environmental law slides

Climate Migration

"Since 2008, an average of 26.4 million people per year have been displaced from their homes by disasters brought on by natural hazards. This is equivalent to one person being displaced every second." Internal Displacement Monitoring Centre's (IDMC) 2015 Global Estimates Report • People are twice as likely to be displaced now than they were in the 1970s. • 17 million people were displaced by natural hazards in 2009 and 42 million in 2010 • Current estimates of the number of people who will be obliged to move as a result of climate change and environmental degradation by the year 2050 range from 25 million to one billion. • The most cited estimate for cross-border migration due to climate change is 200 million by 2050 • The majority of the 59.5 million people of concern to UNHCR are situated in 'climate change hotspots' around the world.

Trail Smelter (1927-1941)

'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' ('no-harm rule')

UNFCCC Article 3

'Principles' 1. The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof. 3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures ... 4. The Parties have a right to, and should, promote sustainable development.

Paris, art. 4

1. Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.... ... 3. Each Party's successive nationally determined contribution will represent a progression beyond the 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.

St Helena under the EIC

1708: John Roberts, governor of St Helena for the East India Company: 'the island in 20 years time will be utterly ruined for want of wood'. • drought (1712-1715, 1737, 1747) • floods (1736, 1756, 1787) • soil erosion (land-slips and other 'rapid geomorphic changes') • swirling dust increasingly associated with respiratory diseases Emerging science: Stephen Hales (French Académie des Sciences and English Society of Arts) and Pierre Poivre (botanist, Mauritius administrator, 1769) 1794: East India Company Directors request reafforestation, since 'it is well known that trees have an attractive power on the clouds, especially when they pass over hills so high as those on your island'. 'the present inhabitants will afford their posterity as just a reason for condemning their conduct as they have now to deplore that of their ancestors'.

Technology transfer (art. 4)

5. The developed country Parties and other developed Parties included in Annex II shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties, to enable them to implement the provisions of the Convention. In this process, the developed country Parties shall support the development and enhancement of endogenous capacities and technologies of developing country Parties. Other Parties and organizations in a position to do so may also assist in facilitating the transfer of such technologies. 7. The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.

World Bank

A 4-degree warmer world • In most scenarios without additional mitigation efforts ... warming is more likely than not to exceed 4°C above pre- industrial levels by 2100. The risks associated with temperatures at or above 4°C include substantial species extinction, global and regional food insecurity, consequential constraints on common human activities, and limited potential for adaptation in some cases (high confidence). • Some risks of climate change, such as risks to unique and threatened systems and risks associated with extreme weather events, are moderate to high at temperatures 1°C to 2°C above pre-industrial levels.

UNFCCC (universal ratification)

Article 2 OBJECTIVE The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

Stockholm (Conservation)

Principle 1 • Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations... Principle 4 • Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development.

Stockholm and the NIEO

Principle 9 • Environmental deficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required. [technology transferàUNFCCC] Principle 10 • For the developing countries, stability of prices and adequate earnings for primary commodities and raw materials are essential to environmental management, since economic factors as well as ecological processes must be taken into account. [international commodity agreements?]

Sustainable Development

Brundtland Report: Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: • the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and • the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs.

Art. 2

Prohibition of the hunting and destruction of the animals mentioned in Schedule I (Series A). - On account of their usefulness:- 1. Vultures. 2. The Secretary-bird. 3. Owls. 4. Rhinoceros-birds or Beef-eaters (Buphaga). (Series B.) — On account of their rarity and threatened extermination:- 1. The Giraffe. 2. The Gorilla. 3. The Chimpanzee. 4. The Mountain Zebra. 5. Wild Asses. 6. The White-tailed Gnu (Connochaetes gnu). 7. Elands (Tauratragus) 8. The little Liberian Hippopotamus.

Art 4

Commitments (* 'Titles of articles are included solely to assist the reader.') Communications: Art 4(1): All Parties. National inventories of GHGs/ national communications to COP Mitigation: Art 4(2): Annex I Parties 'shall adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs. These policies and measures will demonstrate that developed countries are taking the lead in modifying longer-term trends in anthropogenic emissions consistent with the objective of the Convention' Adaptation: Art 4(4). Annex II Parties 'shall also assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects.'

Right to information

Rio Declaration, Principle 10 pg 398 Aarhus Convention (1998) on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters

Environmental Impact Assessment

Rio, Principle 17 (1992) 399 ILC Draft Articles on Transboundary Harms and Hazardous Activities, Article 7. Assessment of risk (2001) • Any decision in respect of the authorization of an activity within the scope of the present articles shall, in particular, be based on an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment. (See commentary) ICJ, Pulp Mills on the river Uruguay (Argentina v. Uruguay) (2006-10) • 'a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context' (para. 22)

UNCED (1992)

Statements: • Rio Declaration on the Environment and Development • Agenda 21 Treaties • UNFCCC • UNCBD • UNCCD • Entered into force 1994 • Cartagena Protocol (to the CBD) on Living Modified Organisms (2000) • Minamata Convention on Mercury (2013)

Cf. Rio Declaration, Principle 12

States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation.

