International Environmental Law
Chemicals, pesticides, and other dangerous substances -POPs (persistant organic pollutants)
POPs persist in the environment and may accumulate in organisms up the food chain, for example the pesticide DDT, polychlorinated biphenyls (PCBs), dioxins and furans. 2001 Stockholm Convention on Persistent Organic Pollutants o protection of human health and the environment from POPs o reduction or elimination of releases from the production and use of certain POPs o precautionary approach o import and export regulations o best available techniques and best environmental practices o safe handling of existing stockpiles o transfer of technology and financial resources from developed countries to developing countries o Review Committee for proposed new listings of POPs`
1996 EU Seveso Directive (extended by Directive 2003/105/EC)
The Directive replaced the 1982 Directive and applies to risks arising from storage and processing activities in mining, from pyrotechnic and explosive substances, and from the storage of ammonium nitrate and fertilisers based on the latter. A major accident is an occurrence such as a major emission, fire, or explosion resulting from uncontrolled developments in the course of the operation of any establishment covered by this Directive, and leading to serious danger to human health and/or environment, immediate or delayed, inside or outside the establishment, and involving one or more dangerous substances. (Art 3(5))
1996 EU Seveso Directive (extended by Directive 2003/105/EC)
The Directive replaced the 1982 Directive and applies to risks arising from storage and processing activities in mining, from pyrotechnic and explosive substances, and from the storage of ammonium nitrate and fertilisers based on the latter. A major accident is an occurrence such as a major emission, fire, or explosion resulting from uncontrolled developments in the course of the operation of any establishment covered by this Directive, and leading to serious danger to human health and/or environment, immediate or delayed, inside or outside the establishment, and involving one or more dangerous substances. (Art 3(5)) These substances are listed in Annex 1 to the Directive. Some kinds of installations are excluded. (Art. 4) Operators should have emergency plans.
1992 UNECE Convention on the Transboundary Effects of Industrial Accidents
similar approach as the Seveso Directive promotion of international cooperation Preventive measures are listed in Annex IV to the Convention. establishment of an industrial accident notification system framework for mutual assistance
Convention on Long-range Transboundary Air Pollution:
(a) "Air Pollution" means the introduction by man, directly or indirectly, of substances or energy into the air resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment, and "air pollutants" shall be construed accordingly; " (b) "Long-range transboundary air pollution means air pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one State and which has adverse effects in the area under the jurisdiction of another State at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of source"
aspects concerning hazardous substances (3)
o accident prevention, preparedness and response o classification, labelling, international trade and transportation of hazardous chemicals and pesticides o control of exposure to hazardous substances in the working environment
States Obligations (2, 3)
obligations of conduct and obligations of result Obligations can be further classified as ones: •to refrain: e.g. from transboundary environmental damage. •to prevent: e.g. by setting certain limits for fisheries or emission of substances. •to preserve: e.g. the reforestation of land in order to preserve the climate.
Lac Lanoux Arbitration (1957)
often cited together with Trail Smelter as one of the early leading environmental cases -Lac Lanoux is a lake in the Pyreneans on French territory. -Waters flowing from the lake cross into Spanish territory. -France planned works to utilise the waters of the lake, while Spain feared adverse effects on its interests and rights. •The arbitral tribunal held that the French plans did not constitute a violation of the bilateral treaties between France and Spain but reaffirmed the rule that a State may not cause serious damage to the environment of other States. •On shared watercourses, the tribunal held that international law does not require prior agreement on the use of a shared water resource but that there are obligations to inform and consult with the other party.
Threats to the Polar environment
persistent organic pollutants, oil, heavy metals, noise, radioactivity, acidification -Key issue: in the Arctic, climate change may lead to increased vessel traffic, new coastal development, seabed activities and, potentially, fishing as well as to the loss of biodiversity.
Hazardous substances and activities
principle 6 Stockholm Declaration: The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. principle 14 Rio Declaration: States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.
Chemicals, pesticides, and other dangerous substances -International trade
prior informed consent: Agreement from the designated national authority in the importing country is needed to proceed with an international shipment of chemical that is banned or severely restricted. 4 1985 FAO International Code of Conduct on the Distribution and Use of Pesticides (revised in 2002) o voluntary o mainly aimed at developing countries o strengthening pesticide management 1987 UNEP London Guidelines for the Exchange of Information on Chemicals in International Trade o prior informed consent o International Register of Potentially Toxic Chemicals o National implementation in the form of, among other things, a national authority is required. 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade o highly influenced by the FAO Code and the UNEP Guidelines o national authority required o A proposal goes through the Chemical Review Committee before being listed in Annex III in order to be subject to the prior informed consent procedure. o There is no precautionary approach prescribed though.
Aspects of freshwater regulation (2) and examples
the quantity of resources, i.e. the distribution between different users the quality, i.e. the protection of freshwater resources from pollution
"Free-riding"
while some States make efforts to improve the air quality by controlling emissions, others do not join the international reduction regime but enjoy the benefits (i.e. cleaner air) without changing their behaviour. Thus they enjoy a competitive advantage and environmental improvement.
