International Environmental Law PDF

International Environmental Law By Raj Gupta  International Law International Law: It is a set of customary and conventional rules binding upon civilized nations in their relations with each other.  Municipal Law...

International Environmental Law By Raj Gupta  International Law International Law: It is a set of customary and conventional rules binding upon civilized nations in their relations with each other.  Municipal Law ▪ Municipal Law is the national domestic or internal law of a sovereign state. ▪ Municipal law includes many levels of law; not only national law but also state, provincial, territorial, regional or local law. ▪ Municipal law is the law specific to a particular city or country and the government bodies within those cities or countries. ▪ Thus Municipal Law is the acts made by the legislature or the Law making authority of a state, applicable to that state alone.  Difference ▪ International Law is largely but not altogether concerned with relation among states whereas Municipal Law controls relations between individuals within a state and between individuals and the state. ▪ International Law, on the other hand, regulates relations between the member States of the Family of Nations whereas Municipal Law regulates relations between the individuals under the sway of the respective State and the relations between this State and the respective individuals. ▪ Law of Nations is a Law not above, but between Sovereign States. Whereas Municipal Law is a Law of a Sovereign over individuals subjected to his way.  Relation b/w International Law and Municipal Law ▪ It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. ▪ The main differences between international and municipal law are thought to be the sources of law, its subjects, and subject matter. International law derives from the collective will of States, its subjects are the States themselves, and its subject matter is the relations between States. ▪ Whereas Domestic law derives from the will of the sovereign or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government.  Sources of International Environmental Law ▪ The sources of International Environmental Law may be classified into five categories: ▪ International Conventions ▪ International Customs ▪ General Principles of law recognized by civilized Nations ▪ Decisions of Judicial or Arbitral Tribunal and Juristic work ▪ Decisions of determinations of the organs of International Institutions  Introduction of International Environmental Law ▪ It is now widely recognized that the planet is facing a range of environmental challenges, which can only be addressed through international co-operation. Developments in science and technology have enhanced the possibility of understanding the environmental implications of various naturally occurring events as well as human activities. ▪ The last few decades have witnessed an exponential increase in multilateral environmental agreements covering a wide range of issues such as ozone depletion, climate change, loss of biodiversity, toxic and hazardous products and wastes, pollution of rivers and depletion of freshwater resources.  Introduction ▪ International environmental law is a comparatively new branch of international law. It has expanded dramatically over the years particularly since the United Nations Conference on the Human Environment, 1972. ▪ The development of international environmental law has produced mixed results. While some treaty regimes have been effective in producing the desired results (e.g. Vienna Convention on Protection of the Ozone Layer, 1985), some other regimes are struggling to produce results (e.g. United Nations Framework Convention on Climate Change, 1992).  The Development of International Environmental Law ▪ Religious texts may motivate believers in favor of environmental protection. In Judeo-Christian religious traditions, the “dominion” given humans over other living beings in the first of the Creation stories in Genesis has been interpreted not to grant ownership, but rather to establish the right to beneficial use, imposing a type of guardianship or a trust. ▪ Vedic literature (about 1500 BC) clearly speaks that there is an integral balance in Man, Nature and The God. Natural forces were considered to be expressions of the Lord Himself and are venerable entities. Vedas envisage a beautiful natural environment on earth and command the man not to pollute. ▪ In Rig Veda it is mentioned that universe consists of five basic elements namely Earth, Water, Air, Fire and Space (Ether). These five elements provide basis for life in everything and man is ordained to conserve them. ▪ Yajur Veda talks about propitiation and peace of all components of earth. ▪ Atharvana Veda considers earth to be the Mother and the creations are her offsprings. There is a command not to degrade the resources of Mother Earth. Rivers are the source of power for life and water is the symbol of dignity. ▪ Many indigenous religions also contain precepts on respect for all life and impose duties on individuals and the community to avoid waste or harm. ▪ Environmental ethicists construct environmental protection around concepts of equity and justice, as seen in three sets of relationships: among existing persons, between present and future generations, and between humans and other species.  THE BEGINNINGS TO THE STOCKHOLM CONFERENCE ▪ The 1902 Convention for the Protection of Birds Useful to Agriculture (Paris, Mar. 19, 1902) was the first global convention to enter into force for the protection of designated wildlife species. ▪ The bilateral United States- Great Britain Treaty Relating to the Preservation and Protection of Fur Seals (Washington, Feb. 7, 1911), and the 1957 Convention joining Japan and Russia to the earlier agreement. ▪ Several early boundary waters treaties contained measures to reduce and prevent water pollution, since neither state could protect water quality without the other state’s cooperation. The agreement respecting boundary waters between the United States and Canada (Washington, Jan. 11, 1909) is still considered a model. It remains in force and was strengthened during the 1970s by other agreements—United States- Canada Agreement relating to the Establishment of Joint Pollution Contingency Plans for of Oil and Other Noxious Substances ▪ Following World War I, other riparian states entered into boundary water agreements that included provisions on the problem of water pollution and frequently established international commissions. Generally, however, they did not set specific water quality standards. ▪ Some genuinely ecological approaches emerged in the 1930s, with the adoption of two regional instruments that can be seen as precursors to present- day approaches to environmental protection. First, the Convention Relative to the Preservation of Fauna and Flora in their Natural State (London, Nov. 8, 1933) applied to an Africa then largely colonized. ▪ The London Convention and the other instrument, the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Washington, Oct. 12, 1940), envisaged the establishment of reserves and the protection of wild animals and plants, especially migratory birds. ▪ International jurisprudence contributed to international environmental law during this period by introducing the fundamental principles that dominate the law of trans-frontier pollution. The Trail Smelter arbitration of March 11, 1941, affirmed that no state has the right to use its territory or permit it to be used to cause serious damage by emissions to the territory of another state or to the property of persons found there. Arbitral Award in the Trail Smelter Case (Mar. 11, 1941), 3 UNRIAA 1905. ▪ Subsequently, the International Court of Justice held more generally in the Corfu Channel case that “no state may utilize its territory contrary to the rights of other states.” Corfu Channel Case (U.K. v. Albania), Merits, 1949 ICJ 4 (Apr. 3). These precedents furnished the first legal principles from which present environmental law has evolved. Territorial Sea, Contiguous Zone, Exclusive Economic Zone, High Sea 1 nm: 1.852 Km 12 nm: 22.224 Km nm- Nautical Miles Territorial Sea, Contiguous Zone, Exclusive Economic Zone, High Sea ▪ Much like internal waters, coastal States have sovereignty and jurisdiction over the territorial sea. These rights extend not only on the surface but also to the seabed and subsoil, as well as vertically to airspace. ▪ Within the contiguous zone, a State has the right to both prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and territorial sea. ▪ Unlike the territorial sea, the contiguous zone only gives jurisdiction to a State on the ocean’s surface and floor. It does not provide air and space rights. ▪ In Exclusive Economic zone, a coastal State has the exclusive right to exploit or conserve any resources found within the water, on the sea floor, or under the sea floor’s subsoil. These resources encompass both living resources, such as fish, and non-living resources, such as oil and natural gas. ▪ The ocean surface and the water column beyond the EEZ are referred to as the high seas in the LOSC. States can conduct activities in the Area so long as they are for peaceful purposes, such as transit, marine science, and undersea exploration. Resources are a more complicated matter. Living resources, such as fish, are available for exploitation by any vessel from any State. Although the LOSC does not impose any limitations on fishing in the high seas, it encourages regional cooperation to conserve those resources and ensure their sustainability for future generations.  