International Environmental Law Introduction

Principles of Law

Commentators are often at a loss about what to include under the rubric of general principles of law. Therefore, they resort to some of the incontrovertible elements of any legal system – such as that violation of an agreement involves an obligation of restitution and the principle of good faith or estoppel. The role of equity as a principle of international law has been contested. Although international tribunals have used the principle of equity in a number of renowned cases regarding the delimitation of the continental shelf or the allocation of water sources, it has been argued that equity is an all-encompassing concept that introduces an unacceptable amount of uncertainty in international law. Some commentators, by contrast, view equity as a normative principle of international law.

Other Sources

Court Decisions

Decisions of the ICJ, arbitration tribunals, and national courts, although presented in article 38 as subsidiary sources of international law, are of importance in shaping expectations about the legitimacy and likelihood of success of different claims made under international law. States in their pleadings before courts often refer to prior decisions of international and domestic tribunals and the International Court of Justice itself, although not bound by the principle of stare decisis, frequently refers to its prior decisions.

Teachings of Scholars

The work of scholars is influential in further shaping the development of international law. This is especially the case with new evolving concepts of international environmental law, such as the polluter pays principle or the precautionary principle, which require further clarification for their successful application.

Soft Law Instruments

Other sources of law include decisions, recommendations, declarations, and resolutions of various institutions that have been established under international law. This is what has been called in some circles “soft law,” which, in contrast to “hard law” (e.g., treaties, custom), does not have a binding character on state behavior.

Despite its nonbinding character, soft law has the capability of creating expectations that shape the future direction of international law. It is not rare for a norm, articulated in a soft law instrument, to be incorporated into a treaty later and, thus, to become a state obligation. The transformation of soft law instruments into binding requirements is part of the norm creation in international law. Soft law instruments in conjunction with a set of international norms (such as treaties) solidify expectations and generate impetus for consistent future behavior of states and other international actors.

Content

After deciding on the type of instrument that would be most effective in addressing an environmental problem, policy makers must make a choice about the policies to be incorporated in that instrument. In domestic arenas, significant emphasis has been placed on regulatory approaches, called command-and-control regulations, that specify the standards and often the technologies that industry should adopt in order to be in compliance.

Economic instruments are relatively new regulatory instruments, the purpose of which is to provide incentives for industry to comply. Economic instruments can take the form of taxes or subsidies. A particular fuel, for instance, such as petroleum, could be taxed to discourage its use. Renewable technology could be subsidized to encourage its wide application. Overall economic instruments that could be used to change industry and consumer behavior include taxes on polluting products such as fuels, fertilizers, pesticides, tax differentiation (between eco-friendly and polluting products), user charges (charges for using water or for mineral exploitation), and subsidies.

The problem with economic instruments is that political will needs to be invested in them to be adopted and then implemented. In order for taxes to influence a specific behavior, they often need to be set quite high; this could cause industry or consumer backlash. The fate of carbon tax within the European Union is well known.

Subsidies and other economic vehicles must be carefully calibrated; otherwise, they may spur wasteful investment. Other instruments such as tradable discharge permits and transferable quotas have been used in domestic arenas as more flexible methods to reduce pollution.

There is another problem with economic instruments and their application in the international arena. Economic instruments, such as tradable permits, tend to be complex instruments and demand a level of institutional maturity that has yet to be attained in many international institutions. Also, the more complex the instrument, the harder it would be to enforce it, given the fragmented enforcement possibilities available in the international system. And this is true not only for economic instruments but also for any other complex regulatory instrument. For instance, the MARPOL Treaty was initially based on effluent discharges and, as such, it was difficult to monitor and enforce. Since the treaty has switched from effluent discharges to technological standards, it has functioned better. This is because the adoption of new technology in a ship is easily monitored by a simple inspection, whereas what ships do in the high seas and the types or quantity of pollutants they discharge can be hardly monitored. Often, the effectiveness of international regimes has to do with the straightforward nature of standards they provide.