LRTAP Protocols
• 1984 Protocol on Long-term financing of the Cooperative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe • 1985 Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30 per cent • 1988 Protocol concerning the Control of Nitrogen Oxides or their Transboundary Fluxes • 1991 Protocol concerning the Control of Emissions of Volatile Organic Compounds or their transboundary Fluxes • 1994 Protocol on Further Reduction of Sulphur Emissions • 1998 Protocol on Heavy Metals • 1998 Protocol on Persistent Organic Pollutants • 1999 Protocol to Abate Acidification, Eutrophication and Ground-level ozone
Montreal Protocol Mechanisms
• The instrument knows simplified adjustment procedures for adding substances to the list of controlled substances. • It discourages „free-riding" and shifting the production of controlled substances to non-parties by prohibiting trade with non-parties including trade in products containing or made with ODSs • Compliance control: monitoring of reports on production and consumption, assistance for non-compliant parties, ultimately suspension of membership
Antartica Facts
•14 million square kilometres continental region (9% of the Earth's landmass) •Representing 26% of the world's wilderness area •90% of all terrestrial ice •70% of planetary fresh water •Further 36 million square kilometres of ocean •Overlapping claims over territory (15% remain unclaimed)
International Diplomatic Conferences (4)
•1972: UN Conference on the Human Environment •1992: UN Conference on Environment and Development •2002: World Summit on Sustainable Development •2012: UN Conference on Sustainable Development (Rio+20) They usually adopt a (non-binding) declaration to summarize the principles for international environmental policy and plans of action with more specific objectives to be achieved.
International conventions- Freshwater Resources
•1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (entered into force August 2014) -Groundwater is only regulated to the extent that it is related to surface water. -Principles: equitable and reasonable utilisation and participation -Procedural obligations for co-operation -Includes obligations for environmental protection •UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (entered into force 1996) -Obligations to prevent, reduce and control pollution -Precautionary principle, polluter-pays-principle, intergenerational equity -Parties may take stricter measures.
Possible legal principles for freshwater regulation (4)
•Absolute territorial sovereignty (Harmon-Doctrine) --Viable argument for upstream States •Absolute territorial integrity --Argument usually made by downstream States to prevent interferences with their interests •Limited territorial integrity --Prevention at least of significant harm to allow for a variety of different interests •Equitable use --A balancing of interests that takes into account the interests of the community of riparians; best achieved by a management commission.
Antarctic Treaty System: Instruments (5)
•Antarctic Treaty (1959) •1972 Convention for the Conservation of Antarctic Seals •1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) •1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA - not in force) •1991 Environment Protocol + annexes → international rules have increasingly addressed environmental concerns Antarctic Treaty System: Instruments
Key Principles Antarctic Treaty
•Antarctica shall be used for peaceful purposes only (Art. I). It is considered a space for "peace and science" •This means that any military measures are prohibited, e.g. the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons. (Art. I para. 1) •The use of military personnel is not prohibited, if it serves a scientific or other peaceful purpose. •Currently the main activities in Antarctica and the surrounding waters are scientific research, fishing and tourism. •The freedom of scientific research and the exchange of scientific findings are a particular focus (Art. II and III).
Challenges to regulating climate change
•By now there is common international agreement that it is necessary to limit the rise in the average global temperature to 2°C (potentially 1,5° C). The Paris Agreement aims at a limit "well below 2°C" and emphasizes efforts to limit the temperature increase to 1,5° C. •(P) Uncertain if this objective is sufficient to prevent grave changes and hazards. •(P) It is often uncertain if a specific phenomenon, e.g. a severe tropical storm, is a direct or indirect result of climate change. •(P) Even more uncertain if targets will be met. •(P) „Points of no return" are unknown, i.e. no predictions when it will come to abrupt and irreversible changes or whether we have already moved past such a tipping point without realizing.
Institutions dealing with nuclear energy
•Euratom •OECD - Organization for Economic Cooperation and Development •ILO - International Labour Organization •IAEA - International Atomic Energy Agency -The initial task of the IAEA was the encouragement and facilitation of the development and dissemination of nuclear power. -It also plays a major role as a monitoring body for non-proliferation safeguards. -The IAEA Statute requires to 'establish or adopt (...) standards of safety for protection of health and minimisation of danger to life and property'. (Art. III(A)(6)) -The IAEA cooperates with e.g. WHO, FAO, ILO and OECD
Major Nuclear Accidents (3)
•Harrisburg, USA (1979) •Chernobyl, Ukraine (1986) •Fukushima, Japan (2011)
The Paris Agreement
•In Paris in December 2015 195 States agreed upon a new legally binding climate treaty under the roof of the UNFCCC. •It will be opened for signature on 22 April 2016 and is supposed to enter into force in 2020 after 55 ratifications by States whose emissions account for at least 55 % of the total global greenhouse gas emissions. •The agreement focuses upon the following elements: -Mitigation = reducing emissions fast enough to achieve goals -Transparency and global stock-take = accounting for climate action -Adaptation = strengthening ability to deal with climate change -Loss and damage = strengthening ability to recover from impacts -Support = including finance to build clean, resilient futures
Guiding principles with Atomic Energy
•In the case of ultra-hazardous activities the prevention of significant transboundary harm requires particular care and compliance with a strict due diligence standard including best-available technique and best practice to minimize risks. •The procedural dimension of the "no harm"-rule requires the provision of information in all phases (i.e. from planning to the event of accidents) and consultation with affected neighbours. The duty to notify in the case of disasters is considered customary international law. •In the event of disasters there is a duty to provide for assistance by international treaty.