No Harm Principle

Stockholm (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. Rio (1992), Principle 2 ICJ, Gabcikovo-Nagymaros (1997): 'the general obligation of states to ensure that activities .... [Rio language verbatim] ... jurisdiction is now part of the corpus of international law' Chernobyl?

Common But Differentiated Responsibilities ...

Stockholm Declaration, Principle 23: "[I]t will be essential in all cases to consider the systems of values prevailing in each country, and the extent of applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries." Rio Declaration, Principle 7 398 • àSee UNFCCC

Stockholm 1971-2

Technology as Destiny? Stockholm Declaration (1972) 1. Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights, [including] the right to life itself. ...

Traditional sources

Contained in treaty texts ○ Rights and obligations of states largely derive from voluntarily assumed treaty obligations ○ Dynamic force § Institutional mechanism for implementation § Need to respond physical environmental changes ...regulated via subsidiary scientific body ○ Common format = providing for regular meetings of the Conference of the Parities (COP)

The Frame

Dichotomies / tensions • The 'human' / 'nature' (what is 'the environment'?) • The planet ('global' climate change) / the state • Technology-dystopia / utopia-technocracy • Conservation (society) / Development (economy) • Science (probability) / Law (predictability) • The past ('unspoiled' or... smog-filled) / The future ('green' or... apocalyptic)?

Kyoto Protocol

Flexible mechanisms • Reduction targets (QELROs) for Annex I countries. Baseline: 1990 levels (mostly) • Clean Development Mechanism (Art 12) • Emissions Trading (Art 17) • Joint Implementation (Art 6) • CBDR (e.g. Art 10) '... without introducing any new commitments for Parties not included in Annex I, but reaffirming existing commitments under Article 4, paragraph 1, of the Convention, and continuing to advance the implementation of these commitments in order to achieve sustainable development...'

History

Four reasons why environmental protections first appear in colonial territories: 1. Colonial exploration gives rise to a discourse of 'paradises', edens, unspoiled lands, 'exotic' flora and fauna: Romantics. 2. Island territories: colonial governors exercised complete control over contained ecosystems which were often treated not only as loci for resource extraction but also as laboratories of governance (St Helena example) 3. The earliest wildlife conservation laws derive directly from the experience of big game hunting and the extinction of charismatic megafauna. 4. In the colonies, the Powers were actively involved in putting in place long-term (sustainable) systems of production and distribution (spices, tea, coffee, fish)

Schedule V

Harmful animals referred to in paragraphs 3 and 13 of Article II, of which it is desirable to reduce the numbers ...:- 1. The Lion. 2. The Leopard. 3. Hyaenas. 4. The Hunting Dog (Lycaon pictus). 5. The Otter (Lutra). 6. Baboons (Cynocephalus) and other harmful Monkeys. 7. Large birds of prey, except Vultures, the Secretary-bird and Owls. 8. Crocodiles. 9. Poisonous Snakes. 10. Pythons.

1900 [London] Convention For The Preservation Of Wild Animals, Birds, And Fish In Africa

Her Majesty the Queen [and other monarchs] ... Being desirous of saving from indiscriminate slaughter, and of insuring the preservation throughout their possessions in Africa of the various forms of animal life existing in a wild state which are either useful to man or are harmless, have resolved • Schedule II: Prohibitions on killing the young • Schedule III: Prohibitions on killing females with young • Schedule IV: Prohibitions on killing, except in limited numbers

Catherine Redgwell

The development of modern international environmental law, starting essentially in the 1960s, has been one of the most remarkable exercises in international lawmaking comparable only to the law of human rights and international trade law in the scale and form it has taken...protecting the environment is not exclusively a problem for lawyers. ... given the shallowness of some of their theorizing about the environment, it is far from clear that economists or international relations theorists can save the planet... [In this chapter, I] attempt to show how International Environmental Law has provided the framework for cooperation between developed and developing states, for measures aimed at equitable and sustainable use of natural resources, for the resolution of international environmental disputes, for the promotion of greater transparency and public participation in national decision-making, and for the adoption and harmonization of a great deal of national environmental law.

Human Rights Art 28

UDHR, Art. 28: '51 ICCPR: • Art 1(1). pg 118 • Art 1(2). • Art. 6 (1) pg 119 .

World Bank, Turn Down the Heat

Why a 4°C Warmer World Must be Avoided [Potsdam Institute] • Recent extreme heat waves such as in Russia in 2010 are likely to become the new normal summer in a 4°C world' . • Tropical South America, central Africa, and all tropical islands in the Pacific ' are likely to regularly experience heat waves of unprecedented magnitude and duration'. • In the Mediterranean, North Africa and the Middle East 'almost all summer months are likely to be warmer than the most extreme heat waves presently experienced'. • In the tropics, heat increases will be beyond 'the historical range of temperature and extremes to which human and natural ecosystems have adapted and coped' • Sea-level rise will be 15-20 per cent higher than the global average. • Life in the tropics will cease to be livable.

