Topics Included in International Environmental Law

● Climate Change

(United Nations Framework Convention on Climate Change and the Kyoto Protocol on Global Warming, http://unfccc.int/essential_background/convention/items/2627.php)

The Convention on Climate Change, which was entered into force on 21 March 1994, sets an overall framework for intergovernmental efforts to tackle climate change and recognizes that the climate system is a shared resource whose stability can be affected by industrial and other emissions of carbon dioxide and other greenhouse gases.

Under the Convention, governments gather and share information on greenhouse gas emissions, national policies and best practices. Then, they launch national strategies for addressing greenhouse gas emissions and adapting to expected impacts, including the provision of financial and technological support to developing countries. Also, they cooperate in preparing for adaptation to the impacts of climate change.

● Sustainable Development

(The Rio Declaration on Environment and Development http://www.unep.org/documents/default.asp?documentid=78)

In the United Nations Conference on Environment and Development, key sectors of societies and people, with the aim of establishing a new and equitable global partnership through the creation of new levels of cooperation among States, working towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system, recognizing the integral and interdependent nature of the Earth, our home, proclaims that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental 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.

● Biodiversity

(Convention on Biological Diversity http://www.biodiv.org/convention/articles.asp)

The Convention, to be pursued in accordance with its relevant provisions, focuses on the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.

States have, in accordance with the Charter of the United Nations and the principles of international law, 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.

● Transfrontier Pollution

(Convention on Long-Range Transboundary Air Pollution http://www.unece.org/env/lrtap/lrtap_h1.html)

The Convention on Long-range Transboundary Air Pollution was the first international legally binding instrument to deal with problems of air pollution on a broad regional basis. It was signed in 1979 and entered into force in 1983. The Convention is one of the central means for protecting our environment. It has substantially contributed to the development of international environmental law and has created the essential framework for controlling and reducing the damage to human health and the environment caused by transboundary air pollution. It is a successful example of what can be achieved through intergovernmental cooperation.

● Marine Pollution

(Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter http://www.imo.org/OurWork/Environment/SpecialProgrammesAndInitiatives/Pages/Lond on-Convention-and-Protocol.aspx)

The Inter-Governmental Conference on the Convention on the Dumping of Wastes at Sea, which met in London in November 1972 at the invitation of the United Kingdom, adopted this instrument, generally known as the London Convention. The London Convention, one of the first international conventions for the protection of the marine environment from human activities, came into force on 30 August 1975. Since 1977, it has been administered by IMO. The Convention contributes to the international control and prevention of marine pollution by prohibiting the dumping of certain hazardous materials. In addition, a special permit is required prior to dumping of a number of other identified materials and a general permit for other wastes or matter.

In 1996, Parties adopted a Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 which entered into force in 2006. It is meant to eventually replace the 1972 Conventio and to represent a major change of approach to the question of how to regulate the use of the sea as a depository for waste materials. Rather than stating which materials may not be dumped, it prohibits all dumping, except for possibly acceptable wastes.

● Endangered Species

(Convention on International Trade in Endangered Species (CITES)) http://www.cites.org/eng/disc/text.php

The Convention on International Trade in Endangered Species of Wild Fauna and Flora is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.

Because the trade in wild animals and plants crosses borders between countries, the effort to regulate it requires international cooperation to safeguard certain species from over-exploitation. CITES was conceived in the spirit of such cooperation.

CITES was drafted as a result of a resolution adopted in 1963 at a meeting of members of the World Conservation Union. The text of the Convention was finally agreed at a meeting of representatives of 80 on 3 March 1973, and on 1 July 1975 CITES entered in force.

● Hazardous Materials And Activities

(Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal http://www.basel.int/text/documents.html)

The Basel Convention aspires an “environmentally sound management” (ESM), the aim of which is to protect human health and the environment by minimizing hazardous waste production whenever possible. ESM means addressing the issue through an “integrated life-cycle approach”, which involves strong controls from the generation of a hazardous waste to its storage, transport, treatment, reuse, recycling, recovery and final disposal.

Emphasis is placed on creating partnerships with industry and research institutions to create innovative approaches to ESM. One of the most critical aspects of ESM is lowering demand for products and services that result in hazardous by-products. Consumers need to educate themselves as to the methods used in production processes and think about what they buy every day.