Marine Pollution Liability
•Liability, e.g. for oil pollution is regulated in international treaties and considered one additional means to prevent pollution and provide compensation. (Art. 235 UNCLOS) •State Parties to UNCLOS are urged to implement and further develop international legal frameworks concerning liability and responsibility concerning, for example, compulsory insurance and compensation funds. •Industry is usually obliged to pay into a fund and operators must have compulsory insurance for damages.
Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management
•Minimalization of radioactive waste generation •Intergenerational implications of waste -no higher future burden than in the present •Better implementation of IAEA's own standards •More broadly accepted environmental requirements
Convention on the Law of the Sea (UNCLOS)
•Part XII of UNCLOS deals with the protection of the marine environment. •As a general rule: "States have the obligation to protect and preserve the marine environment." (Art. 192 UNCLOS) This general obligation is also established as customary international law. •The obligation to protect the marine environment is supplemented by other duties under environmental law, e.g. prohibition of transboundary harm. •UNCLOS emphasizes cooperation on the global and regional level and grants a special role of the International Maritime Organization (IMO) which is largely responsible for the formulation of rules and standards as far as pollution from vessels is concerned (see also Art. 211 UNCLOS).
International treaties- Nuclear
•Physical Protection of Nuclear Material (1980) •Early Notification of a Nuclear Accident (1986) •Assistance in the Case of Nuclear Accident or Radiological Emergency (1986) •Convention on Nuclear Safety (1994) •Safety of Spent Fuel and Radioactive Waste Management (1997)
Traditional wildlife regulation: key instruments (4)
•Ramsar Convention on Wetlands (1971): specific focus on wetlands which are the habitat for waterbirds •UNESCO World Heritage Convention (1972): in addition to the world cultural heritage (e.g. Cologne Cathedral, Old Town of Lübeck, Wartburg) the convention also knows protection of world natural heritage sites; in Germany these sites include inter alia the Grube Messel, Upper Middle Rhine Valley (as a cultural landscape), the Wadden Sea. The Elbe Valley close to Dresden lost its status as World Natural Heritage when the controversially debated "Waldschlösschenbrücke" was built. •Bonn Convention on Migratory Species (1979): species that migrate long distances and potentially pass through different State territories on their routes (range States) are particularly vulnerable; they depend upon sustenance along their way, e.g. particular habitat (such as wetlands protected by the Ramsar Convention) and their conservation requires the cooperation of the range States; the Bonn Convention distinguishes between migratory species threatened with extinction (appendix I) and migratory species which need or would significantly benefit from international cooperation •Bern Convention on European Wildlife and Natural Habitats (1979): the treaty was concluded within the framework of the Council of Europe; its objectives are the conservation of flora and fauna and their habitat; like other wildlife conventions the Bern Convention lists species in three Appendices corresponding to their need for (strict) protection.
Law Making in IEL
•Sometimes non-governmental organizations like IUCN prepare a draft treaty which is either circulated or presented at a diplomatic conference. •The International Law Commission is another body which can draft and present new international treaties. •Often smaller informal working groups work on the content of a treaty before the idea is presented to the UNGA. •A diplomatic conference specifically established to adopt a new treaty is called together to work on the draft and adopt a treaty text.
Nuclear weapons Treaties
•The 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Partial Test-ban Treaty) -desires to 'put an end to the contamination of man's environment by radioactive substances'; -yet underground nuclear tests are allowed. -France, who is not a party, continued atmospheric testing until the mid 1970s -France, the US, the former Soviet Union, China and Great Britain continued underground testing until the 1990s •The 1996 Comprehensive Test-ban Treaty, which prohibits any nuclear weapons testing, has not yet entered into force because of the lack of ratifications from a number of the so-called Annex 2 States, e.g. the US, China, Iran, Israel, North Korea and others •The 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Sub-Soil Thereof followed a Maltese proposal to maintain the deep seabed for peaceful purposes. •Direct dumping or indirect discharge of radioactive waste in the marine environment is largely prohibited. •Nuclear activities in Antarctica are largely prohibited Article V Antarctic Treaty [nuclear explosions prohibited] •Nuclear-free zones have been established in Africa (1996), Central Asia (2006), Southeast Asia (1995), the South Pacific (1985), Latin America and the Caribbean (1967).
