International Law

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Formulation of Environmental Law:

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1. Consent of States by treaty or custom (customary depends on practice of states in their international relations, with evidence that the practice is reagarded as binding)
2. State responsibility is the basis for compliance
3. UN assumes leading role in developing

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The UN Environmental Programme:

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A. Established in 1974 to coordinate environmental efforts.
B. Rule Making Pattern
1. Scientific positions formulated.
2. Legal strategies promoted
a. non-binding normative documents adopted
3. International Conventions (compromises, definitions, terms, and obligations.
C. Three Goals (UNEP Programme for the Development and Periodic Review of Environmental Law adopted in 1982)
1. Conclude legal agreements (very successful, ex. 14 sea conventions)
2. Develop international principles (guidelines and standards might be transformed into legal rules.)
3. Assistance for environmental efforts in 3rd world (Earthwatch Programme, Global Monitoring Systems and the Intntl Referral System for sources of environmental information.

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How is the UN Environmental Programme encumbered by weakness?

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1. Lack of executive authority (no mandatory jurisdiction and on a voluntary basis)
2. Underfunded (tied to UN budget, which is in an economic crisis, aggravated by unpaid UN dues.

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Conference Diplomacy: 1972 Stockholm Conference on the Human Environment:

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A series of major UN-sponsored intntl conferences convened to discuss and formulate action plans to remedy environmental issues.

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What came out of the 1972 Stockholm Conference on the Human Environment?

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The Stockholm Declaration: (declaration on the human environment) non-binding document with 26 principles intended to guide future activities affecting the environment.

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Stockholm Declaration: 26 principles on the environment:

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ex. human rights, natural resource management, institutional arrangements and economic development

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Conference Diplomacy: 1992 UN Conference on Environment and Development

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(UNCED) convened to spur governments to rethink economic development and find ways to stop destruction of irreplacable natural resources and the pollution of the planet.

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Where did the 1992 UN Conference on Environment and Development take place?

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Rio de Janeiro

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1992 UN Conference on Environment and Development: Convention on Biological Diversity:

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1. conservation of biodiversity
2. sustainable use of its components
3. fair and equitable sharing of genetic resources

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1992 UN Conference on Environment and Development: Framework Convention on Climate Change:

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promotes stabalization of greenhouse gas concentrations in atmosphere at a level that would prevent interference with climate system.

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1992 UN Conference on Environmental Development: Rio Declaration:

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1. 27 principles watered down- originally envisioned forming an Earth Charter, having moral and political authority equal to the Universal Declaration of Human Rights.
2. Restated Stockholm- weaker than Stockholm, mainly it emphasizes the importance for gov'ts to recognize in their policies the need for sustainable developmentto protect environment through precautionary approach and to establish environmental assessment as part of nat'l policy.

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Judicial Cases: Trail Smelter Arbitration Case 1941, US v. Canada:

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State responsibility for pollution; Canada had to pay reparations to the State of Washinton

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Judicial Cases: Corfu Channel Case 1947, Britain v. Albania:

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ICJ asked to determine whether Albania should be liable to damage done to two British warships (44 seamen died)b/c naval mines were left in channel after WWII, Albania didn't put them there nor knew of their existence. Court found that Albania was responsible for notifying the world of the minefield.

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What intntl principle is provided in the Corfu Channel Case?

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Environmental protection principle: state is obligated to prevent its intraborder activites from causing transfrontier pollution and must disclose harmful activities or be held liable.

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Judicial Cases: Lake Lanoux Arbitration Case 1957, Spain v. France:

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French plan to divert water from lake, which in its natural flow goes into Spain. Spain said this violated 1866 Treaty and Additional Act btwn the 2 states. Even though lake located wholly in France, Spain claimed that France couldn't follow through without an agreement between the 2 parties. Arbitral decison- France has to consult w/ Spain. Consideration must be given to all states affected by alteration. Decision rejected Harmon doctrine- the principle of absolute sovereignty over the uses of rivers and other resources within a state's territory, regardless of effects on other states.

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What intntl principle is provided in the Lake Lanoux Arbitration Case?

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Shared resources- entailing equitable division btwn competing users of the waterway.

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Normative Principles: Harm Prevention:

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duty to prevent, reduce and control environmental damage. Includes the obligation not to cause transboundary environmental harm. Stems from Trail Smelter Case.

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Normative Principles: Harm Prevention: Principle 21, Stockholm Declaration:

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states have the right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control don't cause damage to the environment of other states or areas beyond the limits of nat'l jurisdiction

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Normative Principles: Precautionary Principle:

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concerns decision-making regarding an activity and its potential environmental effects in the face of scientific uncertainty. This posits that some types of activities pose environmental risks that may be more serious than others and that gov'ts should prejudice their actions to avoid them.

