International Law and Protection of the Environment PDF

International Law and Protection of the Environment I n 1969, Thor Heyerdahl of Kon-Tiki fame undertook another perilous expedition. Heyerdahl had noted a design similarity between boats on Lake Titicaca (Peru and Bolivia) and those depicted on tomb walls in Egypt. Th...

International Law and Protection of the Environment I n 1969, Thor Heyerdahl of Kon-Tiki fame undertook another perilous expedition. Heyerdahl had noted a design similarity between boats on Lake Titicaca (Peru and Bolivia) and those depicted on tomb walls in Egypt. Theorizing that ancient Egyptians might have had some contact with the Americas, Heyerdahl attempted to sail from North Africa to South America in a papyrus reed boat.1 During the voyage of Ra I, the crew encountered areas of the ocean littered by lumps of tar large enough to pose a significant hazard to a small reed boat. The lumps had resulted from the then current practice of supertankers washing out their empty tanks in the open sea. The practice had seemed harmless because few believed that, given the breadth and depth of the oceans, such minor and sporadic episodes would cause permanent harm. This incident formed part of a global “wake-up call” that directed attention to the conservation of the global environment as an important issue. Late in 2015 two other events occurred that highlight some important issues that impact efforts to conserve the environment. Although neither involved transboundary issues, they illustrate important factors to keep in mind when dealing with the evolution and enforcement of any domestic or international regulatory regime. In November 2015, two dams, owned by the Brazilian mining company Samarco, collapsed, sending a tsunami of mud and mining waste cascading out of the mine. The dam failures killed 17 people. The wave of toxic mine waste flooded and polluted hundreds of square miles of river valleys in two Brazilian states, severely polluting drinking water and killing wildlife in the Rio Doce all the way to the Atlantic Ocean. No matter the scope of cleanup efforts, the toxic waste will take at least decades to dilute to levels anywhere near previous levels.2 In the same month, the city of Flint, Michigan, faced an unprecedented issue resulting from an environmental catastrophe produced by toxic water pollution that degraded the water delivery infrastructure. For two years, the residents had been drinking water that had 900 times the EPA limit for lead particles.3 First, as with other areas such as conservation/regulation of fisheries, a tension exists between self-interest and perceived costs of any action, and the development of new regulations or effective enforcement of an existing regime. At the international level, add the complication of sovereignty and competition for scarce resources such as oil. Second, while major progress has been made in raising awareness about the necessity for regulations to protect and conserve vital elements of the environment, almost 50 years later, a “laundry list” of concerns commands attention because of the breadth, interrelated 595 nature, perceived costs, and complexity of the problems. Deforestation and desertification, biodiversity (extinction of species), global warming, air and ocean pollution, and disposal of hazardous wastes constitute areas of immediate and growing concern. In particular, activities often deemed necessary for economic development can produce side effects that can have significant environmental impact. Third, the Millennium Ecosystem Assessment Synthesis Report, completed in March 2005, concluded that approximately 60 percent of the ecosystem services that support life on Earth—such as fresh water, capture fisheries, air and water regulation, and the regulation of regional climate, natural hazards, and pests— are being degraded or used unsustainably.4 596 THE ENVIRONMENT AND TRADITIONAL INTERNATIONAL LAW During the past 50 years, international environmental law has emerged as a distinct and separable concern from state responsibility. We emphasize “distinct and separable” because some environmental concerns have long formed part of general international law. For example, states have always had a duty to control activities that might have adverse effects within the territories of their neighbors.5 The heightened interest and proliferation of effort has come from the realization that transboundary problems form only one aspect of environmental concerns. Atmospheric pollution, global warming, marine pollution, ozone depletion, disposal of radioactive and other hazardous wastes, and questions of conservation and management of wildlife and fish stocks are problems that states may have in common, but no one state, no matter how powerful, can solve these questions by itself. Over the past 40 years, a concern for damage to the environment as a global issue apart from damage to the environment of a particular state has slowly become part of the international agenda. Modern concerns embody not only potential transboundary problems but also more general threats to the atmosphere and global commons. We emphasize this important distinction because, as with human rights, the structure and assumptions of traditional international law militate against major innovation. 597 REGIMES AND THE LAW Because of the extraordinarily complex nature of the problems, much of the research in the area of international environmental protection has concentrated on the idea of regimes. Scholars still dispute the exact definition of a regime, but for our purposes, the original put forth by Stephen Krasner will suffice. Krasner defined regimes as “implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations.”6 Hence, even though law has an important function, an emphasis on regimes focuses attention more broadly on the importance of institutions and nonbinding political arrangements (e.g., “soft law” and the impact of globalization; see Chapter 2)7 as well as issues of compliance. Regimes may serve many purposes apart from norm generation and standard setting (hard and soft laws). For example, other functions include dispute resolution, implementation, monitoring, technical support, and communication. From the beginning, many organizations other than states, operating at many different levels, have played significant roles in developing international environmental policy. Myriad transnational institutions and organizations established by domestic law exist alongside the formal intergovernmental organizations established by treaties among states. These include nongovernmental organizations (NGOs), corporations, “epistemic communities,”8 and other interest groups. As with human rights, the United Nations and the United Nations Environmental Programme (UNEP) stand at the center of the effort. NGOs9 at many different levels are engaged in many different activities, providing essential support. Apart from the UN system, very few organizations have broad global interests. Environmental NGOs include professional societies (Caretakers of the Environment International), foundations (Ford, Rockefeller), federations of national organizations (Friends of the Earth, International Chamber of Commerce, Climate Action Network), public interest research groups (PIRGs), and those devoted to specific tasks (Clean Up the World, Comitè Arctique International) to promote environmental awareness. Some groups actively lobby for legislation and policy changes, others engage in scientific research, many focus on a particular environmental project such as protecting wetlands, and still others find their mission in training or disseminating information. We also find an interesting array of hybrid organizations such as the International Union for Conservation of Nature and Natural Resources (IUCN),10 whose membership comprises representatives from both governments and NGOs. In analyzing the impact and importance of the Stockholm Conference (1972), two prominent political scientists concisely summarized many of the issues touched on in the preceding discussion that still have resonance for contemporary efforts:11 “Environment” as an issue has no simple bounds. To be concerned with assessing the impact of scientific and technological developments on the environment requires being 598  concerned with the full array of issues affecting civilization, from disposal of waste... to the calculation of the real costs of economic growth.... Inevitably, as international institutions develop their concern and capacity for analyzing environmental impact issues, they will find themselves