Most international instruments that have been adopted follow the conventional command-and-control approach. With the exception of climate change and ozone protection instruments, which marginally flirt with incentive generation, most of international conventions still prescribe standards and, increasingly, procedures for the application of environmental law. Such procedures involve extensive reporting requirements and the provision of information and data that is sorely lacking in many domestic and international fora. The lack of credible data has undermined international lawmaking and crippled the ability of international institutions to monitor state behavior effectively. Many problems in the implementation of international environmental law have to do with the lack of data that would function as a baseline for assessing future pollution reduction and resource exploitation.

PERSPECTIVES

Developed Countries

Environmental deterioration was put in front of Western audiences with the publication of Silent Spring, a book that touted the adverse effects of pesticides, and primarily DDT, on ecosystems and human health. The book galvanized the environmental movement and launched a number of regulatory instruments in the United States with zero pollution as a goal. Although European countries initially exhibited a less risk-adverse attitude than the United States, they gradually developed equally complicated regulatory systems for environmental protection. The evolution of the European Community environmental legislation from an enumeration of environmental goals to the prescription of detailed procedures for standard application is documented.

Although there have been ebbs and flows in the development of environmental regulations – ebbs usually associated with economic deflation and flows with economic prosperity – one can certainly detect an increase in the sophistication and in the number of international environmental standards. Because of the costs that such standards impose on industries, as industries have to revamp their technologies to become more environmentally friendly, it has been proposed that the command-and control approach of environmental regulation must be supplemented with economic incentives. Various instruments have been proposed that would allow companies to choose not only the most effective way but also the most efficient way to meet environmental standards. Tradable emission allowances have been implemented in some developed countries as a way to reduce the costs of pollution prevention.

Property rights have been allocated to fishers in the hope of abating overfishing and the depletion of fish stocks. Compliance with and enforcement of environmental standards is not perfect. After all, some lack of compliance is endemic in all regulatory systems. Compliance with environmental regulations does not seem to be worse than compliance with other regulatory instruments to the point that some commentators even talk of over-compliance with environmental regulations. Compliance with environmental standards is evident in the better air quality in most cities of the developed world, the relatively cleaner beaches, and the restitution of the ozone layer.

Still, however, a lot remains to be accomplished in terms of restoring damaged ecosystems.

Developing Countries

During colonial times, environmental legislation in developing countries was generated by colonial governments and was resented by local people. Colonial governments were the first to impose environmental management accompanied with strict enforcement to protect natural areas that were previously free access areas. These areas were enclosed, called “nature reserves,” and were removed from consumptive use. The 1933 Convention Relative to the Preservation of Fauna and Flora in their Natural State was one of the first international conventions adopted for the protection of biodiversity. The convention presents many similarities with the exclusionary conservation conventions adopted in later years.

According to the preamble of the convention, “the natural fauna and flora of certain parts of the world, and in particular Africa, are in danger, in present conditions, of extinction and permanent injury.” According to the framers of the convention, such preservation of natural resources can be achieved best by

(i) The constitution of national parks, strict natural reserves, and other reserves within which the hunting, killing, or capturing of fauna, and the collection or destruction of flora shall be limited or prohibited,

(ii) The institution of regulation concerning the hunting, killing, and capturing of fauna outside such areas,

(iii) The regulation of the traffic in trophies,

(iv) The prohibition of certain methods of and weapons for the hunting, killing, and capturing of fauna.

The convention went as far as to establish a list of Class A (strict protection) and Class B (less strictly protected than Class A species) species whose hunting must be prevented even by the “natives.” According to article 8(1), Animals belonging to the species mentioned in Class B, whilst not requiring such rigorous protection as those mentioned in Class A shall not be hunted, killed, or captured, even by natives, except under special license granted by the competent authorities.

Many governments that were established after the demise of colonialism adopted similar exclusionary policies for protected areas. Exclusionary polices brought vast land areas under state control and confirmed the authority of newly established national governments over territories resided by people of diverse tribal and other affiliations. Protected areas were pursued as a good source of foreign exchange – income brought by tourism or safaris or donors willing to shoulder the cost of land preservation. The exclusion of resident peoples from restricted nature reserve areas was, and is still, such a constitutive element of preservation efforts that some commentators have characterized it “coercive conservation.” Chapter 7 provides more details on the phenomenon of coercive conservation and how it has affected environmental policies.

