International Environmental Law: subject, sources
International law is the set of rules generally regarded and accepted as binding in relations between states and between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens.
The term "international law" can refer to three distinct legal disciplines: - Public international law, which governs the relationship between states and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law. - Private international law, or conflict of laws, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case. - Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.
The two traditional branches of the field are: • jus gentium – law of nations • jus inter gentes – agreements between nations
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond domestic legal interpretation and enforcement. Public international law has increased in use and importance vastly over the twentieth century, due to the increase in global trade, environmental deterioration on a worldwide scale, awareness of human rights violations, rapid and vast increases in international transportation and a boom in global communications.
Under article 38 of the Statute of the International Court of Justice, public international law has three principal sources: international treaties, custom, and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law".
System of international law 1. General part 2. Special part - International law of human rights - International sea law - International space law - International security law - International environmental law etc.
Pollution, scarce resources, wild animals and plants do not respect political boundaries, making treaties an important aspect of environmental law. Numerous legally binding international agreements now encompass a wide variety of issue-areas, from terrestrial, marine and atmospheric pollution through to wildlife and biodiversity protection. While the bodies that proposed, argued, agreed upon and ultimately adopted existing international agreements vary according to each agreement, certain conferences, including 1972's United Nations Conference on the Human Environment, 1983's World Commission on Environment and Development, 1992's United Nations Conference on Environment and Development and 2002's World Summit on Sustainable Development have been particularly important.
International environmental law's development has included the statement and adoption of a number of important guiding principles. As with all international law, international environmental law brings up questions of sovereignty, legal reciprocity ("comity") and even perhaps the Golden Rule. Other guiding principles include the polluter pays principle, the precautionary principle, the principle of sustainable development, environmental procedural rights, common but differentiated responsibilities, intragenerational and intergenerational equity, "common concern of humankind", and common heritage.
Colden rule The Golden Rule or ethic of reciprocity is a maxim, ethical code or morality that essentially states either of the following: One should treat others as one would like others to treat oneself. (Directive form. ) One should not treat others in ways that one would not like to be treated (Cautionary form, also known as the Silver Rule).
Sovereignty According to Stephen D. Krasner, the term could also be understood in four different ways: • domestic sovereignty – actual control over a state exercised by an authority organized within this state, • interdependence sovereignty – actual control of movement across state's borders, assuming the borders exist, • international legal sovereignty – formal recognition by other sovereign states, • Westphalian sovereignty – lack of other authority over state than the domestic authority (examples of such other authorities could be a non-domestic church, a nondomestic political organization, or any other external agent).
Comity In law, comity is legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them.
Polluter Pays In environmental law, the polluter pays principle is enacted to make the party responsible for producing pollution responsible for paying for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received in most Organisation for Economic Co-operation and Development (OECD) and European Union (EU) countries. In international environmental law it is mentioned in Principle 16 of the Rio Declaration on Environment and Development.
Polluter pays is also known as extended producer responsibility (EPR). This is a concept that was probably first described by Thomas Lindhqvist for the Swedish government in 1990. EPR seeks to shift the responsibility dealing with waste from governments(and thus, taxpayers and society at large) to the entities producing it. In effect, it internalised the cost of waste disposal into the cost of the product, theoretically meaning that the producers will improve the waste profile of their products, thus decreasing waste and increasing possibilities for reuse and recycling.
Polluter pays OECD defines EPR as: a concept where manufacturers and importers of products should bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production process itself, and downstream impacts from the use and disposal of the products. Producers accept their responsibility when designing their products to minimise life-cycle environmental impacts, and when accepting legal, physical or socio-economic responsibility for environmental impacts that cannot be eliminated by design.
Sustainable development is a road-map, the action plan, for achieving sustainability in any activity that uses resources and where immediate and intergenerational replication is demanded. As such, sustainable development is the organizing principle for sustaining finite resources necessary to provide for the needs of future generations of life on the planet. It is a process that envisions a desirable future state for human societies in which living conditions and resource-use continue to meet human needs without undermining the "integrity, stability and beauty" of natural biotic systems.
