International Environmental Law Topic 1 PDF

**What is International Environmental Law?** What is international environmental law? the entire corpus of international law, public and private, relevant to environmental problems What is the definition of environment? - "The complete range of external conditions, physical and biological,...

**What is International Environmental Law?** What is international environmental law? the entire corpus of international law, public and private, relevant to environmental problems What is the definition of environment? - "The complete range of external conditions, physical and biological, in which an organism lives. Environment includes social, cultural, and (for humans) economic and political considerations, as well as the more usually understood features such as oil, climate, and food supply" - Ecosystem approach **Legal Definitions of Environment: Approaches** 1. Reflecting scientific categorisations - Article XX(b) and (g) of the GATT refer not to the environment but to 'human, animal or plant life or health' and to the 'conservation of exhaustible natural resources' - the 1972 Stockholm Declaration did not define the environment, Principle 2 refers to the natural resources of the Earth as including 'air, water, land, flora and fauna and... natural ecosystems 1. Leaving the term undefined ICJ Advisory opinion on the Legality of nuclear weapons "the environment is not an abstraction but represents the living space, the quality of life, and the very health of human beings, including generations unborn" 2. Defining environment within a specific normative content Chagos Island case the UK tried to limit the jurisdiction of the arbitral tribunal by arguing that marine protected areas could not be considered "measures for the protection of the environment" ex art297(1) UNCLOS as they constituted an exercise of their sovereign rights. Tribunal: rejects the argument, areas created by reference to environmental concerns **The Subjects of International Law** - States - International organizations - Created by a constitutive treaty (WMO, FAO,..) - Created to manage the development of a MEA (eg: Basel Convention) - Subsidiary bodies (eg: UN agencies) Forafordiscussion(eg:G7) - Individuals and groups in society - Non-governmental organizations(NGOs) - Private sector actors **The Sources of International Environmental Law** - CUSTOMARY INTERNATIONAL LAW - PRINCIPLES OF INTERNATIONAL LAW - INTERNATIONAL TREATIES - SOFT LAW - DROIT DÉRIVÉ (NOT FORMAL SOURCES) **Setting the Scene** - Short reminder: State sovereignty in international law - \(1) a jurisdiction, prima facie exclusive, over a territory and a - \(2) a duty of non-intervention in the area of exclusive jurisdiction of other states; and - \(3) the dependence of obligations arising from customary law and treaties on the consent of the obligor. - Approaches of International Law to "environmental" issues - Resource-oriented - State sovereignty (i.e. exclusive power) over the territory and the resources located therein - International relevance of transboundary issues only - Conservation of natural resources only as a function of economic exploitation **INTERNATIONAL ENVIRONMENTAL LAW TODAY** - The proliferation of environmental lawmaking leads to: − A few successes, mainly at the regional level − BUT overall the environment is deteriorating − Global challenges still need to be effectively dealt with - Is international environmental law"going brownish"? - Is the concept of sustainable development an asset or a liability in addressing the current implementation challenges? **THE «PHASES» OF INTERATIONAL LAW** 1. The 'traditional era' until the Stockholm Conference in 1972 2. The 'modern era' from the Stockholm Conference to the 1992 UN Conference on Environment and Development in Rio de Janeiro (UNCED) 3. The 'post-modern era' from Rio onwards **1) The Traditional Era** **INITIAL APPROACHES TO THE INTERNATIONAL REGULATION OF ENVIRONMENTAL PROBLEMS** - \(1941) The Trail Smelter Arbitration (US v. Canada) - Transboundary pollution - First statement of the "no harm principle" - \(1957) The Lake Lanoux Arbitration (Spain v. France) - Shared watercourses - Principle of co-operation - Is there a principle of "sustainable use" by the upstream State? - \(1893) The Bering Sea Fur Seals Arbitration (US v. UK) - Exploitation of resources beyond national jurisdiction - Claim of "responsibility to protect" from overexploitation: rejected **POST-1946 INTERNATIONAL ENVIRONMENTAL