International Environmental Law

1. International Environmental Law Spring semester 2005 USD (Silva-Send)

2. International Environmental Law Spring Semester, 2005, USD Faculty of Law Start date: Feb 17, 2005 • Basic knowledge of international law is to be desired. • Notes will be made available throughout the semester in the USD home page under ……... • assigned reading from text, documents downloaded from the internet or handouts, the class notes you make and the assignments you complete will provide the information for the final exam. Contents Part I 1. Issues, concepts, definitions 2. Development 3. Sources of law 4. International organizations in environmental governance Part 2 4. Protection of the atmosphere: long range transport of air pollutants, ozone layer protection, climate change, peaceful use of nuclear power/nuclear weapons testing 5. International watercourses 6. Biological diversity 7. Hazardous substances and the waste trade Part 3 8. Compliance and enforcement – state responsibility and liability 9. Global trade and environmental protection Part 4 10. Common spaces Recommended Textbook: Birnie and Boyle: International Law and the Environment. Second edition, 2002 Oxford University Press +further reading list

3. Part I- international environmental law 1.Issues, concepts, definitions • Why international? • What is environment? • Differences domestic/international • Development in modern times • Sources of the law

4. Part 2 Overview of the regimesProblems in the atmosphere:Ozone hole 1999, 2000, 2001

5. Problems in the atmosphere Air Pollution Acid rain - transboundary

6. Problems in the atmosphere: Climate change / greenhouse gases (carbon dioxide) - effects

7. Other problems affecting the atmosphere Peaceful uses of nuclear power: • Power plants

8. Other uses of nuclear power • Nuclear powered ships, spacecraft, submarines • Weapons testing

9. Protection and preservation of waters High stress: > 40% available is withdrawn moderate stress: 10-20% available is withdrawn Low stress: < 10% available is withdrawn

10. Water preservation and protection ARAL SEA : SHARING OF WATERS/DESERTIFICATION/POLLUTION

11. biodiversity Forests then and now

12. Hazardous waste and hazardous substances Dumping toxic wastes in other countries Pesticides banned in some countries exported to others

13. Part 3 Compliance and enforcement • State responsibility • State liability • Cases - Trail smelter arbitration1941 - Gabcikovo 1997 • Current thinking – state liability,civil liability regimes

14. Part 3Global trade and the environment • Extra-territorial applications of domestic environmental law • Interaction with WTO law • Tuna-dolphin dispute • Shrimp turtle decision

15. Part 4:Global commons/common heritage of mankind/terra nulliusAntarctica, high seas, space

16. Issues, concepts, definitions • specificity, public, private law • why international? -sources, effects in many states or globally -areas beyond state jurisdiction -integration of global economy/sharing of finite resources • what is environment? -Narrow: air, water, land, biotic, abiotic (man‘s cultural heritage) -Wide: other laws primarily enacted for other things but have an effect on the environment such as traffic rules, occupational health and safety, trade rules • Philosophical approach: anthropocentric vs biocentric or ecocentric • unilateral action important also if it furthers international action

17. National vs international National: • one source – vertical system. • government policy legislation based on prevention principles, precautionary principle, polluter pays principle and principle of cooperation, sets standards • Implementation through administrative law command and control techniques ( granting authorisation, monitoring and inspecting) • Enforcement through criminal (imprisonment) and civil law (injunctions, fines) • Economic instruments (taxes) • Education and market forces International: • no one authority, no policy setting body, horizontal system, only applicable among ratifying states • rules/standards set by consensus of participating states • who is to command and control? • enforcement voluntary-weakto strong persuasive power of compliance • economic instruments

18. Standards-setting in domestic and int: -quality standards -emission standards -product standards -process standards • Multidisciplinary • law↔science↔economics • Human rights, law of the sea, int trade law, development law • Number of actors – states, io‘s, ngo‘s, tnc‘s THEREFORE: constitutional role, regulates problems, provides comp, harmonises, by some standard setting Both use anthropocentric approach

19. 2. Sources Sources: Art 38 ICJ Statute • International conventions • International custom • General principles of law • Judicial decisions and ..teachings of publicists… + soft law

20. Sources (contd) • Conventions/treaties • negotiations • piecemeal or framework • signing • ratification • pacta sunt servanda • binding only on ratifying states Time

