3 International Law and the Pr. tecti of the Global Ravaieneg 2 Jacqueline Pee T* chapter examines the historical development, central principles, and current implementation of international environmental law. Half a cen- tury ago, discussion of this topic would probably have begun with a question as to whether the subject of international environmental law even existed: there were no treatises or journals specifically on the subject, only a very small number of law school seminars were taught, and most public international law texts avoided addressing the environment, with little risk of | being criticized for incompleteness. Today the situation is entirely different. The International Court of Justice I) has confirmed the “obligations of States to respect and protec natu- ralenvironment,”! Moreover, it has declared that states’ “general obligation . . . to ensure that activities within their jurisdiction or control respect the environ- ment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.”® This latter obligation is applicable at all times and to all activities, even the use of nuclear weapons. These general obligations have been further developed in the context of the international community's SEY i teins a devel- ment in pursuance of the overall goal of sustainable development.”* orbs chapter is divided into four major sections. ‘The first briefly describes the historical development of international environmental law and the insti- tutional context within which that development has taken place. The second section examines certain general principles of international law that have emerged in relation to environmental matters. The third section summarizes basic rules of international environmental law in fields such as nak biodiversity, protection of freshwater resources and the marine envine ANE prevention of air pollution and climate change, and management = Tet and hazardous substances. The final section offers a consideraion 0 ore the main challenges facing international environmental Tw development. Thee ser version coauthored with Philippe Sands, which was ‘This chapter is based on an earlier version comuthors WT Tt) acknowledge Dublichad fn ¢he canned edition of this text. ——tee eg i tal Law: Context, al Environment History, and Sources the environment go back at joa) legal efor 1 POT TT international arbitration it © th International legs vate was poe mah veaaela te 8 conse. when a it British vessels 2 A He of US. fl (9 DT a Although the Pacific Far Sa the on +d in favor of a unilateral US spo to conceit Te anions or te “proper protection and preservation’ of yg did adopt regulatich served as an important precedent for the subse = oer uecational environmental law, reflecting an acknowledgment developmental problems transcend national boundaries, sharing fn century, a8 we fae problems like climate change, _ Inthe Se ton of the inherent and fundamental interdependens ithe bal environment and the challenge of reconciling this withthe that many land, sca, and ar spaces are part ofthe sovereign areas of independ, ent sites‘ To understand how international rules of environmental prone tion have developed in this context, it is first necessary to know something of the nature of international society and the structure of the international legal order, as well as the sources of international environmental law. Internation The International Legal Order International law and international organizations provide the basis for cooperation among the various members of the international community in their efforts to protect the global environment. At each level the task becomes progressively more complex as new actors and interests are drawn into the process. Whereas just two States, representing the interests of local fishing communities, negotiated the early fisheries conventions in the mid- dle of the nineteenth century, more than 150 states were involved in nego- xronsored by the United Nations General Assembly that led to the Framework Convention on Climate Change (FCCC) and its 27 Koos Protocol More than 190 aoe tans (FCCC) sd is negates poeoeek . es are participating in (ee Char) late change teay fo be im and rules of pe 0% ate bilateral or multilateral in nature, the principles The overall objet, aiternational law are intended to serve similar functions. Within which the yaiee © international legal order ie re provide a framework sen Sstablish norms of members of the international community may coop” inntth domestic law the oer s¥i05 and resolve their differences, According) Oped adjudicnns tions of international law ane legislative, ad" sno regi ees Fel princes et ls regain oMorm to geet Ad Other members of the international comm” Decoeit ttion. Ths NOES of behavior we accomplished through th © conducted oF perm obligations place limits on dhe aerivites that 87 Med because of their acre A eceteit tides on ete Se wk Se LE PAPERA FREE Ee F HITTER REATARE sly ws a 1a ious actors to_ensure that standards im ms international environmental law are caret tinct international law aims, in a Limited way to prsige ts Miudicative Function of cific settlement of differences of digew¢-0°shanisms or forums for ‘These similarities mask some importan dliferen “th llr end domestica, For instance, ther no formal gia aon carry out the legislative function of international enviromnense said global environmental gency exist to administer and ene ine seta = ronmental rules. Whether a country = Bound by paReonbs se ; depends upon whether it has consented to the teatys tems, gniiea formal process of state ratification of the treaty? Given that notallenen ree environmental treaties, different states have different sets of i i See international court. The difficulties for compliance and enforcement of interma, tional environmental law that this traditional intonation legal ecto es have spurred the development of new compliance mechanisms and dispute settlement procedures in some treaty regimes (see Chapter 5). Actors in International Society Reflecting the state-centric nature of the international legal order, states remain far and away the most important actors shaping international environ- mental law. It is still states that create, adopt, and implement international legal principles and rules, establish international organizations, and permit other actors to participate in the process. States encompass both developed (‘Northemn”) and developing (“Southem”) countries, which