Early Legal Developments Early legal developments in the field of the environment were limited in nature and scope. Legal initiatives mostly focused on specific issues such as regulation of whaling, fisheries, watercourses and birds (e.g. Convention between France and Great Britain Relating to Fisheries, 1867 and Convention for the Regulation of Whaling, 1931).  International Convention for the Regulation of Whaling, 1931 ▪ The objectives of the ICRW are to protect all whale species from overhunting; establish a system of international regulation for whale fisheries to ensure proper conservation and development of whale stocks; and safeguard for future generations the important natural resources represented by whale stocks. ▪ The primary instrument implementing these aims is the International Whaling Commission, established by the convention as its main decision-making body. The IWC meets annually and adopts a binding "schedule" that regulates catch limits, whaling methods, protected areas, and the right to carry out scientific research involving the killing of whales.  Early Legal Developments In the 1930s, the transboundary consequences of air pollution were acknowledged in arbitral proceedings leading to the award of the arbitral tribunal in The Trail Smelter case. The Trail Smelter case (Canada v. US) (1941) laid down the rule of international law on state responsibility in the context of transboundary pollution (and for transboundary effects on environment in general). It was held that: “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 consequences and the injury is established by clear and convincing evidences.” After World War II, the international community responded to specific environmental threats caused by technological change and expanded economic activities. The growing use of supertankers to transport oil by sea led to the first efforts to combat marine pollution during the 1950s. The utilization of nuclear energy led to other international regulation. In 1963 Treaty Banning Nuclear Weapons in the Atmosphere, in Outer Space, and Underwater (Moscow, Aug. 5, 1963), restricted some military uses of radioactive materials. Another factor was media coverage of the first oil tanker disaster. The 1967 “black tides” off the coasts of France, England, and Belgium, caused by the grounding of the oil tanker Torrey Canyon, sharply emphasized the growing threats to the environment. The United Nations took action in 1968 shortly after the Torrey Canyon incident, when the General Assembly convened the World Conference on the Human Environment, held in Stockholm in 1972. Nuclear Catastrophe at Chernobly, April 26, 1986 The United Nations Conference on the Human Environment held at Stockholm June 1972 Generally called the ―Stockholm Conference. Held in Stockholm, 5-16 June 1972 It was the first declaration of international protection of the environment. The Stockholm Declaration contains 26 principles. These principles provide the basis of an International Policy for the Protection and improvement of the environment. The United Nations Environment Programme (UNPE) has been established by the UNGA in pursuance of the Stockholm Conference.  Nairobi Declaration 1982 to Stockholm Conference The Nairobi Declaration was adopted at Nairobi for celebrating the 10thAnniversary of the Stockholm conference on human Environment in 1972. The Declaration envisaged the creation of a special commission to frame long term environment strategies for achieving sustainable developments upto the year 2000 and beyond.  World Commission on Environment and Development (1987) It was started by the UN General Assembly resolution in 1983 and based on a four-year study entitled “Our Common Future”, also known as the Brundtland report in 1987 was put out. It developed the theme of sustainable development. It was the first time Sustainable Development was officially defined; This commission is also called the Brundtland commission.  United Nations Conference on Environment and Development (Earth Summit), 1992 In continuation of the Stockholm Declaration, 1972 and the Nairobi Declaration,1982 the third major Declaration was held in Rio-de-Janeiro in Brazil in the year 1992. Hence it is termed as Rio-Declaration and attended by over 150 countries. Hence, it is also well known as ―Earth Summit. It discussed global and environmental problems very widely. It was the biggest International Conference in the history of International Relations – was also called the “Parliament of the planet”  The Rio Conference, 1992 The Rio Conference produced five documents setting out the international agenda for sustainable development for the twenty-first century. They are: 1. Rio Declaration– a statement of broad principles to guide national conduct on environmental protection and development; 2. Agenda-21- a massive document containing a detailed action-plan for sustainable development. 3. United Nations Framework Convention on Climate Change; 4. Convention on Biological Diversity; and 5. Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (Rio Forest Principles).  The Rio Declaration The Rio Declaration was adopted in the conference recognizing the universal and integral nature of Earth and by establishing a global partnership among states and enlisting general rights and obligations on environmental protection. The RioDeclaration is a statement of 27 principles for the guidance of national environmental behaviour and enlisting general rights and obligations on environmental protection. Rio principles placed human beings at the centre of sustainable development concerns by stating that humans are entitled to a healthy and productive life in harmony with nature The gist of those principles are happy and healthy life to all people in the world in order to achieve this goal, concept of sustainable development has been established.  The Rio Declaration To achieve sustainable development, states shall reduce and eliminate unsustainable patterns of production and consumption, exchange of scientific and technological knowledge, compensation for adverse effects of environmental damage caused by activities with in their jurisdiction or control to areas beyond their jurisdiction, precautionary approach shall be widely applied by states polluter should bear the cost of pollution, Environmental impact assessment as an instrument to monitor the likely environmental effects.  Agenda-21 Agenda 21 is a non-binding action plan of the United Nations with regard to sustainable development. It is a product of the Earth Summit (UN Conference on Environment and Development) held in Rio de Janeiro, Brazil, in 1992. It is an action agenda for the UN, other multilateral organizations, and individual governments around the world that can be executed at local, national, and global levels. One major objective of the Agenda 21 initiative is that every local government should draw its own local Agenda 21. Its aim initially was to achieve global sustainable development by 2000, with the “21” in Agenda 21 referring to the original target of the 21st century.  Agenda-21 It is a comprehensive action plan which gives a future plan in relation to environment and development. The Agenda emphasizes on issues like poverty, health consumption patterns, natural resource use, financial resources human settlements and technological It also includes energy, climate and other wide range of issues concerning environment and development. Agenda-21 is not a binding document but it constitutes the key document of the Rio  U.N. Framework Convention on Climate Change (UNFCCC), 1992 In 1992, countries joined an international treaty, the United Nations Framework Convention on Climate Change, as a framework for international cooperation to combat climate change by limiting average global temperature increases and the resulting climate change, and coping with impacts that were, by then, inevitable. The primary goals of the UNFCCC were to stabilize greenhouse gas emissions at levels that would prevent dangerous anthropogenic interference with the global climate. The convention embraced the principle of common but differentiated responsibilities which has guided the adoption of a regulatory structure.  U.N. Framework Convention on Climate Change (UNFCCC), 1992 India signed the agreement inJune 1992 which was ratified in November 1993. As per the convention the reduction/limitation requirements apply only to developed countries. The only reporting obligation for developing countries relates to the construction of a GHG inventory. The UNFCCC entered into force on 21st March 1994, and has been ratified by 197 countries. It is the parent treaty of the 2015 Paris Agreement. It is also the parent treaty of the 1997 Kyoto Protocol. The UNFCCC secretariat (UN Climate Change) is the United Nations entity tasked with supporting the global response to the threat of climate change. It is located in Bonn, Germany. Convention on Biological Diversity, 1992 The Convention on Biological Diversity (CBD) entered into force on 29 December 1993. It has 3 main objectives: The conservation of biological diversity The sustainable use of the components of biological diversity. The fair and equitable sharing of the benefits arising out of the utilization of genetic resources The Convention was opened for signature on 5 June 1992 at the United Nations Conference on Environment and Development (the Rio “Earth Summit”). Convention on Biological Diversity, 1992 This convention is a legally binding framework treaty that has been ratified by180 countries. The CBD Secretariat is based in Montreal, Canada and it operates under the United Nations Environment Programme. The areas that are dealt by convention are conservation of biodiversity,sustainable use of biological resources and equitable sharing of benefits arising fromtheir sustainable use. The convention came into force in 1993. Many biodiversity issuesare addressed including habitat preservation, intellectual property rights, biosafety andindigenous people‘s rights.  