Sustainable development As a working definition, sustainability can be defined as the practice of maintaining processes of productivity indefinitely—natural or human made— by replacing resources used with resources of equal or greater value without degrading or endangering natural biotic systems. According to M. Hasna, sustainability is a function of social, economic, technological and ecological themes. Sustainable development ties together concern for the carrying capacity of natural systems with the social, political, and economic challenges faced by humanity.
Sustainable development The term sustainable development rose to significance after it was used by the Brundtland Commission in its 1987 report Our Common Future. In the report, the commission coined what has become the most oftenquoted definition of sustainable development: "development that meets the needs of the present without compromising the ability of future generations to meet their own needs. " The United Nations Millennium Declaration identified principles and treaties on sustainable development, including economic development, social development and environmental protection.
Sustainable development The United Nations World Commission on Environment and Development (WCED) in its 1987 report Our Common Future defines sustainable development: "Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. " Under the principles of the United Nations Charter the Millennium Declaration identified principles and treaties on sustainable development, including economic development, social development and environmental protection. Broadly defined, sustainable development is a systems approach to growth and development and to manage natural, produced, and social capital for the welfare of their own and future generations.
Precautionary principle The precautionary principle or precautionary approach states that if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is not harmful, the burden of proof that it is not harmful falls on those taking an action.
Precautionary principle Fields typically concerned by the precautionary principle are the possibility of: • Global warming or abrupt climate change in general • Extinction of species • Introduction of new and potentially harmful products into the environment, threatening biodiversity (e. g. , genetically modified organisms) • Threats to public health, due to new diseases and techniques (e. g. , AIDS transmitted through blood transfusion) • Long term effects of new technologies (e. g. health concerns regarding radiation from cell phones and other electronics communications devices Mobile phone radiation and health) • Persistent or acute pollution • Other new biosafety issues (e. g. , artificial life, new molecules)
Precautionary principle The precautionary principle is often applied to biological fields because changes cannot be easily contained and have the potential of being global. The principle has less relevance to contained fields such as aeronautics, where the few people undergoing risk have given informed consent (e. g. , a test pilot). In the case of technological innovation, containment of impact tends to be more difficult if that technology can self-replicate. Bill Joy emphasized the dangers of replicating genetic technology, nanotechnology, and robotic technology in his article in Wired Magazine, "Why the future doesn't need us", though he does not specifically cite the precautionary principle. The application of the principle can be seen in the public policy of requiring pharmaceutical companies to carry out clinical trials to show that new medications are safe.
Intergenerational equity in economic, psychological, and sociological contexts, is the concept or idea of fairness or justice in relationships between children, youth, adults and seniors, particularly in terms of treatment and interactions. It has been studied in environmental and sociological settings.
Intergenerational equity Conversations about intergenerational equity occur across several fields. They include transition economics, social policy, andgovernment budgetmaking. Intergenerational equity is also explored in environmental concerns, including sustainable development, global warming and climate change.
Common concern of humankihd The Convention on Biological Diversity (CBD), known informally as the Biodiversity Convention, is a multilateral treaty. The Convention has three main goals: • conservation of biological diversity (or biodiversity); • sustainable use of its components; and • fair and equitable sharing of benefits arising from genetic resources • In other words, its objective is to develop national strategies for the conservation and sustainable use of biological diversity. It is often seen as the key document regarding sustainable development.
Common heritage of mankind (also termed the common heritage of humanity, common heritage of humankind or common heritage principle) is a principle of international law which holds that defined territorial areas and elements of humanity's common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation states or corporations.