often pursue _An_int tions. However, this rather simple developed/developing country distinction does not always hold in environmental negotiations as states pursue what they perceive to be vital national interests, including strategic alliances. The aa rent climate change negotiations, for instance, illustrate the extent of . differences that exist both befween developed and.developing. countries St ‘within the respective developed and developing. country blocs on the co a tious issue of responsibility for ae 1 to avoid dangerous anthropogenic global warming. ‘des As with the human rights field, international eet Lay — clear evidence of an evolution from concept oy that it encompasses indi- comprising only a community of states to the ale viduals, groups, and corporate and.other-cotities within and amongew actor S Ne ieline Peel 56 Jacqui lected in the important role played by intem,. states. This new reality 16 refl enmental actors in virtually all aspects of i. jaations and Nong a envi id development. onal organizations an ing to environment ant pment: interatonl legal POC ee ved in environmental matters male Se meron organizations epional, subregion up a complex aod ae uae any international organization today will mt bilateral levels. asibility for environmental matters. Indeed, emerging ay se re significant international organizations for environmental among the most sgt conomic or development mandates, including the purposes ae those with 0 onetary Fund, and the World Trade O; eat (WTO), Nevertheless the increasing number of international organ tions with envi dd the overall lack of coordination izations with environmental competence, anc’ t i¢ ov dination mong them, presents a major challenge for achieving common policy goals, sustainable development. a wcdurmmental organizations (NGOs) have historically played an impor Sn developing international environmental law and conti a do so in a variety of ways (see Chapter 5). In the past few decades at least six different types of groups have emerged as actors in the development of inter- national environmental law: the scientific community, nonprofit environmen- “Ital groups and associations, private companies and business concems, legal organizations, the academic community, and individuals. In addition, transna- tional corporations are more and more the objects of international environ- mental regulation, as well as being active participants in negotiations for new international environmental rules, Because they conduct activities across national boundaries in an increasingly interdependent world, the need for 2 elie ae soe of behavior has been recognized. In line + emerging concepts of corporate social responsibilit y, transnational c SFineea hemselves begun to consider he hate oe devlopmat aye os onmental law governing their activities, although efforts to date have produced onl dae: 4 Different types pase oe tary guidelines ie corporate behavior” including report ‘ Process; monitoring implementation, pendent mechanieey ae enforcement of eblipeSons, anf edi inde- ee p eee isputes. The nature of each actors and the tights he extent of the actor’ internat sonality se tent tne ey penne goed iBthe cate of intemationa articular treaties and other instruments. For instano depend toa great extent Upc thations, the actual functions of each institution Preed and applied by the panic owes granted ti esau n= Practice tic of the organization. ‘SMty and Territory In the E and internati : “qual, imbued with onal eho eae States are considered sores luties as members of the intertio!~~) national Law and the Protection of the Glob and the Protection of the Global Environment 57 + community, notwithstanding di | nature. The sovers erences of an economic, soca, or political States also have a duty not to intervene i ive jut ee policies and laws in regard to the natural resources and envizonme ee territory. That territory comprises the following: pee © The state’s landmass and subsoil The state's internal waters, such as lakes, rivers, and canals The territorial sea adjacent to the state's coast, including its seabed, Giolla acreovarsa eam ees om ee © The airspace above the state's land, internal waters, and territorial sea, up to the point at which the legal regime of outer space begins States may also have more limited sovereign rights and jurisdiction over other areas, including a contiguous zone adjacent to their territorial seas; the conti~ nental shelf, its seabed and subsoil; and “exclusive economic zones” important for fishing rights. ‘As a result of these arrangements, certain areas fall autside the territory ‘exclusive jurisdiction of any state. These areas, sometimes referred to 28 the global commons, include the high seas and their seabed and subsoil, the atmosphere, outer space, and, according to a majori ic. "This apparently straightforward intemational legal order was a satisfactory vine structure until technological developments, and their environmental effects, permeated national boundaries. The traditional structure does not coes: fet comfortably with an environmental order that consists of a biosphere of interdependent ecosystems that do not respect artificial teitorial boundaries ee Peates®® As an ecological matter, if not a legal one, many natural ental components are shared, and the use by any story will invariably have conse- one state of the v e ‘and their environmental components in f natural resources See egal eae therefore poses a fundamental chal- no. ‘one state, acting within its territorial bounda- lenge for international law, as 2. reas i adequately_address obal. envizonmental_problems. Interna eoaperria and ‘the development of ‘shared norms of behavior are indispensable. Historical Development : . ‘The deficiencies of the traditional international legal aetna ae Se ket “greening” ac law ‘occurred over of intemational la. To part ‘hat influenced legal develop fn pet eo ae cia eno international enigma taagthd field indeed coordinated legal and institutional fee ap : to create such a framework came with two global envirorga. rue Pe Conference and the Rio Earth Summ, : he 1972 Sacto cetablishing the concept of sustainah hp eral objective of international environmental law, ‘Twenty : the cont mit, the Rio+20 conference in 2012 provided Tenge umn : a | community to take stock of the my thereof) it se ‘and mechanisms for implementing, mea distinct period in the greening process : ats