U.N. Convention on Desertification, 1994 An intergovernmental negotiating committee for the elaboration of an international convention to combat desertification in countries experiencing serious drought and/ or desertification was recommended in 1992 U.N. Conference onEnvironment and Development. The U.N. The General Assembly established a committee in1992 which helped formulate the convention on desertification. It is a legally binding convention linking development and environment to sustainable land management. The UNCCD addresses particularly the arid, semi-arid & dry sub-humid areas, called drylands, where some of the most vulnerable ecosystems and peoples are found.  U.N. Convention on Desertification, 1994 The convention endorses and employs a bottom-up approach to international environmental cooperation. The Convention aims at tackling desertification through national, regional and sub-regional action programmes. India hosts the network on agroforestry and soil conservation.  World Summit on Sustainable Development (2002) The World Summit on Sustainable Development 2002, took place in South Africa, from 26 August to 4 September 2002. It was convened to discuss [sustainable development] organizations, 10 years after the first Earth Summit in Rio de Janeiro. (It was therefore also informally nicknamed “Rio+10”.) Reviewed progress in the implementation of Agenda 21 since its adoption in 1992  UN Conference on Sustainable Development (2012) It was the third international conference on sustainable development aimed at reconciling the economic and environmental goals of the global community. It is also known as Rio 2012 / Rio+20 / held in Rio de Janeiro, Brazil 20th anniversary of Earth Summit 10th anniversary of the 2002 World Summit on Sustainable Development (WSSD) in Johannesburg.  UN 2030 Agenda for Sustainable Development The UN 2030 Agenda for Sustainable Development was launched in 2015. The UN 2030 Agenda’s Sustainable Development Goals (SDG) aim at eradicating poverty in all forms and “seek to realize the human rights of all and achieve gender equality”. The Sustainable Development Goals (SDGs) are a collection of 17 global goals, and their 169 targets, set by the United Nations General Assembly in 2015 for the year 2030 (UNGA resolution “2030 Agenda”). Role of International and Regional Organization in Environment Protection/International Actors and Shareholders ▪ The growth of international environmental law since 1970 has been paralleled by a proliferation of international institutions and organizations working on Environmental issues. A number of international governmental organizations (IGOs) and nongovernmental organizations (NGOs), as well as multitudes of multistate, regional, national, and local level institutions, can now be found working on the world environment in the 21st century. ▪ There is no central international authority on environmental issues. Sovereign states have been willing to give some, but by no means controlling, authority to the UN and other entities. There is no international lawmaking body, no central enforcement authority, and international courts are few and their environmental rulings rare. In lieu of conventional lawmaking approaches, international environmental law is increasingly being “made” by a host of entities – IGOs, NGOs, international financial organizations (IFOs), international conferences, think-tanks, even private- sector corporations and their associations and trade groups. ▪ An intergovernmental organization (IGO) is an organization composed primarily of sovereign states (referred to as member states), or of other organizations through formal treaties for handling/serving common interests and governed by international laws. IGOs are established by a treaty that acts as a charter creating the group. Treaties are formed when lawful representatives (governments) of several states go through a ratification process, providing the IGO with an international legal personality. Intergovernmental organizations are an important aspect of public international law. ▪ The term intergovernmental organization (IGO) refers to an entity created by treaty, involving two or more nations, to work in good faith, on issues of common interest. In the absence of a treaty an IGO does not exist in the legal sense. For example, the G8 is a group of eight nations that have annual economic and political summits. IGOs that are formed by treaties are more advantageous than a mere grouping of nations because they are subject to international law and have the ability to enter into enforceable agreements among themselves or with states. ▪ The main purposes of IGOs were to create a mechanism for the world’s inhabitants to work more successfully together in the areas of peace and security, and also to deal with economic and social questions. In this current era of increasing globalization and interdependence of nations, IGOs have come to play a very significant role in international political systems and global governance. ▪ IGOs cover multiple issues and involve governments from every region of the world, including offices in the U.S. Among the oldest IGOs are the United Nations, which replaced the League of Nations, the Universal Postal Union, and the North Atlantic Treaty Organization (NATO). The Universal Postal Union, founded in 1874, is currently a specialized agency of the UN. Other well-known IGOs are the European Union (EU), the Organization of Petroleum Exporting Countries (OPEC), the African Development Bank (ADB) and the World Trade Organization (WTO). ▪ Since the creation of the UN and NATO, IGOs have become essential actors in the international community. Additionally, as many IGOs, such as the UN and the EU, have the ability to make rules and exercise power within their member countries, their global impact continues to increase. ▪ IGOs are typically organized by their membership and by their purpose. For example, the UN is called a global organization because all countries are allowed membership. There are currently 192 member states in the UN. Some IGOs are regional and limit their membership to states within the designated regions. Other IGOs are referred to as selective organizations because they base their membership on criteria other than geography. The Organization of the Islamic Conference, for example, bases its membership on religious affiliation. OPEC, on the other hand, is comprised only of countries that produce oil. Specialized IGOs, such as NATO, limit their activities to a particular field. General IGOs have expertise on a wide variety of topics, such as the UN. ▪ IGOs are distinguishable from nongovernmental organizations (NGOs) in that NGOs are formed by two or more individuals rather than by nations. NGOs are therefore typically independent of governments, are usually non-profit organizations, and receive at least a portion of their funding from private sources. IGOs have the financial and political support of its members.  UNEP – STRUCTURE AND LEADERSHIP ▪ Headquartered in Nairobi, Kenya, UN Environment Programme is led by a Senior Management Team that's chaired by Executive Director. ▪ It work through divisions, regional, liaison and out-posted offices, plus a growing network of collaborating centers of excellence. UNEP also hosts several environmental conventions, secretariats and inter-agency coordinating bodies. ▪ The organizational chart is as follows:- ▪ Executive Director ▪ Deputy Executive Director ▪ Senior Management Team ▪ Secretariats and conventions ▪ Partners ▪ UNEP host the secretariats of many critical multilateral environmental agreements and research bodies, bringing together nations and the environmental community to tackle the greatest challenges of our time. These include the following: ▪ The Convention on Biological Diversity ▪ The Convention on International Trade in Endangered Species of Wild Fauna and Flora ▪ The Minamata Convention on Mercury ▪ The Basel, Rotterdam and Stockholm Conventions ▪ The Vienna Convention for the Protection of Ozone Layer and the Montreal Protocol ▪ The Convention on Migratory Species ▪ The Carpathian Convention ▪ The Bamako Convention ▪ The Tehran Convention The Convention on Biological Diversity Signed by 150 government leaders at the 1992 Rio Earth Summit, the Convention on Biological Diversity is dedicated to promoting sustainable development. Conceived as a practical tool for translating the principles of Agenda 21 into reality, the Convention recognizes that biological diversity is about more than plants, animals and micro organisms and their ecosystems – it is about people and our need for food security, medicines, fresh air and water, shelter, and a clean and healthy environment in which to live. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 1973 The Convention on International Trade in Endangered Species (CITES), which was introduced in 1973 and entered into force in 1975, prohibits international trade in endangered species. