International Environmental Law - Midterm 1
Principles for National Laws:
-Duty to implement -Polluter/user pays; The polluter should have to pay the cost of remedying the harm they caused. -Pollution prevention -Public participation -Access to information; Transparency
International Environmental Law Prior to 1950:
- Agreements could be found between states that could be considered International Environmental Law, but they were often centered on a specific topic. examples: -The convention for the protection of the birds useful to agriculture -The Fur Seals Treaty -The London Convention
Basic Notions in International Environmental Law
- Nations act in their own best interests - Actions are based on individual, not community interests - Global environmental problems are solved on the basis of a consensual system. (What we all can agree to) - Global environmental problems are not solved on majority rule
2012 UN Conference on Sustainable Development
- also known as RIO + 20 - focused on sustainable development goals - produced green economic policies - planned for sustainable development financing plans - Made plans for future conferences -there have been annual conferences ever since 2014
United Nations Development Program
- established in 1965 -developed The Global Environmental Facility (GEF) - provides assistance to lesser developed countries to develop environmentally sound economic activity.
Earth Council
- product of Rio 1992 - Its an NGO created by Earth Summit
International Environmental Law from 1950 to Stockholm:
-A variety of conventions were held. example: - The African Convention on conservation of Nature and Resources
International Environmental Law Post Stockholm:
-After the Stockholm Conference, more than 900 agreements between countries with the environment as the main concern surfaced. -CITES, The Convention on International Trade in Endangered Species of Wild Fauna and Flora was established. -London Ocean Dumping Convention -World Heritage Convention (cultural sites are protected by WHC) -Regional Seas Program
Law Making Treaties
-Any state is allowed to join -trying to create international regulatory authorities or international law 1. Custom; an action that is not in a statute, but is generally accepted as law. Comes through: -Opinio Juris: Its the opinion of the international community, not written anywhere but is customary. -Time -Universality: Universal customs 2. General Principles of Law: a statute that is represented in various countries. -common to all legal systems: If it is a law that every country has then it is accepted as international law.
Commision of Sustainable Development
-CSD -created by RIO 1992 - they meet annually for 2 or 3 weeks - promotes dialogues among governments for sustainable development
The 1982 United Nations Conference on the Law of the Sea: AKA Montego Bay Convention
-Held in Montego Bay, Jamaica - Produced 59 environmental provisions in the subject areas of territorial seas/ contiguous zones/ high seas
Status Quo vs Reform
-Humans tend to find comfort in the known. They dislike change. -Still, in this day and age, we perceive a need for change in our behaviors when it comes to the environment. -Relatively recently, we have developed and adjusted our perceptions of cause and effect. Acknowledgment that we are responsible for the state of the environment. -Yet we still have preferences over what the outcomes may be.
Evolution of International Environmental Law
-International Environmental Law is of recent origin. -IEL combines several centuries of Public International Law with National Environmental Law. -Until 1972, there were only 36 agreements between states that could be considered as IEL. -1972 The Stockholm Conference developed International Environmental Law.
Global Principles:
-Obligation not to cause harm -Intergenerational equity -Common/differentiated responsibilities -Precautionary principle -Duty to assess -Subsidiary -example: think globally act locally
Principles of Trans-boundary Disputes:
-Peaceful resolution -Duty to cooperate -Duty not to cause harm -Not just a principle but a law, and obligation. -State responsibility/liability -Duty to notify -Environmental impact assessment -Equitable utilization of shared resources -Nondiscrimination of environmental harms a. In any activity where is going to be difficult to identify which country is responsible for what amount of pollution, everybody provides funds to repair the damage -Equal access to justice a. Don't discriminate against classes, groups, or individuals trying to get justice
Enforcement of International Environmental Law
-compliance to international law: States comply with international law most of the time. - consequences for non-compliance: mostly sanctions (states act as policemen) -There is often National Enforcement -International bodies -settlement techniques: arbitration, court cases, mediation *SELF ENFORCEMENT IS THE PRIMARY MEANS OF ENFORCEMENT* -Most instances of noncompliance are by minor states.
The Global Environmental Facility (GEF)
-created by the World bank, UNEP, and UNDP (1990) -Council (60% double weighted majority) -secretariat housed at world bank -Goal is to fund environmental protection - Climate change; -ozone depletion; -biological diversity loss; -maritime pollution -financial mechanism for Biodiversity Convention and Climate Change Convention.