The Be Mis treaties and the Fate Fur en, It concluded with the creation of the United Nations and its teodne ; of international institutions in 1945. This period might be rang ot ‘one in which states first acted internationally upon | their a the process of industralization and the rapid expansion of economic at relying on natural resources required limits on the exploitation offen fauna and the adoption of: appropriate legal instruments. tad 8 athe establishment of the United Nations in 1945, no intemas fonum existed in which to raise environmental concerns, and mos of rents adopted in this initial period did not create 4 sere that legal obligations were complied with or enforced. Many nin srew fiom activities by private citizens, an early harbinger ofthe mariner “ve activism. of NGOs that marks international negotiations today. sive 1945-1972, The establishment of the United Nations introduced a snd ‘od in the development of international environmental law, culminatig’a the 1972 Stockholm Conference on the Human Environment. During tis period many international organizations with competence in envirounetl matters were created, and legal instruments were ee to address pails sources of pollution and the conservation of general and particular envio mental resources. These included rules governing oil pollution, nuclear ts wetlands, the marine envirc id i Sa freshwaters, and the nds, ronment and its living resources, er dumping of waste at sea.” Lae hoard fees for discussing the consequences ofthis, c a : £ eran inclines, weapon wi cnet action wo adress the causes of pelleion and environmental degsion relationship f pollution and environme ya pret Weise peers n economic development and environmen! ‘a explicitly stood. However, the UN Charter did not, ands ae environmental protection or the conservation Stockbol i ee Sieh sid period began with the 1972 Stockboln co this twenty-year led with the Earth Summit in 1992 (see also to address q va, Pan the United Nations attempted to put nF daa coherent oe me ng range of environmental issues in a More COO; Ay jst and new techn nf tegional and global conventions addressed ‘Wues of regulation were employed.Bracterina tly ire mic acti thar lof flor a internatio, ee "gements to AY initiatives More inten- Fora da second minating in During this ‘ironmental $ particular ar environ- ear testing, ors, and the schnologi- eration of sues, and ition, The »rotection does not, f nat Confer- ter 2). In a system ated and w issues International Law and the Protection of the Global Environment 59 The 1972 Stockholm Conferen adopted several nonbinding instruments inca by the UN General Assembly, ty-six Guiding Principles"? The conference repo pation of Ten community’sfirsteffortat constructingacoheret omen oye nl of intemational policy and institutions to pistes eo ee Stockh pol Delton is generally regarded as the fans caaee tional environmental law. “Suncation of intema- One of the most significant contributions of the Stockholm hs proved tobe the creation ofthe United Nasone eee Papen (UNEP), which has subsequently been instrumental in the establishment and implementation of important global and regional treaties addressing ozom depletion, trade in hazardous waste, biodiversity, and marine pomction 2 In addition, the Stockholm Conference cat cat adopted under UN auspices, such as the 1982 United Nations Convention the Law ofthe Sea (UNCLOS) "This treaty ertibled s enigne connec hensive framework of global rules for protection of the marine environment and marine living resources, including detailed institutional arrangements and provisions on environmental impact assessment, technology transfer, and liability. These provisions have had significant influence on the language and approach of many other environmental agreements. By 1990, when preparations for the Earth Summit formally began, there existed a solid body of rules of international environmental law. States were increasingly subject to limits on the right to allow or carry out activities that harmed the environment. New standards were in place, and a range of tech- niques sought to implement those standards. Environmental issues, moreover, hhad begun to intersect with economic matters, especially trade and develop- ment lending. But in spite of these relatively impressive achievements, envi- ronmental matters remained on the periphery of the international community's agenda and the activities of most institutions. Earth Summit and Beyond. The 1992 Earth Summit Lal riod in the de ment of international environmental law, requiring that envi- ronmental concerns be integrated into all intemational activities. Interna- tional environmental law merged with international law in the new field of sustainable development. ‘ The origins of the Earth Summit lay in the UN General Assenblys endorsement of the B in Dec win call the following year for a global conference on environment and development. The Earth Summit, held in Rio de Janeiro, saw participation in environmen- tal negotiations by an uny umbs tal), ort with several dozen international organizations and sre show sand NGOs or Three nonbinding instruments were adopted at the summit: the Rio De i ion); the Non- pin on Environment and ment (the Rio Desay) cs agement, Conservation, and Sus forests Fores gement, stainable Development-of ‘Types of Foren (the Forest Principles); and-Agenda 21.” ‘Two treaties werec on of i Js and implementing arrangements, sdoption of proeh Summit, progress in developing ang impleme Since the incept of sustainable development has not ee ‘ international © O Wald ‘Summit on Sustainab) a Prony, ing.” The 200/- i duced a plan of i 4 ith Africa, produced a plan of im i ie ee mitment. This may Repetto fact it contain' na oe ida, which included Feat breadth ofthe nebo ote health issues. The muck eeetiog ; . the Convention on Biological p; ed for signature have since formed the brace Wt also open treaties peat ‘ a Face Tes oe environmental lw in thei respecting Tae i Sty cul PD affered a similar fate. The summit’ grandly a! Bry Summitin 7 Future We Wi ” reaffirms the Rio Declare’ a, joes not go much further, with trade concerns associated wage? scent spi pen coon” Povey peiay NGOs meeting at Rio for the parallel People’s Summit strongly cain, the offical outcome and released their own counterstatement <2 how the text ly the groundwork for “The Future We Dont Wa sk broadly, the failure since the original Earth