● Cultural Preservation

(Convention Concerning the Protection of the World Cultural & Natural Heritage, http://whc.unesco.org/en/conventiontext/)

The Convention sets out the duties of States Parties in identifying potential sites and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the World Heritage sites situated on its territory, but also to protect its national heritage. The States Parties are encouraged to integrate the protection of the cultural and natural heritage into regional planning programmes, set up staff and services at their sites, undertake scientific and technical conservation research and adopt measures which give this heritage a function in the day-to-day life of the community.

The Convention stipulates the obligation of States Parties to report regularly to the World Heritage Committee on the state of conservation of their World Heritage properties. These reports are crucial to the work of the Committee as they enable it to assess the conditions of the sites, decide on specific programme needs and resolve recurrent problems.

It also encourages States Parties to strengthen the appreciation of the public for World Heritage properties and to enhance their protection through educational and information programmes.

● Desertification

(United Nations Convention to Combat Desertification http://www.unccd.int/)

Desertification, along with climate change and the loss of biodiversity, were identified as the greatest challenges to sustainable development during the 1992 Rio Earth Summit. Established in 1994, UNCCD is the sole legally binding international agreement linking environment and development to sustainable land management. The Convention addresses specifically the arid, semi-arid and dry sub-humid areas, known as the drylands, where some of the most vulnerable ecosystems and peoples can be found. Parties to the Convention further specified their goals: "to forge a global partnership to reverse and prevent desertification/land degradation and to mitigate the effects of drought in affected areas in order to support poverty reduction and environmental sustainability". Also, the Convention’s 195 parties work together to improve the living conditions for people in drylands, to maintain and restore land and soil productivity, and to mitigate the effects of drought. The UNCCD is encouraging the participation of local people in combating desertification and land degradation.

● Uses Of The Seas

(United Nations Convention on Law of the Sea (UNCLOS) http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm)

The United Nations Convention on the Law of the Sea lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all aspects of the ocean space, such as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole.

The Convention entered into force in accordance with its article 308 on 16 November 1994, 12 months after the date of deposit of the sixtieth instrument of ratification or accession. Today, it is the globally recognized regime dealing with all matters relating to the law of the sea.

A. Primary Sources: 1. Environmental Treaties

When regulating regional or global environmental problems, a framework treaty is frequently adopted. This sets out general obligations, creates the basic institutional arrangements, and provides procedures for the adoption of detailed obligations in a subsequent protocol. Frequently, a framework agreement or protocol will have one or more annexes or appendices, which include scientific, technical or administrative provisions (such as dispute settlement or information exchange), but which might also list the species, substances or activities which are regulated, or the parties to which one or more substantive obligations will apply. This three-tiered approach (framework agreement, protocol, annex/appendices) introduces flexibility by allowing legal amendments or other changes in accordance with political, scientific or economic developments.

Treaty-Making Process

When two or more states have identified an environmental issue as requiring international legislation, they will identify the forum or institution to serve as a legislative forum. If the subject is already covered by a framework treaty, the new legal obligation could be developed in a protocol or by amendments to an existing protocol; in such cases, the appropriate forum will be the conference of the parties or equivalent institution established by the framework agreement. If the international legislation can appropriately be dealt with by an international act other than a treaty, it may be addressed simply by a binding decision, or resolution, or other act of an international organization or the conference of the parties of an environmental treaty. If a new treaty is required, the states involved will need to determine which organization shall conduct the negotiation of the treaty. When the forum for negotiations is agreed, that body will establish a negotiating process. This could be anything from an informal ad hoc group of governmental experts to a formal institutional structure. Similar arrangements apply in the negotiation of protocols under framework agreements. An alternative approach is for an international organization to establish a subsidiary body to ‘prepare’ a text for consideration and adoption by an Intergovernmental Diplomatic Conference. Negotiations may be open-ended in time or established for a limited period. When the draft text has been negotiated, it will be adopted and opened for signature. It will then enter into force in accordance with its provisions on entry into force.

2. Customary Law Rules

Customary law rules have played a secondary role in international environmental law, although they can establish binding obligations for states and other members of the international community and may be relied upon in the codification of obligations in treaties and other binding acts. The significance of custom lies in the fact that it creates obligations for all states except those which have persistently objected to a practice and its legal consequences. Moreover, a customary rule may exist alongside a conventional rule, can inform the content and effect of a conventional rule, and can give rise to a distinct cause of action for dispute settlement purposes. However, the process of developing rules of customary law cannot really be considered as part of a formal legislative process, and the existence of a customary rule may be difficult to prove. Proving customary international law requires evidence of consistent state practice, which practice will only rarely provide clear guidance as to the precise context

or scope of any particular rule. Nevertheless, ‘customary law can be somewhat shaped and directed, because the practices of states can be consciously affected by various international actions’,including the non-binding acts of international organisations and the intergovernmental statements and declarations.