Environmental Impact Assessment: status
•The ICJ in the Pulp Mills on the River Uruguay case emphasised that there is a duty under customary international law to undertake an EIA for a project likely to result transboundary effects. •The ICJ asserted "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, in particular, on a shared resource." (para. 204 of the judgment) •The Court, however, is silent on the procedure and content of the process. While the Espoo Convention spells out the details of communication and consultation these specific requirements cannot be considered customary international law.
Kyoto Protocol
•The Kyoto Protocol obliges industrialized members to meet specific reduction targets. •It was adopted at COP 3 in Kyoto in 1997 and entered into force in 2005 after meeting the double requirement of 55 ratifications that account for at least 55% of the 1990 CO2 emission. •The instrument continues with the differentiated obligations of States. •It sets individual targets for developed States to reach an emission level 5% lower than in 1990. •The protocol establishes flexible mechanisms for implementation to enable industrialized members to meet their targets: joint implementation, clean development, emission trading.
Antarctic Treaty Protocol on the Environment
•The Protocol aims at the protection of the Antarctic environment 'in the interest of mankind as a whole' •Parties have agreed upon a moratorium on mineral resource activities until 2048. •Six annexes contain strict rules on specific issues: -Annex I: Environmental Impact Assessment -Annex II: Conservation of Antarctic Fauna and Flora -Annex III: Waste disposal -Annex IV: Marine pollution -Annex V: Protected areas -Annex VI: Liability
Vienna Convention
•The Vienna Convention for the Protection of the Ozone Layer was adopted in 1985 and serves as the legal framework. •It initiated research and the exchange of information. •While the convention promotes the adoption of national policies to protect the ozone layer, it does not set specific targets for the reduction of substances that deplete the ozone layer
UNEP: Mandate (5 purposes)
•The establishment of UNEP is a consequence of the 1972 Stockholm Conference. Art. 22 UN Charter allows for subsidiary organs. UNEP was founded by UNGA resolution 2997 (XXVII) in 1972. It serves the purpose to: (a) To promote international co-operation in the field of the environment and to recommend [...] policies to this end; (b) To provide general policy guidance for the direction and co-ordination of environmental programmes within the United Nations system; [...] (d) To keep under review the world environmental situation in order to ensure that emerging environmental problems of wide international significance receive appropriate and adequate consideration by Governments; (e) To promote the contribution of the relevant international scientific and other professional communities to the acquisition, assessment and exchange of environmental knowledge and information [...]; (f) To maintain under continuing review the impact of national and international environmental policies and measures on developing countries, as well as the problem of additional costs that may be incurred by developing countries in the implementation of environmental programmes and projects [...]
UNEP and other institutions: functions (4)
•The institution is active in different programmes which aim at law-making, e.g. the UNEP Regional Seas Programme •It has a certain sponsorship role for the establishment of multilateral environmental agreements (MEAs) and serves as a secretariat for some. •The Commission on Sustainable Development is a functional commission of ECOSOC = Economic and Social Council and reviews the political processes following-up on the major diplomatic conferences •The IPCC (= Intergovernmental Panel on Climate Change) was jointly established by UNEP and the World Meteorological Organization and serves as the main scientific body for information and recommendations on climate change.
Montreal Protocol Success
•The legal regime on the protection of the ozone layer is one of the few examples that are considered a great success of international environmental law by eliminating more than 96% of the production and consumption of ODS. •There are estimations that the international legal regulation will prevent more than 20.6 million cancer cases and 333.500 cancer fatalities •The estimated costs for phasing-out the use of ozone depleting substances are 224 billion USD but the quantified benefits are estimated to amount to 459 billion USD. -early example in common but differentiated responsibilities
IAEA powers and standards
•The power of the IAEA is rather limited. •Standards by the IAEA are binding on the organization itself and not on its member States. Yet, they form an important basis for harmonisation and can assist with the development of customary international law. •Safeguards agreements and inspections only apply to non-proliferation and not to health and safety standards. •The powers concerning safety only apply to materials and facilities supplied by IAEA and not to other facilities.
Air Pollution International regulation
•There is no single global treaty on air pollution other than the international regimes on the emission of ozone depleting substances and greenhouse gases. •Primary instruments are concluded on a regional (e.g. Europe) or sectoral basis (e.g. for shipping under Annex VI to MARPOL). •The ASEAN Agreement of Transboundary Haze Pollution of 2002 deals only with a subproblem of transboundary pollution, i.e. large-scale smoke resulting from uncontrolled land or forest fires with harmful effects on human health and the environment. •The US and Canada have concluded a bilateral Air Quality Agreement (focused upon acid rain) in 1991 and a Protocol of 2000 on Ground-level Ozone Precursors that adds a binding annex to the Air Quality Agreement.