2. International legislative activity

a. Sectoral and fragmented approach to achieving environmental protection b. Creation of international institutions post WW2 and culminating in 1972 Stockholm Conference on Human Environment... i. Produced declaration and Action Programme 1) template used by 1992 Rio Conference on Environment and Development ii. Stimulated great deal of regional and global treaties a lot towards protection of marine enviro 1) 1972 London Convention 2) Regional seas programme of UNEP iii. Treaties on terrestrial environment 1) Natural and Cultural Heritage 2) Species and habitat protection

3. Holistic approach to enviro protection protection

a. Seeks to marry protection with economic development via sustainable development b. Acknowledgement that biological diversity conservation and preventing negative climate change = common concern of humankind c. 1992 Rio Conference on Environment and Development i. 1992 Convention on Climate Change ii. 1992 Convention on Conversation of Biological Diversity 1) deforestation d. 1994 Convention to Combat Desertification e. 1994 International Timber Agreement i. Facilitating sustainable timber trade

• 1960 Paris Convention on the third party liability in the field of nuclear energy and 1963 Brussels supplementary convention

adopted under the nuclear energy agency of the organisation for Economic cooperation and development ○ designed to elaborate and harmonize legislation relating to third party liability to ensure that compensation is paid for person suffering nuclear damage at the same time ensuring that the development and use of nuclear energy remains commercially feasible § Channeling and limiting liability achieves the nuclear operator initially liable than the state of operation and then of all contracting parties ○ Not yet been a serious test of these provisions within europe

• International atomic energy agency

established in 1957 to facilitate the Peaceful development of nuclear energy and adherence non-proliferation safeguards ○ addressed early notification and to assistance in the event of an international nuclear incident § the former embraces in treary form the customary law obligation to notify in event of serious transboundary harm ○ 1994 Convention on nuclear safety designed to ensure the safe design operation and decommissioning of land based nuclear power plants § increased scrutiny after Fukushima □ procedural changes instituted to strengthen peer-review and transparency which can have an immediate effect □ working group was established to consider further strengthening through Amendment of the convention

• shifting regulatory Focus

for whilst Fisheries regulation continues to be primarily concerned with conserving the economic value resource through good fisheries management practices, 1946 international convention for the regulation of whaling has seen a shift in approach from regulation of the overexploitation of an Economic resource to a moratorium on whaling based at least in part on the more diffuse anthropocentric concern to protect the species

Regulation of state behavior penetrating within the state

less rapid development • Obstacles w/ state sov and permanent sov over natural resources • BUT enviro law impact evident on the evolution of the principle of permanent sov over natural resources esp sustainable development, importing duties, and natural resource management (Schrijver, 1997)

International society

recognition of community interest (beyond State alone) • BUT limited participation of nonstate actors as treaty parties ○ Exception: EU (1997 Kyoto Protocol and 2015 Paris Agreement)

○ Framework Approach

§ More rapid change § Contains general principles and framework while further protocols and/or annexes embody specific standards More flexible amendment process

○ safety and security issues with the object inter-alia protecting humans in the environment from harmful radiation exposure

§ significant gap remains in the league over Jean for disposal of radioactive waste § widely recognised that the dispose of radioactive waste on a below the seabed is prohibited by international law § unclear whether the existing nuclear liability regime what extent a geological or surface disposal of high-level waste and spent nuclear waste □ Strict liability is channelled through the operator of a nuclear installation upon proof of nuclear damage but the definition of nuclear installation under the 1963 Vienna Convention on Civil Liability for nuclear damage no explicit reference to disposal □ long term and permanent disposal issues ® does storage include disposal for the purposes of the application of The Liability regime

After Stockholm

• 'Ramsar' Convention on Wetlands of International Importance (1971) • UNESCO World Heritage Convention (1972) • Convention on International Trade in Endangered Species (1973) (CITES) • Convention on Long-Range Transboundary Pollution (1979) • Convention on the Conservation of Migratory Species (1979) • Convention on the Protection of Antarctic Marine Living Resources (1980) [introduces the notion of an ecosystem] • Montreal Protocol (1987) to the Vienna Convention for the Protection of the Ozone Layer (1985) [provides replacement technologies] • Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal (1989)

Paris Agreement, art. 2

• 1. This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by: • (a) Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change; • (b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and • (c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development. • 2. This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.

1979 Convention on the Conservation of Migratory Species (Bonn Convention)

• 126 parities ○ Half = developing nations • Effectives hampered by states failure to pay contributions and expenses ○ Short staffed and underfunded • Conserve habitat and protect migratory species threatened w/ extinction • Impose protection obligation of Range States ○ Restoration of habitat ○ Removing migration obstacles • Taking species in Appendix one = prohibited under domestic law • Conclusion of conservation Agreements between Range states for the conservation and management of migration for those in Appendix 2 • Framework character

World Heritage Convention

• 193 state parties • Increased developing country participation via trust fund ○ Voluntary and complementary contributions • Purpose: identification, protection, conservation, presentation, and transmission to future generations of cultural and natural heritage of outstanding universal value • Link b/w nature conversation and preservation of cultural properties ○ Balance b/w the two • 1073 properties • Not necessary to have a site listed to become a full participating party • Effectiveness dependent on States offering up sites for designation • "list of world heritage in Danger" ○ Failure to fulfil obligations to reduce/ eliminate danger posed to cultural and natural heritage = deletion § Oman 2007 and Germany 2009