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species. For many years CITES has been among the conservation agreements with the largest membership, with now 184 Parties. The Minamata Convention on Mercury The Minamata Convention on Mercury is an international treaty designed to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds. It was agreed at the fifth session of the Intergovernmental Negotiating Committee in Geneva, Switzerland at 7 a.m. on the morning of Saturday, 19 January 2013. The Basel, Rotterdam and Stockholm Conventions The Basel, Rotterdam and Stockholm conventions are multilateral environmental agreements, which share the common objective of protecting human health and the environment from hazardous chemicals and wastes. The Vienna Convention for Protection of Ozone Layer and Montreal Protocol The Vienna Convention for the Protection of the Ozone Layer is a multilateral environmental agreement signed in 1985 that provided frameworks for international reductions in the production of chlorofluorocarbons due to their contribution to the destruction of the ozone layer, resulting in an increased threat of skin cancer. The Convention on Migratory Species The Convention on Migratory Species (CMS), also known as the Bonn Convention, is an environmental treaty of the United Nations that provides a global platform for the conservation and sustainable use of terrestrial, aquatic and avian migratory animals and their habitats. The Carpathian Convention The Framework Convention on the Protection and Sustainable Development of the Carpathians (Carpathian Convention) is a framework type convention pursuing a comprehensive policy and cooperating in the protection and sustainable development of the Carpathians. Designed to be an innovative instrument to ensure protection and foster sustainable development of this outstanding region and living environment, the Convention is willing to improve the quality of life, to strengthen local economies and communities. The Bamako Convention (in full: Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa) is a treaty of African nations prohibiting the import of any hazardous (including radioactive) waste. The convention was negotiated by twelve nations of the Organization of African Unity at Bamako, Mali in January, 1991, and came into force in 1998. The Tehran Convention Framework Convention for the Protection of the Marine Environment of the Caspian Sea is a regional convention signed by the official representatives of the five littoral Caspian states: Azerbaijan, Iran, Kazakhstan, Russian Federation and Turkmenistan in Tehran (Iran) on 4 November 2003. The Framework Convention, also called Tehran Convention, entered into force on 12 August 2006.The objective of this convention is “the protection of the Caspian environment from all sources of pollution including the protection, preservation, restoration and sustainable and rational use of the biological resources of the Caspian Sea”  UNEP SIX AREAS OF CONCENTRATION ▪ UNEP re-organised its work programme into six strategic areas as part of its move to results based management. The selection of six areas of concentration was guided by scientific evidence, the UNEP mandate and priorities emerging from global and regional forums. The UNEP has a few focus areas, in which they prioritise work. They are: ▪ CLIMATE CHANGE UNEP strengthens the ability of countries to integrate climate change responses by providing leadership in adaptation, mitigation, technology and finance. UNEP is focusing on facilitating the transition to low-carbon societies, improving the understanding of climate science, facilitating the development of renewable energy and raising public awareness. ▪ POST-CONFLICT AND DISASTER MANAGEMENT UNEP conducts environmental assessments in crisis-affected countries and provides guidance for implementing legislative and institutional frameworks for improved environmental management. Activities undertaken by UNEP’s Post-Conflict & Disaster Management Branch (PCDMB) include post-conflict environmental assessment in Afghanistan, Côte d’Ivoire, Lebanon, Nigeria and Sudan.  UNEP SIX AREAS OF CONCENTRATION ▪ ECOSYSTEM MANAGEMENT Facilitates management and restoration of ecosystems in a manner consistent with sustainable development, and promotes use of ecosystem services. Examples include the Global Programme of Action (GPA) for the Protection of the Marine Environment from Land-Based Activities. ▪ ENVIRONMENTAL GOVERNANCE UNEP supports governments in establishing, implementing and strengthening the necessary processes, institutions, laws, policies and programs to achieve sustainable development at the country, regional and global levels, and mainstreaming environment in development planning. ▪ HARMFUL SUBSTANCES UNEP strives to minimise the impact of harmful substances and hazardous waste on the environment and human beings. UNEP has launched negotiations for a global agreement on mercury, and implements projects on mercury and the Strategic Approach to International Chemicals Management (SAICM) to reduce risks to human health and the environment.  UNEP SIX AREAS OF CONCENTRATION  RESOURCE EFFICIENCY/SUSTAINABLE CONSUMPTION AND PRODUCTION UNEP focuses on regional and global efforts to ensure natural resources are produced, processed and consumed in a more environmentally friendly way. For example, the Marrakesh Process is a global strategy to support the elaboration of a 10-Year Framework of Programs on sustainable consumption and production.  Major Program of UNEP Billion Tree Campaign: The Billion Tree Campaign was launched in 2006 by the United Nations Environment Programme (UNEP) as a response to the challenges of global warming, as well as to a wider array of sustainability challenges, from water supply to biodiversity loss. Its initial target was the planting of one billion trees in 2007 Clean up the World: It is a community-based, environmental campaign that inspires and empowers communities around the globe to clean up, fix up and conserve their environment. Clean Up the World Weekend is celebrated globally on the 3rd weekend in September each year. Earth Hour: Around the globe, millions of people, businesses, and landmarks set aside an hour to host events, switch off their lights, and make noise for climate change action. This year Earth Hour is at 8:30pm on 24 March 2018. It isorganized by the World Wide Fund for Nature (WWF)in coordination with UNEP  Major Program of UNEP Pain for the planet: The Playing for the Planet Alliance was launched on September 23, 2019 at UN Headquarters in New York during the UN Secretary- General’s Climate Action Summit. The initiative is being facilitated by UNEP with the support of GRID- Arendal and Playmob. In joining the Alliance, members have made commitments ranging from integrating green activations in games, reducing their emissions and supporting the global environmental agenda. Seal the Deal: “Seal the Deal” is a UN campaign calling for a fair, balanced and effective post-Kyoto climate agreement at the UN Climate Change Conference (popularly known as COP 15), to be held from 7-18 December 2009 in Copenhagen. During the conference, countries are expected to “seal the deal” on a successor agreement to the Kyoto Protocol on greenhouse gas emissions targets. The UN-led Seal the Deal Campaign aims to galvanize political will and public support for reaching the comprehensive global climate agreement target.  Major Program of UNEP TUNZA: Started in 2003 by UNEP as a long-term strategy for engaging young people in environmental activities and in the work of UNEP. The word “TUNZA” means “to treat with care or affection” in Kiswahili (a sub-regional language of Eastern Africa). It is meant to develop activities in the areas of capacity building, environmental awareness, and information exchange, with a vision to foster a generation of environmentally conscious citizens, capable of positive action. APELL (Awareness and Preparedness for Emergencies at Local Level): Started in 1988 in response to a number of chemical accidents that resulted in deaths and injuries, environmental damage, and extensive economic impacts in the surrounding communities. The objectives of APELL are to: ▪ Identify and create awareness of hazards and risks ▪ Initiate measures for risk reduction, accident prevention and mitigation ▪ Develop coordinated preparedness among the local industry, authorities and community  UNEP AND INDIA ▪ India has had a close relationship with the UNEP since the programme’s inception. There are many projects completed, as well as ongoing projects, of the UNEP in India. ▪ The UNEP’s presence in India started in 2016 with an office at New Delhi. ▪ The nodal agency for India’s interactions with the UNEP is the GOI’s Ministry for Environment, Forests and Climate Change. ▪ The Permanent Representative of India to UNEP is India’s High Commissioner for Kenya. ▪ India’s annual financial contribution to the UNEP is to the tune of USD 100,000. ▪ The UNEP has recognized India’s initiatives in the environment sector. ▪ The UNEP awarded PM Narendra Modi with the ‘Champions of the Earth’ award along with French President Emmanuel Macron in the category ‘policy leadership’. ▪ This was in recognition of the, among others, the International Solar Alliance, initiated by India. ▪ In 2019, India joined the Climate & Clean Air Coalition (CCAC), whose Secretariat ishosted by the UNEP. ▪ India plans to work with CCAC nations on best practices and experiences for the effective implementation of the National Clean Air Programme (NCAP).  