Legal regulation concerning the Arctic
•There is no treaty regime which is comparable to the ATS for the Arctic. •UNCLOS is the governing legal framework. However, with the exception of Art. 234, it is not very specific to Polar regions. The US as one of the "Arctic Five" is not a party to UNCLOS. •There is no specific environmental treaty applicable to the Arctic. •The relevant littoral States have made it very clear that they have no desire for an encompassing treaty system. •In essence, effective regulation of the protection of the Arctic environment and the management of resources will depend upon effective cooperation.
Convention on Biological Diversity
-1992 -first comprehensive global treaty covering all elements and aspects of biodiversity -intrinsic value of biodiversity is explicitly recognized -relies on governments to take CBD seriously -ambitious, weak, not-binding -in-situ and ex-situ protection
CBD Organs (4)
-COP -Secretariat -Subsidiary Body on Scientific, Technical, and Technological Advice -Working Groups
Common but differentiated responsibility
-Common responsibility for the protection of the environment at the national, regional and global level -Differing circumstances in regard to contribution and ability to prevent, reduce and control the threat
Flexible mechanisms under Kyoto
-Joint implementation: Annex I Parties may jointly implement, if the reduction of emissions or increase of sinks is additional and supplements domestic actions. •Clean development: joint projects of developing and developed countries with the aim to add to sustainable development of the developing country host, while the developing party may count projects for its individual target. Projects should have real, measurable and long-term benefits and must be in addition to the total amount of reductions. •Emission trading: Possibility of purchasing emission rights. The market should determine the price of these rights while the total amount of reductions should not decrease. Critique: No incentive to reduce more than the overall set target.
Operational vs accidental pollution
-Regarding operational pollution the reduction and control are aimed for. -Regarding accidental pollution the prevention of accidents is the primary objective, liability is a second tier of dealing with the effects of accidents
Sources of marine pollution (5)
-Ships (normal operations and accidents) -Dumping of wastes -Land-based sources -Through the air -Seabed-activities (e.g. oil and gas exploitation)
MARPOL
-The International Convention for the Prevention of Oil Pollution from Ships 1973/1978 (MARPOL) is the main instrument to fill the frame by the UNCLOS. •The different annexes to the Convention cover pollution by oil, chemicals, sewage, garbage and air pollution.`
UNEP Regional Seas Programme
-UNEP initiated the programme with the objective to provide for framework agreements and protocols covering not only the prevention of pollution but also e.g. the conservation of biodiversity in preferably all regions of the world. -The agreements, covering almost all regions in the world, usually consists of a framework convention and specific protocols. -Effectiveness depends upon successful negotiation of binding obligations but most of all of implementation and enforcement. Nevertheless, the programme raised awareness and increased cooperation between States despite criticism concerning the effectiveness of many regional sea regimes.
The Arctic Council
A political rather than a regulatory or law-making body •No adoption of legally binding obligations •Limited participation: eight Arctic States (Russian Federation, United States of America, Canada, Denmark, Norway, Iceland, Sweden, Finland) but it gives and important position for indigenous people •The organisation has a permanent secretariat in Tromsø •It was responsible for the adoption of an environmental strategy which is non binding but adopts declarations on several issues and establishes working groups to improve governance (e.g. Conservation of the Arctic Flora and Fauna, Arctic Contaminants Action Program, Sustainable Development Working Group, Protection of the Arctic Marine Environment)
Issues related to the protection of Earth's atmosphere that are addressed by regulations of international environmental law (3)
Air pollution by the introduction of substances into the air which cause damage to human health or the environment Depletion of the ozone layer by the introduction of substances with an ozone-depleting effect The warming of the atmosphere and the resulting climate change by the emission of so-called greenhouse gases
Disputes over the interpretation and application of international environmental law can be settled by:
Arbitration (e.g. the Trail Smelter arbitration) International Court of Justice (ICJ) (e.g. Pulp Mills on the River of Uruguay Case) International Tribunal for the Law of the Sea (ITLOS) (e.g. Southern Bluefin Tuna Cases [New Zealand v. Japan; Australia v. Japan]) WTO Dispute Settlement (e.g. Tuna-Dolphin cases) WS
Examples where permanent sovereignty (based on the Harmon Doctrine) is mentioned:
Art. 193 UNCLOS: States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. Preamble to the CBD: (...) - Reaffirming that States have sovereign rights over their own biological resources, Reaffirming also that States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner, (...) 7
Notion of biological diversity
Art. 2 CBD: "Biological diversity" means 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 part; this includes diversity within species, between species and of ecosystems.
Examples of States Obligations
Art. 8 (f) CBD: States shall (...) rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies; •Art. 3 para. 1 Kyoto Protocol: The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.
Example for the recognition of an intrinsic value:
CBD: The preamble starts with mentioning the intrinsic value of biological diversity but it likewise emphasises human uses. It specifically mentions that biological diversity should be conserved and sustainably used for the benefit of present and future generations.