Summit to agree on actions for implementing sustainable development suggests that thease may funtion best as an overall policy goal rather than as the bais fy scriptive rules constraining state conduct with respect to the ‘environment Post-1992 developments in other key areas of intemational envionnad Jaw, such as within the intemational climate change regime, also reflat aut sunbivalence about the future direction of intemational environmental lan May Point to the 2009 Copenhagen climate change conference as an importa tu ing point. Partes’falure at the conference to deliver on the promise of wv climate change agreement raised important questions over the future of ein peal ‘multilateralism. The principal outcome of the Copenhagen mesg inding political ent known as the Copenhagen Accord—aiges anew way forward for international climate change law based upon “bottoa” ‘Loslopment of emissions targets and actions by sates rather thane Pisscrptive standards of conduct at the international level” w bis Consists of rules, rights, and obligations that a* vlan aes And other members of the international eommusiY pe environmental oe AS a branch of general international law, inte ‘w Felies on the same legal sources, including the foo Ri Bina a ultlateral treaties Riles & £8 of international organizations Genera) oY international law Judges eniP les of law udgments fan international court or tribunal International law . Ss Ss) LSE RARER HL feIntemational Law and the Protection of the Global Environment 61 a d in guidelines, recommendations, and i dope ud Sonate institutions, Both the 190 Seg aloe rag P 1972 Stockholm Declaration and the 1992 Rio Declaration fl into the category of itematonalenveonmenta tion, the Rio+20 statement “The Taine We ioe abe eae: the pursuit of sustainable development in various anya the 200) Copenhagen Accord (setting out common objectives and state act address climate change). While not formally binding on states ules of soft Jaw can play an important role in the field of international environmental law. For instance, soft law may be politically influential, may point to the likely future direction of development of hard law such as treaty ules, may infor mally establish acceptable norms of behavior, or may serve to “codify” or lect f customary international law. Treaties. The most important binding sources of international environmental law are treaties—formal international agreements also referred to by such names as conventions or protocols. These can be adopted bilaterally, region ally, or globally. With more than 193 UN member states now in existence, the number of bilateral environmental agreements runs into the thousands, sup- plemented by dozens of regional agreements and a smaller but increasing umber of global treaties. The principal global environmental treaties are listed in Table 3-1. Countries of the European Union and other industrial nations have adopted a large body of regional environmental rules that frequently provide aoe ae far measures adopted in other parts ofthe world. Important regional treaties include the 1979 Convention on Loni f Air Pollution and its implementing protocols, the 1992 Convention for the Pro- peat Hthe Marine Environment of the North-East Atlantic (OSPAR), wer eke 1998 Aarhus Convention on Access to Information, Public Partici- pation and Decision-Making and Access to Justice in Eavioeuneti ae ters, Regional treaties are less well developed in Aftica, the Carbbet ters, Regional ete more limited in Asia and parts of the 3 trial activity in Antarctica is p ean De earl characteristics as other features exist. One such Eavironmental tates share he Gs Bo international treaties, although cert ; feature isthe spt se of amen Pm Under this in regulating regional of 8° Yamework treaty is ane ae he fet resp ae inane f gene , Ss Adopted hat sei Oren procedure fr the aE mee che patent angen uboequent protocol OM orca: Table St provies obligations in a subseq! coh equent protocol Table 3 comention are able to ratify any2, Jecgusine Pe quble3-1 Major Global Environmental Treaties Jaternational Whaling Convention 1946 Ramsar Wetlands Convention 3971 London Dumping Convention 197A. «19% Protocol nn World Heritage Convention Taare MARPOL (mazine pollution) — a Convention oInenaionl Tein Enengeed Sc (pp ry United Nations Convention onthe Law ofthe Sea (UNC{op + 1995 Fish Stocks Agreement cs Vienna Ozone Convention © 1987 Montreal Protocol 1989 Basel Hazardous Wastes Convention © 1999 Liability Protocol 1992 Convention on Biological Diversity + 2000 Biosafety Protocol + 2010 Nagoya Protocol on Access to Genetic Resoues ud Fair and Equitable Sharing of Benefits 1992 Framework Convention on Climate Change (FCCC) ‘+ 1997 Kyoto Protocol 1998 Chemicals Convention 2001 Persistent Organic Pollutants Convention @ number of examples of the fi ; of modes adie Ae ee ¢ framework convention-prosoca! mu Kyote Pe =e of inera Convention on Climate Change #4 __ The adoption of an environmer . jes of 168" tiation, nmental treat receded by a series coven seauentl take place over a engl period of tie. O22 (rena sue has been identified as requiring international legis a appropriate ices scientific evidence or concern), states must ext iste. After “gest forum or institution, such as UNEP, to si Negotiating process nun, BEES tO participate, that body etl h« Of govemmene nih could involve anything from ani a may be open tl SPER to a formal institutional soc. may lite be ern in time or established for a ited Pe ADEE negotiation in the case of the ongoing intemation fr ‘ally adopted and 1) Once a draft treaty text has been negosit d ned for signature by states. For most ¢ ‘Sea,WEL S) 5) I " International Law and the Protection of the Global Environment 63 treaties, signature by a state is insufficient to indir ligatic that state; instead the ‘treaty must be ratified Ee cere rr ib ant of a formal instrument of ratification 27 Many multilateral avian mental treaties contain further isi i , of participation, of sates necestary forthe Se ee ater ny . - : aty to enter into force. Such promis may result in considerable delays in the entry into force of some February 2005 because of the opposition of promi i such as the United States. ne at Acts of International Organizations. The second princi in - tional law in the environmental field is acts of Ce ee including environmentally relevant acts of UN institutions such as the Gen- eral Assembly and the Security Council.