The United Nations Educational, Scientific and Cultural Organization:(UNESCO)
-established in 1946 -with 183 members in General Conference, Executive Board, and the Secretariat in Paris -Initiated Intergovernmental Oceanographic Commission (1960) - Man and Biosphere Program (1970) -secretariat for Ramsar Convention and World Heritage Convention
United Nations Environment Program
-established in 1972 by the Stockholm Conference -has a global environmental monitoring system -has a global environmental outlook -provides 10 year plans - Is a key player in International Environmental Law.
1992 UN Conference on Environment and Development
-known as the Earth Summit -held in Rio de Janeiro -was the largest summit in history -Issued the Rio Declaration: consists of 27 principles intended to guide countries in future sustainable development -Agenda 21: is a non-binding action plan of the United Nations with regard to sustainable development. -Forestry management -Established the climate change conventions (Kioto, Paris, Madrid) -Produced the Biodiversity convention
2002 World Summit on Sustainable Development
-known as the Johannesburg Summit -developed a sustainable development plan -started the implementation of Agenda 21 -added a new element to the definition of sustainable development 1. economic development 2. environmental protection 3. social development
Trends in International Environmental Law:
-stronger relations between environment and development -proactive regulation (front-end of process) instead of after the fact. -increased influence of soft law (like the Paris Climate Agreement) -international application of domestic environmental regulatory mechanisms such as environmental impact statements/assessments, certifications, etc. -increased public input into environmental policy making
Science vs Politics
-while science suggests we should do something to preserve the planet. -politics often rejects these notions. -Why? -because sustainable development is not often economically advantageous at the time. -may be in the long-run but as discussed previously, humans tend to think short-term as opposed to long-term.
International Regulation vs Sovereignty
1. Control of natural resources; difficult to enforce internationally because it could be seen as infringing upon a state's sovereignty. 2. Utilization of resources for growth 3. Theory of "eco-imperialism" which says Europeans severely damaged the ecology of the world by colonizing it. Plants, animals, and people died by the masses. European ways of agriculture severely damaged much of their colonized terrain.
Soft Law in International Environmental Law
1. Declarations: they have the potential to become treaties or statutes if they are well received by the public. 2. Resolutions: An example of the general opinion of the international community. 3. Court Decisions: States go voluntarily, every decision is unique, therefore there is no precedent. (Decision only applies to states that are involved in the case)
International Legal System
1. Normative Systems: treaties create norms - rule generating 2. Operation System: - Organizational machinery - dispute settlement mechanisms
Principles Shaping Global efforts:
1. Right to life and a healthy environment; 2. State sovereignty 3. Right to development 4. Sustainable development 5. The common heritage of mankind; Principle that all humans have a stake in the conservation of resources in the global commons, e.g. high seas or outer space 6. The common concern of mankind
Hard Law in International Environmental Law
1. Treaties -Jus Voluntarum: treaties are purely voluntary, no state can be forced to join or partake in a treaty. -Pacta Sunt Servanda: Once a state is part of a treaty, it must abide by its word; although their are often withdrawal articles or conditions -There are two types of treaties: Contractual & Law Making
Limits to Growth
A study commissioned by the Club of Rome (The US and some other global north countries) in 1968. Where influential people, businessmen, scientists, politicians wanted to study the state of the environment - prompted the MIT Study "Limits of Growth" -Which included 5 key elements: 1. population 2. food production 3. industrialization 4. pollution 5. consumption of non-renewable resources Results: The study recalculated their efforts various times and they kept coming up with one result: The system (Earth) would collapse in 2100. Unless major change would take place before the year 2000, if these big decisions were left after the year 2000, the damage would be irreversible and the system would collapse. AKA: The argument that both world population and world economy may collapse because available world resources are inadequate.
Developed world vs Developing world
AKA: The Global North vs the Global South 1. Different stages of economic development lead to needs and priorities. A) Developed Countries are economically stable, for the most part, they can afford and finance pollution controls. meanwhile: B) Developing Countries argue for rapid and cheaper ways to industrialize even at the cost of polluting the environment.