Two Protocols have been adopted to develop specific issues that have not been comprehensively covered by the CBD:
Cartagena Protocol on Biosafety (2000), 170 parties •The Protocol aims at the protection of biodiversity from risks associated with living modified organisms; it follows a precautionary approach and involves advance information procedures to allow for informed decision-making. -Nagoya Protocol on Access and Benefit-Sharing (2010) •The Protocol aims at providing a transparent legal framework for the access to and an equitable sharing of benefits arising from the utilization of genetic resources.
Environmental Impact Assessment
Environmental impact assessment is one of the procedural obligations stemming from the „no harm"-rule. The Espoo Convention on EIA in a Transboundary Context (1991) takes into consideration the need to inform and consult with neighboring States, if a planned activity can have a transboundary negative effect. In essence the concept requires the evaluation of different options for projects which are likely to have a significant impact with a view to minimize damages and balance interests. It does not per se prohibit an activity.
The Trail Smelter Arbitration (Facts & Findings)
Facts -A Zinc and lead smelter was operated on Canadian territory since 1896 -The fumes caused significant harm on US territory, particularly to farmers -The case was brought to arbitration in 1935 Findings -The arbitral tribunal found that there was a rule of customary international law that a State may not use its territory in a way that causes "serious harm" to the neighbouring States
UNCLOS enforcement
Flag State jurisdiction in the case of pollution by vessels is complemented by port-state jurisdiction, e.g. inspection rights. Both UNCLOS (Articles 218 and 220) and MARPOL (Art. 6) provide guidance on this matter. •Regional organisation of port State control takes place according to Memoranda of Understanding on Port State Control. •The principle of „no more favourable treatment" for foreign ships prevents vessels flying the flag of States not party to relevant treaties from being in an advantageous position
Examples of Frameworks and Protocols (3)
Framework Convention on Climate Change (1992) and the Kyoto Protocol (1998) Vienna Convention on the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer Convention on Biological Diversity and the Cartagena Protocol on Biosafety and the Nagoya Protocol on Access and Benefit-Sharing
States as Actors
In principle, States are addressees of international norms and not private entities, although the behaviour that should eventually be regulated is mainly that of private actors. States have to implement their international obligations by adopting domestic laws and regulations. The specific measures depend upon the treaty obligation as well as on the domestic legal system.
Sustainable Development Case Law (2)
In the Gabčikovo-Nagymaros case (1997), the ICJ considered sustainable development as an expression of the "need to reconcile economic development with the protection of the environment". In the view of the court, the parties to the case should "together ... look afresh at the effects on the environment of the operation of the Gabčikovo power plant". In 2001, in the Ogoniland Case the African Commission on Human Rights found that right of peoples to freely dispose of their natural resources had been violated as well as their right to an "ecologically sustainable development". Art. 24 of the African Charter on Human and Peoples Rights knows a right to "a general satisfactory environment favorable to their development".
Accident prevention, preparedness and response
Industrial accidents as in Seveso and Bhopal triggered awareness. examples of international legal reactions: o ILO Code of Conduct on Major Industrial Accidents o ILO Convention on the Prevention of Major Industrial Accidents o OECD Guiding Principles for Chemical Accident Prevention, Preparedness and Response on safety performance of industrial installations
Sustainable development: key elements (5)
Integration of environmental protection and economic development (e.g. Principle 4 Rio Declaration, Principle 13 Stockholm Declaration, Johannesburg Declaration) Right to development (e.g. Principle 3 Rio Declaration) Conservation and sustainable use of natural resources: co-operation in order to avoid over-exploitation and permanent loss of internationally significant resources (e.g. World Charter for Nature, Convention on Biological Diversity) Intergenerational equity: fair allocation of costs and benefits along future generations (e.g. Principle 3 Rio Declaration; Art. 3(1) UNFCCC; Brundtland Report) Intragenerational equity: redressing the imbalance in wealth and economic development between the developed and developing worlds by giving priority to the needs of the poor (recognized e.g. by Principle 5 Rio Declaration; Art. 15(7) CBD)
Compliance
Non-compliance with a treaty can have different reasons. Some States might be willing but unable to comply with treaty obligations, while others may lack political will to implement measures that may, for example, require restrictions on their economy. If States report regularly on their performance in a truthful manner, this could be a viable starting point for assistance and recommendations. However, diligent reporting requires considerable capacity as does the assessment of national reports.
Chemicals, pesticides and other dangerous substances -Registration and Classification
Organisations as the ILO, UNEP, WHO, FAO, OECD and the EU are involved in registration and classification. The EU follows the most far-reaching approach with REACH (Registration, evaluation, and authorization of chemicals). 1990 Convention Concerning Safety in the Use of Chemicals at Work FAO guidelines on various aspects of pesticide production and use FAO/WHO Codex Alimentarius o protection of consumer health o promotions of food standards coordination o preparing and finalising regional or global standards Globally Harmonized System of Classification and Labelling Chemicals
Examples of use of precautionary principle
Principle 15 Rio Declaration: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. 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." Southern Bluefin Tuna Decision by the ITLOS. Advisory Opinion by the ITLOS Seabed Disputes Chamber where it was held that it is part of the due-diligence duty of States.