* Almost all international environ mental agreements establish institutional organs with the power to adopt certain rules, make decisions, and take other measures. Such acts, sometimes referred to as secondary legislation, can be important sources of international law. Some of the more far-reaching international measures affecting the use of natural resources have been adopted in the form of acts of international organizations rather than by treaty. Many environmental treaties allow the institutions they create to have a choice of adopting acts with or without binding legal effects. Binding acts of international organizations derive their legal authority from the treaty on which their adoption was based and can therefore be considered part of treaty law. Those acts that do not have binding legal consequences could, however, subsequently be relied on as reflecting rules of customary international law. Custor International Law. The primary place of treaties and acts of inter- snicboal GapenPeSSEE as sources Of international environmental Jaw should not obscure the important, albeit secondary, role played by customary interna- obama ib th lification of obligations i of obligations and contributing to the codification of obligations in the form 0 bearer and other binding acts. The significance of customary law ta e the fact that, as a general matter, it ee states within a particular region) except those that have perinteny obeted to a practice and its legal consequences. Article 38(1)(b) of the statu oo lishing the ICJ identifies the two elements of customary international a state practice and opinio juris belief that the practice is require wired at matter of law. Establishing the existence of a rule td cone ee al law requires ¢ ‘evidence of consistent state practice. Su a “ provid clear guidance as to the precise content of any part . Sg i international law, another inspec of Low. Alongside COCA 38 of the IC] statute is ternational law referen eat lowsa1 ine Pee! Jacqueline r Bae # Jication of widely accepted pene of domestic ke idertion ed Ply on occasions when gap eae Nel, consider court oom be applied in an environmental conte Pe ener pring on the exercise of rights by a state and the pri the inciple of g004 the international community to take into accohn bl og prey tic slow d fairness in the establishment, operation, et stice ee ne law of international courts and Intemational Case Lara. The casein identify some general pring eed ase tT see fe Sct aw should not be epee pinipks were elaborated by arbitral tribunals i tie eee tendoned Paiic Fur Seal case, in the Lac Lanoux atbitnre fired Fane and Spain (concerning the use of a shared river), and mon : the Lon Rhine Railway arbitration between Belgium and the Nowe (cifing the nature ofthe concept of sustainable development) Anest important arbitral decision is the much-ited Trail Smelter case betwen Unie Sats and Cunada concerning transboundary sr pollen fon snelecia Bish Columbia. This case famously articulated the principe te m ! ‘fo cause injury by fumes in or to the territory of another or the wen ccbstons therein, when the case is of serious consequence and the tres established by clear and convincing evidence” me _iaemens fie ig re also contributed to the development of intema- oul environmental law, although in recent times arguably judgments of other ietematonal tribunals, including the International Tribunal for the Law of te ie Tey inde WTO Appelt Body hae hal oars ea t decisions of the IC) include the Tcelandic fisheries cases (on fisheries con and noth the nuclear test cases of 1974 and] 1995 (on the legality of: i dhe) case nuclear ange as 1997 Gabtkow-Ni (Danube lagymaros biodiverst ing ic project with potential impacts on 20 Pip ane eee op S25 tptevent prea seeting the procedural and cubssarie uesimed ‘vironmental ele! t¥itonmental harm to freshwater resources). Anothet Pte of ting we aLY before the concems the legality of Jatt int Si fin the Caan Ps of whales recent research” pups) Snsnd evicemene PPI to contbute to te deo law in the field of biodiversity conservation. Princ al general a oF Tnternational Environmental Law \ potter bes of intenay sgealy 8 Potentially apo MEDtal marge onal law have emerged speci a Tange of, RY * al mempe They are general in the sense tht “Ss and adden Of the international community sp? 4 a a “Se Protection ofall aspects of the environ thiol FFEL SI RLA -TERID TERRSA © WAAR ean SF, PALSr—often ify ations for decision making—and have a normative quality that distinguishes them from mere polices.” Taine national environmental law, general principles also serve a> tunl function, providing the common scaffolding rules affecting different environmental resources are built and implemented. The rules of international environmental law have developed in pursui two principles that pull in opposing directions: a eee rights over their natural resources and that states must not damage to the environment. These objectives are reflected in Principle 21 of the Stock. holm Declaration and Principle 2 of the Rio Declaration and provide the foundation of international environmental law. The first element (soverei; reflects the preeminent position of states as primary members of the international legal community. It is tempered by the second element (environmental protection), which laces limits on the exer- i ign ri In an environmentally interdependent world, activi- ties in one state almost inevitably produce effects in other states or in areas beyond national jurisdiction (such as the high seas). In the form presented by Principle 21 and Principle 2, the sibility to prevent d: te nvironments of other f id national jurisdiction has been ace; as_an_obligatic 4 As noted previously, the ICJ has now confirmed that the second element reflects ‘customary international law.