involved in many questions touching on major political, economic and social problems. (Emphasis added) As with human rights, the diversity of efforts has resulted in fragmentation (specialization) that has often resulted in a lack of coordination, let alone formal cooperation or collaboration, among organizations working on similar problems. Lack of coordination also may stem from competition for scarce resources and funds. At the international level, the growth in the number of specialized organizations means that individuals and organizations need to spend increasing amounts of energy and resources in simply keeping abreast of research and other activities in the same area of interest. Nonetheless, the growth in efforts to deal with environmental questions continues at a rapid pace. Even given the problems, over the years four guiding principles have emerged as common elements in declarations, treaties, and other instruments. At present, a vigorous debate continues over the extent to which these principles have become “hard law” through treaty, court decisions, and customary practice as opposed to aspirational goals. The four principles are as follows:12 1. Consultation and cooperation on issues that might affect others 2. Precaution or prudence—avoidance of policies that could adversely affect the environment 3. Good neighbors—the extension of precaution to avoidance of policies that may have adverse joint effects 4. Intergenerational equity—the duty to preserve the environment for the future. The first recorded international case, an arbitration between the United States and Canada over damage done in Washington state by a smelter operating across the border in British Columbia, illustrates the first three of these principles. In particular, the last sentence of the award in the Trail Smelter Arbitration13 expresses “strong hope” that future investigations in conjunction with the issues would be conducted jointly. The panel in the Lac Lanoux Arbitration (Spain v. France), concerning the French diversion of waters from Lac Lanoux for “public utility,” emphasized that consultations and negotiations in good faith are necessary, not as a formality, but as a genuine attempt to conclude an agreement to prevent conflict.14 Scientific Knowledge and the Limits of Law as Regulatory Technique Curiously, although we must rely upon expanding scientific knowledge about the planet as the basis for effective action, the structure and nature of modern scientific inquiry coupled 599 with the structure of traditional international law pose a set of parallel problems. That the structure of traditional international law may present obstacles may seem obvious; that of modern science less so, to the point of being counterintuitive. The simple fact that states, and therefore evidence of state consent, are still the essential element in developing legal obligations means that regimes develop only as states recognize that protecting their individual interests requires a cooperative effort. As we know, recognition of necessity—that is, of a common problem—does not necessarily lead to effective cooperative action. Illustrations of this propensity run from Rousseau’s parable of the stag hunt to the more modern “tragedy of the commons.”15 Discussions of the logic surrounding the politics of collective good and bargaining detail the incentives and pitfalls. At the center of the controversy stands an indisputable fact—many of the activities that form the basis for industrial society, and the idea of progress and economic development that produces a better standard of living for all, may also generate effects that have deleterious impacts on the environment. Because many of the issues here do have direct economic consequences, the incentives to maximize or preserve short-run benefits because of the perceived cost of long-run gains have real, not theoretical, impacts on government calculations. Hence, that law is a technique to preserve cooperative agreements but not necessarily the technique best suited to develop them. Moreover, even though progress seems rapid over the past 50 years—as measured in numbers of multilateral conventions (and the starting point)—questions of scope, effectiveness, and compliance remain at the heart of the effort. Along these same lines, while the ideology associated with globalization presents a problem, so does that associated with ideas about local development. Accepting the logic of the market economy without considering the impact on resources can produce the “tragedy of the commons.” The tension between market principles, resource conservation, and the desire for economic development is not necessarily insurmountable, but in devising strategies to reconcile the three, we face the rather daunting obstacle of overcoming “default assumptions” (see Chapter 1) deeply held by decision makers. This applies to the “market economy” (globalization) rationales as well as the “entitlement” perspectives of the Group of 77. The development of environmental law absolutely depends upon science—the need to understand the “laws of nature.” Biology, chemistry, physics, and the other “hard sciences” form the heart of effective steps to regulate those activities that produce deleterious effects. Few other areas of the law absolutely depend upon scientific knowledge. Most areas of law attempt to regulate variable and often unpredictable human relationships. In contrast, environmental law uses science to predict and regulate the consequences of human behavior on natural phenomena.16 This means that we have an ongoing fundamental question concerning the reliability of what we think we know and do not know about environmental processes. Here the controversy over global warming serves as a prime example. One study called into question the long-held belief that simply planting trees would significantly reduce the effects of the greenhouse gas CO2 (carbon dioxide) closely associated with hypotheses about global warming. These researchers found that trees (and other plants) give 600 off significant amounts of methane, another greenhouse gas.17 If this proves true, the questions of controlling the processes associated with global warming have become infinitely more complex and difficult. Yet, in this respect, the nature of modern scientific inquiry—coupled with concerns for the extent and accuracy of current findings—can serve as an inhibiting factor. This observation points up an interesting problem and dilemma. Certainly, effective action requires accurate and reliable scientific knowledge, but how scientists conceptualize problems has an impact on the nature of the information generated. Modern science owes much of its success to patterns of investigation that “encourage the disaggregation of problems into their component parts and reward efforts to tackle individual issues piecemeal.”18 Extrapolating this approach to the sociopolitical world, the nature of the scientific enterprise explains in part the piecemeal nature of environmental regulation. We still have much to learn about the complex interplay between the natural and the social world. As one study noted:19 Truly effective international environmental institutions would improve the quality of the global environment. Much of this activity, however, is relatively new, and... on none of the issues... do we yet have good data about changes in environmental quality as a result of international institutional action. So we must focus on observable political effects of institutions rather than directly on environmental impact. Although written 20 years ago, this observation still applies to current problems. The Limits of Litigation Interestingly, the limitations of the responsibility/liability framework of environmental problems as a method for dealing with new areas of concern somewhat parallels the issues raised by the nature of modern scientific inquiry. As discussed in Chapter 11, the idea that legal responsibility for injury should be imposed upon the party that caused the damage has an old and honorable history. With regard to environmental issues, simply this means “polluters should pay.” The principal difficulty arises because establishing a law of environmental protection in this manner requires that we proceed on a case-by-case (i.e., piecemeal) basis. Apart from the often lengthy time and considerable cost involved in adjudication (and the questions of evidence, scope of competence, etc.), the major long-term environmental issues do not necessarily present themselves as a discrete set of problems, each with a definite technical and/or legal solution. Lawyers tend