3. General Principles Of Law

The inclusion of ‘general principles of law is intended to allow the ICJ to consider and apply general principles of municipal law, and in practice they are occasionally relied upon when gaps need to be filled. The ICJ has only rarely relied on general principles, although other international tribunals, such as the ECJ, have relied on general principles of municipal law to assist in reaching conclusions. The general principles relating to good faith in the exercise of rights and prohibitions on the abuse by a state of a right which it enjoys under international law have been invoked by the ICJ and arbitral tribunals which have considered international environmental issues. The principle of good faith appears to have been relied upon to ensure that a proper balance is struck between a state’s rights and obligations and a ‘recognition of the interdependence of a person’s rights and obligations. The abuse of rights doctrine is also considered to provide the basis for the rule that a state must not interfere with the flow of a river to the detriment of other riparian states, and is related to the principle requiring respect for mutual interests which is now reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration.

B.Subsidiary Sources The subsidiary sources are:

1. the decisions of courts and tribunals and2. the writings of jurists.

National courts and tribunals are increasingly faced with the task of interpreting international obligations in this field, and the jurisprudence of these tribunals is becoming an increasingly important source of reference in the development of international environmental law and policy.

The writings of jurists have played a less significant role in developing international environmental law. Resolutions of groups of international jurists have contributed in important ways to the development of subsequent treaty obligations, particularly in the field of water and atmospheric pollution.

Definition of EnvironmentInternational environmental law comprises those substantive, procedural and institutional rules of international law which have as their primary objective the protection of the environment. Dictionaries define ‘environment’ as ‘the objects or the region surrounding anything’. Accordingly, the term encompasses both the features and the products of the natural world and those of human civilization.

The legal definition of the ‘environment’ and related concepts is important at two levels. At a general level, it defines the scope of the legal subject and the competence of international organizations. More specifically, the definition of the ‘environment’ assumes particular significance in relation to efforts to establish rules governing liability for damage to the environment. Legal definitions of the ‘environment’ reflect scientific categorizations and groupings, as well as political acts which incorporate cultural and economic considerations. A scientific approach will divide environmental issues into ‘compartments’. These include the atmosphere, atmospheric deposition, soils and sediments, water quality, biology and humans.

Early treaties tended to refer to ‘flora and fauna’ rather than the environment, thus restricting the scope of their application. General Agreement on Tariffs and Trade (GATT) refers not to the environment but to ‘human, animal or plant life or health’ and to the ‘conservation of exhaustible natural resources’.

Although the 1972 Stockholm Declaration does not include a definition of the environment, Principle 2 refers to the natural resources of the earth as including ‘air, water, land, flora and fauna and . . . natural ecosystems’. The Stockholm Declaration also recognizes that the environment of natural resources should be distinguished from the man-made environment, which includes in particular the living and working environment.

The 1982 World Charter for Nature similarly does not define the ‘environment’, but addresses the need to respect nature through principles which are applicable to all life forms, habitats, all areas of the earth, ecosystems and organisms, and land, marine and atmospheric resources. Those treaties which do refer to the environment and seek to include some form of working definition tend to adopt broad definitions.

Under the 1974 Nordic Convention, ‘environmentally harmful activities’ are those which result in discharges ‘into water courses, lakes or the sea, and the use of land, the sea bed, buildings or installations’.

Under the 1977 ENMOD Convention, ‘environmental modification’ refers to changing the ‘dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space’.

As used in the 1979 LRTAP Convention, the environment includes ‘agriculture, forestry, materials, aquatic and other natural ecosystems and visibility’.

Under the 1991 Espoo Convention and the 1992 Watercourses Convention, the ‘environment’, which is defined in terms of impacts, includes ‘human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among thesefactors’.

In similar terms, the 1991 Antarctic Environment Protocol protects the climate and weather patterns; air and water quality; atmospheric, terrestrial (including aquatic), glacial or marine environments; fauna and flora; and areas of biological, scientific, historic, aesthetic or wilderness significance.

Other agreements which use the term ‘environment’ do not define it. The 1982 United Nations Convention on the Law of the Sea does not define ‘marine environment’, although it appears to include ecosystems, habitats, threatened or endangered species and other forms of marine life, and atmospheric pollution.

Definition of Environmental DamageEnvironmental damage refers to damage to the environment, which has been defined in treaties and other international acts to include four possible elements:

(1) fauna, flora, soil, water and climatic factors;

(2) material assets (including archaeological and cultural heritage);

(3) the landscape and environmental amenity; and

(4) the interrelationship between the above factors.