Putting aside the pursuit of protected areas, however, most developing countries, when they entered the international arena as independent sovereign states, were faced with environmental problems that were of different nature than those experienced by developed countries. Such problems included the spread of various infectious diseases, unsafe drinking water, and a lack of adequate food supply and housing.

Some respected scientists have argued that the spread of malaria in some developing countries justifies the use of DDT, a substance prohibited for use in many developing and developed countries, underlying the different nature of problems and appropriate solutions for different areas of the world.

Because of the urgent problems that many developing countries face, they have been slow to adopt stringent environmental laws or have been reluctant, once they adopt such laws, actually to enforce them. Lack of enforcement in developing countries is indicative of both the lack of capacity but also a certain lack of will, as many developing countries are content to sacrifice more of their environmental protection in the pursuit of their development goals. Developing countries often have argued that developed countries were allowed to despoil their environment in order to develop and that they, developing countries, should achieve some level of development before they implement environmental measures. Developing countries argue that, after some level of development and wealth is achieved, the pursuit of environmental quality should follow, as it has happened in developed countries.

Given the different priorities of developing countries, it is not surprising that, when developing countries understood that the North was attempting to impose, through international lawmaking, its own environmental standards on them, they were less than willing to comply. The different views of developing countries were made evident during the Rio Conference and in the subsequent negotiations of international regimes, such as the ozone regime and the climate change regime.

During these negotiations, developing countries asked in effect for compensation for their participation in the functioning of international environmental laws that they deemed served primarily the interests and concerns of developed states. Financial compensation in exchange for environmental performance became the cornerstone of the ozone protection and climate change regimes.

HISTORICAL EVOLUTION

Stockholm

In the late 1960s, as the environmental movement was emerging, the Swedish delegation asked the United Nations to convene a conference on the environment. The immense coordinating effort that such a conference required was put together by Canadian Maurice Strong, who was to become the first Executive Director of UNEP, the first UN institution devoted exclusively to the protection of the environment.

The Stockholm Conference produced the Stockholm Declaration on the Human Environment. Some believed that the declaration should begin with a sweeping articulation of every human being’s right to a wholesome environment. A rights approach, however, did not prevail. The declaration adopted an anthropocentric approach to the protection of the environment, as the full title of the declaration denotes: “Declaration of the United Nations Conference on the Human Environment.”

In the first article of the declaration, an explicit linkage is formulated between human rights and the conditions of living in an environment of quality. According to Principle 1: Man has a fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being [emphasis added].

The declaration contains the seeds of provisions that were espoused by subsequent legislative instruments. For instance, Principle 2, which refers to the rights of “future generations,” could be considered a distant predecessor of the intergenerational equity principle. Principle 9 refers to the special environmental problems caused by underdevelopment, which “can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance . . . , ” making, thus, indirect allusion to the right to development that is articulated later in the Rio Declaration. Principle 12 is an expression of the principle of additionality – the fact that additional financial assistance must be given to developing countries in order to enable these countries to protect the environment.

The principle of additionality was discussed extensively during the climate change and ozone negotiations.

A well-known provision of the Stockholm Declaration is Principle 21. Principle 21 serves a double function. It asserts the sovereign right of states to exploit their natural resources, but it also provides for the responsibility [of states] to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.

Principle 21 has launched a debate over the establishment of “international liability” of states for harmful activities that occur under their control but cause damage to the environment of other states.

The rest of the 1970s and the 1980s witnessed the accumulation of many environmental instruments. Some of these instruments have played an important role in defining environmental problems in a global or a regional setting. Some of these instruments include the 1972 London Dumping Convention, the Convention on the Trade in Endangered Species (CITES Convention), the UNEP Regional Seas Program, the MARPOL Convention with regard to pollution by ships, the Bonn Convention on the protection of migratory species, and the LRTAP Convention on transboundary air pollution. From a regulatory viewpoint, most of these treaties rarely provided clear standards for action that would bind states to certain outcomes.