Sources International environmental agreements are generally multilateral (or sometimes bilateral) treaties (a. k. a. convention, agreement, protocol, etc. ). The majority of such conventions deal directly with specific environmental issues. There also some general treaties with one or two clauses referring to environmental issues but these are rarer. There about 1000 environmental law treaties in existence today; no other area of law has generated such a large body of conventions on a specific topic.
Sources Protocols are subsidiary agreements built from a primary treaty. They exist in many areas of international law but are especially useful in the environmental field, where they may be used to regularly incorporate recent scientific knowledge. They also permit countries to reach agreement on a framework that would be contentious if every detail were to be agreed upon in advance. The most widely known protocol in international environmental law is the Kyoto Protocol, which followed from the United Nations Framework Convention on Climate Change.
Agreements General • Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus, 1998 • Espoo Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 1991
Agreements • • • Atmosphere Convention on Long-Range Transboundary Air Pollution (LRTAP), Geneva, 1979. Environmental Protection: Aircraft Engine Emissions Annex 16, vol. 2 to the 1944 Chicago Convention on Civil Aviation, Montreal, 1981. Framework Convention on Climate Change (UNFCCC), New York, 1992, including the. Kyoto Protocol, 1997. Georgia Basin-Puget Sound International Airshed Strategy, Vancouver, Statement of Intent, 2002. Vienna Convention for the Protection of the Ozone Layer, Vienna, 1985, including the Montreal Protocol on Substances that Deplete the Ozone Layer, Montreal 1987.
Agreements • • Freshwater resources Convention on the Protection and Use of Transboundary Watercourses and International Lakes (ECE Water Convention), Helsinki, 1992. Hazardous substances Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 1989. Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail, and Inland Navigation Vessels (CRTD), Geneva, 1989. Convention on the ban of the Import into Africa and the Control of Transboundary Movements and Management of Hazardous Wastes within Africa, Bamako, 1991.
Agreements • Convention on the Transboundary Effects of Industrial Accidents, Helsinki, 1992. • Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Rotterdam, 1998. • European Agreement Concerning the International Carriage of Dangerous Goods by Inland Waterways (AND), Geneva, 2000. • European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR), Geneva, 1957. • FAO International Code of Conduct on the distribution and use of Pesticides, Rome, 1985. • Stockholm Convention on Persistent Organic Pollutants. Stockholm, 2001. • Waigani Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region, Waigani, 1995. • Minamata Convention on Mercury, Minamata 2013.
Agreements • • • Marine environment – global conventions Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), London, 1972. International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), London 1973 and 1978. International Convention for the Prevention of Pollution of the Sea by Oil, London 1954, 1962 and 1969. International Convention on Civil Liability for Oil Pollution Damage (CLC), Brussels, 1969, 1976, 1984 and 1992. International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage(FUND)1971 and 1992, Brussels, 1971/1992.
Agreements • International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), London, 1996. • International Convention on Oil Pollution Preparedness, Response and Co-operation(OPRC), London, 1990. • International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties Intervention Convention, Brussels, 1969. • Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances OPRC-HNS Protocol, London, 2000. • United Nations Convention on the Law of the Sea LOS Convention, Montego Bay, 1982.
Agreements • • Marine environment – regional conventions[ Convention for the Protection of the Marine Environment of the North-east Atlantic. OSPAR Convention, Paris, 1992. Convention on the Protection of the Marine Environment of the Baltic Sea Area 1992 Helsinki Convention, Helsinki, 1992. Conventions within the UNEP Regional Seas Programme Convention on the Protection of the Black Sea against Pollution, Bucharest, 1992.
Agreements • Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Cartagena de Indias, 1983. • Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi Convention), Nairobi, 1985. • Convention for the Protection and Development of the Marine Environment and Coastal Region of the Mediterranean Sea Barcelona Convention, Barcelona, 1976. • Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Nouméa, 1986.
Agreements • Convention for the Protection of the Marine Environment and Coastal Area of the South-east Pacific, Lima, 1981. • Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, Abidjan, 1981. • Framework Convention for the Protection of the Marine Environment of the Caspian Sea • Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution, Kuwait, 1978. • Regional Convention for the Conservation of the Red Sea and the Gulf of Aden Environment, Jeddah, 1982.
