Chapter 6: International Environmental Law

Challenges Of Environmental Problems for the International Community

Environment is “the complex of physical, chemical, and biotic factors (such as climate, soil, and living things) that act upon an organism or an ecological community and ultimately determine its form and survival”.

Ecology, on the other hand, is “the science of the economy of animals and plants; that branch of biology which deals with the relationship of living organisms to their surroundings, their habits and modes of life”.

Changing Perception on Human Nature Relationships

Despite the increasing impact of human societies on environmental quality and ecological balance, environmental problems were not at the forefront of societies’, governments and international organizations’ agenda until the second half of the twentieth century. From the 1960s onwards, concerns about pollution intensified and humannature relations were reconstructed into a concept of the environment as being both the complex interrelated reality surrounding us and including us, as an interacting whole and it was threatened by human activities and their organization. A new society-nature relationship was constructed, and it was popularized by means of metaphors and models that illustrated the interdependence and vulnerability of humankind and mother earth and was promoted vigorously in the public debate in all Western European countries. Environmental problems came to be seen to have an international dimension and significance.

Environmental problems with their cross-boundary, interdependent and transnational nature, started to challenge the boundaries and the jurisdictions of the existing institutions. In 1972, Stockholm Conference on Human Environment brought representatives of developed and developing countries together and underlined the necessity of international action in solving global environmental problems.

The Rise of Sustainable Development

Sustainable development is the result of a synthesis between a conservationist environmentalism and pro- growth development discourse. The synthesis came out of a realization and a subsequent fear that, if the non- industrialized world were to develop the way the Western world have had, the environmental stress caused by industrialization would be catastrophic. Hence, there was a need to think about alternative development strategies to ensure that Third World industrialization would not cause deterioration of the environment and further deplete resources. At the same time, as pointed out by Third World leaders, foreign debt, widespread hunger, poverty and endemic disease made it apparent that continued growth was necessary.

Sustainable development is “development which ensures that it meets the needs of the present without compromising the ability of future generations to meet their own needs”. The original concept of sustainability refers to ecological sustainability and it is about the harvesting and managing renewable resources in such a way as not to damage future supplies.

Developments in the post-Rio Conference Period

Five years after the publishing of Our Common Future, in 1992, the United Nations Conference on Environment and Development (UNCED) was held in Rio. In UNCED participant countries signed the Rio Declaration on Environment and Development and Agenda 21: Programme of Action for Sustainable Development, which sought to operationalize the commitment to sustainable development. Following the UNCED in Rio, where more than 178 governments adopted the Agenda 21, (the Rio Declaration and related documents) sustainable development became a widely agreed policy principle and strategy guiding the national environmental policies of these signatory countries. Discussions of environmental matters revolved around the theme of sustainable development, which became the catchword of a multitude of documents, strategies, plans and policies concerning environmental issues.

Stages of Development in International Environmental Law

Development of international environmental law was an incremental process and progressed through a number of phases. The literature identifies four distinct phases in the development of international environmental law, which reflects developments in scientific knowledge, the application of new technologies and an understanding of their impacts, changes in political consciousness and the changing structure of the international legal order and institutions.

Traditional Era

This phase witnessed the proliferation of treaties on the protection of wildlife from overexploitation. There are two major international arbitration examples that characterize this period and contributed to the development of certain principles for the international environmental law. The first case brought to international arbitration was the 1893 Pacific Fur Seal Arbitration, which involved a dispute between the United States and the United Kingdom in relation to the protection of fur seals in the Bering Sea from alleged overexploitation of United Kingdom in areas beyond national jurisdiction.

The second major development during this first phase of the development of international environmental law was the Trail Smelter Arbitration. This dispute between the United States and Canada emerged out of air pollution stemming from a smelter in Canada with negative consequences on the US state of Washington. Trail Smelter Arbitration reached following verdict; “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 consequence and the injury is established by clear and convincing evidence”. The Trail Smelter Arbitration was one of the pivotal cases in the emergence of the duty to prevent transboundary environmental harm.

UN System and Development of New Environmental Treaties

Second phase of international environmental law starts with the establishment of the UN. In this period, the United Nations Conference on the Conservation and Utilization of Resources (UNCCUR) laid the foundation of future international environmental action.

Over this period, a range of international organizations with competence in environmental matters were created, and legal instruments were adopted at both the regional and global level, which addressed particular sources of pollution and the conservation of general and particular environmental resources, such as oil pollution, nuclear testing, wetlands, the marine environment and its living resources, the quality of freshwaters, and the dumping of waste at sea.