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Normative Principles: Precautionary Principle: Principle 15, Rio Declaration

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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 scientific certainty should not be a reason for postponing cost-effective measures to prevevent environmental degredation.

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Normative Principles: Sustainable Use:

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resources may be used unless such use exhausts a resource or injures the environment. sustainable utilization of harvested natural resources-> Framework Convention on Climate Change and the Conventon on Biological Diversity, 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources.

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Normative Principles: Sustainable Use: What is an underlying principle within this principle?

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principle of equitable use- calls for states to consider interstate concerns, such as resource sharing or exploitation.

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Normative Principles: Sustainable Use: 1992 Convention on Biological Diversity:

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this principle is outlined in law regarding the management of shared natural resources, such as intntl rivers as well as this convention.

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Normative Principles: Intergenerational Equity:

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present generation is responsible for protecting the environment for future generations. Gov'ts share a basic obligation to manage resources and conserve the environment to present the greatest sustainable benefit to the present generation while also sustaining the potential to meet the needs and wants of future generations.

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Normative Principles: Duties of State:

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1. Prior notification- if gov'ts intend to use areas under their jurisdiction/control to engage in activities that might cause significant transfrontier pollution-- are under a duty to give prior notification to states that might be harmed.
2. Consultation- gov'ts required to consult with, to supply and exchange further info with states who may be in harm's way (Cofu Channel Case)
3. Environmental Impact Assessment- obliges states to assess and monitor their activities for potential environmental effects and for actual environmental impact within their own territorial jurisdiction as well as in the areas beyond it.
4. Polluter Pays Principle- holds that the polluter should bear the expenses of carrying out measures decided by public authorities to ensure that in the aftermath of a pollution incident, the environment is restored to and maintained in an acceptable condition.

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International Agreements:

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Multilateral agreements adopted since 1972.

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International Agreements: Institutional Elements: Conference of the parties:

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responsible for implementation of each instrument as well as for the potention negotiation and adoption of further protocols or annexes. Decision making and legislative body.

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International Agreements: Institutional Elements: Secretariat:

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Monitors implementation, assists and evaluates gov'ts implementation of the agreement and which usually contains a clearinghouse mechanism that promoes technical and scientific cooperation and facilitates the exchange of scientific, technical, environmental, and legal information.

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International Agreements: Institutional Elements: What is the final element?

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Financial agency

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Core Environmental Convention Groups: Biodiversity:

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aim to preserve and protect the existence and habitat of various species thought to be endangered or at risk. (Polar Bears Convention)

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Core Environmental Convention Groups: Atmosphere:

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aims to protect the common environment by eliminating or stabilizing anthropogenic emissions of substances that threaten to interfere with the atmosphere.

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Core Environmental Convention Groups: Land:

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only one major agreement, the UN Convention to Combat Desertification, aiming to counter desert spread and mitigate the effects of drought, particularly in Africa.

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Core Environmental Convention Groups: Chemical and Hazardous Wastes:

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objective of which is the protection of human health and the environment by controlling trade in selected dangerous. (1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Chemicals and Pesticides in Intntl Trade)

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Core Environmental Convention Groups: Regional Seas:

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17 conventions and action plans constitute a web of agreements. common objective= protection and sustainable use of marine and coastal resources.

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International Covenant on Environment and Development:

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sustainable development/ aspires to provide a legal framework for sustainablility development, but has no formal legal status (suggested by 1986 Brundtland Report)

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Elements of the International Convenant on Environment and Development:

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1. Respect for all life forms
2. common concern for humanity
3. peace, development, environmental protection, human rights
4. Intergenerational equity
5. prinicple of prevention
6. precautionary principle
7. recognition of the right to development
8. eradication of poverty
9. balance obligations to consumption and demographic policies.

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The Oceans

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main conduit for intntl trade and commerce-- full of food, minerals and energy resources

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The Oceans: Divided into legal zones since the 1950's:

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each designated special jurisdiction over various activities affecting the health of the high seas.

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Legal zones:

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1. shipping
2. fishing
3. dumping
4. transporting toxic wastes
5. mining the deep sea bed
6. vessel-source pollution

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The Oceans: 1609 Hugo Grotious, The Free Sea

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Mare Liberum- where modern law of the sea evolved from

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The Free Sea, Hugo Grotious:

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anyone can use products of the sea, as well as navigate anywhere not a territorial sea.