Sustainable International Environmental Law Protection of the Marine Environment

• 1972 Stockholm conference 46 articles devoted to Marine environment implicitly acknowledges existing marine environment 3DS in the areas of dumping at sea and vessel source pollution in particular • pollution of the oceans and concerns about their limited absorption capacity recognised in 1972 London convention and the regional 1972 Oslo dumping convention • Unep established regional seas programme for which the 1976 Barcelona convention for the Protection of Mediterranean Sea against pollution formed the prototype for many other regional sea areas ○ changing the subject matter from pollution caused by dumping land-based sources and seabed activities to cooperation in emergencies, specifically protected areas and biodiversity, transboundary movements of hazardous waste, and integrated coastal zone management • Regulation for marine environment protection extends beyond pollution to include areas based management tools such as the designation of marine protection areas and the integrated management of the marine environment

Stockholm North-South/ A postcolonial compromise

• 4. In the developing countries most of the environmental problems are caused by under-development. Millions continue to live far below the minimum levels required for a decent human existence, deprived of adequate food and clothing, shelter and education, health and sanitation. • Therefore, the developing countries must direct their efforts to development, bearing in mind their priorities and the need to safeguard and improve the environment. • For the same purpose, the industrialized countries should make efforts to reduce the gap between themselves and the developing countries. • In the industrialized countries, environmental problems are generally related to industrialization and technological development.

Species extinction (AR5)

• A large fraction of species faces increased extinction risk due to climate change during and beyond the 21st century, especially as climate change interacts with other stressors (high confidence). Most plant species cannot naturally shift their geographical ranges sufficiently fast to keep up with current and high projected rates of climate change in most landscapes; most small mammals and freshwater molluscs will not be able to keep up at the rates projected under RCP4.5 and above in flat landscapes in this century (high confidence). • Marine organisms will face progressively lower oxygen levels and high rates and magnitudes of ocean acidification (high confidence), with associated risks exacerbated by rising ocean temperature extremes (medium confidence). Coral reefs and polar ecosystems are highly vulnerable.

Challenges to enviro IL

• Achieving a holistic and integrated approach to enviro regulation that applied within and between and beyond states 1992 UN convention on biological diversity

UNFCCC Annexes, Rights, Obligations?

• Annex 1: US, EU, Australia, New Zealand, Canada, Japan, former Soviet states ('countries in transition') • Annex 2: Same countries minus former Soviet states • 'Non-Annex I Countries' • .... 'Developing Country Parties' • 'Developed Country Parties ... [and other Annex II Parties]' • Least Developed Countries...

Paris other provisions

• Art 5. 'Action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases'REDD + • Art 6. 'Voluntary cooperation'Carbon Markets and the new Sustainable Development Mechanism • Art 7. Adaptation: 'enhancing adaptive capacity, strengthening resilience and reducing vulnerability' • Art 8. 'Warsaw International Mechanism for Loss and Damage' • Art 9. Finance: 'Developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation' • Art 10. Technology transfer • Arts 11 and 13: Capacity Building and Transparency • Art 14: 'Global Stocktake'

Climate Change

• Atmosphere is the common concern of mankind • Intergovernmental Panel on Climate Change ○ Scientific guidance to regulate the emission of greenhouse gases on an international level • Objective = stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system • 197 parities obliged to produce inventories of greenhouse gas sources and sinks to formulate national and where appropriate regional programmes to reduce global warming, to cooperate in preparing for adaption to the impacts of climate change , and promote scientific research ○ Qualified obligation by permitting parties to take into account their common but differentiated responsibilities and their specific national and regional development priorities • Responsibility of developed countries to provide new and additional financial resources to meet the agreed full costs incurred by developing countries

Difficulties exercising IHRL re climate change

• Causation • Extraterritoriality • 'Political question' doctrine • Conflicting rights • Backward focus (right must have been violated) • Adversarialism v. cooperation? Or: • HR to inform climate policy? • Adaptation? • Mitigation?

Soft Law

• Codes of conduct, guidelines, resolutions, and declarations of principles • Do not entail international responsibilities • Employed bc its origins are not law created bc the body promulgating the "law" doesn't have law-making authority (ex NGO) or bc a law making body chooses a non-binding instrument to embody a statement of particular principles (States at the 1992 Rio Conference adopting the binding 1992 climate change convention and the nonbinding rio declaration ) • Allows agreement on collective but nonbinding action ○ Scientific evidence is inconclusive ○ Economic costs uncertain • Can lead to hard laws (UNEP guidelines) but has not been a linear progress • Informal cooperation ○ Played an informal role in the climate regime as necessary alternatives or complements to the protracted and cumbersome negotiations in the multilateral UNFCCC context ○ Incorporation of informal agreements within the wider UNFCCC framework and commitment to multilateralism § As seen in Copenhagen Accords

Early law regulation

• Conservation of common property resources subject to over-exploitation • Customary IL first developed to restrain state actions causing transboundary harm (primarily economic harm) in the territory of another state