LAW** - International organizations at the regional and global level began to address environmental issues; - The range of environmental concerns addressed by international regulatory activity broadened to include a focus on the causes of pollution resulting from certain ultra-hazardous activities. - Limited recognition of the relationship between economic development and environmental protection. - International law began to move beyond the sole protection of State interest - common values/objectives of the international community as a whole **Pull Factors** - Structure of International law - Developed/Developing States divide - General Assembly resolution 1803 (XVII) of 14 December 1962, \"Permanent sovereignty over natural resources\" - "\[t\]he right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned" **Push Factors** - New awareness towards environmental issues - Catastrophic events which become relevant in the public eye **2) The Modern Era** 5 June 1972, the opening day of the first UN Conference on the Human Environment in Stockholm - 1972 World Heritage Convention (WHC\*\*)\*\* - 1972 London Dumping Convention - 1973 Endangered Species Convention (CITES) - 1979 Migratory Species Convention - Led to the establishment of the United Nations Environment Programme (UNEP) - It generated the 1972 Stockholm Declaration on the Human Environment - Challenge of Pluralism - Normative innovation - Emergence of an international law discipline **The Challenges of Pluralism** - Active participation of Third World countries, most of which had until then remained skeptical about global conservation accords - 14 June 1972, Indian Prime Minister Indira Gandhi provocatively asked the question: 'Are not poverty and need the greatest polluters?' - Stockholm Declaration, Principle 21: - "States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." **NORMATIVE INNOVATION (1)** - Broadening of the international law- making agenda - Growing awareness due to a series of eco-disasters - the 1967 Torrey Canyon oil spill in the North Atlantic - the 1971 Minamata cases in Japan - the accidents at Seveso in 1976, Bhopal in 1984, and Chernobyl in 1986 - Publications such as Rachel Carson's 1962 Silent Spring and the Club of Rome's 1972 *Limits to Growth* **NORMATIVE INNOVATION (2)** - Expanding spectrum of international regulation - New regulatory and standard-setting functions for environmental matters were conferred on specialized intergovernmental institutions - UN Agencies: - InternationalAtomicEnergyAgency - International Maritime Organization(IMO) - International Civil Aviation Organization(ICAO) - International Labour Organization (ILO) - Food and Agriculture Organization (FAO) - World Health Organization(WHO) - CoPs **NORMATIVE INNOVATION (3)** - Innovations in multilateral law-making techniques - The 'framework-protocols' first used in the 1976 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution - Adoption of technical rules by way of 'regulations' drafted and periodically revised by expert meetings rather than by plenipotentiary conferences - International adjudication or arbitration in environmental matters played no significant role during the two decades from Stockholm to Rio - Dispute-settlement clauses contained in environmental treaties were never used **EMERGENCE OF AN INTERNATIONAL ENVIRONMENTAL LAW DISCIPLINE** Drafting role of the International Union for Conservation of Nature and Natural Resources - The African Convention on the Conservation of Nature and Natural Resources in 1968 - The WHC, CITES and CMS treaties in 1972--79 - The revision of the 1971 Ramsar Convention on Wetlands of International Importance in 1982--87 - The Convention on Biological Diversity (CBD) in 1988--92 New initiatives for the international codification of trans-sectoral environmental law 'principles': - The 1974 OECD Principles concerning Transfrontier Pollution - The 1978 UNEP Principles on Shared Natural Resources - The 1982 World Charter for Nature - The 1982 Montreal Rules of International Law Applicable to Transfrontier Pollution proposed by the International Law Association - The 1987 Legal Principles proposed by the World Commission for Environment and Development **THE STOCKHOLM CONFERENCE ON THE HUMAN ENVIRONMENT (1972) The road to Stockholm** - UNGA Res. 2398 (XXIII) "Problems of the Human Environment" - Tension between development/environmental protection **The Conference The outcomes** - The Stockholm Declaration on the Human