Other International IGOS ▪ Host of other UN agencies of varying missions contribute to the development of law and policy in the environmental area, including the ▪ Food and Agriculture Organization (FAO), ▪ International Labor Organization (ILO), ▪ World Health Organization (WHO), ▪ UN Educational, Scientific and Cultural Organization (UNESCO), ▪ World Meteorological Organization (WMO), ▪ International Maritime Organization (IMO), ▪ International Atomic Energy Agency (IAEA), ▪ UN Conference on Trade and Development (UNCTAD), ▪ as well as numerous UN “Experts Groups. ▪ The International Court of Justice (ICJ or World Court) is, of course, the preeminent UN judicial body. It issues relatively few rulings, and only in the last two decades has it decided any environmental cases, but, anticipating more, in 1993 it created a seven-member standing Chamber for Environmental Matters. However, as states showed no enthusiasm, the initiative  Other International IGOS ▪ Established in 1947, the International Law Commission (ILC) is a highly respected UN “think-tank” of international law experts representing the world’s principal legal systems. It is specifically charged with the codification and progressive development of international law and has been enormously productive in the environmental area. Its work has included draft treaties and guidance on state responsibility and liability, freshwater resources, and other key areas. In addition, the UN has established several regional commissions active in the environmental law field.  Regional International IGOS ▪ Multilateral IGOs covering specific regions of the world also contribute significantly to international environmental law. The preeminent example of these is the European Union (EU), formerly the European Community (EC), and before that the European Economic Community (EEC). The EU is the “most advanced form of international organization in the world” because, unlike typical IGOs which can only suggest laws to their member states, the EU is a “supranational” legal entity. This means it has the ability to legislate law that is binding on its 27 member states, the power to enforce compliance, and compulsory-jurisdiction courts. As a world leader on environmental issues, what the EU does and wants significantly influences the direction and development of international law. ▪ Three other very influential IGOs based in Europe are the Organization for Economic Co-operation and Development (OECD), the UN Economic Commission for Europe (UN/ECE), and the Council of Europe. Not limited to Europe, their member states span all or most of the industrialized “North,” giving these IGOs a huge power base.  Regional International IGOS ▪ The OECD has been an innovator in developing international environmental law in water resource, air pollution, and hazardous waste among other issues. The UN/ECE has produced treaty regimes for transboundary air pollution, environmental impact assessment, transboundary industrial accidents, public participation, and international freshwater resources. The Council of Europe has brought about treaties on wildlife protection, civil liability for environmentally dangerous activities, and criminal law protection for the environment, and many other environmental programs. ▪ Some of the UN’s programs are regional, notably the very successful UNEP Regional Seas Program, which has spawned environmental treaties and action programs for 14 different oceans, from the Mediterranean to the Caribbean. In addition to UN/ECE, the UN has created four other regional commissions, all active to one degree or another in the environment. They include the UN Economic Commissions for Africa (UN/ECA) and for Latin America and the Caribbean (UN/ECLAC or CEPAL), and UN Economic and Social Commissions for Asia and the Pacific (UN/ESCAP) and for Western Asia (UN/ESCWA).  Regional International IGOS ▪ For the most part, non-UN regional IGOs have not been very active in environmental lawmaking. However, there are exceptions such as the Organization of African Unity (OAU) which was replaced in 2002 by the new, more powerful African Union, the Organization of American States (OAS), the Association for Southeast Asian Nations (ASEAN), and the South Pacific Regional Environmental Programme (SPREP). ▪ The OAU has been especially active in hazardous waste and desertification issues; the OAS has done notable recent work on public participation; ASEAN has put out treaties and guidance documents on the environment; and SPREP, on biodiversity and climate change. In addition to the UNEP Regional Seas Program, other geographically regional environmental treaties have spun off ongoing organizations, such as the OSPAR Commission,(Oil Spill Prevention, Administration and Response) created by the Convention for the Protection of the Marine Environment of the North-East Atlantic.  Natural and Cultural Heritage ▪ The cultural and natural heritage is an inherent part of the human environment, and consequently the area of heritage law is a specialised but inherent and fundamental part of environmental law. The specialised area of heritage law has therefore necessarily attracted a narrower band of analysts than the broad area of environmental law. ▪ Modern heritage law must be understood from the international, national and sub- national level (including states/provinces, and local level), and also as part of international environmental law, with which it can overlap, particularly in the context of world heritage. ▪ At an international level, heritage law developed after the end of World War II as a reaction to the large-scale intentional destruction and loss of cultural heritage, with the negotiation and completion of the Convention for the Protection of Cultural Property in the Event of Armed Conflict in 1954. It reflected the view that any loss of cultural heritage also constitutes a cultural impoverishment of all humankind. This was followed by series of conventions on increasingly specific aspects of heritage.  Natural and Cultural Heritage ▪ These include: ▪ the 1970, UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, ▪ the 1972, Convention concerning the protection of World Cultural and Natural Heritage (World Heritage Convention), ▪ The 1995, UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, UNIDROIT (formally, the International Institute for the Unification of Private Law) ▪ the 2001, Convention on the Protection of the Underwater Cultural Heritage, ▪ the 2003, Convention for the Safeguarding of the Intangible Cultural Heritage, ▪ the 2005, Convention on the Protection and Promotion of the Diversity of Cultural Expressions.  Natural and Cultural Heritage ▪ Most of these treaties have been extensively analysed, and some of the readings set out here focus on them in some detail. The World Heritage Convention is the best known of these treaties, and has been the subject of a great deal of discussion at international and national level. It recognises the equal importance of and close connection between cultural and natural heritage, which in fact is in many cases very difficult or even impossible to distinguish from each other. Conceptually, in the past two decades there has been a convergence between the natural heritage and the cultural heritage, epitomised for example by the development of the concept of ‘cultural landscapes’, now incorporated into the Operational Guidelines of the World Heritage Convention. ▪ At national and sub-national level, the enactment of heritage provisions can be found in both separate heritage legislation and as a part of environmental and planning legislation. A very wide range of jurisdictions has enacted legislation to address tangible heritage. The tangible heritage includes both the natural and cultural heritage. Laws relating to the natural heritage are often seen to overlap with legislation relating to protected natural areas, generally referred to as national parks and nature reserves. Cultural heritage is normally divided into tangible and intangible aspects. Tangible heritage includes the built environment, and more generally the human-made environment. It also includes heritage objects, also known as cultural objects or artefacts. The word ‘relic’ is also used in some jurisdictions. This category covers the law relating to museums that contain moveable heritage items.  