Polluter-Pays Principle
Principle 16 Rio Declaration: „(n)ational authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the costs of pollution." roots in Trail Smelter Arbitration Problems related to its application are: -Difficulties in identifying the polluters -Possible insolvency of the polluters -Complexity in numeralizing the economic amount of the damage
Examples for a focus on human use and necessities:
Rio Declaration: '[h]uman beings are at the centre of concerns for sustainable development. Int. Whaling Convention: according to the preampble the treaty originally aimed at the protection of the whaling industry rather than the conservation of species.
Incentives versus sanctions
Sanctions are not useful in cases where States are willing but incapable of complying with environmental obligations. Instead incentives for assisting objectives by financial mechanisms or transfer of knowledge or technology could be more effective.
Actors in international environmental law
States -Until the 1970s States were the sole actors in international environmental policy and law -They are the creators, addressees and guardians of international law Institutions -International organizations -„Institutionalised treaty regimes", treaty bodies Non-state actors -Non-governmental organizations (NGOs) -Scientific community -Individuals
"No harm rule" Development
Stockholm Declaration Principle 21 of this declaration provides that the prohibition of significant harm applies also to damages outside national jurisdiction as 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."
The Antarctic Treaty 1959
The Antarctic Treaty was signed in Washington on 1 December 1959 by the twelve countries whose scientists had been active in and around Antarctica during the International Geophysical Year (IGY) of 1957-58. •It entered into force in 1961 and has since been acceded to by many other nations. •The total number of Parties to the Treaty is now 53. •Only States which are active in scientific research in Antarctica qualify as consultative parties during such times as they demonstrate their interest in Antarctica by "conducting substantial research activity there" (Art. IX para. 2 AT). Other parties can participate in the meetings but do not take part in the decision-making. •Germany has been a consultative party since 1981. It has XXX stations. The Antarctic Treaty 1959
Sustainable Development Examples
The Brundtland Commission stated in its Our Common Future report that sustainable development is a process that `meets the needs of the present without compromising the ability of future generations to meet their own needs`. Principle 3 Rio Declaration: "The right to development must be fulfilled so as to equitably meet development and environmental needs of present and future generations." Principle 4 Rio Declaration: "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it."
Conventions and annexes/appendices
The Convention and annex approach refers to the regulatory technique to supplement a treaty by annexes referring e.g. to lists of protected species or hazardous substances or other "technical" matters. •The benefit of such annexes is that they are usually easier to modify than the treaty texts. •Often annexes can be changed by majority voting of the plenary organs without the need for ratification. •Yet some "annexes" are protocols, e.g. in the case of MARPOL.
Convention on Long-range Transboundary Air Pollution (LRTAP)
The Convention was negotiated under the roof of the UN Economic Commission for Europe (UNECE), it was adopted in 1979 and entered into force 1983. It has 51 parties (European States + US + Canada + EU) •It follows a framework-and-protocol approach: since the Convention's adoption eight Protocols (mainly) on the phase-out or emission reduction of specific substances have been negotiated. •The history of the Convention can be traced back to the 1960s, when scientists demonstrated the interrelationship between sulphur emissions in continental Europe and the acidification of Scandinavian lakes. •1972 Stockholm summit started international cooperation on combating acidification. •Between 1972 and 1977, several studies confirmed the hypothesis that air pollutants could travel several thousands of kilometres before deposition and damage occurred. According to the Convention all parties are to develop the best policies and strategies including air quality management and control measures. •The instrument relies upon "best available technology which is economically feasible and low- or non-waste technology" (Art. 6 LRTAP) •Although the substantive provisions in the Convention are relatively weak, it's institutions for permanent cooperation served as a viable platform for initiating more specific regulations.
Common but differentiated responsibility examples (4)
The Framework Convention on Climate Change provides that the parties should act to protect the climate system „on the basis of equity and in accordance with their common but differentiated responsibilities and respective capacities". Principle 7 Rio Declaration: „[...] In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command." Stockholm Declaration - in Principle 23 - acknowledged the need to consider "the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social costs for the developing countries". Kyoto Protocol: distinction between so-called "Annex I States" and other States because of historic contributions and capabilities → difficult to balance with common responsibilities
Vessel emissions
The IMO addresses vessel emissions in its Annex VI to MARPOL as vessel pollution. • MARPOL has introduced a step-by-step reduction of the sulphur content in vessel fuels under Annex VI. The regime is only applicable to parties to the annex but States have started to impose strict limitations for coastal waters and ports.
Montreal Protocol
The Montreal Protocol on Substances that Deplete the Ozone Layer (1987) introduces the control and reduction of specific substances that deplete the ozone layer. •Objectives: reduction and phasing-out of ODSs worldwide based upon scientific assessment, taking into account technical and economic feasibility. •It effectively covers 96 chemicals (e.g. CFCs = „FCKW"). •The treaty relies upon the precautionary principle, intra- and intergenerational equity, the promotion of sustainable development and common but differentiated responsibilities •Based upon the differentiated responsibilities it makes concessions and offers assistance to developing countries, e.g. multilateral fund, grace periods for phasing-out.