As these legislative instruments are maturing, their regulatory vise tightens and the inclusion of a command-and-control approach becomes clearer in most of the instruments and, especially, in the instruments that regulate pollution among developed countries.

A decade after the adoption of the Stockholm Declaration, the World Charter for Nature was adopted by the General Assembly.139 The Charter was sponsored by thirty-four developing nations and was drafted by the International Union for the Conservation of Nature (IUCN) and independent experts. The Charter is divided into General Principles, Functions, and Implementation. The General Principles provide that nature must be respected and that the habitat and life forms must be safeguarded to ensure their survival. The Functions component of the Charter recommends controls on economic development and consideration for the long-term capacity of ecosystems to support human use. The Implementation component encourages countries to adopt domestic and international legislation, develop ecological education, set up funding and administrative arrangements, encourage public participation and planning, assess the impact of military activities on the environment, and establish administrative regulations. The Charter recommends the application of the environmental impact assessment. Some developing countries opposed the inclusion of environmental impact assessment as they claimed that they were unable to conduct environmental impact assessments of the caliber of assessments performed by developed countries. Other countries objected to the provision of the Charter encouraging the use of best available technology. Some developing countries claimed that the provision makes developing countries, in effect, dependent on developed countries for technology transfers.

Another important development that paved the way to the Rio Summit was the publication of “Our Common Future” in 1987 by the World Commission. The World Commission was created by a 1983 UN General Assembly Resolution and was assigned the task of looking at environmental and development issues and proposing better ways to address them. “Our Common Future” also called the “Brundtland Report” after the chairman of the World Commission (Gro Brundtland), provides a comprehensive overview of various global issues. Such issues include sustainable development, the international economy, the debt crisis, food security, species, ecosystems, industry, the urban challenge, peace and the arms race, climate change, and ozone depletion. A concept that reverberated long after the Brundtland report was completed is the concept of sustainable development, defined as development that satisfies the needs of present generations without jeopardizing the ability of future generations to meet their needs.

In 1989, the UN General Assembly, noting the Brundtland Report, called for the UN Conference on Environment and Development.

Rio de Janeiro

The UN Conference on Environment and Development (or Earth Summit) was held in Rio de Janeiro between June 3 and June 14, 1992, with the participation of an unprecedented number of NGOs. It produced a number of instruments that have shaped the development of international environmental law until today – the Rio Declaration on Environment and Development, Agenda 21, the Non-Binding Principles on the Sustainable Development of all Types of Forest, the Treaty on Biological Diversity, and the Treaty on Climate Change. The negotiating history of the Rio Declaration is interesting because it demonstrates the divergence of views between developed and developing countries about the purpose of environmental lawmaking. Some developed countries and NGOs wanted the Rio Summit to conclude with an “Earth Charter” that would concentrate strictly on environmental issues. Such a charter was immediately rejected by G-77 and China as an endorsement of environmental protection at the expense of development. Eventually, the title “Earth Charter ” was dropped because the final version of the Rio Declaration failed to assume a purely environmental focus.

Principle 1 of the Rio Declaration reaffirms the anthropocentric character of international environmental law that was evident in the Stockholm Declaration. Principle 1 states that “[h]uman beings are at the centre of concerns for sustainable development.” The anthropocentric character of the declaration was preserved because of the persistence of G-77 countries that argued that the Rio Conference was about people and their right to development. Western NGOs and governments, however, had preferred a more ecological and less anthropocentric orientation of the declaration. Developing countries influenced many of the provisions of the declaration including the articulation of a right to development, the definition of sustainable development, the focus on eradication of poverty and on the special needs of developing countries.

Another principle that acquired a more concrete articulation in later treaties is the principle of common but differentiated responsibilities, which clarifies that all countries have responsibility to take measures to protect the environment but that, because “of the different contributions to global environmental degradation, States have common but differentiated responsibilities.”