to think in terms of paradigm cases, like oil spills, where the problems of proof are relatively easy. As we noted earlier, many environmental problems such as global warming do not occur as discrete, bounded events. Consider the problem of proof in the case of injury to fisheries at some distance from the coast caused by land- or ocean-based sources that discharge relatively small quantities of pollutants but do so relatively often. Even in the case of discrete, bounded events, proof 601 may be hard to adduce. Focusing on liability makes us think in terms of oil spills, when the major potential long-term threats may flow from the interconnected effect of many different everyday activities—such as the use of pesticides such as DDT (for mosquitoes) or chlordane (for termites) or the generation of electric power through the burning of fossil fuels, or the impact of “fracking” to produce natural gas. Beyond the episodic character of the liability framework and the time needed for litigation lies the consideration that the results of any particular litigation using the liability framework provide only a standard for levels not permitted. Seldom does litigation in liability cases serve the dual function of imposing responsibility for past acts and allocating the costs of future ones. Closely associated is the question of what action in redress would be appropriate for violators. Does the idea that “polluters should pay” go far enough? How do we assess the extent of the compensation? Is repair and restoration a sufficient standard, or should the idea of punishment and punitive damages be incorporated as a matter of course? Consider the large-scale destruction caused by the actions of Iraqi armed forces as they retreated from Kuwait. They set fire to over 700 oil wells, causing almost unimaginable damage:20 Day vanished into night, black rain fell from the sky, and a vast network of lakes was born...lakes of oil as deep as six feet.... Saddam also poured 10 million barrels of oil into the sea. Thousands of birds perished, and the people of the Persian Gulf became familiar with new diseases. Consider this as well with respect the coastal damage cause by the BP oil spill in the Gulf of Mexico (2010),21 that by the Samarco dam case, or the long-term health effects caused by the Flint situation. 602 REGIMES AND ORGANIZATIONS The International Whaling Commission (IWRC) As one of the first international organizations set up with a conservation mission (1946), the International Whaling Regulatory Commission (IWRC)22 had the formal mission to provide “for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.”23 The IWRC is currently composed of 66 states parties,24 and membership is open to any state that wishes to ratify the convention. The IWRC has a small secretariat (in Cambridge, England). The politics surrounding the history of the IWRC illustrates the dilemmas associated with developing “hard law” standards for many perceived environmental threats. The dual nature of the mission— conservation and orderly development of the industry—has often produced open rifts between member states committed to commercial whaling and those opposed. While commercial whaling has been banned since 1986, Japan has continued the practice under a loophole that permits killing whales for scientific purposes.25 Norway has a long-standing protest against the zero-catch policy and has refused to abide by it since 1992.26 Iceland, a new member, has started a “scientific whaling” program.27 Statements by African and Caribbean delegates to the annual conference of the IWRC (June 2005) show the interconnection they perceive between the necessities of economic development and the economic opportunities they see in commercial whaling.28 The key to the convention is the Schedule, a document that mandates protection of certain species, designates certain areas as whale sanctuaries, sets limits on the numbers and size of catches, prescribes open and closed seasons and areas for whaling, and controls aboriginal subsistence whaling.29 The convention specifies that any amendments to the Schedule “shall be based on scientific findings” (Article V.2.b). Hence, the findings of the Scientific Committee are key to redefining the Schedule. In 1975, the IWRC adopted a new management schedule designed to bring all stocks to the levels that would sustain the greatest long-term harvests. It did so by setting catch limits for individual stocks below their sustainable yields. Problems arose due to lack of confidence in the scientific analyses, largely because of the difficulty in obtaining the complex data required. The decision to declare a moratorium on commercial whaling beginning in 1986 followed. The IWRC Scientific Committee then undertook a mission to develop a Revised Management Program (RMP). Based on the report of the Scientific Committee, the IWRC set up a Revised Management Scheme (RMS) Working Group in 1994. The record from the 2005 annual conference proves instructive. The official website notes:30 In the Commission, different views remained regarding the elements that should be included in an RMS “package” and on whether adoption of an RMS should be linked in any way to the lifting of the commercial whaling moratorium. Japan put forward a 603  proposed Schedule amendment for an RMS that inter alia would have lifted the moratorium. The proposal did not attract the required three-quarter majority to be adopted (23 votes in favour, 29 against and 5 abstentions). However, in 2010 Australia brought suit against Japan in the ICJ, questioning the “scientific nature” of its JARPA II program in the Antarctic.31 The IWRC does not mandate compulsory arbitration proceedings, but all parties accepted the compulsory jurisdiction of the Court (Article 36.2).32 The principal issue focused on Article VIII of the convention: Notwithstanding anything contained in the Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take, and treat whales for the purposes of scientific research... The Court accepted that the design program had elements that could “broadly be characterized as ‘scientific research’ ” but held that the implementation did not. The objectives outlined did not justify the scale of lethal taking; therefore the program violated the moratorium on commercial whaling.33 In evaluating the history of the IWRC, consider that no state has acted totally in “bad faith.” The Caribbean states may make statements (to gain negotiating leverage), but they still work through the IWRC. The protesters—Japan, Norway, and Iceland—have problems with the prohibition on commercial whaling. Japan agreed to submit to the ICJ. Each state has had to justify their policies in terms of the convention. Most certainly, this requirement has had a positive effect. The Stockholm Conference and Declaration The emergence of the environment as a major concern for transnational consideration came with the 1972 Stockholm Conference. The conference produced the Declaration of the United Nations Conference on the Human Environment (Twenty-Six Principles)34 and provided the impetus for the creation of the UNEP by the UN General Assembly.35 In this sense, the Stockholm Declaration occupies the same “founding” position in contemporary environmental law as the Universal Declaration of Human Rights (Chapter 15) has in the evolution and development of human rights law. From the standpoint of the evolution of future legal norms, while the declaration itself contains no standards, it mentions several specific forms of potential damage states have a duty to address (e.g., ocean dumping, toxic discharges, and nuclear weapons) and states three general legal principles as guides for future development: 1. All human beings have 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.” Individuals bear a “solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or 604  perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.” (Principle 1) 2. “States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.” (Principles 21–22) 3. States have a duty to cooperate through international agreements to “prevent, eliminate or reduce and effectively control adverse environmental effects resulting from activities conducted in all sphere in such a way that due account is taken of the sovereignty and interests of all States.” (Principle 24) Two of the general principles (Principles 21–22 and 24) merely reflect the traditional structure of international law and the liability framework with the environment as an explicit focus. The third (Principle 1) marks an interesting departure from traditional law in that it embodies