** emergence of this responsibility has historical roots that predate the Stockholm Conference. These relate to the obligation of all states “to protect Within the territory the rights of other states, in particular their right to integ- rity and invilabity ey and war” and the principle endorsed by the arbitral tribunal in the Trail Smelter case. Prevention of Harm Closely related to the Principle 21/Principle 2 obligation is the pringple Tequiting the prevention of damage to the environment and otherwise to ‘educe, limit, or control activities that might. cause or risk such damage. The Preventive principle is distinguishable from the responsibility principle in two ways, First, the latter arises from the application of respect for state sore Fig. Gligence, which the IC described as “an obligation which a de doption of appropriate rules and measures, but also a cents mt ig in their enforcement and the exercise of administrating applicable to public and private operators, such as the monitoring ofa undertaken by such operators" Emerging as an esentl mes demonssating due diligence to prevent harm isthe arying out ora ronmental impact assessment.” Evens its clear that what amounts to due diligence under inten ¢avironmental law may vary with the circumstances. For instance, he ots Disputes Chamber of ITLOS, in its 2011 Advisory Opinion on Repanai tics and Obligations inthe Deep Seabed Area, recognized that highreat ard may be warranted “for the riskier activities” or may be required 1 na pf developments in scientific and technological knowledge Comerch [pues standard might be accepted inthe context ofa developing ony Tiited technical and financial capacity to implement preventive measurs oad Neighboliness and Intemational Coop eration The principle of ‘good neighborlinees ” ated in Article 74 oft good neighborliness,” as enunciated in Article 4 aut tv t8 S0cil, economic, and commercial mater hsb a yeoutonmental matters by rules promoting international 09° ‘adverse Ghee: Peticulatly to activities carricd cee oe state that igh Pt saverse effects ae Seetvironment of another state or in areas Loner in many eo tment to environmental ‘cooperation is the chignson aeements and is supported by state practice Inge a it ee Tye camitments to implement treaty objet") i tin MOEA ora len eco oe Patcpation igh eee information sharing, notification, consi dese SUE cen der the conduct of environment ®t, bong ett be leap eee emergency process partiulsy wr ve oe amp ea dOUs. The conereena of eater poe el veloped, ath a 2 atea where cooperative obligations f¢ li imple Temetine™ 8 examples like the Avena Cresh ReP9, 8 tation in aoe Power plant illustrate (see Chapte! gcc d ! more problematic. a ee MEof the opera it have tional ted in ner, or 10 ically of apact ca ts aabl¥ dis” theif International Law and the Protectio: SUStauinaib went 67 n of the Global Envi The required extent of erat ieermaiseal cavironmental cispa a ee @ central issue in a number of and Slovakia over construction of the Gabdikoes tq. Hungary 1993." Construction of the dam, as well a; ¢ soo fefemed to the IC} in required the diversion of the Danube Riven which Fiogea ot NeeymarCs, produce dire environmental consequences, Hee eget laimed would tiolated its obligation to cooperate in good faith a dhe ee Slovakia principles affecting transboundary resources, Flovens ny coplementation of the Court did not address in any detail what the cblinige snsomen entailed beyond calling on the parties to apply an eign, ocoooPerate arrangement between them “in a reasonable way and in suchS movant its purpose can be realized." ae — ITLOS was more forthcoming in a ideri . sn Sa mig 202 coming eit by refusing to share information and failing to carry out a proper environmen. tal impact assessment of the proposed operation of a auiclear fuel recyclin plant at Seafeld in England. ITLOS affirmed that “the duty to cooperate i a fondamental principle inthe prevention of pollution ofthe marine envion- ment” under UNCLOS and general international law. In the interests of “prudence and caution,” the tribunal ordered the parties to cooperate in exchanging information about the environmental risks and effects of the operation of the plant and in devising appropriate measures to prevent pollu- tion of the marine environment.” Sustainable Development The International Court of Justice in the Gabéikovo-Nagymaros case described the principle of sustainable development ing the ‘need to reconcile economic development with protection of the environment “The ideas underlying the concept of sustainable development have a long history in international law, dating back at least to the Pacific Fur Seal arbitration in 1893, The concept came of age with the Earth Summit andthe internatons! agreements that it spawned. It now seems that the principle has acquired a harder legal edge. For instance, in 2005, in the Iron Rhine Railway case, an arbitral tribunal of the Permanent Court of ‘Arbitration declared: alterna- Environmental law and the law on development stand not a8 ¢ tives but as mutually reinforcing, integral concepts, which require oe where i : iti . This duty, there is a duty. vent, or at least mitigate, such harms in the o opi iagalt ree Tribunal, has now become a principle of general international law. tt onal law today is WI ustainable development means in. international hat the term s ts has used, it appears fo reer t0.at a more complicated matter. W he least four separate but related objectives tha | I=] 68 Jacqueline Peel f the concept of sustainable developmen the ee Ropar ‘ First, 25 invoked in some agreemen dj Ly : Such te 5 to the commitment to preserve natural resg a FOO i vernons (the principle of int fr het ci ee agreements it refers t0 appropriate standards forge 2) in other arrwves such as fisheries based upon sustainable have eng natural resources St '. et | reso able use). Third, yet other agreements ot Wie (ie pn ral resources such ab intermaGonal watrang a ercourses, ype of equitable use or intragenerational equity), urth category ires that environmental considerations be integ ted With ene other development plans, programs, and projects = be taken into account in the application of environmental Objectives (ihe gration principle). ‘ad Common but Differentiated Responsibilities The principle of common but differentiated responsibilities hat enegy from application of the broader principle of equity in general intemase law and recognition that the special needs of developing countries mss considered if these countries are to be encouraged to participate in gid environmental agreements. The principle includes two important denna First, states. bili in envi resources. Second, it is necessary to take account of differing cicumsuny particularly in_rela ich _state’s contribution to causing a partial environmental probl its ability to respond to the threat. Application of the principle of common but differentiated responsibilis has important, practical consequences. It leads to the adoption and imple mentation of