Damage To A State’s Own EnvironmentA number of international environmental agreements commit parties to protect environmental resources located exclusively within their territory. In these circumstances, other parties to the agreement could claim to be an injured state such as to allow them to bring an international claim. In practice, this has not happened. It is only where the interference with the environmental resource crosses a national boundary that one or more states have felt compelled to act.

Damage To The Environment Of Another StateIn situations involving damage to its environment, or consequential damage to its people or their property or other economic loss, a state will not find it difficult to claim that it is an ‘injured state’ and that it may bring an international claim.

In the Trail Smelter case, the United States invoked its right not to be subjected to the consequences of transboundary air pollution from sulphur emissions in Canada and to bring a claim against Canada for having violated its rights.

Australia, in the Nuclear Tests case, argued that French nuclear tests deposited radioactive fallout on Australian territory which violated its sovereignty and impaired its independent right to determine the acts which should take place within its territory.

Ireland, in the MOX case, claimed that it was injured by transboundary movements of radioactive substances introduced into the Irish Sea by the United Kingdom in violation of its international commitments.

Damage To The Environment In Areas Beyond National JurisdictionAs a general matter, where one party to a treaty or agreement believes that another party is in violation of its obligations under that treaty or agreement, it will have the right, under the treaty or agreement, to seek to enforce the obligations of the party alleged to be in violation, even if it has not suffered material damage. In most cases involving a violation of a treaty obligation, however, the applicant state is likely to have been induced into bringing a claim because it has suffered some form of material damage and not because it wishes to bring a claim to protect the interests of the international community.

For breaches of treaty obligations, the right of a state to enforce obligations will usually be settled by the terms of the treaty. Various human rights treaties permit any party to enforce the obligations of any other party by bringing a claim before the relevant treaty organs.

Threshold At Which Environmental Damage Entails LiabilityWhile all pollution or human activity having adverse effects might give rise to environmental damage, it is improbable that all environmental damage results in state liability. There are no agreed international standards for the threshold for environmental damage which triggers liability and allows claims to be brought. State practice, decisions of international tribunals and the writings of jurists suggest that environmental damage must be ‘significant’ or ‘substantial’ for liability to be triggered.

There are several possibilities for determining the level of environmental damage triggering liability. These include defining environmental damage:

- by reference to ‘critical loads’, which describe the point at which a pollutant becomes concentrated in the environment at a level which cannot be diluted or broken down by natural processes;

- by reference to environmental indicators and environmental accounting to measure environmental performance, pressures and conditions;

- by reference to existing international legislation which establishes quality standards for flora and fauna, water and air quality.

International instruments which set environmental quality standards, or product, emissions or process standards, may also provide some guidance as to the level of environmental damage considered to be tolerable or acceptable by the international community.

Standard Of CareThere is probably no single basis of international responsibility applicable in all circumstances. The obligation in question may distinguish between ultra-hazardous activities and other activities. This approach can be justified on policy grounds: dangerous activities are more likely to cause serious environmental damage, and a strict or absolute obligation is more likely to provide an incentive to states to adopt special precautions when engaging in or permitting such activities. International law remains inconclusive on general rules governing the standard of care to be shown in fulfilling international environmental obligations.

In respect of ultra-hazardous activities, certain treaties do support a standard of absolute or strict, liability. It is well settled that the principle of absolute liability applies to fields of activity having in common a high degree of risk and has been accepted as a general principle of international law.

Strict liability for ultra-hazardous activities might also be considered a general principle of law as it is to be found in the national law of many states in relation to ultra-hazardous activities. Under English law, ‘a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape’.

Many civil liability treaties also adopt the principle of strict liability for hazardous activities, including nuclear activities and the carriage of oil by sea, as well as dangerous activities generally.

For general industrial and other activities which are not ultra-hazardous or dangerous, it is less easy to argue for a standard of care based upon strict or absolute liability. In considering this matter, it is settled that there is a ‘custom based rule of due diligence imposed on all states in order that activities carried out within their jurisdiction do not cause damage to the environment of other states’, which includes establishing and applying an effective system of environmental law and regulations, and principles of consultation and notification.

LiabilityState liability refers here to the liability of international persons under the operation of rules of international law of state responsibility. Civil liability refers to the liability of any legal or natural person under the rules of national law adopted pursuant to international treaty obligations establishing harmonised minimum standards. States have long recognised the role of liability for environmental damage, as well as the gaps and inadequacies which exist.