the idea of an individual right to a clean and healthy environment as well as that of intergenerational equity reflected in an individual duty to “protect and improve” the environment for future generations. Many of the other principles note particular problems such as the depletion of nonrenewable resources, rapid population growth, and the need for education, scientific research, and wildlife preservation, but these have significance only as a laundry list of potential future agenda items. Based on Indira Gandhi’s impassioned presentation, the declaration also addressed the question of the relationship between environmental protection and the drive for economic development in lesser developed countries (LDCs). This issue continues as a major concern because of the expense associated with more modern “clean” technologies. Maintaining a balance between development and the need for environmental protection once again illustrates the tensions between state sovereignty (potent individual interests) and the need for broad international cooperation. LDCs would choose smoking factories if they meant a better standard of living over no factories at all—if all that no factories meant was a clean “environment” with no improvement in the basic economic living conditions of their citizens. The United Nations Environmental Programme Established by the UN General Assembly in 1972, the UNEP stands at the center of environmental law and policymaking. As a subsidiary organ of the United Nations, UNEP has a governing council composed of 58 states, elected in staggered terms for four years. The rapid growth of the UNEP in terms of issue areas and regional reach illustrates both progress and problems. In the past 35 years, UNEP has become a remarkably complex operation. Besides the headquarters in Nairobi (which also houses the regional office for Africa), the organization has six regional offices (Africa, Asia-Pacific, West Asia, Latin America–Caribbean, Europe, and North America), eight divisions, and a multitude of 605 linkages with NGOs and private organizations.36 UNEP has been the catalyst for development of more than 40 formal international agreements—some global, some regional—and for promoting discussions that have produced a number of “ministerial declarations” and other soft-law pronouncements suggesting guidelines and principles for developing future standards in many issue areas. UNEP stands at the center of UN efforts on environmental matters. It has a principal role in identifying new problems and monitoring progress, coordination, and promotion. Yet this status should not draw attention from the fact that other UN agencies (e.g., the Food and Agricultural Organization [FAO] and the World Health Organization [WHO]), some even before UNEP was established, have been very much concerned with environmental issues. Indeed, as testament to our earlier observation concerning fragmentation of effort, UNEP has only the power of persuasion in promoting and coordinating environmental programs and initiatives. As with human rights programs, finance is a continuing concern. The costs of maintaining the governing council and the secretariat come from the UN regular budget.37 Funds for other activities come solely from voluntary contributions. While the base of donors has increased significantly over time, contributions have seldom been sufficient to fund all programs fully. THE UN SYSTEM AND THE ENVIRONMENT: SELECTED INTERNET SITES CSD www.un.org/esa/dsd/csd/csd_aboucsd.shtml FAO www.fao.org IAEA www.iaea.org/ IBRD (World Bank) Inspection Panel www.worldbank.org/html/ins-panel CGIAR www.cgiar.org/ IMO www.imo.org ITTO www.lincmedia.co.jp/itto UNCC www.un.org/wcm/content/site/climatechange/gateway UNCCD www.unccd.ch UNCLOS www.un.org/Depts/los UNDP www.beta.undp.org/undp/en/home.html UNECE www.unece.org/env 606 UNEP www.unep.org Basel Secretariat www.basel.int/ CBD Secretariat www.biodiv.org CITES Secretariat www.cites.org/eng/disc/sec/index.php CMS Secretariat www.cms.int/secretariat/index.htm Ozone Secretariat www.ozone.unep.org/new_site/en/index.php Regional Seas www.unep.org/regionalseas/ UNESCO: World Heritage www.whc.unesco.org/en/list UNFCCC www.unfccc.de UNITAR www.unitar.org UNOLA (Treaties) www.un.org/Depts/Treaty WHO Ecosystem www.who.int/topics/ecosystems/en/ Environmental health www.who.int/topics/environmental_health/en/ Pollution www.who.int/topics/environmental_pollution/en WIPO www.wipo.int WMO www.wmo.ch WTO: Trade and www.wto.org/english/tratop_e/envir_e/envir_e.htm Environment 607 THE EARTH SUMMIT (RIO CONFERENCE) The UN Conference on Environment and Development, better known as the Earth Summit, held at Rio de Janeiro in 1992, marked a second significant milestone. Attended by 172 governments and 2,400 representatives from NGOs, the conference generated two soft-law statements of general principles (the Rio Declaration, forest conservation) and a program for future action (Agenda 21). As planning for the meeting took place, two conventions were prepared for final action at the conference—the UN Framework Convention on Climate Change (UNFCCC)38 and the Convention on Biodiversity (CBD).39 The Rio Declaration40 dealt with the problems associated with development and environmental quality and protection. The themes that states have a duty to consult, cooperate, and take effective domestic action run throughout the document. Between Stockholm and Rio, several treaties had incorporated these principles. For example, Article 5 of the Long-Range Transboundary Air Pollution Convention (1979)41 says that consultation shall be held upon request if an activity may have an effect in other states. Other treaties have stronger requirements, such as environmental impact assessments (e.g., Article 204 of UNCLOS III; the Antarctic Environmental Protocol, 199142). The debate continues over the status of these principles as new customary rules of international law. While the document reemphasized the principles of Stockholm (cooperation, consensus, and intergenerational equity), Principle 3 speaks of a “right” to development, and Principle 4 defines environmental protection as an “integral part of the development process.” Perhaps the most interesting statement comes in Principle 7, which departs from the traditional equality assumption to talk about differential responsibility in terms of environmental and developmental issues: The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. Because it is characterized as soft law, the declaration does not bind states to specific legal obligations. Yet, as we have noted in these discussions, the importance and impact flowing from public expectations can turn political statements into future commitment. For example, Article 3(1) of the UNFCCC reflects the principle of differential responsibility (differential duties) in providing that the states parties should deal with the questions of climate change on the basis of “equity” and “in accordance with their common but differentiated responsibilities and respective capabilities.” Article 3(2) emphasizes the “special needs and circumstances of developing countries.”43 Article 20(4) of the Biodiversity Convention states this differential clearly: 608  The extent to which developing country Parties will effectively implement their commitments under this Convention will depend on the effective implementation by developed country Parties of their commitments under this Convention related to financial resources and transfer of technology and will take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties. Agenda 21 Often mentioned as the blueprint for developing future management plans for all sectors of the environment, this document has 40 chapters and runs to more than 800 pages.44 Like the Rio Declaration, Agenda 21 does not generate binding obligations. Its importance lies in the restatement and elaboration of many general principals and perspectives regarding specific areas of concern. Again, as with certain areas of human rights law, understanding the delays involved with disputes over definitions, states made the decision that it was important to move ahead with general statements of goals with an understanding that the details would still require much negotiation. In international politics, the devil is always in the details, but this should not diminish the giant step involved in the production of Agenda 21. Regarding Agenda 21, future steps in developing solutions to the extensive list of problems identified (let alone the prospect that new ones may emerge) may occur very slowly, for many reasons. While statements