Natural and Cultural Heritage ▪ The intangible heritage deals with a large number of categories of matters of importance at international, national and local level. The comprehensive list of such items is found in the definition provision of the Intangible Heritage Convention mentioned above. They include ‘practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage’ (Article 2). National legislation on the intangible heritage is becoming more common, with better-known examples being seen in Japan and China. ▪ A list of national legislation on the protection of heritage from around the world is maintained by UNESCO; see UNESCO Database of National Cultural Heritage Laws at http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural property/unescodatabase-of-national-cultural-heritage-laws/  Natural and Cultural Heritage ▪ An increasingly important aspect of the discourses around the protection of heritage is the link between heritage and human rights, and specifically the right to culture. This became an important part of the discussions in the formulation of the Sustainable Development Goals and their associated Targets. Intangible heritage also incorporates issues relating to cultural identity, which can be related to geographical location and dislocation, and inevitably raises political questions concerning nationality and nationhood. Cultural identity matters are often also related to Indigenous nations or communities living within dominant national majorities. In this respect, the 2007 United Nations Declaration on the Rights of Indigenous Peoples is central to cultural identity considerations. ▪ S. Gruber addresses in The Impact of Climate Change on Cultural Heritage Sites: Environmental Law and Adaptation the severe threat of climate change to many cultural heritage sites from a legal perspective. Threats include floods, increasing extreme weather events, desertification, deterioration of permafrost, and the decay of cultural landscapes. Protecting cultural heritage sites proves to be very difficult as they are very diverse. The key to successful mitigation is – in addition to reducing carbon emissions – to reduce stress from unsustainable activities, which may aggravate the negative impact of climate change. This paper argues that provisions from various areas of environmental law, such as heritage conservation law, pollution law, land use law, construction law, water law, environmental impact assessment law, and planning law, must be used in an integrated way with the aim of mitigating and adapting to the effects of climate change on heritage properties. Of particular importance in this context is the application of the precautionary principle when dealing with heritage sites. Principles of the International Environmental Law  THE POLLUTER PAYS PRINCIPLE ▪ In environmental law, ‘the Polluter Pays Principle’ has been enacted to make the party responsible for producing ‘pollution’ to pay for the damage done to the natural environment. In simple words “The Polluter Pays Principle is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment.” For instance, a factory that produces a potentially poisonous substance as a byproduct of its activities is usually held responsible for its safe disposal. ▪ ‘Polluter Pays Principle’ is also known as ‘Extended Producer Responsibility’ (EPR). This is a concept that was described by Thomas Lindhqvist for the Swedish Government in 1990. ▪ The credit for popularizing the ‘Polluter Pays Principle’ for the first time goes to Organisation for Economic Co-operation and Development (OECD). The OECD defines EPR as “a concept where manufacturers and importers of products should bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production processes itself, and downstream impacts from the use and disposal of the products.” Polluter to Pay  THE POLLUTER PAYS PRINCIPLE ▪ The Supreme Court of India interpreted ‘Polluter Pays principle’ as the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. ▪ The Environment Protection Act, 1986 expressly empowers the government “to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment”. ▪ Thus, it includes environmental costs as well as direct costs to the people or property. So, it means that polluter should bear the cost of pollution as the polluter is responsible for it. ▪ The ‘Polluter Pays Principle’ has been incorporated into the European Community Treaty. Article 102 Rule 2 of the Treaty states that environmental considerations are to play a part in all the policies of the community, and that action is to be based on three principles: i. The need for preventive action; ii. The need for environmental damage to be rectified at source; and iii. That the polluter should pay  POLLUTER PAYS PRINCIPLE The ‘Polluter Pays Principle’ finds prominent place in the ‘Rio Declaration of 1992’. Principle 16 of the Declaration proclaims that national authorities should endeavour to promote the internationalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. TWO-FOLD LIABILITY The ‘Polluter Pays Principle’ exposes the polluter to two fold liability namely: (i) Compensation to the victims of pollution; and (ii) Ecological restoration But despite its different impact on pollution, the doctrine of Polluter Pays Principle is limited in the sense that it can be applied only at the remedial stage i.e. after the pollution has already taken place. It means one may “pay and pollute”.  THE PRECAUTIONARY PRINCIPLE ‘Precautionary Principle’ plays a significant role in determining whether the development process is sustainable or not. Precautionary Principle underlies sustainable development which requires that the developmental activity must be stopped and prevented if it causes serious and irreversible environmental damage. The Precautionary Principle ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting it, even if there is no conclusive scientific proof linking that particular substance or activity to the environmental damage. Inadequacies of science are the real basis that has led to the emergence of Precautionary Principle. The Principle is based on the theory that it is better to be on the side of caution and prevent environmental harm which may indeed become irreversible.  THE PRECAUTIONARY PRINCIPLE The Precautionary Principle has been given utmost importance in the United Nation’s Conference on Environment and Development held at Rio in 1992. Principle 15 of the ‘Rio Declaration’ states: “In order to protect the environment, the precautionary approach shall be widely applied by the States according to their capabilities, where there are threats as serious as of irreversible environmental degradation.” The Supreme Court of India in case of Vellore Citizens’ Forum v. Union of India, held that the Precautionary Principle is a part of the environmental law of the country.  THE PRECAUTIONARY PRINCIPLE The essential ingredients of Precautionary Principle are: Environmental measures by the State Government & the statutory authorities like state pollution boards must anticipate, prevent and attack the causes of environment degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.  THE PUBLIC TRUST DOCTRINE The ‘Public Trust Doctrine’ is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the reasonable use of the public. The ancient Roman Empire developed a legal theory known as ‘The Doctrine of Public Trust’, which was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by government in trusteeship for the free and unrestricted use of the general public. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea water and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being gifts of nature, they should be made freely available to everyone, irrespective of the status in life. The doctrine enjoins upon the government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or for commercial purposes.  THE PUBLIC TRUST DOCTRINE The State is the ‘Trustee’ of all natural resources, which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea- shore, running waters, air, forests and ecologically fragile lands. The State as ‘Trustee’ is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. As rivers, forests, minerals and such other resources constitute a nation’s natural wealth, these resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nations in the best possible way. This is in the interest of the nation as well as in the interest of the mankind. Thus, the Public Trust Doctrine is a part of the law of the land. The court also ruled that there is no any justifiable reason to rule out the application of the Public Trust Doctrine to all eco systems in India.  THE PUBLIC TRUST DOCTRINE The Doctrine was first mentioned by the Honourable Supreme Court applied the ‘Doctrine of Public Trust’ with regard to the protection and preservation of natural resources. The Supreme Court stated that the Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and forests have such great importance to the people as a whole that it would not be justified to make these resources a subject of private ownership. The Honourable Supreme Court held that the Mahapalika, as a ‘trustee’ for the proper management of the park, has to be more cautious in dealing with its properties. The maintenance of the park because of its historical importance and environmental necessity was in itself a public purpose. If the true nature of the park, as it existed is destroyed, it would be violative of the ‘Doctrine of Public  THE PUBLIC TRUST DOCTRINE Restrictions imposed by the Public Trust Doctine: This Doctrine imposes three kinds of restrictions on the State: ▪ the property must not only be used for a public purpose, it must be available for use by the general public; ▪ the property must not be sold, even for fair cash equivalent; and ▪ the property must be maintained for particular kind of uses, such as navigation, recreation, or fishery  Intergenerational Equity ▪ Intergenerational equity as a principle of international justice is based on the recognition of two key facts: (1) human life emerged from, and is dependent upon, the earth’s natural resource base, including its ecological processes, and is thus inseparable from environmental conditions; and (2) human beings have a unique capacity to alter the environment upon which life depends. ▪ From these facts emerges the notion that humans who are alive today have a special obligation as custodians or trustees of the planet to maintain its integrity to ensure the survival of the human species. ▪ Those living have received a heritage from their forbearers in which they have beneficial rights of use that are limited by the interests and needs of future generations. This limitation requires each generation to maintain the corpus of the trust and pass it on in no worse condition than it was received. ▪ Another way to consider the issue is to view current environmental goods, wealth, and technology as owing to the progress of prior generations. This debt cannot be discharged backward so it is projected forward and discharged in the present on behalf of the future.  