Non-state Actors role

• Enforcement ○ Transnational litigation before national courts ○ Treaty compliance procedures ○ Indirect enforcement of environmental norms through human rights litigation • Civil liability regimes concerned w/ liability of nonstate actors ○ EX: shipowners under oil pollution liability • Corporate environmental accountability ○ Not directly bound to environmental treaties or customary IL ○ National courts not very receptive to international environmental law arguments ○ Pos impact via voluntary adherence...self-regulation

2000 Cartagena protocol on living modified organisms

• Focus on transboundary movement of LMOs which may have an adverse effect on biological diversity and human health ○ LMO = any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology • those who intend for release into the environment • those intended for use in food or feed or for processing ○ concerns to exporters of genetically modified crops ○ subject to a less onerous regime • AIA marks the protocol out from the prior informed consent procedures ○ does not exist in AIA ○ instead an overtly precautionary approach • Facilitate information exchange and to assist with National implementation = biosafety clearing house • Facilitative financing available via global environmental facility • compliance committee addresses problems of implementation and non-compliance • principally facilitative and non adversarial in function

1998 Rotterdam Convention on prior informed consent in the 2001 Stockholm Convention on persistent organic pollutants

• Highlights regulatory gap in respect of substances that are toxic persistent and bioaccumulative and whose use cannot be controlled • Soft law guidance in the form of a undp / FAO guidelines preceded their negotiation • the Rotterdam convention was applied provisionally from its conclusion in 1998 ○ 156 parties ○ establishes a prior informed consent regime in respect of the importation of toxic substances § subjects import/export of hazardous materials to a regime of prior informed consent of the importing party before export of banned chemical/pesticide

IPCC AR5 (2015)

• Human influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history. • Recent climate changes have had widespread impacts on human and natural systems. • Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen. • Without additional mitigation efforts beyond those in place today, and even with adaptation, warming by the end of the 21st century will lead to high to very high risk of severe, widespread, and irreversible impacts globally (high confidence).

Human rights (IPCC)

• IPCC AR5: Climate change will amplify existing risks and create new risks for natural and human systems. Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development. • Until mid-century, projected climate change will impact human health mainly by exacerbating health problems that already exist (very high confidence). • Throughout the 21st century, climate change is expected to lead to increases in ill-health in many regions and especially in developing countries with low income, as compared to a baseline without climate change (high confidence). • By 2100 ... the combination of high temperature and humidity in some areas for parts of the year is expected to compromise common human activities, including growing food and working outdoors (high confidence).

Judicial(?) architecture

• No 'International Court for the Environment' (though occasional pressure to create one) • Discrete tribunals (ITLOS; OSPAR tribunal) or arbitration • PCA (Hague) environmental committee - never called upon. • ICJ (environmental committee recently disbanded): Gabcikovo- Nagymaros Dam; Pulp Mills (Argentina-Uruguay); Whaling in the Antarctic (Australia-Japan) • WTO AB: Shrimp/Turtle; Tuna/Dolphin; EC—Biotech; EC--Beef Hormones; EC--Seal Products. • Commissions (e.g. International Union for Conservation of Nature (IUCN) - World Heritage Convention (WHC) and CITES committees; International Whaling Commission) • National Contact Points (CITES, 1972 London (Dumping) Convention) • NGOs (Sierra Club, Friends of the Earth, Greenpeace)

1992 UN Convention on Biological Diversity

• No global instrument regulated the interaction of species and habitats and ecosystems in a holistic rather than a piecemeal manner ○ undp perceived this biodiversity gap and initiated negotiations to include a Convention on biological diversity • virtually universal support 196 parties ○ include significant developing country participation § crucial to its effectiveness as the most biologically rich part of the planet are located within developing equatorial States • participation facilitated through funding ○ based on a capability • framework for National regulation of access to biological resources on mutually agreed terms and benefit sharing where such resources are exploited for commercial benefit • the role of indigenous people's knowledge and the application of traditional intellectual property rights principles remain areas of acute controversy ○ in particular the United States regarding intellectual property • define biodiversity broadly to encompass the variability among living organisms from all sources including, inter Alia, terrestrial marine and other aquatic ecosystems and the ecological complexes of which they are a part ○ it's objectives are the conservation of biological diversity sustainable use of its components and fair and equitable sharing of the benefits arising out of the utilisation of genetic resources • significant reliance on National measures for implementation ○ individual contracting parties determine the manner of implementation of their applications subject to scrutiny of national implementation by cop reporting requirements of the convention

Breadth and Depth of Coverage impact on the state

• No state may ignore is responsibilities to protect and preserve elements of the environment ○ Buttressed by § negative obligation in customary international law...no harm principle or obligation imposed on states not to allow their territory to be used in a way that causes significant harm to other States' territories or to the global commons § Positive relations = sectoral in focus...obligation in Article 192 of 1982 Law of the Sea Convention, Protocol on Environmental Protection to the 1959 Antarctic Treaty