Agreements Marine living resources • Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), Canberra, 1980. – Agreed Measures for the Conservation of Antarctic Fauna and Flora – Convention for the Conservation of Antarctic Seals – Convention for the Conservation of Antarctic Marine Living Resources – Protocol on Environmental Protection to the Antarctic Treaty • International Convention for the Conservation of Atlantic Tunas (ICCAT), Rio de Janeiro, 1966. • International Convention for the Regulation of Whaling (ICRW), Washington, 1946.
Agreements • • Nature conservation and terrestrial living resources Antarctic Treaty, Washington DC, 1959. World Heritage Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 1972. Convention on Biological Diversity (CBD), Nairobi, 1992. Convention on the Conservation of Migratory Species of Wild Animals (CMS), Bonn, 1979.
Agreements • Convention on the International Trade in Endangered Species of Wild Flora and Fauna, (CITES), Washington DC, 1973. • Ramsar Convention on Wetlands of International Importance, especially as Waterfowl Habitat, Ramsar, 1971. • Convention to Combat Desertification (CCD), Paris, 1994. • FAO International Undertaking on Plant Genetic Resources, Rome, 1983. • International Tropical Timber Agreement, (ITTA), Geneva, 1994. Noise pollution • Working Environment (Air Pollution, Noise and Vibration) Convention, 1977
Agreements • • • Nuclear safety Comprehensive Test Ban Treaty 1996 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Assistance Convention), Vienna, 1986. Convention on Early Notification of a Nuclear Accident (Notification Convention), Vienna, 1986. Convention on Nuclear Safety, Vienna, 1994. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water Vienna Convention on Civil Liability for Nuclear Damage, Vienna, 1963.
Sources Customary international law is an important source of international environmental law. These are the norms and rules that countries follow as a matter of custom and they are so prevalent that they bind all states in the world. When a principle becomes customary law is not clear cut and many arguments are put forward by states not wishing to be bound. Examples of customary international law relevant to the environment include the duty to warn other states promptly about icons of an environmental nature and environmental damages to which another state or states may be exposed, and Principle 21 of the Stockholm Declaration ('good neighbourliness' or sic utere).
Sources International judicial decisions International environmental law also includes the opinions of international courts and tribunals. While there are few and they have limited authority, the decisions carry much weight with legal commentators and are quite influential on the development of international environmental law. One of the biggest challenges in international decisions is to determine an adequate compensation for environmental damages.
Sources The courts include: the International Court of Justice (ICJ); the international Tribunal for the Law of the Sea (ITLOS); the European Court of Justice; European Court of Human Rights and other regional treaty tribunals. Arguably the World Trade Organisation's Dispute Settlement Board (DSB) is getting a say on environmental law also. Important cases have included: • Trail smelter arbitration, 33 AJIL (1939) • Nuclear weapons testing cases, such as between New Zealand France before the International Court of Justice; • Gabcikovo-Nagymaros Dam Case, ICJ Rep (1997)
Bodies Multilateral environmental agreements are sometimes creating an International Organization, Institution or Body that implements the agreement. Major examples are the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the International Union for Conservation of Nature (IUCN)
Bodies CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora, also known as the Washington Convention) is a multilateral treaty to protect endangered plants and animals. It was drafted as a result of a resolution adopted in 1963 at a meeting of members of the International Union for Conservation of Nature (IUCN). The convention was opened for signature in 1973, and CITES entered into force on 1 July 1975. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species in the wild, and it accords varying degrees of protection to more than 35, 000 species of animals and plants. In order to ensure that the General Agreement on Tariffs and Trade (GATT) was not violated, the Secretariat of GATT was consulted during the drafting process.
