Public International Law in PracticeInternational Environmental Law

Ivano AlognaArthur Watts Research Fellow in Environmental and Climate Change LawBritish Institute of International and Comparative Law

Outline

1. Introduction to International Environmental Law (IEL)

2. History of IEL

3. International Sustainable Development Law

4. International Environmental Management

5. Climate Change Regime

1. Introduction to International Environmental Law

The Environment: object of IEL

“[T]he environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.”

(International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons [Advisory Opinion] [1996] ICJ Rep 226, 241)

• Depletion of stratospheric ozone from CFC’s

• Loss of crop & grazing land from desertification, erosion, and conversion to non-farm uses

• Depletion of tropical forests, loss of forest resources, serious watershed damage

• Mass extinction of species, global loss of wildlife habitat, loss of genetic resources

• Rapid population growth, burgeoning metropolis, ecological refugees

• Mismanagement & shortages of fresh water resources

• Overfishing, habitat destruction & pollution in the marine environment

• Human health threats from pesticides and persistent organic pollutants

• Climate change

• Acid rain and effects of air pollutants on fisheries, forests, and crops

What are the major international environmental problems?

• Ozone depletion: Vienna Convention & Montreal Protocol

• Desertification: UN Desertification Convention

• Tropical Forest Loss: UN CBD, United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD)

• Species loss: Washington Convention (CITES), Whaling Commission, UN CBD

• Cities: UN HABITAT

• Fresh water: Convention on non-navigational uses of fresh water courses, River Conventions

• Marine environment: UNCLOS, Straddling Fish Stock Convention, Regional Seas Conventions, IMO Conventions (MARPOL)

• POPs: Stockholm Convention, Rotterdam Convention

• Climate change: UNFCCC & Kyoto Protocol & Paris Agreement

How are they regulated?

• Bering Sea Fur Seals Arbitration (USA vs. UK, 1893)

• Trail Smelter Arbitration (USA vs. Canada, 1941)

• Lac Lanoux Arbitration (Spain vs. France, 1957)

2. History of IEL

Traditional Era

Global conferences:

• 1972 Stockholm: UN Conference on the Human Environment

• 1992 Rio de Janeiro: UN Conference on Environment and Development

• 2002 Johannesburg: World Summit on Sustainable Development

• 2012 Rio+20 Summit: UN Conference on Sustainable Development

Modern Era

Origins of the Concept of Sustainable Development

What is development?

- IFI growth of GDP, industrialisation, economic progress?

- UNDP participatory progress toward improvements in quality of life, Sen’s improvements in freedoms through capability and opportunity?

- The Human Development Index, the Millennium Development Goals?

What is sustainable development, then?

- Pinchot’s wise use of resources and focus on sustained yield? Efficiencies?

- Club of Rome respecting environmental limits to growth? Carrying capacity?

- Brundtland’s inter-generational equity?

- Social empowerment that respects rights to environment and health? Human scale alternatives?

- Development that can last? Integration of environment, social and economic aspects of development decision-making?

3. International Sustainable Development Law

Sustainable Development - Concept

1987 Brundtland Report, 1992 UNCED, 2002 WSSD: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”, balanced integration of social, economic and environmental aspects in development decision-making, socially and environmentally sound development, etc.

“… need to reconcile economic development with protection of the environmentis aptly expressed in the concept of sustainable development.” (Case Concerning the Gabčíkovo-Nagymaros Project, ICJ, 1997, para 140)

Over 300 treaties were highlighted by States as contributing to SD, in the 2002 WSSD Johannesburg Plan of Implementation.

SD is recognized as an explicit objective in more than 40 recent multilateral & regional treaties, including trade treaties (which reflect SD principles).

2002 ILA New Delhi Declaration on Principles of International Law related to Sustainable Development: 7 principles of international law found in treaties / laws on SD.

Legal Status ofSustainable Development in International Law

stainable Development

International Principles & Rio Declaration

1992 Rio Declaration (27 Principles, ‘Soft Law’)

General

Principle 1: Human beings are the centre of concerns for sustainable development...

Principle 2: Sovereign rights re: natural resources, and responsibility re: damage...

Substantive:

Principle 3: Right to development, equitable for present and future generations.

Principle 4: Environmental protection integral part of development process...

Principle 5: Cooperate to eradicate poverty, decrease disparities in standards of living, and meet needs of majority.

Principle 6: Special priority to needs of least developed, most environmentally vulnerable...

Principle 7: Global partnership to conserve, protect & restore health and integrity of the Earth's ecosystem, with common but differentiated responsibilities.

Principle 8: Reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies.

Principle 12: No arbitrary or unjustifiable discrimination or a disguised restriction on international trade, avoid unilateral actions, decide by international consensus.

Principle 13: National and international liability and compensation.

Principle 14: Discourage or prevent relocation and transfer of activities/substances of severe environmental degradation or harmful to human health.

International Principles & Rio Declaration – 2

Substantive, cont. - 1992 Rio Declaration, cont.