noting the need for cooperation and consultation run throughout the document, most of these goals depend on the actions of independent states in establishing appropriate domestic goals and mechanisms for their achievement. As a general comment, the document glosses over some continuing areas of deep division, such as the terms of technology transfer, trade barriers, adequacy and availability of development assistance, financial support for international programs in general, and questions of timetables for plans of action to achieve the goals. The definition (and goals) of “sustainable development” continues as a problem. Sustainable development implies the necessity to reconcile the competing demands of global social equity, environmental protection, and economic efficiency.45 Adding sustainable development as a requirement takes environmental planning far outside the normal frames of reference. Doing so also raises substantive issues about appropriate goals and measures of progress. Moreover, as a new and somewhat ambiguous goal, factoring in global equity concerns in future planning presents two additional challenges. First, because many goals demand action through domestic planning, those involved must proceed in ways not part of their prior experience. Second, domestic planning will always be responsive to local evaluations of where global equity concerns rank in terms of domestic priorities. The Commission on Sustainable Development As part of the machinery established to implement the goals of the Earth Summit, the General Assembly created the Commission on Sustainable Development (CSD, under the Economic and Social Council) to monitor progress toward achievement of the Rio 609 Declaration and Agenda 21 objectives. The CSD meets every two years, at each meeting focusing on a specific set of thematic issues.46 The Earth Summit mandated that every five years, an international conference should convene to examine and evaluate the progress toward the standards contained in Agenda 21. The World Summit on Sustainable Development (WSSD) in Johannesburg in the late summer of 2002 marked the second follow-up meeting. The 2002 Conference saw a shift in priorities from the UN perspective. The 1997 Conference had identified the global threats as defined by the developed nations —climate change and loss of biodiversity, for example—as the top priorities. The 2002 Conference reflected Indira Gandhi’s challenge of 30 years before—the idea that improvement at the “micro” level formed an essential component of sustainable development as important as the concerns at the “macro” level. Safe drinking water, sanitation, and basic health care moved ahead of global warming and extinction of species as priorities.47 The WSSD produced another plan of implementation.48 Yet progress over the years after Rio seems modest. A considerable gap has seemed to exist between the pledges made with such idealism at Rio and performance in terms of implementation since. 610 TREATIES Treaties have formed one of the main instruments for environmental regulation. Reports vary as to the number of global and regional agreements now in force. A recent estimate gave the number as more than 500. The greatest majority of these address regional issues; one environmental website identifies 225 treaties that have entered into force since 1972.49 Many of these set up their own governance and monitoring structures. Rather than an extended and detailed tour through the various treaties, in this discussion we will address thematic areas and patterns. Biodiversity and Land Management The initiative for the Convention on Biodiversity (CBD)50 dates from 1981. First proposed by the IUCN, it brought together in legal form a number of policies and proposals that had been part of many conference agendas as well as action programs of advocacy organizations at all levels. The primary goal of the CBD is to preserve and protect the variety of life on Earth. Article 2 offers the following definitions: “Biological diversity” means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. “Biological resources” includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity. Potentially, the treaty applies to the simplest organism as well as the complex ecosystems of rainforests. The issues in this area clearly demonstrate the complexity and interdependence of environmental processes. Preservation of species has obvious links to deforestation51 and desertification52 because these processes obviously produce loss of habitat. For example, deforestation, as well as desertification, can result from a number of activities associated with economic development projects such as conversion of forests and woodlands to agricultural land for food production; development of cash crops and cattle ranching, both of which earn hard currency for tropical countries; commercial logging (e.g., teak, mahogany, and ebony), often in conjunction with development of land for agriculture; and cutting trees for firewood. The presence of livestock compacts the substrata, reducing the percolation rate of the soil and resulting in erosion by wind and water. Grazing and the collection of firewood reduce or eliminate plants that help to bind the soil. These activities can produce extreme land degradation because, despite the often lush appearance of the rainforest, the soils of the 611 tropics lack depth and coherence. Without amendment and conservation, they cannot support agriculture or ranching for long. A cycle begins—people then must move on and clear more forests in order to maintain production. Both the Statement of Forest Principles and the Convention on Biodiversity cite “sustainable” exploitation as a priority. Article 15(7) of the Biodiversity Convention states that lesser developed countries must develop conservation plans, while developed states must provide expertise and financial assistance in the expectation of a “fair and equitable sharing” of any benefits. Desertification has received a great deal of publicity from the news media, but scientific knowledge in many areas still remains sparse. Almost 20 years ago, Ridley Nelson pointed out in an important scientific paper written for the World Bank (“Dryland Management: The Desertification Problem”) that desertification problems and processes are not clearly defined. This still remains the case. No consensus exists among researchers as to the specific causes, extent, or degree of desertification. Desertification occurs in many different areas of the world with very different ecosystems. It is not just a problem of lesser developed countries. The “Dust Bowl” saga of the American prairie lands in the 1930s stands as a reminder of what can happen in the absence of prudent land management plans—as do areas of Arizona and New Mexico currently. In Canada, portions of the three Prairie provinces—Alberta, Saskatchewan, and Manitoba—comprise vulnerable drylands. In these areas, ordinary activity without careful planning can have long-term effect. Convention on International Trade in Endangered Species Sponsored by IUCN, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)53 emerged as the first post-Stockholm environmental instrument. As with many other treaties in the environmental area, CITES does not substitute for national legislation. It has guidelines that provide a framework which each state party must utilize in developing appropriate domestic legislation. Although we have adopted Stockholm (1972) as a significant transitional event, the preparatory work for this convention dates back to 1963—a reminder of the often lengthy process associated with developing important international norms. CITES merits note not only because it has evolved as an effective regime but also because we need to distinguish between what the term framework means with regard to the obligations it mandates in contrast with what it means with regard to other treaty regimes such as the Vienna Convention54 (1985) and the Montreal Protocol55 (1987). In the broader sense, the Vienna Convention provides a “framework” in that it sets general guidelines with the expectation that future negotiations will deal with standard-setting in specific areas through protocols or substantive amendments guided by the general principles in the “framework treaty.” The protocols will contain explicit standards and targets. Confusion can result because the resulting protocols often have utilized the framework guideline approach of CITES in mandating the passage of appropriate legislation at the domestic level. The Montreal Protocol stands as a prime example. To summarize quickly, CITES