The Modern Era: the Stockholm Conference and Proliferation of Environmental Organization and Treaties

The UN Conference on the Human Environment, held in Stockholm in June 1972 marks the beginning of the third phase of international environmental law. This period lasts roughly twenty years until the UN Conference on Environment and Development (UNCED) held in Rio in June 1992. The Stockholm Conference on the Human Environment is one of the first attempts to address global nature of environmental problems and necessity of international action to solve environmental problems. The Stockholm Conference influenced legal and institutional developments both at the national and international levels. The Stockholm Declaration on the Human Environment includes a number of principles that have later become important elements of international environmental law. In this period, the United Nations Environment Programme (UNEP) was established. UNEP and later undertook important initiatives in the establishment of new environmental regimes on a number of issues through various conventions and treaties. The twenty-years period between 1972 and 1992 marked by ever-increasing efforts of the international community towards integration of environment and development concerns.

The Post-Rio Developments: Integration

In the fourth phase, starting with the Rio Earth Summit and the UNCED, Rio Declaration on Environment and Development and Agenda 21 introduced sustainable development discourse as a bridge between the developed and developing countries. In this process, environmental policy integration, integration of environmental concerns into other areas of public policy and a serious number of environmental policy principles were introduced.

Sources of International Environmental Law

Treaties (conventions), customary rules, general principles and soft law arrangements, like declarations and plans of action and finally judicial decisions and the teachings of the most highly qualified publicists of the various nations are the major sources of international environmental law.

Treaties

Treaties are the major mechanism employed by states in the conduct of their relations with each other and the main source of international environmental law with various degrees of power in dealing with global environmental and resource depletion problems. Article 2(1) (a) of the 1969 Vienna Convention defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” The term “treaty” encompasses, among others, the terms convention, agreement, pact, protocol, charter, statute, covenant, engagement, accord, exchange of notes, modus vivendi, and Memorandum of Understanding. As long as an instrument falls under the above definition, it would be considered a treaty and, therefore, binding under international law.

Customary Rules

Customary international law is one of the components of international law. Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties. Customary international law results from a general and consistent practice of states that they follow from a sense of legal obligation. The International Court of Justice (ICJ) is the main judicial body of the United Nations and it settles disagreements between member States of the United Nations. Under Chapter II, Article 38 of the Statute of the International Court of Justice, international customs and general practices of nations shall be one of the court’s sources of customary international law is one of the sources of international law. Customary international law can be established by showing State practice and opinion juris. In customary international law, opinio juris is the second element necessary to establish a legally binding custom, which denotes a subjective obligation, a sense on behalf of a State that it is bound to the law in question.

Soft-Law Arrangements

Soft law refers to “non-binding instruments or documents which have the appearance of law...While not legally binding, soft law can be politically influential in setting down objectives and aspirations”. Soft law arrangements are available in international environmental law. International soft law refers to those norms of international environmental law, which are not binding, but play an important interpretive role in the construction and interpretation of principles and rules of formal international environmental law. Although the concept of soft law as a legal rule is not strictly binding, it has some legal significance. Thus, certain forms of soft law, like guidelines, codes of conduct, programs of action and declarations are not binding but, nevertheless, may gain some effect and over time merge into hard law. For instance, “declarations” are not legally binding.

General Principles And Concepts of International Environmental Law

There are several classifications concerning the principles and basic concepts of international environmental law. Principles are fundamental doctrines on which others are based, or rules of conduct and concepts are central unifying ideas or themes in international environmental law.

No Harm Principle

This principle is associated to prevention principle and deals with the regulation of crossboundary effects of activities undertaken within the jurisdiction of a state. This principle stipulated in those declarations had some problems because of the scope of definitions. It was basically about the cross-border harm and later on a more comprehensive principle concerning prevention was endorsed.

Prevention Principle

The first generation environmental policies had an ex post character. As it was highlighted in the Brundtland Report, “environmental policies of the 1970s and approaches to environmental management largely focused upon after- the-fact repair of damage, like reforestation, reclaiming desert lands, rebuilding urban environments, restoring natural habitats and rehabilitating wild lands”. As it was the case in no harm principle, prevention principle has its origins in the former jurisdictions and customary law.

As a result, “States have a duty to prevent and control transboundary pollution and environmental harm resulting from activities under their jurisdiction or control; and States have a duty to cooperate in mitigating transboundary risks and emergencies by means of consultation, negotiation and, where necessary, environmental impact assessment”.

Precautionary Principle

Precautionary Principle is a controversial principle in international environmental law since it represents an attempt to reverse burden of proof in unknown, potentially risky and unclear endeavors.

Environmentalists and others assumed that it called for a reversal of the burden of proof in environmental politics,

i.e. environmentalists were no longer called upon to prove that some technological application or development would entail detrimental consequences for the natural environment–the absence of negative environmental repercussions should be proven by the proponents of a certain technological application or development from now onwards.