21. Sources (contd) Examples of framework conventions Eg UNECE Geneva Convention on long range air pollution 1979 Art 2 …the Contracting Parties shall endeavour to limit, and as far as possible, gradually reduce and prevent air pollution… ----- 8 protocols with specific obligations Eg UNEP Convention on the Protection of the Ozone Layer 1985 Art 2(1) ...take appropriate measures…to protect human health and the environment by cooperating… by means of systematic observations, research and information exchange…to assess effects…adopt measures and cooperate in harmonizing policies to control, limit, reduce, prevent acitivities which may affect ozone layer - Montreal Protocol 1987 in force 1989 (timetable to reduce use of substances listed) London Amendment to Montreal Protrocol 1990 (added more substances, phase out others Copenhagen Amendment 1992 (more substances, bans,

22. Sources (contd) (b) Customary law= uniform, consistent, general practice of states + opinio juris Very difficult to identify in international env law with over 190 states, different cultures, interests, legal systems, generally minor role - not to use own property such as to harm others‘ property- judicially used in Trail Smelter arbitration 1941, confirmed in Corfu Channel case 1949 (state must not knowingly allow its territory to be used to cause damage to others), and in Legality of the Threat or Use of Nuclear weapons 1996 (it is a general obligation to respect the environment of other states or of areas beyond national control) - other principles such as precautionary principle, requirement for EIA may derive from these

23. Sources (contd) (c) General principles =those observed by all nations Sovereignty/equality of states a)a state has jurisdiction over its resources b)a duty of non-intervention in other states most crucial principles: pacta sunt servanda, good faith =those emerging by agreement,frequently found in preambles to treaties -cooperation (may now be more than emerging) -precautionary principle -polluter pays principle -common but differentiated responsibility -sustainable development

24. Sources (contd) • Soft law Weaker---guidelines, codes of conduct, resolutions, declarations---stronger, may be accepted as general principle or customary • Leading Banks Announce Adoption of Equator Principles Washington DC, June 4, 2003 – Ten leading banks from seven countries today announced the adoption of the "Equator Principles," a voluntary set of guidelines developed by the banks for managing social and environmental issues related to the financing of development projects. The banks will apply the principles globally .... more>> • ICC International Code of Environmental Advertising 1991Scope of the Code…This Code applies to all advertisements containing environmental claims, in all media. It thus covers any form of advertising in which explicit or implicit reference is made to environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of goods, services or facilities ….

25. Sources (contd) Soft law (contd) • UNGA Resolution 1803 on Permanent Sovereignty over Natural Resources 14 December 1962 • UNGA Resolution 2995 and 2996 = Stockholm Declaration of the United Nations Conference on the Human Environment 1972

26. 3. Development19th century-1945 19th century-1945 followed studies by individuals, research of scientists • Few igo’s • Few treaties eg conservation of living resources, navigation rights, Boundary Waters Treaty 1909 USA/Canada • Cases • Pacific fur seals arbitration 1893 (a state has no right to protect natural resources outside their jurisdiction) • Trail smelter arbitration 1941 (states must not use their property to cause damage to others)

27. 3. Development-19th century-1945Pacific fur seals arbitration Facts: • US bought territorial rights to Alaska and all adjacent islands 1867 from Russia • US gave exclusive rights for land killing on P. Islands to US company • Claimed Bering Sea as closed sea (though part of Pacific Ocean) based on previous Russian claim to exclusive jurisdiction (disputed by GB, Canada), thus no one else could fish there (ie lucrative sealing industry would be exclusively US) • Seizing of GB sealing vessels

28. 3. Development-19th century-1945Pacific Fur Seals Arbitration Q‘s submitted: • What exclusive jurisdiction rights over the Bering Sea and resources had Russia had? • How far were these recognised (by GB)? • Did the Bering Sea belong to the Pacific Ocean? • Did rights possessed by Russia pass to the US? • If so, what were the rights over resources of the US beyond the 3-mile territorial limit?

29. 3. Development-19th century-1945Pacific Fur Seals Arbitration (contd) US Arguments: • Breeding grounds were on US property, therefore were US property • This property belonged to them even outside of territorial jurisdiction

30. 3. Development-19th century-1945Pacific Fur Seals Arbitration (contd) Decision: • Russia had not had exclusive jurisdiction beyond territorial limits • USA inherited same rights • No property rights outside the territorial limit • Seals to be cooperatively regulated by states involved

31. 3. Development-19th century-1945Trail Smelter Arbitration 1941 Facts • Canadian smelter had been causing damage to US private timber forests from 1920‘s Some of the issues for the tribunal: • is damage caused by smelter at Trail? • If yes, should smelter be required to stop damage in future?