Principle 22 of the Stockholm Declaration recognised gaps and called on states to ‘co-operate to develop further the international law regarding liability and compensation for victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction’.

The 1982 World Charter for Nature did not directly address liability, although it called for degraded areas to be rehabilitated and for individuals to have access to means of redress when ‘their environment has suffered damage or degradation’.

The Rio Declaration reflects the limited progress which has been made since 1972. It emphasises the development of national rules in addition to the further development of international rules for all adverse effects of environmental damage including, implicitly, liability for damage to the environment itself.

State LiabilityIt is a well-established principle of international law that every internationally wrongful act of a state entails the international responsibility of that state. The same principle applies to other international persons, including international organizations. A state responsible for an internationally wrongful act is under an obligation to cease that act, if it is continuing, and to offer appropriate assurances and guarantees of non-repetition if the circumstances so require, and to make full reparation for the injury caused by the internationally wrongful act. It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. To the extent that international organizations and other legal and natural persons may also be subjects of international law, the concept of ‘state responsibility’ may also inform the principle of the liability of other international persons under the rules of public international law.

A number of non-binding instruments adopted in the environmental field have sought also to restate general principles. Principle 12 of the 1978 UNEP draft Principles affirms that states are responsible for the fulfilment of their international environmental obligations relating to the utilization of shared natural resources, and that they ‘are subject to liability in accordance with applicable international law

for environmental damage resulting from violations of these obligations caused to areas beyond their jurisdiction’.

Therefore, ‘the breach of an obligation of environmental protection established under international law engages responsibility of the State . . . entailing as a consequence the obligation to reestablish the original position or to pay compensation’, the latter obligation also being capable of arising from a rule of international law providing for strict liability on the basis of harm or injury alone.

General International LawState liability for environmental damage is premised upon a breach of an international legal obligation established by treaty, or by a rule of customary international law, or possibly under general principles of international law. There is an internationally wrongful act of a State when conduct consisting of an act or omission:

(a) is attributable to the State under international law;

(b) constitutes a breach of an international obligation of the State.

The ILC Articles on State Responsibility elaborate on the circumstances in which an act or omission will be attributable to a state, and indicate the circumstances in which a breach of an obligation will have occurred and that the state must be bound by the obligation in question ‘at the time that act occurs’.

The most pertinent international obligation is that requiring a state to prevent particular environmental harm, or to refrain from carrying out or permitting activities which could lead to environmental damage. Customary international law establishes an obligation to respect the environment of other states or of areas beyond national jurisdiction. To a large extent discussions of state liability are likely to be concerned with the consequences of a breach of this obligation, which encompasses the obligation not to cause significant harm. But responsibility and liability also arise in relation to other substantive obligations, as well as procedural requirements. Additionally, some regimes establish their own rules and remedies governing the consequences of a failure to comply with the obligations there established.

With regard to the obligation to prevent environmental damage, general international law requires at least four related issues to be addressed:

1. Is the obligation aiming to prevent any transboundary environmental damage, or only transboundary environmental damage which has serious, or significant, or appreciable consequences?

2. Is the obligation based upon the need to prove fault or is it imposed by operation of absolute or strict liability?

3. What reparation should be made for environmental damage? 4. And what is the extent of liability and the measure of damages?

Other legal requirements would need to be satisfied to bring an international claim, including the exhaustion of local remedies rule, the nationality of claims rule, any rules governing limitation on the time within which a claim can be brought, and the rules governing attribution of state responsibility for

the acts of public bodies and private persons. In respect of these and other questions, state practice, case law, treaties and the writings of jurists do not provide conclusive answers thus, each case must be judged on its own merits.

ReparationThe principle is well established that the perpetrator of an internationally wrongful act is under an obligation to make reparation for the consequences of the violation. The essential principle contained in the actual notion of an illegal is that reparation must wipe out all the consequences of the illegal act and reestablish the situation which would have existed if that act had not been committed. Restitution in kind or payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it, such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.

The reparation for the injury caused by an internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination.

- Restitution is aimed at re-establishing the situation which existed before the wrongful act was committed, provided and to the extent that it is not materially impossible and does ‘not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’.

- Compensation is to be provided for damage which is not made good by restitution, and should cover ‘any financially assessable damage including loss of profits insofar as it is established’.

- Satisfaction is to be provided if the injury cannot be made good by restitution or compensation, for example by an acknowledgment of the breach, an expression of regret or a formal apology.