2013 Minamata Convention on Mercury

• Objective is to protect human health and the environment from anthropogenic emissions and releases of mercury and Mercury compounds • menu of options approach • uses mandatory language but permits a choice of measures with ample scope for National differentiation and the economic and technical feasibility and affordability of the measures • committee of compliance also established

1973 Convention on International Trade in Endangered Species

• Objective to control or prohibit trade in species or products of those in danger of extinction ○ Addresses commercial trade • 5800 animal species and 30,000 plant species are covered • 183 state parties • System operated by designated national authorities ○ Appendix 1 = prohibits trade of those in danger of extinction ○ Appendix 2 = permits some trade subject to certain restrictions in the species that are not in danger of extinction but could be if trade not controlled and monitored ○ Appendix 3 = species covered by national regulation where a state seeks international cooperation in controlling external trade • Effectiveness dependent on national implementation

Conservation of Nature 1971 Convention on Wetlands of International Importance (Ramsar Convention)

• Only global environment treaty addressed to the conservation and wise use of wetlands primarily as habitat for wild birds • "wise use" = "sustainable use" • Fish and bird species and habitat also included • 169 parities • 2293 sites = 286 million hectares • Chief regulatory device = listing of sites for protection ○ Each contracting parties must designate suitable wetlands within territory • Sites protected under national law but acquire recognition under international law as being significant to international community as a whole • Failure to promote results in: ○ Listing on the record for priority attention ○ Delisting § Results in Loss of values § Never occurred • Small grants fun to facilitate compliance

Mechanism for NGO influence

• Participation as observers in international organizations • Treaty negotiations • Within treaty institutions

PPP

• Polluter Pays Principle OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, Art. 2: 'Parties shall apply ... the polluter pays principle, by virtue of which the costs of pollution prevention, control and reduction measures are to be borne by the polluter.'

Precautionary principle of Approach

• Principle of sustainable development • Polluter pays principle • V controversial ○ Lack of normative content ○ Absence of a uniform understanding of the meaning of the principles ○ Widely varying consequences of their application depending on the specific content • Lack legally binding force ○ Impact considerable when further concretized in a treaty text or used as a general guideline or aid to judicial interpretation of treaty obligations between parties • International judicial recognition of principles are rare ○ EC-Biotec Case WTO found its status "unsettled"

Enforcement of international Law

• Responsibility rules generally operate once damage has already occurred rather than to prevent damage from occurring in the first place • harm may be incremental and difficult to link to the specific actions or omissions of another state ○ non-reciprocal character will also render it difficult to meet the requirement of breach of an obligation to another state • Compliant state is required to show that an obligation is owed to it and that injury has resulted to wait in order for standing requirements to be satisfied ○ no such thing under international law as an actio popularis with a state bringing action on behalf of the international community

NGO Role

• Shaping treaty negotiation process • Stimulating development within treaty regimes • Example: International Council for Bird Preservation

The problem

• Species extinction • Pollution (waste) • Pollution (accidents) • Pollution (effluvia) • Marine pollution • Overfishing • Resource depletion • Desertification • Ozone hole • Climate change

Pulp Mills Case

• State obliged to use all the means at its disposal in order to avoid activities which take place in its territory; or any other area under its jurisdiction, causing significant damage to the environment of another state • Requirement to conduct EIA a distinct and freestanding obligation in international law where significant transboundary harm is threatened ○ IL requires EIA to be conducted and that it bears a relation to the nature and magnitude of the proposed development and its likely adverse impact on the environment

Precautionary Principle

• Strong version: Wingspread Declaration When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically • Weak version: Rio Declaration, principle 15: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation Cass Sunstein's critique: • The strong principle leads to paralysis • The weak principle is just another word for a balancing test that states already are already likely to undertake

The solution... (IPCC)?

• There are multiple mitigation pathways that are likely to limit warming to below 2°C relative to pre-industrial levels. • These pathways would require substantial emissions reductions over the next few decades and near zero emissions of CO2 and other long-lived GHGs by the end of the century. • Implementing such reductions poses substantial technological, economic, social, and institutional challenges, which increase with delays in additional mitigation and if key technologies are not available.

Transboundary air pollution

• Trail Smelter Arbitration Early instance of an Interstate claim arising in respect of the harmful transboundary effect of airborne pollutants ○ involved a single detectable source of air pollution causing quantified harm to health and Property ○ today most likely resolved via transnational litigation by access to national courts • LRTAF = prevent, reduce, and control transboundary air pollution from new and existing sources ○ Air pollution includes harm to living resources, econsystems, and interference with amenities and legit uses of the environment • Framework character -> absence of specific reduction targets in the treaty ○ Environmental monitoring programme was first put in place in order to gather data to assess the extent of the problem followed by negotiation of further protocols to reduce emissions of specific pollutants ○ Allowed a step by step approach by states allowing "agreement" at the outset even when there is no consensus • Additional protocols have been added to extend the scope of state commitments • Does not itself contain provisions on liability nor on compliance • 1997 Montreal protocol to the Ozone convention ○ subsumed within a broader implementation committee established inter-alia to review compliance by parties with reporting obligations of the convention and any non-compliance with the protocol

Precautionary Principle in CIL?

