SUSTAINABLE DEVELOPMENT 2. The second
page of the Principles emphasizes the concept of
sustainable development, including reducing
poverty, for the present and succeeding
generations We emphasize that the fragile state
of the global environment requires the
Judiciary as the guardian of the Rule of Law, to
boldly and fearlessly implement and enforce
applicable international and national laws,
which in the field of environment and
sustainable development will assist in
alleviating poverty and sustaining an enduring
civilization, and ensuring that the present
generation will enjoy and improve the quality of
life of all peoples, while also
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