international environmental law
TRANSCRIPT
International Environmental Law
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International Environmental LawSpring 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 theassignments you complete will provide the information for the final exam.
Contents
Part I
1. Issues, concepts, definitions2. Development3. Sources of law4. 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 watercourses6. Biological diversity7. Hazardous substances and the waste trade
Part 3
8. Compliance and enforcement – state responsibility and liability9. 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
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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
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Part 2 Overview of the regimes
Problems in the atmosphere:Ozone hole 1999, 2000, 2001
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Problems in the atmosphere Air Pollution
Acid rain - transboundary
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Problems in the atmosphere:
Climate change / greenhouse gases (carbon dioxide) - effects
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Other problems affecting the atmosphere
Peaceful uses of nuclear power:• Power plants
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Other uses of nuclear power
• Nuclear powered ships, spacecraft, submarines
• Weapons testing
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Protection and preservation of waters
High stress: > 40% available is withdrawn
moderate stress: 10-20% available is withdrawn
Low stress: < 10% available is withdrawn
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Water preservation and protection
ARAL SEA : SHARING OF WATERS/DESERTIFICATION/POLLUTION
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biodiversity
Forests then and now
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Hazardous waste and hazardous substances
Dumping toxic wastes in other countries
Pesticides banned in some countries exported to others
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Part 3 Compliance and enforcement
• State responsibility• State liability
• Cases
- Trail smelter arbitration1941
- Gabcikovo 1997
• Current thinking – state liability,civil liability regimes
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Part 3Global trade and the environment
• Extra-territorial applications of domestic environmental law
• Interaction with WTO law– Tuna-dolphin dispute– Shrimp turtle decision
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Part 4:Global commons/common heritage of
mankind/terra nullius
Antarctica, high seas, space
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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
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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
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• 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
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2. Sources
Sources: Art 38 ICJ Statute
(a) International conventions
(b) International custom
(c) General principles of law
(d) Judicial decisions and ..teachings of publicists…
+ soft law
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Sources (contd)
(a) Conventions/treaties
• negotiations• piecemeal or framework• signing• ratification• pacta sunt servanda• binding only on ratifying states
Time
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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,
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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
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Sources (contd)
(c) General principles
= those observed by all nations Sovereignty/equality of states
a)a state has jurisdiction over its resourcesb)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
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Sources (contd)
• Soft lawWeaker---guidelines, codes of conduct, resolutions, declarations---stronger, may be accepted as general principle or customary
• Leading Banks Announce Adoption of Equator
PrinciplesWashington 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 1991
Scope 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 ….
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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
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3. Development
19th 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)
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3. Development- 19th century-1945 Pacific 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
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3. Development- 19th century-1945 Pacific 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?
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3. Development- 19th century-1945 Pacific 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
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3. Development-19th century-1945 Pacific 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
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3. Development-19th century-1945 Trail 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?
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3. Development-19th century-1945 Trail 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
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Development 1945-1972
1945 creation of the UNUNC 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
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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..
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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
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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
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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...
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Development 1972-1992Disasters
Bhopal 1984
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Development 1972-1992 (contd)Disasters
Sandoz 1986
Chernobyl 1986
Exxon Valdez 1989
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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
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UN Rio Conference on environment and development
1992
3 non-binding instruments• Rio Declaration (27 principles)• UNCED Forest Principles• Agenda 21and• 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)
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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
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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
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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
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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
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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
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• Johannesburg World Summit on Sustainable Development 2002
191 states, ? io’s, >8000 ngo’s, private sector, academia, scientific community
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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
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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)
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4. Io’s in international governance
UNGA IOC
UNSC GREENPEACE INT
UN ECOSOC FOEI
UNDP FIELD
UNEP IUCN
UN regional commissions
ILC
ICJ IWC
IMO CoE
WORLD BANK MEKONG COMMISSION
ASIAN DEV BANK ILA
UNESCO FAO
WWF ECtHR and env
IAEA EARTHWATCH INST.
WTO
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