Post Stockholm:
After Stockholm some events like: -Chernobyl -Antarctic Ozone Hole discovered -1983 UN World Commission on Environment and Development -Brundtland Report -Developed the environmental agenda of the Group of 7 (G7) -Before Stockholm there were only 25 National environmental agencies, after Stockholm,(1992) there were 140.
The European Union:
An international organization of European countries formed after World War II to reduce trade barriers and increase cooperation among its members. -Single European Act (1986) gave EC power to legislate on environmental matters - EU Commission and Council (with the advice of Parliament) can make environmental law -European Court of Justice has compulsory jurisdiction - Established European Environmental Agency (1990)
Incorporation vs Transformation
Applying International Law to the states: 1. Incorporation: If one can prove its international law, then proceed to automatically assimilate it. 2. Transformation: It its international law it has to be transformed into national law to be able to apply it.
Kelsen School
Believes that international law is law and it is binding; all law is law.
Hard Law
Conventions and treaties that under international law create legally binding obligations.
Ecologic Limit vs Economic Development
Economic development often stresses out the limitations of the environment. -as population increases, new cities are built -new expansion often results in deforestation and relocation or displacement of animals. -therefore pushing the ecology to its limit.
The 1972 Stockholm Conference:
First international conference that defined the environment as an issue of global concern and cooperation. Key takeaways: -known as the birthplace of International Environmental Law -there was a near universal attendance -created the United Nations environmental program -Issued the Stockholm Declaration of Principles -Impetus for growth of International Environmental Law Regulations
Contractual Treaties
Is a treaty between a certain number of states example: NATO
State Law-Making vs Nontraditional Law-Making
Law can be created by several measures: 1. A state's controlled environmental agenda (Individual states) 2. Regional/International Agendas (like the UN, EU) 3. Agendas pushed by Non-Governmental Organizations (NGO'S) 4. Agendas pushed by individual citizens/activists.
Malthusian Theory
Starvation is the inevitable result of population growth because the population increases at a geometric rate while food supply can only increase arithmetically. Key takeaways: -In other words, the population grows at a higher rate than the food supply.
Soft Law
Statements of philosophy, policy, and principle found in nonbinding international conventions that, over time, gain legitimacy as guidelines for interpreting the hard law in legally binding agreements. -has the potential to become law -often referred to as "pre-law"
Worldview #1: System Maintainers:
System Maintainers prefer the status quo, their way of life need not be changed. -They typically support a high level of consumption -They believe that resource problems stand-alone -They believe that resource problems are short-term -They believe that resource problems are amenable to technological fixes Problems: -the problem with this is that the environment is interconnected and it cannot be treated as an isolated problem.
Worldview #2: System Reformers:
System Reformers are those who want incremental change. -They support high consumption if it is supported by economic growth. -They believe in government intervention to regulate supply. -They believe that as standard of living increases, population decreases. -As a result of this, the pressure on resources also declines. Problem with this View: -As countries develop their need to consume increases.(China is a prime example of this).
Worldview #3: System Transformers:
System Transformers want to create a totally different system; start a new -They believe that finite resources cannot support high-consumption and economic growth. -They believe the Earth has a limited capability to produce renewable resources. - They believe we should decrease the pressure on non-renewable resources. - They believe we should on limiting pollution around the planet. - They believe we should change our values rather than globalize western values. In other words, De-westernize the planet.
The Environmental Cliff
The idea is that humans are walking further and further not knowing when the cliff ends. Taking this into account, humans are pushing the Earth further and further than it can withstand and they do not know when Climate Change will end in catastrophe.
Tragedy of the Commons
The tendency of a shared, limited, common resource to become depleted because people act from self-interest for short-term gain. Key takeaways: -people tend to think short-term rather than long-term -people do not self-regulate therefore exhausting the commons -regulatory measures would be ideal to treat the tragedy, but they are difficult to enforce, especially internationally. -regulations tend to be largely voluntary on the part of a state. -States tend to favor what is economically advantageous now versus regulation for further commons use. -Globally, the oceans and air are the biggest commons.
Austinian School
They believe that international law is not really law, national law is law.
Changing the focus over the evolutionary period:
We have seen a change: - we have shifted focus from trans-boundary perspective to a global perspective. - we have shifted our focus from specific areas of activity/species to the whole ecosystem - we have shifted our focus from domestic/extra-territorial regulation to international regulation - we have shifted our attitudes from monitoring and studying to preventing and reversing.