Intergenerational Equity ▪ The equitable concept of trust places obligations on the trustees, such as conserving and maintaining the trust resources. Since the trustees are also the present generation of beneficiaries, they are constrained in their use of resources. Meeting the obligation calls for minimizing or avoiding long-term and irreversible damage to the environment. ▪ Three implications emerge from the principle of intergenerational equity: ▪ first, that each generation is required to conserve the diversity of the natural and cultural resource base so that it does not unduly restrict the options available to future generations to satisfy their own values and needs. ▪ Second, the quality of ecological processes passed on should be comparable to that enjoyed by the present generation. ▪ Third, the past and present cultural and natural heritage should be conserved so that future generations will have access to it.  Intergenerational Equity ▪ The Philippine Supreme Court has found that present generations have standing to represent future generations in large part because “every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology.” Minors Oposa v. Sec’y of the Dep’t of Env’t and Natural Res., reprinted in 33 ILM 168 (1994).  Sustainable Development ▪ Since the end of the 1980s, the principle of sustainable development dominates international activities in the field of environmental protection. It was defined in the 1987 Report of the World Commission on Environment and Development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” The Report identified the critical objectives of sustainable development: reviving growth but changing its quality; meeting essential needs for jobs, food, energy, water, and sanitation; ensuring a sustainable level of population; conserving and enhancing the resource base; reorienting technology and managing risk; and merging environment and economics in decision making.  Sustainable Development ▪ Principle 4 of the Rio Declaration states that “in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” Approaches that take into account long-term strategies and that include the use of environmental and social impact assessment, risk analysis, cost-benefit analysis, and natural resources accounting are necessary. ▪ The integration of environmental, social, and economic policies also requires transparency and broad public participation in governmental decision making. As its title shows, the Johannesburg World Summit on Sustainable Development focused on this concept with particular emphasis on eradicating poverty. During the same year, the first attempt to define sustainable development in a binding text appeared in Art. 3(1)(a) of the Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific (Antigua, Feb. 18, 2002):  Sustainable Development “For the purpose of this Convention sustainable development means the process of progressive change in the quality of life of human beings, which places it as the center and primordial subject of development, by means of economic growth with social equity and the transformation of methods of production and consumption patterns, and which is sustained in the ecological balance and vital support of the region. This process implies respect for regional, national and local ethnic and cultural diversity, and full participation of people in peaceful coexistence and in harmony with nature, without prejudice to and ensuring the quality of life of future generations.” ▪ In the same treaty, the concept of maintaining “environmental services” is seen as essential to sustainable development. According to the convention, it means the services provided by the functions of nature itself, such as the protection of soil by trees, the natural filtration and purification of water, and the protection of habitat for biodiversity. Art. 3(1)(c).  Common but Differentiated Responsibilities ▪ All of the texts adopted at Rio include some formulation of the principle of common but differentiated responsibilities. Principles 6 and 7 of the Rio Declaration afford priority to the needs of the least developed and most environmentally vulnerable states, expressing the general principle of common but differentiated responsibilities. The principle was controversial, and the United States issued an interpretive statement indicating its view that the principle does not “imply a recognition... of any international obligations.” ▪ The U.S. view may not be entirely correct. The principle of common but differentiated responsibilities could encompass, and in some formulations discussed below has encompassed, the notion of the historic responsibility of the industrialized North for most environmental degradation used to achieve its wealth. In this sense, the principle of common but differentiated responsibilities appears as a legal concept involving redistribution of wealth based on notions of restitution or unjust enrichment. Principle 7 of the Rio Declaration, however, speaks not of historical responsibility but rather of the responsibility of developed countries for the present and future pursuit of sustainable development in view of the pressures their societies are placing on the global environment and on the resources they command.  Common but Differentiated Responsibilities ▪ The principle of common but differentiated responsibilities is now widely incorporated in MEAs. It calls broadly for developed countries to take the lead in solving existing global environmental problems. Thus, even though the responsibility for protecting the environment is to be shared among all nations, countries should contribute differently to international environmental initiatives depending on their capabilities and responsibilities. ▪ The broader version of the principle referred to above would oblige the developed world to pay for past harms, as a form of corrective justice, as well as present and future harms. For both climate change and depletion of strasospheric ozone, the global community finds itself at the tipping point because of the conduct of the developed world. ▪ Developed nations thus should pay for any reductions or modifications the developing world has to make in the process of industrialization, because developed-world industrialization has unfairly circumscribed the ability of the developing world to pass off the negative externalities of development on the environment. The true social and environmental costs of developed-nation industrialization were never accounted for in the past, so the unfairly obtained windfall should now be redistributed.  Common but Differentiated Responsibilities ▪ Developing nations thus argued that they are entitled to the resources and technology from developed nations, and that developed nations should have to internalize the environmental costs of on-going and future developing-nation industrialization. Some treaty provisions reflect this view. Art. 5(5) of the amended Montreal Protocol on Substances that Deplete the Ozone Layer, for example, provides that developing countries’ capacity to fulfill the obligations and implement the control measures specified in the Montreal Protocol will depend upon the effective implementation by developed nations of financial cooperation and transfer of technology as set out in the Protocol. Similar statements are contained in Art. 4(7) of the UN Framework Convention on Climate Change and Art. 20(4) of the Convention on Biological Diversity. ▪ An even broader justification calls for adjustments on the basis of restitution. It suggests that developed nations are not “entitled” to preserve the wealth they have accrued through industrial development, because these “entitlements” were obtained in a manner that does not justify their retention. If “entitlements” are perceived as transcending the area of environmental harms and extending into the externalities of the North’s industrial development generally, including colonialism, mercantilism, and labor exploitation, then this could become a considerably more ambitious and controversial program.  Equitable Utilization of Shared Resources Equitable utilization is a widely accepted principle applied in apportioning shared resources, such as watercourses and fish and other exploited species. It finds expression in Art. 2 of the 1997 UN Convention on the Law of Non-Navigational Uses of International Watercourses, which calls on the parties to take all appropriate measures to ensure that international watercourses are used in a reasonable and equitable way. The status of equitable utilization as a fundamental norm in the field of shared natural resources was affirmed by the ICJ in the Case Concerning the Gabçikovo-Nagymaros Project (Hung./Slov.), Judgment of Sept. 25, 1997, 1997 ICJ 7. In the earlier Fisheries Jurisdiction Cases (U.K. v. Iceland; FRG v. Iceland), the ICJ stressed the obligation of reasonable use and good faith negotiations aimed at an equitable result, taking into account the needs of conservation and the interests of all exploiters of the fishing resource. Fisheries Jurisdiction Cases (U.K. v. Iceland; FRG v. Iceland), Judgments of July 25, 1974, 1974 ICJ 3; and 1974 ICJ 175. Thus, the notion of equitable utilization is one that attempts to make a “reasonable” allocation or reach a fair result in distribution of a scarce resource, based on what are deemed to be relevant factors, such as need, prior use or entitlement, and other interests. On a substantive level, each party is held to have an equal right to use the resource, but since one party’s use can impact the beneficial uses of others, and not all uses can be satisfied, some limitations are necessary. The Watercourses Convention states that equitable and reasonable uses are to be “consistent with adequate protection of the watercourse.” Art. 5. The phrase suggests that uses that would substantially harm the watercourse could be inherently inequitable and indicates how positive rules may restrict the scope and application of equitable principles.  