is not a framework convention per se in the sense of guiding 612 the future development of international law; rather, it sets guidelines for the development of national law. To reinforce an earlier point about knowledge and international concern about the environment, note that when IUCN first proposed that certain species needed protection from extinction, few states had thought a problem existed. Today, CITES regulates international trade worth several billion dollars in over 30,000 species (more than 25,000 are plants).56 The trade comprises live animals and plants as well as the products derived from them, including food products, exotic leather goods, wooden musical instruments, timber, tourist curios, and medicines (or exotic health treatments). Monitoring includes factors such as level of exploitation (demand) and loss of habitat. The treaty has three areas of concern: (1) endangered species or those threatened with extinction; (2) species not endangered, but needing monitoring to ensure sustainability; and (3) species designated by at least one country as protected, where the state has asked international cooperation in controlling the trade. The treaty has two administrative levels: international and domestic. At the international level, the Conference of the Parties (COP) meets biennially. The COP has responsibility for amendments to the three categories of protected species and for any new resolutions affecting the implementation of the treaty. The CITES standing committee, which meets once or twice a year depending upon demand, takes care of issues arising between meetings of the COP. The CITES secretariat, administered by UNEP, takes care of the everyday business associated with communications, dissemination of information, monitoring, and assistance to field operations. Financing of the core activities associated with COP, the standing committee, and the secretariat comes from the CITES trust fund. Replenishment of the trust fund comes from contributions from the parties to the convention, based on the UN scale of assessment and adjusted to account for the fact that not all members of the United Nations are parties to the convention.57 Funds for other activities must be raised from private sources. At the national level, CITES works by requiring that states parties enact certain controls with respect to international trade in specimens of selected species. All import, export, reexport, and introduction from the sea of species covered by the convention must be authorized through a licensing system. Each party to the convention must designate one or more management authorities in charge of administering that licensing system as well as at least one scientific authority to advise them on the effects of trade on the status of the species.58 Other Relevant International Conventions (Wildlife and Land Management) Ramsar Convention on Wetlands Signed at Ramsar (Iran) in 1971, the Convention on Wetlands was the first international treaty aimed at the conservation of natural resources.59 The convention provides guidelines for national action with regard to the preservation, restoration, and wise use of areas designated as wetlands. Its international administrative structure consists of: the Conference of Contracting Parties (COCP), which meets every three years to discuss policy issues and to report on the activities of the previous three years 613 through national reports; the standing committee, which meets annually; the secretariat; and the scientific and technical review committee. The secretariat of the Convention on Wetlands is housed by IUCN. The treaty secretariat is an independent body serving the contracting parties to the convention, and the standing committee. Ramsar staff receive the benefits and services as IUCN staff members and are legally considered IUCN personnel. The Convention on Wetlands is not part of the United Nations or UNEP system of environmental treaties. At the national level, each state party designates an administrative authority as the focal point for implementation of the convention. The convention suggests that parties should establish national wetland committees to coordinate all government institutions, as well as interested NGOs, in dealing with water resources, development planning, protected areas, biodiversity, education, and development assistance. Ramsar sites facing problems in maintaining their ecological character can be placed by the country concerned on a special list, the Montreux Record, and receive technical assistance to help solve the problems.60 Bonn Convention on Migratory Species of Wildlife The Stockholm Conference produced the initiative for the Bonn Convention on Migratory Species of Wildlife (CMS).61 In part, CMS mirrors the structure of CITES; it sets guidelines for national legislation, and its international administrative structure (conference of parties, standing committee, secretariat) has the same component institutions. In scope, the convention lists two categories of concern: (1) species threatened with extinction and (2) migratory species that would benefit from international cooperation. The treaty seeks to have states establish regulations that would protect and conserve habitats, eliminate obstacles to migration, and deal with other conditions that pose a threat. As with CITES, UNEP administers the secretariat. A scientific council, consisting of experts appointed by individual member states and by the COP, gives advice on technical and scientific matters.62 Unlike CITES, the Bonn Convention serves as a “framework treaty” with respect to both international and national laws. The convention consists of six agreements and eight memoranda of understandings (MoUs). Because states parties are not necessarily interested in all problems of all migratory wildlife, the international structure is quite complex; states may choose to ratify some agreements and MoUs and not others. States may elect not to join CMS (i.e., not to sign or ratify the treaty) and yet still participate in one or more of the MoUs. The United States has not joined CMS but participates in the Marine Turtle/Indian Ocean MoU. In passing, we should point out the overlap in issue areas with the IWRC (cetacean agreements). CMS (Bonn) Convention: Agreements and MoUs63 Populations of European Bats Cetaceans of the Mediterranean Sea, Black Sea, and Contiguous Atlantic Area 614  Small Cetaceans of the Baltic and North Seas Seals in the Wadden Sea African–Eurasian Migratory Waterbirds Albatrosses and Petrels MEMORANDA OF UNDERSTANDING Siberian Crane Slender-Billed Curlew Marine Turtles of the Atlantic Coast of Africa Marine Turtles of the Indian Ocean and Southeast Asia Middle European Population of the Great Bustard Bukhara Deer Aquatic Warbler West African Populations of the African Elephant Climate, Atmosphere, and Other Transboundary Problems Acid rain, air quality, ozone depletion, global warming/climate change, and transport, control, and disposal of hazardous compounds and wastes comprise some of the core problems in this issue area.64 As many have pointed out, questions of air quality are not new. We have reliable reports of significant air pollution from ancient smelting operations, from the burning of coal for heat in the Middle Ages, and later from factories as the Industrial Revolution took hold.65 In 1908, Glasgow, Scotland, had a winter inversion that trapped smoke and killed 1,000 people. Sixty years ago, many cities in the United States, particularly those with large steel industries—like Pittsburgh, Birmingham (Alabama), East Chicago, and Gary—were infamous for the smoky fog (“smog”) constantly hovering over them. In October 1948, 20 people were asphyxiated and another 7,000 hospitalized in Donora, Pennsylvania (population 14,000). Known as the Donora Smog, it was described as a killer fog that “dropped dogs and cats in their tracks.”66 Tokyo in the 1960s had oxygen stations strategically placed so that for the equivalent of a quarter, you could get “fresh air” if needed. A cartoon published in the late 1960s shows two extraterrestrial beings landing in a flying saucer with one saying to the other: “The rules here are simple: in developing countries, don’t drink the water; in developed countries, don’t breathe the air.” The difficulties here, as with other issue areas, stem from the traditional structure of international law. Each state clearly has responsibility for the airspace (or other activities that occur within) above its territorial jurisdiction. The contemporary questions come from responsibility for areas outside the territorial domain of any