UNFCCC- UN Framework Convention on Climate Change
The UNFCCC resulted from UNCED in Rio in 1992. •It deals with human-induced climate change that adds to natural variability and formulates many general aims and duties and sets up the main organs. •194 States and the EU are parties. •According to Art. 2 the primary objective is the 'stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.' •The principles upon which the agreement is based are the following (Art. 3): common but differentiated responsibilities, intergenerational equity, precaution, sustainable development and cooperation
Trade in Endangered Species
The Washington Convention on International Trade in Endangered Species (CITES) only addresses one element of species conservation: international trade. •The idea behind CITES is that species will be better protected if they cannot be traded legally.
Conventions and annexes/appendices example
The Washington Convention on Trade in Endangered Species of Flora and Fauna (CITES) operates with lists and trade restrictions apply only to species listed in the appendices . •According to Art. XV para. 1 CITES the appendices can be changed by majority voting to keep them updated easily: "(b) Amendments shall be adopted by a two-thirds majority of Parties present and voting. [... (c) Amendments adopted at a meeting shall enter into force 90 days after that meeting for all Parties except those which make a reservation in accordance with paragraph 3 of this Article." 20
Atomic Energy Fields of Regulation (4)
The following activities are subject to international regulation and concern: •Nuclear weapons (including weapon testing, deployment and proliferation) •Peaceful use of nuclear energy (including accident prevention and response) •Transport of nuclear material •Radioactive waste (including reprocessing, prohibition of dumping of radioactive wastes at sea)
The IMO Polar Code
The increase of shipping in Polar waters and the expected rise in maritime traffic, particularly in the Arctic, have led to the adoption of the IMO Polar Code that will become binding in 2017. The objectives as stated by the IMO are the following: "The Polar Code is intended to cover the full range of shipping-related matters relevant to navigation in waters surrounding the two poles - ship design, construction and equipment; operational and training concerns; search and rescue; and, equally important, the protection of the unique environment and eco-systems of the polar regions." Polar Ship Certificate and a Polar Water Operation Manual
Differentiation under the UNFCCC
The instrument knows roughly three groups of States: Developing, transitional and developed economies •Based upon the common but differentiated responsibilities industrialized States have for climate change the latter two shall: -implement national policies to mitigate climate change -with the aim to reduce their emissions of greenhouse gases to their 1990 levels -provide new and additional financial resources to developing countries -assist developing countries that are particularly vulnerable
International Organizations & Existing UN agencies covering environmental issues (9)
There is no specific UN specialized agency for the environment. Most agencies were founded before environmental matters started to play a major role on the global stage. Yet some existing UN agencies and other international institutions cover environmental issues: •International Maritime Organization •Food and Agriculture Organization •World Health Organization •UNESCO (initiator of some important environmental conventions) •International Labour Organization (environmental conditions in the workplace) •World Meteorological Organization •International Civil Aviation Organization (aircraft emissions) •International Atomic Energy Agency •World Bank, International Monetary Fund, World Trade Organization
1994 Convention on Nuclear Safety
Three objectives: -achievement and maintenance of a high level of nuclear safety worldwide -establishment and maintenance of effective defences in nuclear installations against potential radiological hazards for the protection of individuals and the environment -prevention of accidents with radiological consequences and mitigation of such consequences •Art. 6 on unsafe existing reactors requires States to: -ensure 'all reasonable practicable improvements' -upgrade safety If this cannot be achieved, the reactor should be shut down 'as soon as practically possible'. Criticism: too general, not implementing IAEA standards, no broadly accepted environmental requirements
Main sources
Treaties (bilateral, multilateral on a regional or global scale) Customary international law General principles of law Decisions by international courts and tribunals 'Soft law' is often positioned somewhere on the spectrum between binding and non-binding law and consists mainly of decisions by treaty bodies and international organizations, codes of conduct and guidelines.
Frameworks and Protocols
While the framework contains the general objectives and establishes institutions, the protocols set specific targets. •The protocols are treaties themselves but membership is restricted to parties to the framework. •They only enter into force for those parties who have ratified them, i.e. membership is usually different to that of the framework.
Precautionary Principle
activities can be prohibited to save the environment even if it has not ultimately been proven that there is a causal link between the behaviour and the damage difference between prevention and precaution: preventive action is necessary to evade a damage which is certain, while precaution tries to prevent a damage which is potentially serious but uncertain. ex. oil tankers vs. greenhouse gas regulations
"Harmon Doctrine"
based upon absolute territorial sovereignty allowed for the use of a State's territory even in a way that harmed the territory of its neighbours
Functions of compliance and enforcement mechanisms
corrective- 'punishment' for actor. Adjustment and balance preventative- atonement for damages reparative- potential subject will avoid breach empowering- Enable subject to fulfill obligations