Co-operation, Notification and Consultation

According to Beyerlin, the duty of co-operation has taken many different forms in the context of environmental law. The Group of Experts convened by the Commission on Sustainable Development (CSD) in 1995 to identify the principles of international environmental law distinguished between a duty to co-operate ‘in a spirit of global partnership’ and a duty to cooperate in ‘a transboundary context’. The first encompasses the relations among the States with respect to the ‘global commons’, and it has crystallized into ‘principles’ and ‘concepts’ such as the ‘common concern of humankind’, the ‘common heritage of mankind’, the ‘common but differentiated responsibilities’ of States or, more generally, the ‘differential treatment’ that may be accorded to States on the basis of their particular situation. The second duty covers some minimal requirements of co- operation in a transboundary context through norms such as the principle of reasonable and equitable use of shared resources, the duty of notification and consultation with States potentially affected by an activity/event having consequences on the environment, the obligation to conduct an environmental impact assessment, the principle of prior informed consent, or the duty to avoid the relocation of activities harmful to the environment.

Prior Informed Consent

Prior informed consent (PIC) principle has two major applications and uses in international environmental law, namely indigenous rights and transboundary movements of waste. First, it refers to a duty to consult indigenous people who may be affected by the adoption of a measure. Second, the PIC requirement also refers to the obligation assumed by a State not to export certain wastes, substances or products to another State unless the latter has given its prior informed consent.

The four important elements of the concept are free, prior, informed and consent that apply cumulatively. This principle provides a certain kind of shield to indigenous communities against problems stemming from asymmetry of power and knowledge concerning decisions with a certain impact on their livelihoods.

Environmental Impact Assessment

To conduct an environmental impact assessment (EIA) at the stage of planning an activity is a well established obligation in international law. It has been included in numerous international Conventions, including the Espoo Convention and soft law instruments.

The Espoo Convention defines environmental impact assessment as “a procedure for evaluating the likely impact of a proposed activity on the environment”.

Polluters Pay Principle

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 by-product of its activities is usually held responsible for its safe disposal.

Common but Differentiated Responsibilities (CBDR)

Common but Differentiated Responsibilities (CBRD) is one of the most disputed principles of international environmental law. It is also related to South-North disputes in environment and development concerning the historical responsibilities of the developed nations. From the Stockholm Conference onwards, developing countries defended their right to develop and pollute, given the past performance of the developed countries, which developed and polluted the planet earth to a certain extent. Unlike other principles that regards all countries with equal sovereign rights and responsibilities, CBDR has an equity perspective. CBDR principle recognizes countries’ past contributions to pollution and defends an equitable burden sharing mechanism to solve existing environmental problems and prevent future problems.

Participation

Participation principle is an important component of sustainability discourse and mentioned in a number of occasions. In fact, the rise of governance paradigm and participation principle in environmental policy went hand in hand from the 1980s onwards. As it was stated in Rio Declaration Principle 10; “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.

Intergenerational Equity

Equity principle also entails a South-North dimension and occupies a very crucial place in environmentdevelopment debates, because, rise of environmental concerns developed a number of question marks both in developed and developing countries on their future development paths. Developing countries perceived environmental protection as a sort of threat and conspiracy block their economic development. The inter-generational dimension requires the protection of the rights of future generations. The original definition of sustainable development itself puts this concern as a priority.

Sustainable Development

Sustainable development in essence is an attempt to reconcile competing claims of developed and developed countries, the North and the South with respect to environment and development. In this respect, claims of both parties are satisfied because sustainable development principle paid attention to the needs of both the current generations and future generations and recognized developing countries calls for development.

Common Areas

This concept is employed to describe high seas and later adopted to similar situations, like Antarctica and outer space. Indeed, this principle grants free access of individual countries to high seas, including the use of flight corridors, but imposes certain restrictions on the use of biological resources and duties on the protection of marine life and right of other States. Similarly, Antarctic Treaties recognized that Antarctica belongs to mankind and could only be used for peaceful purposes.

Common Heritage of Mankind

The common heritage of mankind is a controversial concept that emerged at the end of the 1960s to challenge older concepts of res nullius and res communis as a legal approach to regulating the use of common resources. Res nullius, wild animals and plants included in many legal systems, belongs to no one and can be freely used and appropriated when taken or captured.

Common Concern of Mankind

During the second half of the 20th century, the States created an international political organization to maintain international peace and security and improve human well- being. This ambitious effort led to identifying defining domains of common concern. The international recognition of human rights and fundamental freedoms was a first step in developing the concept of an international community built upon the fundamental values of humanity.