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The Free Sea: Hugo Grotious: Territorial Sea

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right of coastal state to claim a zone of ocean space offshore as this, though how far seaward remained controversial. Most gov'ts accepted 3 nautical miles (cannon shot)

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The Oceans: 1945 President Truman:

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1. Fisheries in seas contiguous to US territory
2. Natural resources of seabed and continental shelf, adjacent to U.S., problematic because it was far beyond the prior 3 mile limit

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The Oceans: Santiago Declaration 1952:

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Chile, Ecuador, and Peru proclaimed their "sole sovereignty and jurisdiction" out to 200 nautical miles from their coasts for the purpose of conserving, protecting and regulating the use of natural resources.

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UN Conference on the Law of the Sea (UNCLOS I) 1958:

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increasiing disputes btwn fishing fleets and coastal states prompted UN to convene and decide on this. Issues pertaining to high seas, the continental shelf, fisheries conservation, and territorial waters.

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UN Conference on the Law of the Sea (UNCLOS I) 1958: Convention on the Territorial Sea and Contiguous Zone:

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affirms the right of the coastal state to claiim a belt of ocean space offshore- the territorial sea-over which it has complete sovereign jurisdiction to the water column, to the seabed, subsoil below, and to the airspace above. (innocent passage allowed)

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UN Conference on the Law of the Sea Treaty (UNCLOS I) 1958: Fishing and Conservation of Living Resources:

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asserts that peoples of all states enjoy the right to fish on the high seas in accord w/ the undefined standard of "maximum sustainable yield", major fishing states have not ratified it.

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UN Conference on the Law of the Sea (UNCLOS I) 1958: Convention on the High Seas:

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coastal and landlocked- certain freedoms of the high seas, including freedoms of navigation, fishing, laying submarine cables and pipelines, and overseas flying. Even states w/o a seacoast have the right to free access of the sea, and freedom of transit.

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UN Conference on the Law of the Sea (UNCLOS I) 1958: Convention on the Continental Shelf:

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provides legal definition of continental shelf. recognition of the coastal state's exclusive rights to the seabed and subsoil resouces of the continental shelf to a depth of 200 meters, or beyond that limit, to where the depth of superjacent waters permits the exploitation of the natural resources of the shelf.

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1982 UN Convention on the Law of the Sea:

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UNCLOS III 440 provisions

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1982 UN Convention on the Law of the Sea: Territorial Limits 12 miles:

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since there was a lack of standard breadth, 1982 LOS Convention ameliorates this situation as it adopts a twelve mile territorial sea limit as the universal standard, over which the coastal state enjoys all rights of soverereignty to the water column, to the seabed and subsoil and to the airspace above.

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UNCLOS III: 1982: 24 mile contiguous zone:

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gives coastal state an additional regulatory cushion between its territorial waters and harmful activities such as pollution, smuggling, and illegal immigration.

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UNCLOS III: 1982: 200 mile exclusive economic zone:

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which it has sovereign rights to explore, exploit, conserve, and manage the living and nonliving natural resources of waters superfacent to the seabed and subsoil.

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UNCLOS III: 1982: Criteria for continental shelf:

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the gentle slop of submarine land that extends from the edge of the coastline seaward to the point where there is a sudden drop-off to the sea floor below (Continental Shelf Commission)

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UNCLOS III: 1982: High seas, internal waters:

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high seas- ocean space beyond zones of nat'l jurisdiction. internal waters- river, lakes, bays, and gulfs. Every state has freedom to navigate on the high seas.

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UNCLOS III: 1982: Freedom outside EEZ

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states have right to conduct scientific research in water column beyond the limits of the EEZ of coastal states as long as it is done for peaceful purposes and does not obstruct intntil navigation in the process.

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UNCLOS III: 1982: Passage through International Straits:

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became prevalent during the cold war. transit passage regulates passage through straits used for intntl navigation. Trade off= states bordering straits regulate passage, pollution, etc.

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UNCLOS III: 1982: Environmental protection

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states are obliged to take measures for dealing with all pollution sources that affect the marine environment- that is, from land-based sources, dumping, atmospheric fallout, vessels, seabed activities, and maritime installation.

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UNCLOS III: 1982: Conservation of living marine resources:

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obligates parties to cooperate with other states in taking measures necessary for the conservation and management of living resources of the high seas and to ensure that their nationals comply with these measures.

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UNCLOS III: 1982: Scientific marine research:

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convention grants jurisdiction to the coastal state over foreign scientific marine reasearch conducted within its EEZ, or on its continental shelf, and it requires the consent of the coastal state for the conduct of continental shelf, and it requires the consent of the coastal state for the conduct of such research.

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UNCLOS III: 1982: Deep Seabed Mining:

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Intntl Seabed Authority formed- regulates future exploitation. common heritage principle- no state may claim or exercise sovereignty or sovereign rights over any part of the area or its resources, all rights to the resources are vested in humankind as a whole.