• WTO Appellate Body, EC—Hormones (1998): The status of the precautionary principle in international law continues to be the subject of debate among academics, law practitioners, regulators and judges. The precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear. We consider ... that the precautionary principle, at least outside the field of international environmental law, still awaits authoritative formulation. Precautionary principle or approach?

Other Hazardous Substances and activities 1989 Basal Convention on the transboundary movements of hazardous wastes and their disposal

• establishment of a trust fund and a technical cooperation fund • concerned with regulating the transboundary movement of hazardous waste and ensuring sound environmental management in respect to its disposal • affirms the sovereign right of states to prohibit imports of hazardous waste • ensures the corresponding export prohibition will be respected by other States parties ○ where transboundary movement does take place in must be grounded in the prior consent of the importing States ○ States obliged to ensure that waste is managed in an environmentally sound manner ○ trade with non parties is prohibited § hazardous waste disposal from OECD to non OECD countries is also prohibited • additional treaties formed with an increasing Focus On Sound environmental management seeking to eliminate waste generation at source through best environmental practices and available techniques ○ signalling at a shift in emphasis from remediation to prevention • Address liability of nonstate actors and compensation for, inter alia, environmental damage and compliance by states with their Convention obligations • 2002 the convention established a compliance mechanism to facilitate early detection of implementation and Compliance problems ○ move possible only through the establishment of concrete norms and standards against which to benchmark state compliance and the political will of the parties to achieve more effective implementation of its provisions

• Bail Plan of Action Aim of reaching agreement on post 2012 governance framework

○ Copenhagen accord at did not contain binding targets for emission reduction but rather relied on a bottom-up approach fledged reductions 141 States made pledges representing 87.24% of global emissions

• 1997 Kyoto Protocol

○ Developing countries committed themselves to explicit unambiguous targets and timetables for reduction of greenhouse gases and to the development of international mechanisms for ensuring fulfillment of these commitments § Marked regulatory phase □ Top down regulatory approach, sharp differentiated b/w developed and developing states, a legally binding instrument with a robust compliance system and market mechanisms for cost effective implementation ○ Core obligation that parties "shall individually or jointly ensure that their aggregate anthropocentric carbon dioxide equivalent emissions of specific greenhouse gases do not exceed their assigned amounts and that overall emissions of such parties are reduced at least 5 percent below 1990 levels in the commitment period 2008-2012 § Only enter into force when adhered to by 55 states representing 55% of groups 1990 carbon dioxide emissions § Achievement via joint implementation, the clean development mechanism, and emission trading ○ Canada and russia joining was essential for getting to 55% esp since US won't join

State Practice

○ Given rise to # of customary law principles § Buttressed by the process of treaty and international law interaction § "no- harm" principle □ State has a duty to prevent, reduce, and control pollution and significant transboundary harm § Obligation to prevent significant transboundary harm = imposing obligation of due diligence □ ILC commentary on Draft Articles on Prevention of Transboundary Harm for Hazardous Activities § Supports customary law obligation to consult and to notify of potential transboundary harm where there are shared resources or ultrahazardous activities are being carried out and requirement to conduct a prior transboundary environmental impact assessment □ EIA left to state discretion

• 2001 Stockholm Convention 181 parities

○ Initially addressed environmentally sound management of A "dirty dozen" toxic substances § 9 more later added ○ Objective is to promote human health and the environment from persistent organic pollutants § remain intact in the environment for long periods becoming widely distributed geographically and accumulate in the body tissues of living organisms □ posing a toxic threat to both humans and to wildlife ○ Seeks to eliminate or reduce the release of POPs into the environment through controls of reproduction or use of intentionally produced POPs management and reduction of stockpiles and minimization and elimination of unintentionally produced POPs ○ explicitly relies on a precautionary approach

• Significant gaps remain marine

○ Overfishing ○ loss of marine biological diversity ○ degradation of marine ecosystems ○ impact of climate change and ocean acidification ○ gaps in the regulatory framework § robust global regulation of land based pollution □ no present prospect of further global regulation □ regulating at the source of marine pollution most heavily intrudes on a wide range of human activities under the sovereignty of state § international regulation of marine environment in areas beyond national jurisdiction □ heart of the remit of the ad hoc open-ended informal working group Led to the establishment of preparatory commission which made substantive recommendations to General Assembly of internationally legally binding instrument under 1982 losc addressing the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction in order to fill this high seas marine biodiversity gap

• General Principles of Law

○ Principles Referred to in Article 38(1)© of the ICJ statute § Limited utility in international eviro context § But Operate to influence the interpretation of treaty provisions and the application of custom and influence judicial decisions □ "architectural function" □ Ex Gabcikovo- Nagymaros case for sustainable development..."treaty is not static" ○ Principles such as those found in Stockholm and Rio Declarations § Stimulated new general principles of direct environmental relevance □ Ex precautionary principle □ Have influence to varying degrees ® Modifiers of existing rules and treaties and on treaty negotiations