state. For effective regimes to develop, a more effective sense of the atmosphere as a shared resource and common concern must evolve. Time becomes an important issue, both because responsible regulation necessitates a timetable for phasing out pollutants and converting to alternative 615 substances and because of the long-term persistence of the pollutants already in the air. Some chlorofluorocarbons (CFCs) may take 50 years or more to become totally inert.67 Table 18.1 highlights some important issues and themes. Framework Convention on Long-Range Transboundary Air Pollution68 Sponsored by the United Nations Economic Commission for Europe (UNECE),69 the Framework Convention on Long-Range Transboundary Air Pollution (LRTAP) addresses the problem of acid rain. The convention now has 51 states parties. This includes the United States and Canada.70 LRTAP is an international framework convention that to date has eight protocols addressing specific problems (see Table 18.1). The executive secretary of UNECE performs the secretariat function. The treaty has modest goals. States agree to limit and gradually reduce air pollution, particularly pollution that may have transboundary impact. The regime established does not deal with questions of potential liability from damage caused by transboundary pollution. While progress here remains slow, each of the protocols continues to gain acceptance as evidenced by new state ratification. TABLE 18.1 Treaty Type Settlement Sponsor/Dispute Governance Subject Matter Long-Range Regional framework UNECE negotiation Acid rain Executive Body; EM Transboundary or other mutually (Scientific Programm Air Pollution agreed method Working Group on (LRTAP) Effects; Working Gr (1979) on Strategies; Secreta (UNECE) Vienna International UNEP negotiation Regulates 96 Conference of Partie Convention for framework chemicals that Technology/Econom Protection of have ozone- Assistance Panel; the Ozone depleting Secretariat; (TEAP) Layer/Montreal properties (Ozone, Protocol UNEP)/Implementa (1985/1987) Committee Framework International United Reduction of Conference of Partie Convention on framework Nations/Compliance greenhouse gases Subsidiary Body for Climate Committee, Scientific and Techn Change/Kyoto Conference of Advice; Subsidiary B Protocol Parties for Implementation (1994/1997) Partner Agencies; 616  Secretariat (Bonn) Basel Conventional- UNEP/Compliance Control Conference of Partie Convention multilateral72/requires Committee transboundary Compliance (1989)71 domestic legislation movements of Committee; Secretar hazardous wastes and their disposal Stockholm International UNEP/negotiation Twelve priority Conference of Partie Convention on framework or other mutually toxic organic POP Review; Persistent agreed method compounds73 Committee Secretari Organic Pollutants (2001) LRTAP PROTOCOLS All protocols74 have entered into force. The 1999 Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone; 26 parties. The 1998 Protocol on Persistent Organic Pollutants (POPs); 30 parties. The 1998 Protocol on Heavy Metals; 30 parties. The 1994 Protocol on Further Reduction of Sulphur Emissions; 29 parties. The 1991 Protocol Concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes; 29 parties. The 1988 Protocol Concerning the Control of Nitrogen Oxides or Their Transboundary Fluxes; 34 parties. Entered into force February 14, 1991. The 1985 Protocol on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at Least 30 Percent; 25 parties. The 1984 Protocol on Long-Term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe (EMEP); 43 parties. Vienna Convention for the Protection of the Ozone Layer (1985) A widespread concern with the effects of CFCs on the ozone layer prompted action that produced the international framework treaty.75 To understand the myriad factors involved in effective action here, one merely needs to note that Freon—at the time, a widely used gas in refrigeration and air conditioning units as well as aerosol spray cans—is a CFC. Phasing out 617 the use of Freon, developed explicitly for refrigeration purposes, by itself had very real economic costs in terms of retooling and conversion. In 1987, states negotiated the Montreal Protocol on Substances that Deplete the Ozone Layer,76 which set explicit goals for reduction of both CFCs and halons (widely used in fire extinguishers). By 1989, concern had arisen that the original goals in the protocol were too lenient. The parties then adopted the Helsinki Declaration on the Protection of the Ozone Layer, which specified a 2000 deadline for the total phaseout of CFCs and the phaseout of halons as soon as economically feasible.77 Now ratified by 196 states, the Vienna/Montreal regime has been considered a success story.78 Framework Convention on Climate Change (1994) Aimed at reducing the emissions of carbon dioxide (CO2) and other greenhouse gases,79 the UNFCC achieved immediate and almost universal acceptance. The difficulties came with the follow-on Kyoto Protocol.80 Negotiations to provide standards began at the first COP in Berlin in 1995 and resulted in the adoption of the Kyoto Protocol at the third COP in Kyoto, Japan, in 1997. Many countries signed the Kyoto Protocol (including the United States), but did not carry through with ratification and/or acceptance due to the treaty’s lack of specificity in monitoring and compliance rules. A second round of negotiations finally produced the Marrakesh Accords, adopted at the seventh COP. The protocol entered into force in February 2005 after ratification by the Russian Federation.81 The treaty reflects the development debate by placing the main burden of reducing emissions on the developed countries.82 The UNFCC website notes: Because economic development is vital for the world’s poorer countries—and because such progress is difficult to achieve even without the complications added by climate change—the Convention accepts that the share of greenhouse gas emissions produced by developing nations will grow in the coming years. It nonetheless seeks to help such countries limit emissions in ways that will not hinder their economic progress. The United States has refused to ratify the Kyoto Protocol. In rejecting the protocol, President George W. Bush questioned the underlying science and noted that the treaty requirements would harm the U.S. economy and would diminish U.S. sovereignty over its own economy. President Bush also objected to the exemption for India and China, which rank in the top five of current CO2 producers.83 The Protocol currently has 192 Parties (191 States and 1 regional economic integration organization). The first commitment period of the Kyoto Protocol expired in 2012. Negotiations for a successor instrument resulted in the “Doha Amendment to the Kyoto Protocol” signed in early December 2012. During this second commitment period (2013– 2020), Parties committed to reduce Greenhouse Gas emissions by at least 18 percent below 1990 levels. As of October 1, 2016, 70 countries have ratified the Doha Amendment. However, a total of 144 instruments of ratification are required for the entry into force of 618 the amendment.84 The United States has not. The Paris Agreement (2016) The Paris Agreement builds upon the UNFCC. At this writing it has 77 ratifications and will enter into force on November 4, 2016. The Agreement commits Parties to undertake a concerted effort to combat climate change. The goal is to commit to measures that will keep global temperature rise this century below 2 degrees Celsius (3.6°Fahrenheit) above pre-industrial levels, and ideally, to only 1.5 degrees Celsius (2.7°F).85 The agreement relies on Parties making their “best efforts through ‘nationally determined contributions’ (NDCs) and to strengthen these efforts in the years ahead.” All Parties have committed to report regularly on their emissions and on their implementation efforts.86 Nuclear Problems The resumption of nuclear testing by the Soviet Union and the United States in 1962, together with the growing problem of how to dispose of dangerous radioactive waste materials, pointed up the relevance of including Article 25 in the 1958 Convention on the High Seas. The article provided that each state should take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations that might be formulated by competent international organizations. The treaty also called for cooperation by all states with the relevant international agency in taking measures to prevent pollution of the seas—or the airspace above—resulting from any activities with radioactive materials or other harmful agents. The question of