Principle 15: Precautionary approach, lack of full scientific certainty not used as a reason for postponing measures to prevent degradation.

Principle 16: Internalization of environmental costs, use of economic instruments, so that polluter should, in principle, bear the cost of pollution.

Principles 23 – 26: Protection of oppressed peoples natural resources, protection for the environment in times of armed conflict, peace needed for SD.

Procedural

Principle 9: Build capacity, scientific and technological knowledge, and transfer technology...

Principle 10: Participation, awareness & access to information, access to judicial and administrative proceedings, including redress and remedy.

Principle 11: Effective environmental legislation. Environmental standards, management objectives and priorities reflect context.

Principle 17: Environmental impact assessment.

Principle 18: Obligation to immediately notify others of disasters or emergencies, and int‘l commitment to help afflicted States.

Principle 19: Prior and timely notification and relevant information, consultation with others at early stage and in good faith.

Principle 20 – 22: Involvement of women, youth, indigenous peoples

Principle 27: Commitment to cooperate in good faith, to partnership and to further development of international law in the field of sustainable development.

Principles of Sustainable Development Law

Certain emerging principles of international law may help to deliver sustainable development goals

The ILA New Delhi Declaration

Duty to ensure sustainable use of natural resources

Equity and poverty eradication

Precautionary approach to human health, natural resources and ecosystems

Common but differentiated responsibilities

Public participation, access to information and justice

Good governance

Integration

New perspectives: The Global Pact for the Environment (https://globalpactenvironment.org/en/)

International Environmental Law(atmosphere, water,

biodiversity)

International Economic Law

(Trade, Investment, Competition,

Natural Resources)

International Social Law

(Human Rights, Social

Development, Health Law)

Sustainable Development Law:

Law at the area of intersection between three fields.

Broad purpose: “socially, economically & environmentally sound development that can last.”

Concept of Sustainable Development Law

13

Multilateral Environmental Agreements

Structure

• Specific Problem

• Framework Convention

• MEA Secretariat (sometimes Funding Mechanism)

• Additional Protocols

Compliance problems

• Non-compliance

• Breach

4. International environmental management

An Evolving International Regime

• 1992 UN FCCC, a treaty regime with environment & sustainable development commitments (192 Parties, 100+ DCs, 50+ LDCs)

• 1997 Kyoto Protocol with mechanisms to encourage carbon markets (ETS, JI, CDM)

• 2009 Copenhagen Accord on financing, mitigation & transparency

• 2010 Cancun Agreements on REDD+, Nationally Appropriate Mitigation Actions, Adaptation Fund & Technology Mechanism (CoP16 Cancun)

• 2011 Durban Platform for Enhanced Action (ADP), negotiations on a 2015 post-Kyoto protocol, other ‘legal instrument’ or ‘agreed outcome with legal force’ (1/CoP17)

• 2012 Doha Green Climate Fund, climate tech centre, more ambition (CoP18 Doha)

• An increasingly capable network of National Authorities & a process of National Communications & Annual CoPs to review progress (CoP19 Warsaw, CoP20 Lima)

• 2015 Paris Agreement and its Adoption Decision (CoP21 Paris)

Introduction to Climate Law5. Climate Change RegimeOverview

Paris Agreement

• Decision of the COP 21 (decision 1/CP.21) + the Paris Agreement in annex

• A Protocol?

• It follows negotiations held at the Paris Climate Conference (COP21) of the UUNFCCC

• Signed by 175 countries on April 22

• Entered into force on November 4, 2016, after being ratified by at least 55 states representing 55% of GHG emissions

• Today, 196 countries have signed it (around ten less have ratified it)

Parties’ objectives

Art. 2 Paris Agreement: « Holding the increase in the global average temperature to wellbelow 2°C above pre-industrial levels and pursuing efforts to limit the temperatureincrease to 1.5°C above pre-industrial levels, recognizing that this would significantlyreduce the risks and impacts of climate change »

• “Adaptation” component is more pronounced

• « Green Climate Fund »: 100 billion per year until 2025

• Common objective: a global framework for cooperation and generalized solidarity

• Principle of progression within a framework of transparency

• Need to disinvest from fossil fuels

Differentiated commitments

In relation to the state of their development (art. 4):

• Developed countries: reduction objective emissions in absolute figures (“should continue taking the lead by undertaking economy-wide absolute emission reduction targets” )

• Developing countries: requests for « mitigation efforts » (« should continue enhancing theirmitigation efforts, and are encouraged to move over time towards economy-wide emissionreduction or limitation targets in the light of different national circumstances »)

• « Vulnerable countries »: specific measures (“The least developed countries and small island developing States may prepare and communicate strategies, plans and actions for low greenhouse gas emissions development reflecting their special circumstances”)

Voluntary contributions

Nationally determined contribution (art. 4):

« Each Party shall prepare, communicate and maintain successive nationally determinedcontributions that it intends to achieve. Parties shall pursue domestic mitigation measures, withthe aim of achieving the objectives of such contributions.

Each Party's successive nationally determined contribution will represent a progression beyondthe Party's then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. »