environmental standards that impose different commitments tit individual states, and it establishes a basis for providing financial and r- v 3 iplementing their commitments. To date the princi : in i mere handful of agreements, although these include the wets desing Pith climate change that require parties fo protect the climate stem basis of equity and in accordance with their common but dle - Poonharac tt and respective capabilities” and place the buden of Sentouse gas emissions primarily on develope countries” In 0% the praots fF a new climate change agreement, continuing adhe, principle of common but differentiated responsibilities is coming * ter in8t fom some developed countries that creas the need for arg shone cong word, such a6 Breil, China sd Ii missions reduction sts (see Chapters 8, Pte ae rd reflects the aes as does the De ference of wie banced Action, which emerged from the sev Process to develop ap ae December 2011. The platform I capt another legal instrument or a SS such that ignoring ‘plausible indications of poy St insraments) failure 0 comply with the precauty ta would ame’ Pulp Mills judgment and the widespread inc) Ta Invol as principle in environmental treaties, the Chambon Py are iniGated 2 trend towards making this approach py, dete eat a fie the legal status ofthe precautionary principe csc there brow euficient evidence of state practice o mney principle has received broad enough support to allow a strong argug cts a principle of customary international layer’ made that it reflec x aii i prose consequences of its application remain a matter for arg assessment. Polluter-Pays Principle The polluter-pays principle states that the costs of pollution shay k bore by those responsible for causing the pollution. ise mean international legal status, and effect of the principle a irae because international practice based upon the principle is limined igen ful whether thas achieved the status ofa generally applicable nuk chen sonal lav,” except perhaps in relation to states in the European Use & UN Economic Commission for Europe (UNECE), and the Oreninen Economic Cooperation and Development (OECD). It he week, attracted broad support and underlies rules on civil and state bly fo Framental damage (for example, the Liability Protocol “ es Convention) and on the permiscbility of sate eta Baad cutis have acaowiedged the responsibly cha wee oe tional pursuit of sustainable devel aS ce ee ties place on the etal lopment in view of the pressures their 0 consequence ie oP vironment as well as the financial and ot include Principle 16 ofthe Ree oo edament.° Supporting isnt tons the Treaty of det Ni Declaration, OECD Council Reeanes= ‘ents, and UNECE regional reat Union (as amended) and related intr Bional treaties such as the 1992 OSPAR Convent Basic R, A; into = of International Environmental Law te "nViror cd eee egal lw has developed, standart bie Standard the eaviro; ig range of environmental resources. Into Ment, cs sl tend Saat have become prevalent in recent yeast Substanaet #8 biodiversiey ce'® Patticular resources or sectors ofthe Which ene, 4 Waste, Fesn**tVation, water quality, air ‘pollution bate ment stOMpaseesgeny M°S, Wide-ranging problems Tike climate oe mE With, genet of biodiversity conservation and wat! Sy Spheric pollution, pose significant (od| international agreement, such as forests (where International Law and ‘ the Protection of the Global Environment 71 unresolved) challenges fo: coordin: cn Cpadori the coordination of different bodies of intern: ‘or each envi on ea ss = Rr eaiatiy Sector, international enviroy ew nad Sh ae lw Ther in 3-2. Al to that sector. sues and resources, they are not comprehensive: Some wae ey global regulation is strongly = : . posed by many developing countries), land-based sours of mase pollu- tion, and groundwater conservation. In certain sectors, acts ad by i . contributed significantly to international organizations have also roles Notable Gamage ee eee of international environmental decision by the International Whaling Commision re alone ene ca comniendal whaliag cad tie 188 hatter mee London! Dismaping: Conreaiin fatadope Serres We ta ancora tees lopt a moratorium on the dumping of Where “hard” rules of internati Brats ; or are ince ple, offi tmamea arses taper na guidelines for state behavior. Two prominent examples in this regard are the nonbinding standards elaborated by the Intemational Atomic Energy Agency governing issues of nuclear safety and the UN Food and Agriculture Organ- ization’ Code of Conduct on the Distribution and Use of Pesticides, which ‘was an important precursor to the 1998 Chemicals Convention described in Table 3-2.2 "The emergence of a novel environmental problem may see efforts to con clude a new treaty regime, as in the case of the 2001 Persistent Organic Pol- jutants Convention. Other areas potentially on the horizon for international lawmaking include regulation of the health and environmental effects of nanotechnologies, neering options for climate mit a. and putting in place a coherent regulatory framework for natural disaster arentmement’ Flowever, a featare ofthe past decade of intematons 2 ronmental law has been the ‘consolidation and augmentation of existing treaty regimes, such as through the adoption ‘of protocols, rather than extensive new Jawmaking activity. Conclusion: Challenges for International Environmental Law relatively i jgnificant body of principles and rules: of inter- Inala sho peso ie pn oe i “These rules have been primarily aan na ie of natural resources. 