Developed countries pushed for the inclusion of environmental provisions and provisions that promote transparency in decision making. The participation of citizens in the handling of environmental issues and the right to access to information especially with regard to hazardous activities are included in the declaration under the insistence of developed states.

Furthermore, Principle 15 constitutes a careful articulation of the “precautionary approach” that “shall be widely applied by States according to their capabilities.” According to the precautionary approach, as endorsed in the declaration: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. As analyzed later in these papers, the precautionary principle has been quite controversial.

There have been concerns that the precautionary principle can be used as a trade barrier and could create a bias against new technologies and processes based on mere fear rather than scientific evidence.

Another principle that was adopted in Rio under the pressure of developed countries is the “polluter pays principle.” It has been frequently said that polluters cause externalities (air emissions, water pollution) that are not borne by them exclusively but by the society as a whole. It has been claimed that if polluters are made to internalize (incorporate into the price of products and processes) the costs of pollution, pollution would subsequently be reduced. The final bearer of the costs of pollution, however, is the consumer, as industry passes on at least some of the cost of prevention of environmental degradation to the consumer. The question then is whether the consumer will be willing to internalize the costs of environmental degradation of products s/he uses. It is interesting to note that states have been reluctant to adhere to a strict polluter pays principle at the interstate level. After the Chernobyl disaster, none of the countries affected by the accident requested damages from the Soviet Union for the repercussions of the accident on its territory. Furthermore, some conventions are based on a solidarity rationale – in the sense that “victims” of pollution and “perpetrators” share in the cost of managing an environment problem – rather than on a strict polluter pays principle.

Principle 7 is an enunciation of the requirement to apply environmental impact assessment “for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”

A treaty on Environmental Assessment had been adopted a year before the UNCED Conference under the auspices of the UN/ECE.

Principle 19 articulates the duty of states to notify and consult with other states regarding activities that may have “a significant adverse transboundary environmental effect.” The duty of notification and consultation has been included in many environmental instruments. Whether states do indeed notify and consult with their neighboring countries on activities that are likely to have damaging transboundary effects, however, probably depends on the interstate relationships in a region.

Principle 2 is a rearticulation of Principle 21 of the Stockholm Declaration that reaffirms the sovereignty of states over their natural resources. It is repeated in the principle that states have “the responsibility to ensure that activities within their jurisdiction and control do not cause damage to environment of other Sates or of areas beyond the limits of national jurisdiction.” Principle 22 recognizes the role of indigenous peoples in environmental and developmental matters and encourages states to enable the effective participation of indigenous peoples in the pursuit of sustainable development.

Some commentators were disappointed by the outcome of the Rio Declaration, characterizing it as a step back from Stockholm. The disappointment had to do with the fact that the declaration failed to deal with environmental concerns in a clear fashion and became infused, instead, with disparate provisions hard to hold together in a cohesive text. Others have appraised the declaration more positively as an honest articulation of the needs and desires of a world comprised of countries with different levels of industrialization and wealth.

Agenda 21 is the multi voluminous voluntary agenda that was adopted by states at the Rio Conference. The agenda proposes the adoption of a number of national, regional, and global measures to address environmental problems and to promote sustainable development.

Agenda 21 covers a vast array of environmental issues including the protection of atmosphere and biodiversity; the protection of seas and oceans and integrated coastal zone management; the management of chemicals and hazardous and radioactive wastes; issues of poverty and population control; and the role of workers, trade unions, business and industry, farmers, and indigenous peoples in the promotion of sustainable development.

Agenda a section on implementation. According to Agenda 21, the implementation of environmental legislation requires financial resources, technology transfers to developing countries, capacity building at the local and international levels, education, increase in public awareness and training, and international institutional development.

Agenda 21 recommended the establishment of the Commission on Sustainable Development (CSD). The Commission on Sustainable Development was established as a functional commission of the ECOSOC. According to the General Assembly resolution, that established CSD, the role of the CSD is to monitor the progress of Agenda 21 by gathering information from various sources; reviewing the access to financial, technological, and other resources; and serving as a forum for the discussion of environmental and developmental issues.