• UNBD second protocol added in 2010 with 104 parties

○ Restates and elaborates upon the principles of Article 15 of the convention fleshing out access and benefit sharing Commitments including benefits arising from traditional knowledge ○ monitoring of genetic resources accessed from other parties is also required in order inter Alia to ensure compliance with the requirements for prior informed consent • UNBD falls short of any: internationalisation of biological resources either in their ownership or and their control ○ tension in the CBD in that the preamble also reaffirms States permanent sovereignty over their natural resources permanent sovereignty is thus responsible sovereignty under CBD, a theme which pervades many instruments

• catastrophes of separate liability conventions to limit and channel liability

○ Shipowner assumes risk ○ Ability to claim compensation ○ 1990 Oil Pollution preparedness and response convention requires inter alia the preparation of emergency response plans for oil spill incidents § Later extended to cover hazardous and noxious substances

• Vessel source pollution

○ Subject to extensive international regulation following the highly publicized oil spills ○ framework approach § technical details of regulating oil discharges § noxious liquids in bulk § harmful package substances § Sewage § Garbage § air pollution ○ any state wishing to become a party must also adopt and annexes 1 and 2 as a minimum ○ key regulatory device is the use of standardized international oil pollution prevention certificates § regular serving and inspection of vessels § oil record book that can be inspected by any other party ○ coastal state enforcement power enhanced under 1982 losc § power to investigate inspect and in limited circumstances are asked vessels navigating in the exclusive economic zone when violation occurs ○ relies on general international law and 1982 LOSC for the exercise of legislative and enforcement jurisdiction

Ozone Depletion • 1985 Vienna Convention for the protection of the ozone layer

○ focusing on the need to assess the causes and effects of Ozone depletion agua creation and exchange of relevant information and technology ○ largely empty framework = result of the divergent interests of the States § USA wanted a level playing field in respect of Ozone depleting substances regulation § developing States wanted any restraints on the use of such substances did not adversely affect industrial development and that if imposed assurance of appropriate access to alternative technology § EU was concerned regarding the potential cost of steps to be taken and am convinced at the scientific case for the harmful effects of the substances

• several consequences of the inadequacies of traditional rules of state responsibility for the development of international law

○ historic paucity of cases at the international level in which environmental matters have figured largely § recourse to the dispute settlement is rare ○ pressure to further develop the rules of state responsibility including standing ○ the development of alternatives to traditional dispute settlement techniques under specific treaty instruments directly to address the issue of non-compliance with treaty obligations from a facilitative and coercive point of view § Montreal 1987 protocol is the first non compliance procedure in an environmental agreement □ 1992 Convention on the conservation of biological diversity also an example □ Noncompliant treaties generally exist alongside traditional dispute settlement quarrels and are suspended in event of invocation of traditional dispute settlement procedures ○ development of liability regimes which side stepped in the necessity to rely on the route of Interstate claims § Esp in transboundary consequences and protection of common spaces

• Belgium vs Senegal

○ icj recognised that the convention against torture imposed obligation erga omnes partes giving rise to a common interest in compliance in the entitlement of each state party to the convention to make a claim concerning the cessation of an alleged breach by another party

• Dumping

○ initially regional and global dumping conventions of the regulatory approach of listing prohibited dangerous and other substances relying on National implementation ○ coastal States exercise their jurisdiction ○ no presumptive ban ○ Black List, Grey List, White list (no, prior specal permit, prior general permit) ○ 1992 Convention on the protection of marine environment of the north-east Atlantic § prohibited unless permitted approach § significant shift in the burden of Proof to the polluter to demonstrate that dumping will not have significant harmful consequences for The Marine environment § more integrated approach to Marine protection

• 1987 Montreal procedure

○ introduce specific targets for the reduction in a venture elimination of Ozone depleting substances ○ subsequent adjustments of the protocol have introduced financial and technical incentives to encourage developing country adherence § for those secured through establishment of non-compliance procedure by self implicating States through both facilitation and or sanction ○ successive amendments more stringent targets and timetables and added to the list of Ozone depleting substances ○ factors impeding long-term success § emergence of new ozone-depleting substances not covered § encourages resort to submitting substances some of which are greenhouse gases covered by the Kyoto protocol

Durban platform for enhanced action

○ launch the process to develop a protocol another legal instrument or an agreed outcome with legal Force under the convention by 2015 ○ 173 parties ○ Aim in article 2 to limit temperature increases to below 2 degrees Celsius and the ambition to pursue efforts to limit temperature increase even further to 1.5 degrees Celsius ○ sharp differentiation of the Kyoto protocol towards symmetry of applications § Article 3 all parties with respect to undertaking and communicating nationally determined contributions to Global response to climate change § But realized need to support developing countries in both mitigation and adaptation measures and provision in the agreement for providing financial resources and capacity building, and for loss and damage ○ Bottom up approach ○ Progression over time

• COPD and its subsidiary organs have continued to supplementary text principally through 7 thematic work program comprising

○ marine and coastal biodiversity ○ mountain biodiversity ○ agricultural biodiversity ○ forest biodiversity ○ inland Waters biodiversity ○ dry and subhumid biodiversity ○ Island biodiversity ○ Buttressed by issues such as access to genetic resources and benefit sharing, alien species, Biodiversity and tourism and sustainable use of biodiversity