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Consequenty we ae eng sate? of implementation and wie judicial and quasi-judicial domain with toes tiles danain ies ing the gaps rt < > a the increasingly detailed noncompliance mecha oe ofthis tend ae mental treaties, including those dealing wi ean: the Kyoto Protocol ‘Yet these significant developments cannot hii ‘environment protection y remains onthe margins viet act a nertenome ee rules and principles of international environmental law hanno ses or significantly changed human behavior or led to the insttatio. of ait able practices. The environmental problems facing international ay ee, faces a number of difficult challenges in respect to its str a ance, mechanisms for implementation and caforcemege chase and processes of future regulatory development. Governance challenges center on the capacity for international environmental law to accommodate the needs and aspirations of peoples from both developed and developing countries, and to allow for participation by a vast range of actors and stake~ holders extending beyond the states, which have been the traditional subjects of international environmental law. Models for broader participation might be imported from the human rights field, along the lines of the “environmen- tal rights” provisions adopted in the 1998 UNECE Aarhus Convention.” ing and. effective implementation and enforcement of international obligations is a long-standing and continuing challenge for international environmental law. The plethora of international environmental rules outlined in this chapter are of litle utility in the absence of robust domestic implementation efforts, particularly as international environmental law moves to put in place ever more detailed regulatory requirements. To achieve real advances in domestic implementation and compliance, howeves, itwill be necessary for these procedures to work closely with treaty bodies an mead ieati ed with facilitating technology other international organizations concernec aden transfer and ensuring the provision of financial resources to assist developing countries with compliance. o Whee domestic implementation efor ar inate, sates has shown greater willingness in the past decade to refer environment ee cae tnd tribunals, which in tur have engaged with envinntien al closely. Nevertheless, judging by ea Tal bodies wl fel comfortable some way to go before the more established judicia” et erent delng with enizonmental uetions a nc peng the matters. Indeed, it may well be that the grea from bodies traditionally outside Principle of sustainable development will comeFRR =.) ea ach wironmental law, such as the dj, the Held of iterations 4 Banks Inspection Panel se Po d ie of the WTO and the Ved other economic incee, voter we oon ok to ental organizations for rules Oe a as to international fo the extent of integration of envisgn ing mental mates god development institiong ang mt gt into ane ‘opment in that it signals the potential for internat, This weleome crete have a transformative effect on broader internat ny, ronmental ene, integration between environmental and then" ty At the fed question of coordinating different environmental yo" abl challenge fo the fire effciveness and cokes eP . wironmental law. = a recent legal developments such as the 2009 Ce Accord embracing “bottom-up” evolution rather than “top-down? pret of environmental rules, international environmental law faces an St tential question: Isa multilateral awmaking model based on unis” 3 ipation, consensus decision making, and the desire to articulate oP rues goveming apatcular subject matter still feasible in the conte increase in the number of states and greater divergence of thes et 2% noteworthy that in the past de ae orthy that in the past decade many of the more progresine ments in international envonmental law have taken place in regond such asthe UNECE and regional seas conventions. If intemnarnet mental nv inthe fue does move to embrace a more diveiat cavironmental regulatory development, this is likely to offer more avenu < Participation by nonstate actors, including NGOs, corporations nadine ernmental organizations, At the same time, it will Present further dae 4 Notes tel Cours Jae mitation of the Situation Franc) Case” Order of oe 1974 in the Nuclear Tests (New Zandt. , 1995, Internat > Lely ofthe ey 999) 306 pia. 64 Oherafer Nackar fee 3, Ti 2 (1996): 226, para 39, eA Weapons, Advisory Opinion, uy 9% in Accordance with Paragraph 63 of 1993) ep UTR On Ene Environment and Development,’ Rev 5. "Paige FERRE inTrrmasenent ard Development, "ACONEISH26/Red tin we Seal Arbitration Legal Materials (hereafter ILM) 31 (1992): oe Pa de 195) it United States)? Moores Ree few i 1 ” Sept ofc 52 Onder for a New Warld (New York: Oxford Unit mpeg ca das ny preliminary endorsement ofthe 2%, coun Ally box 5 O88 ratification is an act by which asa SE "27 counts Fore) MS ofthe weary. Process of ra “stance, in the United State, a meaty reaut® ion WPT OP OS ee Ree eee ne = aS SEF Sas teror FEES = ZF, EP EPL: fp LE if. Report of the 1. ILM 31 (1992): 8815 Report of # The major ). For example, the OECD Guidelines for Multinational cats nen i a other voluntary international instrument ofthis Ln no ee pas the OECD Guidelines were negotiated eienoelt ae Siege hasbeen agued that the therfore may reflect the open of adbeast s Bisa Morgers, “An Environmental Ouook on the O DD Guidelines for Malina. ‘ a ee 4 . in the Lead up to the 2006 Review,” Capen ind ones eens Review 18 (2006): 755. See aso Foundation for Inmernatonal Esvroueatl Lor a oar fier Corporsions: The Exviroamentl Govenancy , briefing paper, June 2010, http:/Avwwfield org.uk/fles/FIELD Briefing Paper_TNCs, rguned010. 1 pd. oa pee . See, ili is i Ses ‘generally, Philippe Sands, “The Environment, Community, and Intemational International Law Journal 30 (1989): 393-419. . For a general history of international environmental law, see Philippe Sands and Jacqueline Peel, Principles of International Environmental (Cambridge: ‘Cambridge fell een ‘chap. 2. mani t treaties adopted during this period included the Geneva Conventions on the High Seas: “Convention on the High Sea," Geneva, April 28, 1958, United "Nations Treaty Series (hereafter UNTS), 450: 82; "Convention on Fishing nd Cone i igh Seas” Geneva, April 29, 1958, UNTS, stop al nuclear testing; see Australia, France, 1CJ Reports (1974): 2535 New Zeslnd su France, 1GJ Reports (1974): 457. UN ‘on the Human Environment, UN Doc. A/CONF/48/14 12-65" and Cort. 1 (1972), reprinted in ILM 11 (1972): 1416. Louis B. Sohn, “The Stockholm Declaration on the Human Environment,” Harvard Ir wal 14 (1973): 423-515. international Law Journal 14 (1973): 23° 5'° |. » nfontego Bay, December 10, +. “United Nations Convention on the 1982, reprinted in ILM 21 (1982): 1261. 1982, sprinted it ITE Solon 42/187, Desamber 11, 1987, ender “of World Commission on Environment Devdopnent, or Commo Fur, General Aster Fon 43/196, December 20, 1988. : eer Asembly Resolution $96 rs Confer Bxvirnment ond ILM 31 (1992): 822, 849. tar 2 84s somenti the area aes pac unde ST Es mnt ment (CSD) psa © 8 Ty policy, UN Commissic yn Sustainable : vai Popsinncsd “Work for CSD: 2004/2005 t0 2016/2017; ut Petes teatd esa/sustdev/csd/policyhem. This is directed to very broad agriculture, drought, and Africa.