32. 3. Development-19th century-1945Trail Smelter Arbitration 1941 • ‘under the principles of international law, as well as the law of the United States, 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‘ • tribunal established regulatory regime

33. Development1945-1972 1945 creation of the UN UNC Art 1(2) No subsidiary agency created for environment but specialised agencies included environment/conservation (FAO; UNESCO) GA debates on oil pollution, nuclear tests-- Nuclear Test Ban Treaty 1963

34. Development (contd)1945-1972 1968 UNESCO Biosphere Conference ICJ activity: Corfu Channel case 1949- obligation to not let property to be used for acts contrary to the rights of other states.. Australia/NZ actions to stop Fr doing atmospheric tests (only Fr had not signed Test Ban treaty) but case in 1973 Lac Lanoux Arbitration:limits on right of states in use of shared rivers..

35. Development (contd)1945-1972 Various reports presented by various UN agencies re environmental pollution, proposal by Sweden to assess impairment of environment ► GA resolution and Stockholm Conference on the Human Environment 1972 (UNCHE) 113 states, 1 head of state, 19 io‘s, 400 ngo‘s

36. Stockholm Conference on the Human Environment 1972 (UNCHE) • Stockholm Declaration of Principles 26 Principles • Action Plan to coordinate action between existing institutions • Institutional and financial arrangements- UNEP

37. Stockholm Declaration of Principles 1972 • 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...

38. Development 1972-1992Disasters Bhopal 1984

39. Development 1972-1992 (contd)Disasters Sandoz 1986 Chernobyl 1986 Exxon Valdez 1989

40. Development 1972-1992 (contd) • Much treaty making, est. of io’s • Bruntland report 1987 “Our common future” • UN Rio Conference on environment and development 1992 176 states, 108 heads of state, >50 io’s, 700 ngo’s admitted as observers, major companies (30,000 persons) Parallel to this was an alternative meeting of 8000 ngo’s

41. UN Rio Conference on environment and development 1992 3 non-binding instruments • Rio Declaration (27 principles) • UNCED Forest Principles • Agenda 21 and • 2 treaties (worked out separately) opened for adoption • Convention on Biological Diversity (in force since 1993) • UN Framework Convention on Climate Change (in force since 1994)

42. UN Rio Conference on environment and development 1992 Rio Declaration • Principle 1 -Anthropocentric approach stressed, nearly a right to a clean and healthy environment • Principle 2 – modified version of Principle 21 Stockholm- …right to exploit their own resources pursuant to their own environmental and developmental policies….. • Principle 3, 4 most controversial/most significant • Principle 3: right to development (developing states) • Principle 4: environmental protection is part of development (developed states)--in practice, development lending attached to environmental conditions

43. UN Rio Conference on environment and development 1992 (contd) Principles reflect concept of sustainable development (precautionary approach 15, polluter pays 16, cooperation through information 10, 17, 18, 19) Mainly a consolidation and reflects concerns of developing and developed

44. Developments 1992-2002 • Based on Agenda 21, UN has continued activity. • 2 new treaties (Desertification Treaty 1994, Migratory fish convention), important implementing protocols to existing conventions ) • UNEP identified topics for next decade

45. Developments 1992-2002 1997 UNGA special session: • Global environment worse than ever! • Noted the urgency with which negotiations are needed in known areas- climate, biological diversity, forests, drinking water protection etc • Urgency of dealing with poverty, changes in consumption habits required, energy, traffic, sustainable tourism

46. Developments 1992-2002 (contd) • No commitments by states, no impetus -- single states (only 4:Brazil, Germany, Singapore, South Africa) felt compelled to call initiative for sustainable development, reform/strengthening of UNEP, strong commitments for env protection, forest convention

47. Johannesburg World Summit on Sustainable Development 2002 191 states, ? io’s, >8000 ngo’s, private sector, academia, scientific community

48. Johannesburg World Summit on Sustainable Development 2002 3 non-binding instruments: • Johannesburg Declaration on sustainable development (Different style, no principles) • Plan of Implementation of existing instruments in 10 areas (see notes) • Public-private partnerships

49. After 2002? • How to make states ratify treaties? • How to make states comply, with obligations, make states liability? • Stronger role for ngo’s (since 1997 right to participate in special sessions of GA)

50. 4. Io’s in international governance