nuclear tests was partially settled outside the framework of any international organization. After 425 announced test blasts, the United States, Great Britain, and the Soviet Union succeeded in producing the Partial Nuclear Test Ban Treaty (PTBT, Moscow Treaty) of 1963. The instrument, which came into force on October 10, 1963, represented an agreement among the three powers to “prohibit, to prevent, and not to carry out any nuclear weapons test explosions or any other nuclear explosion” in the atmosphere, in outer space, or under water. Underground testing was excluded deliberately because of Russian insistence that adequate inspection of such tests would open the way to espionage. The three parties also agreed in the treaty to refrain “from causing, encouraging or in any way participating in the carrying out of any nuclear weapons test whatever.” This provision was quite obviously aimed at France and the People’s Republic of China, both of which continued open-air testing.87 France halted all testing in 1996, but still has not acceded to the PTBT. China has traditionally been reluctant to participate in the international regimes restricting nuclear testing. It originally criticized the PTBT as a “fraud” designed to preserve the superpowers’ nuclear monopoly. However, although China has not signed the PTBT, it has been in de facto compliance with the treaty since its last atmospheric nuclear test on October 16, 1980. On March 21, 1986, China stated that it had not conducted atmospheric testing for years and announced a permanent end to its aboveground testing. China also did not sign or state its adherence to the Threshold Test 619 Ban Treaty (TTBT, which restricts underground test yields to below 150 kilotons), but has been in de facto compliance with the treaty since its 660-kiloton explosion on May 21, 1992. The omission of underground testing in the 1963 agreement was rectified in part when the United States and the Soviet Union concluded a treaty on the Limitation of Underground Nuclear Weapon Tests, signed in Moscow on July 3, 1974, and entering into force on the day of exchange of ratifications.88 This treaty, in turn, was followed by the American–Soviet Treaty on Underground Nuclear Explosions for Peaceful Purposes (Moscow and Washington, May 28, 1976).89 These last two agreements were supplemented by an agreement, initially of five years’ duration, on ceilings for underground nuclear tests. Testing continued, and by 1989 the United States had recorded 932 test explosions as against 638 for the Soviet Union. The latter had resumed underground testing on February 28, 1987, after a 19-month moratorium, following repeated unsuccessful calls for the United States to follow suit. After conducting an underground nuclear test on July 29, 1996 (its 45th test), China began a self-imposed moratorium on testing, effective July 30, 1996. On September 24, 1996, China signed the Comprehensive Test Ban Treaty (CTBT), even though the treaty draft banned peaceful nuclear explosions (PNEs) while allowing national technical means (NTM) of verification. China insisted that the PNE ban be reviewed after 10 years, that NTM not be abused to infringe on Chinese sovereignty, and that the CTBT be considered only a first step toward more general disarmament.90 The United States has signed but not ratified the CTBT. Transboundary Problems Until the Soviet nuclear plant accident at Chernobyl caused widespread atmospheric and river pollution, the only relevant treaty was the 1963 Vienna Convention on Civil Liability for Nuclear Damage.91 Following the Chernobyl event, the International Atomic Energy Agency (IAEA), utilizing a conference of experts (1986), developed a comprehensive Convention on Early Notification of a Nuclear Accident92 and a Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. The Soviet Union has ratified both. Both have entered into force. The IAEA also developed a 1994 Convention on Nuclear Safety (78 states parties).93 A 1997 Convention that would amend the 1963 Vienna Convention and a separate 1997 Convention on compensation for nuclear damage have been signed but are not yet in force.94 Beyond these conventions, customary international law imposes an obligation on all states not to permit activities on their territories that might cause significant environmental injury to other nations. Finally, the United Nations Convention on the Law of the Sea, although not drafted with nuclear accidents in mind, is arguably relevant with regard to the release of contaminated cooling water into international waters. The Fukushima nuclear plant, destroyed by a giant tsunami in March 2011, again raised fears of widespread contamination. In terms of severity of impact, officials raised the level of risk to a 7, the highest on the International Nuclear Events Scale, ranking it with 620 Chernobyl.95 Given the extended lives of many of the radioactive elements released, the area around the plant may have to remain uninhabited for many decades. Still, despite the rating, the long-term impact is likely to be much less severe than Chernobyl. The major difference between Fukushima and Chernobyl flows from the sequence of events. The Chernobyl accident started with a huge explosion and a major release of radioactive material high into the atmosphere, with a radioactive cloud that deposited fallout over a large part of Europe. The releases at Fukushima have been over a longer period and a smaller area, but the scale of evacuation and other population protection measures necessitated by the accident has clearly surpassed everything except Chernobyl.96 Under both the existing nuclear conventions and the proposed protocols, TEPCO, as the “operator” of the Fukushima plant, is liable under international law to parties injured by the plant’s radioactive releases. This presumes, however, that the injured parties have access to a court with jurisdiction over the operator. Moreover, the monetary amount of that liability could far exceed both TEPCO’s assets (if any such assets remain after payments to Japanese victims) and any insurance or international compensation fund established for accident victims under the pending protocols to the Vienna Convention.97 Marine Pollution and Dumping Pollution through the dumping of nuclear wastes became a problem not yet solved. Although all “nuclear nations” had adhered to the International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 1972), several countries ignored the prohibitions established through that instrument. The Soviet Union and later the Russian Federation admittedly dumped, over decades, nuclear reactors and nuclear wastes from warships and icebreakers into the Arctic Ocean and the Sea of Japan. As late as October 11, 1993, a Russian military tanker dumped 237,000 gallons of nuclear wastes into the ocean some 300 miles north of Japan. Norway and Japan have been particularly worried about long-term destruction of fishing waters. Despite international protests, the Russian government indicated that such dumping would continue. Under the 1992 START II Treaty, Russia agreed to dismantle part of its nuclear submarine fleet. Decommissioning of nuclear submarines at naval facilities on the Kola Peninsula in the north and at Vladivostok in the Far East has evoked international concern. However, on October 21, 1993, the Russian government announced that such disposal of radioactive wastes in oceans would cease, provided other countries would help to build treatment facilities. In late 1993, Russia had 225 nuclear-powered submarines, 3 nuclear battleships, and 7 icebreakers, with a total of 407 reactors producing 26,000 cubic meters of liquid and solid reactor wastes each year. The Environmental Protection Agency (EPA) noted that fuels are being stored in vessels not designed for this purpose off Murmansk, the largest population center north of the Arctic Circle. Fears of mishap are growing in that area.98 The United States had dumped radioactive wastes some 19 miles offshore from Gloucester, Massachusetts, between 1946 and the 1970s. Dumping also occurred in the Farallon Islands area near San Francisco. There, some 47,500 barrels of wastes were dumped 30 miles from shore.99 621  In November 1993, a total of 42 of the 71 countries represented at the formulation of the 1972 Convention attended a meeting in London. At the meeting, 37 of those countries agreed on a permanent prohibition on the dumping of radioactive wastes at sea. The five states abstaining were Russia, England, France, China, and Belgium. Two previous opponents of the ban, the United States and Japan, supported it. 622