Equitable Utilization of Shared Resources Notions of entitlement stemming from prior uses, strict equality, proportional use based on population, and priority accorded to certain uses all have been asserted at one time or another as a basis for determining what is an equitable allocation. In some instances, the parties agree in advance on certain divisions or priorities. The 1909 Boundary Waters Treaty between the United States and Canada relies upon equality of use for the generation of power (each country being entitled to use half of the waters along the boundary) and equitable sharing of water for irrigation. In contrast, the 1959 Nile Agreement between the Sudan and Egypt for Full Utilization of Nile Waters confirmed the “established rights” of each party, without identifying them, while additional amounts were allocated on other equitable bases. While the Nile agreement seems to view established rights as guaranteed by law, most other instruments take the better view and include prior entitlements as one factor in determining equitable allocation.  Equitable Utilization of Shared Resources The idea of equitable utilization in the past had as a corollary that no use had inherent priority over any other. Today, there appears to be a move towards recognizing that some resource uses do have priority over others. In the use of freshwaters, for example, emphasis is being placed on the satisfaction of basic human needs—that is, the provision of safe drinking water and sanitation. The Watercourses Convention provides that in the event of a conflict between the uses of an international watercourse, special regard is to be given to the requirements of vital human needs (Art. 10), while the UN Committee on Economic, Social and Cultural Rights, in its General Comment 12 on the Right to Water, insists that priority be given to safe drinking water and sanitation, with a guaranteed minimum amount to be provided to every person. Thus, substantive human rights considerations help determine appropriate allocation.  Duty to Do Environmental Impact Assessment ▪ The term environmental impact assessment (EIA) describes the process of investigation and analysis of proposed projects, plans, permits, policies, programs, and other actions. This EIA process is designed to fully inform decisionmakers and the public of the potential environmental impacts, alternatives for achieving similar goals, and mitigation measures for reducing negative impacts of proposed projects. ▪ EIA is one of the oldest and most widely accepted methodologies in environmental protection. Pioneered with the US National Environmental Policy Act of 1969, EIA has become a fixture of many international treaties, IFO rules, and over 60 states’ national laws. ▪ The 1986 UN Convention on the Law of the Sea, the 1991 Espoo Convention on EIA in a Transboundary Context, the 1992 Biodiversity Convention, and the World Bank’s Operational Directive on Environmental Assessment are just a few of the international legal authorities requiring EIA. ▪ Rio Principle 17 specifically states that there is an international obligation to adopt and implement EIA laws and programs at the national level; moreover, EIA seems necessarily implied in the affirmations in Rio Principles 4 and 25 of the need to link and integrate environmental protection into the development process, as EIAs are far and away the major mechanism to accomplish that.  Duty to Do Environmental Impact Assessment The extent of the practice by states and international organizations suggests to some authorities that EIA “may already be obligatory as a matter of customary law,” as an integral part or extension or combination of the good neighborliness/cooperation, prior notification and consultation, and/or the prevention rules. That assessment is probably overly optimistic, however, given the number of countries which still find EIA a much too expensive luxury or a much-too- revealing obstacle to business-as-usual development or government. Despite resistance by some states and development interests, we can expect the EIA duty to spread internationally through the proliferation of requirements in specific treaties and IGO/IFO financing “conditions.” Duty to Adopt Effective National Law – The Duty to Enforce ▪ Ultimately, international environmental laws can only be truly effective if states adopt, fund, and implement appropriate national laws, regulations, and enforcement programs to make these grand pronouncements work “on the ground.” The international community can adopt all of the CITES, biodiversity, and other wildlife protection laws it wishes, but, if the states where the wildlife live and the states where their body parts are sold as merchandise do not adopt and enforce supportive legal regimes, the death toll and extinctions will go on. ▪ The international community can adopt massive legal edifices around transboundary air pollution, climate change, or ozone depletion, but, if individual states do not adopt complementary internal controls, there will inevitably be “rogue states,” “pollution havens,” and “free riders” reaping profit at the expense of human health and the environment, and the protective scheme will fail. Internationally, we can draw up the most protective possible Forest Principles, but, if individual nations allow roads to be built into their rainforests, old-growth timber, and wilderness areas, destructive development will follow. Ultimately, international law and national law must mirror each other if environmental protection is to be successful. Duty to Adopt Effective National Law – The Duty to Enforce ▪ The duty to adopt effective national legislation and enforcement to carry out international legal obligations is a well-recognized principle, but hardly one that can yet claim uniform state practice. ▪ Rio Principle 11 encapsulates it: “States shall enact effective environmental legislation,” but then goes on to qualify that with the “common but differentiated responsibilities” doctrine, stating that standards applied by developed countries may be inappropriate and too expensive for developing countries. ▪ “National capacity building” – legislation, administration, institutionbuilding, management and enforcement systems, training, technology transfer, and above all funding – is widely recognized as a necessary component of effective national legislation.231 Capacity building is now being factored into the modern treaty systems. CITES Article IX requires parties to establish a “Management Authority” to enforce the treaty’s detailed undertakings domestically. UNCLOS Article 207 obliges parties to “adopt laws and regulations” to control land-based pollution. The Basel Hazardous Waste Convention Article 4(4) specifies that parties “shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention” Duty to Adopt Effective National Law – The Duty to Enforce The duty to adopt effective national laws and enforcement is a corollary of the most fundamental treaty rule of all, pacta sunt servanda, defined in the Vienna Convention on Treaties as meaning “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” The Vienna “Treaty on Treaties” further provides that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” However logical a rule requiring treaty-implementing national laws and systems may be, not all states comply. Many states enter into treaties, then fail to take the next logical step for economic reasons, lack of capacity, or domestic political resistance. CBDR can be both a negative force, providing an excuse for inaction, or it can be a positive call for international aid – technical assistance, technology transfer, training, and funding – to assist those countries with the necessary capacity building.  The Integration Principle ▪ For environmental protection to work, environmental considerations must be made an integral part of government and development decision-making. This was recognized at least as early as the US National Environmental Policy Act of 1969, which requires all US government agencies to utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment. ▪ In 1972, Stockholm Declaration Principle 13 called on states to “adopt an integrated and coordinated approach to their development planning” to ensure it was compatible with environmental protection. ▪ The 1992 Rio Declaration is even more forceful, stating that “environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” ▪ The EU and other countries have adopted the integration principle in their laws. Even private sector business codes, like the International Chamber of Commerce “Business Charter for Sustainable Development” and ISO 14000, support and reinforce this precept of “integrated environmental management.”