Bodies The International Union for Conservation of Nature is an international organization dedicated to finding "pragmatic solutions to our most pressing environment and development challenges". The organization publishes the IUCN Red List of Threatened Species, which assesses the conservation status of species.
Bodies IUCN supports scientific research, manages field projects globally and brings governments, non-government organizations, United Nations agencies, companies and local communities together to develop and implement policy. IUCN is the world's oldest and largest global environmental network—a democratic membership union with more than 1, 000 government and NGO member organizations, and almost 11, 000 volunteer scientists in more than 160 countries. IUCN's work is supported by more than 1, 000 professional staff in more than 40 offices and hundreds of partners in public, NGO and private sectors around the world. The Union's headquarters are located in Gland, Switzerland, near Geneva.
• • Extinct (исчезнувшие) (EX) Extinct in the Wild (исчезнувшие в дикой природе) (EW) Critically Endangered (в критической опасности) (CR) Endangered (в опасности) (EN) Vulnerable (в уязвимом положении) (VU) Near Threatened (близки к уязвимому положению) (NT) Least Concern (находятся под наименьшей угрозой) (LC) • Data Deficient (данных недостаточно) (DD) • Not Evaluated (угроза не оценивается) (NE)
The six IUCN Commissions involve 10, 000 volunteer experts from a range of disciplines. They 'assess the state of the world’s natural resources and provide the Union with sound know-how and policy advice on conservation issues'. • Commission on Education and Communication (CEC): communication, learning and knowledge management in IUCN and the wider conservation community. Members: 1, 200 • Commission on Environmental, Economic, and Social Policy (CEESP): economic and social factors for the conservation and sustainable use of biological diversity. Members: 1465. • World Commission on Environmental Law (WCEL): developing new legal concepts and instruments, and building the capacity of societies to employ environmental law for conservation and sustainable development. Members: 800. • Commission on Ecosystem Management(CEM): integrated ecosystem approaches to the management of natural and modified ecosystems. Members: 1000. • Species Survival Commission (SSC): technical aspects of species conservation and action for species that are threatened with extinction. Members: 7500. • World Commission on Protected Areas (WCPA): establishment and effective management of a network of terrestrial and marine protected areas. Members: 1300.
Bodies The United Nations Environment Programme (UNEP) is an agency of the United Nations that coordinates its environmental activities, assisting developing countries in implementing environmentally sound policies and practices. It was founded by Maurice Strong, its first director, as a result of the United Nations Conference on the Human Environment in June 1972 and has itsheadquarters in the Gigiri neighborhood of Nairobi, Kenya. UNEP also has six regional offices and various country offices.
Bodies Its activities cover a wide range of issues regarding the atmosphere, marine and terrestrial ecosystems, environmental governance and green economy. It has played a significant role in developing international environmental conventions, promoting environmental science and information and illustrating the way those can be implemented in conjunction with policy, working on the development and implementation of policy with national governments, regional institutions in conjunction with environmental non-governmental organizations (NGOs). UNEP has also been active in funding and implementing environment related development projects.
Bodies UNEP has aided in the formulation of guidelines and treaties on issues such as the international trade in potentially harmful chemicals, transboundary air pollution, and contamination of international waterways.
UNEP's structure includes seven substantive Divisions: • Early Warning and Assessment (DEWA) • Environmental Policy Implementation (DEPI) • Technology, Industry and Economics (DTIE) • Regional Cooperation (DRC) • Environmental Law and Conventions (DELC) • Communications and Public Information (DCPI) • Global Environment Facility Coordination (DGEF)
Bodies The World Meteorological Organization and UNEP established the Intergovernmental Panel on Climate Change (IPCC) in 1988. UNEP is also one of several Implementing Agencies for the Global Environment Facility (GEF) and the Multilateral Fund for the Implementation of the Montreal Protocol, and it is also a member of the United Nations Development Group. The International Cyanide Management Code, a program of best practice for the chemical’s use at gold mining operations, was developed under UNEP’s aegis.
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