Environment - The Action plan - Call for the establishment of what later became UNEP (UNGA res. 2997 (XXVII), 1972 **THE IMPACT OF THE STOCKHOLM CONFERENCE** - Domestic level - Regional level - International level: - First wave of MEAs: Wetlands, endangered species, - Further development of principles: UN Charter of Nature, UNGA res. 37/7 (1982) - First comprehensive environmental regulation of a "global" environmental issue: UNCLOS 1982 **3) THE POST-MODERN ERA** - Coping with the Implementation Gap - Civil Society Concerns - The Quest for Synergy **COPING WITH THE IMPLEMENTATION GAP** - 1991, the UNCED Preparatory Committee begins undertaking 'effectiveness surveys' - Emphasis on effective treaty implementation - In the 1990s, a new variety of 'non-adversarial and non-confrontational' compliance controls began to make its appearance **CIVIL SOCIETY CONCERNS** - The UNCED opened international law-making processes to access by civil society - Today, over 1,400 non-governmental organizations are registered as observers - New initiatives for increasing the role of individuals and non-governmental civic groups in the creation and operation of international environmental regimes - The World Bank's Independent Inspection Panel in 1993 - 1998 Aarhus Convention/ g 2018 Escazú Regional Agreement in Latin America and the Caribbean **THE QUEST FOR S Y N E R G Y** Risk of fragmentation: - More than 1,300 multilateral environmental agreements - Close to 3,000 bilateral environmental agreements - 'Memoranda of understanding' (MOUs) - Judicial interpretation **THE RIO CONFERENCE ON THE ENVIRONMENT AND DEVELOPMENT (1992)** - The road to Rio - UNEP Governing Council (Nairobi Declaration, 1982) + UNGA Res.38/161 - "Brundtland" Commission -"Our Common Future" (1987) - The Conference - Renewed confrontation between developed / developing countries - The outcomes - The Rio Declaration on Environment and Development - The Action plan: Agenda 21 Comprehensive plan of action balancing development and environment - MEAs dealing with emerging global issues/common concerns - UNFCCC - UNFCBD - Creation of the UN Commission for Sustainable Development (CDS) **THE MILLENNIUM DEVELOPMENT GOALS** - Eradicate extreme poverty and hunger - Achieve universal primary education - Promote gender equality and empower women - Reduce child mortality - Improve maternal health - Combat HIV/AIDS, malaria and other diseases - Ensure environmental sustainability - Global partnership for development **GOAL 7: ENSURE ENVIRONMENTAL SUSTAINABILITY** - Integrate principles of sustainable development into country policies and programmes - Reverse the loss of environmental resources - Reduce biodiversity loss, achieving, by 2010, a significant reduction in the rate of loss - Halve the proportion of people without access to safe drinking water and basic sanitation - Improve the lives of at least 100 million slum dwellers by 2020 **THE JOHANNESBURG SUMMIT (2002)** - Legal policy outcomes - The Political Declaration - The Plan of Implementation - Institutional Innovations - The Public-Private Partnerships: Some 220 initiatives including different stakeholders (governments, local authorities, NGOs, private sector) for SD objectives - Weak results... a step backwards - Preponderance of economic interests - Predominance of social objective within the SD framework **THE RIO+20 CONFERENCE ON SUSTAINABLE DEVELOPMENT** - Still looking for a balance in the environment-development equation - The focus on the millennium summit was on economic and social development - 2 core themes: - Green economy - Poverty eradication - Troubled conference - Outcome document: "The Future we want" - Shift towards implementation and developmental concerns - Strengthening of the UNEP **THE UN SD SUMMIT (2015) AND THE SDGS** UNGA: "transforming our world: the 2030 agenda for sustainable development": - Short preamble - A "declaration" - 17 SD goals - Goal 6: ensuring availability and sustainable management of water and sanitation for all. - Goal 13: taking urgent action to combat climate change and its impacts.204 - Goal 14: conserving and sustainably using the oceans, seas and marine resources for sustainable development; and - Goal 15: protecting, restoring and promoting sustainable use of terrestrial ecosystems, sustainably managing forests, combating desertification, and halting and reversing land degradation and halting biodiversity loss. - A set of observations on implementation **IS INTERNATIONAL LAW GOING BROWNISH?**