After the UNCED Conference, there were many legislative activities to update many of the 1970s and 1980s instruments, in accordance with the UNCED provisions, including the incorporation of the polluter pays principle and the precautionary principle, as well as more specific standards and regulations.

Johannesburg

The Johannesburg summit or World Summit on Sustainable Development (WSSD) was held in 2002, ten years after the Earth Summit. The WSSD was somewhat a disappointment for environmentalists who would have liked the adoption of new more stringent standards and timetables for the accomplishment of environmental objectives. In fact, many NGOs denounced the summit as a failure. United Nations officials were relieved, by contrast, that the conference did not completely break down. Several of the targets and timetables that were proposed in the summit were eventually eliminated or diluted. For instance, a proposal by the European Union and some Latin American countries to adopt a numerical goal for the amount of energy to be obtained from renewable resources was opposed by the oil-producing countries and the United States. The final provision adopted provided for an increased reliance on renewable resources without providing for a specific target.

The summit adopted two documents: the Declaration on Sustainable Development and the Plan of Implementation.

The declaration moves the environmental agenda closer to the concerns of developing countries. Some of the provisions of the declaration include:

• The focus on human dignity;

• The allusion to sustainable development as based on three pillars – economic development, social development, and environmental protection;

• The focus on the reduction of poverty and on reducing the gap between the rich and the poor;

• The challenge of globalization;

• The focus on Least-Developed Countries and Small Island States;

• The need to develop “more effective, democratic, and accountable” institutions.

The Implementation Plan provides targets for social issues facing mostly developing countries and sets specific goals such as:

• Halving by the year 2015 the proportion of world’s people whose income is less than $1 per day, and the proportion of people suffering from hunger;

• Achieving significant improvement in the lives of at least one hundred million slum dwellers by 2020;

• Halving by the year 2015 the proportion of people without access to safe drinking water

• Reducing by 2015 the mortality rates for infants and children less than five by two thirds and maternal mortality by three-quarters, using as a baseline the 2000 mortality rate;

• Reducing the HIV/AIDs infection among young people aged fifteen to twenty-four by 25 percent in most affected countries by 2005, and globally by 2010, and supporting a global fund to fight AIDs, malaria and tuberculosis;

•Ensuring that by 2015 all children will be able to complete a full course of primary schooling;

• Developing integrated water resources and water efficiency plans by 2005 (including the support of water allocation based on human needs, para. 25 (c));

• Encouraging by 2010 the application of the ecosystem approach to the management of the oceans;

• Maintaining or restoring fish stocks to levels that produce maximum sustainable yield by 2015;

• Achieving significant reduction of the current loss of biological diversity by 2010;

• Encouraging the adoption of a harmonized system for the classification and labeling of chemicals by 2008;

• Aiming to achieve by 2020 the use and production of chemicals that led to the minimization of adverse effects on human health and the environment.

The Implementation Plan refers to the TRIPs (Trade-Related Intellectual Property Rights) agreement, which was adopted as a subsidiary agreement to the treaty that established the WTO. The controversy that surrounded the TRIPs agreement is analyzed later. The TRIPs agreement was viewed by many in the developing world as an agreement designed to protect the interests of large pharmaceutical corporations residing in the North at the expense of the health of people in the developing world. The Implementation Plan, therefore, provides specifically that the TRIPs Agreement does not and should not prevent WTO members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPs Agreement, we reaffirm that the Agreement can and should be interpreted in a manner supportive of WTO’s members’ right to protect public health and in particular to promote access to medicines for all.

Overall, the social and economic provisions included in the Implementation Plan overwhelm the strictly environmental provisions. Reading through the Plan, one gets the impression of going through an economic and social declaration rather than a stricto sensu plan of environmental implementation.

During the WSSD, certain partnerships were fostered among NGOs. According to some commentators, the WSSD strengthened the commitment of states to provide financial sources for the cause of sustainable development.