WILL LEARN

 About the development of international environmental law in its historical context.

 About the sources of international environmental law.
 About the underlying principles.

Early Legal Developments

 Early legal developments in the field of the environment were limited in nature and
scope.
 Legal initiatives mostly focused on specific issues such as regulation of whaling,
fisheries, watercourses and bird.
 E.g. Convention between France and Great Britain Relating to Fisheries, 1867 and
Convention for the Regulation of Whaling, 1931.
 In the 1930s, the transboundary consequences of air pollution were acknowledged in
arbitral proceedings leading to the award of the arbitral tribunal in the Trail Smelter
case.
 The Trail Smelter case (Canada v. US) (1941) laid down the rule of international law on
state responsibility in the context of transboundary pollution (and for transboundary
effects on environment in general). It was held that:

‘No state has the right to use or permit the use of its territory in such a manner as to cause
injury by fumes in or to the territory of another or the properties or persons therein, when the
case is of serious consequences and the injury is established by clear and convincing
evidences.’

 This principle was concretised subsequently through case laws (e.g. Corfu Channel
Case (UK v Albania) (1949) ICJ Reports 4).
 A number of treaties and declarations have also incorporated this principle.
 For example, Article 194 of the United Nations Convention on the Law of the Sea, 1982
and Principle 21 of the Declaration of United Nations Conference on the Human
Environment, 1972 reflect this principle.
 The Trail Smelter case is a landmark case because it influenced the subsequent
development of international environmental law significantly.
 The case together with the treaties adopted and organisations established in the late 19th
century and the early 20th century are believed to have provided the basis of
international environmental law.
SOURCES OF INTERNATIONAL LAW

 Article 38(1) of the Statute of the International Court of Justice provides that treaties,
customs and general principles of law recognised by civilised nations are the major
sources of international law.
 Judicial decisions and teachings of the most highly qualified publicists are recognised
as subsidiary sources.
 the environment also includes a range of legally non-binding instruments generally
known as ‘soft law’, which includes declarations and guidelines.

TREATIES
 Treaties are the most frequently used source of international environmental law.
 The last few decades, have witnessed a proliferation of multilateral environmental
agreements (MEAs). Between the Stockholm Conference, 1972 and the Rio
Conference, 1992, several treaties were concluded covering a range of issues.
 Even though the number of MEAs has grown significantly, this development was
criticised mainly because of their ambiguous and indeterminate legal substance and
non-compliance by state parties.
 The proliferation of MEAs has also made coordination between different treaty regimes a
difficult task.
 Consequently, in recent years, the focus has shifted towards stronger emphasis on treaty
coordination, effectiveness, and compliance as opposed to the adoption of new treaties.
 The treaty making process in international environmental law has also witnessed the
introduction of novel ideas, most importantly, the Convention-Protocol approach,
which envisages a framework convention with broad principles.
 Concrete obligations and actions will be laid down in subsequent agreements known as
protocols.
 This method is progressive on various grounds. The idea of a framework convention
without concrete rights and duties helps to bring more countries on the table.
 This flexible mechanism also gives an opportunity to respond to new issues according to
evolving scientific evidence.
CUSTOMS

 Custom is also an important source of international environmental law.

 An important advantage of customary international law norms is that they can inform the
development of treaties or be codified into a treaty.
 Courts and tribunals at the international level have recognised and used customary norms
on various occasions. For example, the International Court of Justice recognised the
principle of reasonable and equitable utilization as a customary norm in the context of
the use and conservation of international watercourses.
 Nevertheless, identification of international customary norms is not an easy task. Given
the fact that environmental issues are evolving, it is a challenge to ascertain the two
essential components of international custom – state practice and opinio juris.
 While the former denotes the actual practice followed by states, the later denotes the part
whether the states have considered it as their legal obligation to follow such practice.
 It is extremely difficult to ascertain the state practice of over 190 countries. Further, there
is a lack of clarity as to how to ascertain these components.

GENERAL PRINCIPLES OF LAW

 International courts and tribunals have relied on general principles of national law in a
number of cases. However, its use in the field of environmental law has been marginal.
 The Trail Smelter Arbitration (US v. Canada, 1941) is one classic example of an
environment related case where in the general principle of national law was used.
The tribunal in the Trail Smelter case relied on decisions of the United States Supreme Court
on cases concerning air pollution and water pollution between states of the Union in arriving
at its finding that ‘no state has the right to use or permit to the use of its territory in such a
manner as to cause injury by fumes in or to the territory of another’.
 General principles are of great significance in the context of principles highlighted in
various soft law instruments.
 General principles may also influence the development or concretisation of customary
norms.

JUDICIAL DECISIONS AND TEACHINGS OF MOST HIGHLY QUALIFIED

PUBLICISTS.
 Judicial decisions and teachings of the most highly qualified publicists are regarded as
‘subsidiary means for the determination of rules of law’ under the ICJ Statute.
 Article 59 of the ICJ Statute explicitly provides that decisions of the Court has no
precedential value. Therefore, judicial decisions cannot be treated as a formal source of
law.
 However, in practice, decision of international courts and tribunals strongly influence
subsequent decision.
 In addition to judicial decisions, teachings of the most highly qualified publicists are
another ‘subsidiary’ source of international law.
 One critical issue in this regard is the reference in Article 38(1)(d) of the ICJ Statute to
the terms ‘most highly qualified’.
 It is problematic to ascertain who are the ‘most highly qualified publicists’ in the field of
international law.
 The teachings of the most highly qualified publicists are a rarely used source of
international law by international courts and tribunals.
 A 2012 study by Michael Peil observes that the ICJ ‘has explicitly cited to publicists in
only 22 of its 139 Judgments and Advisory Opinions’
 Among these cases, the ICJ has referred to the work of the International Law
Commission mostly rather than individual writers.

NON-BINDING INSTRUMENTS
 Non-binding instruments have also been very influential in the development of
international environmental law.
 Even though they are technically not ‘law’, soft law has played a significant role in
international environmental law.
The roles played are:
 First, some of the most influential developments that have shaped international
environmental law have been the result of non-binding instruments such as the
Stockholm Declaration, 1972 and the Rio Declaration, 1992.
 Second, soft law instruments have played a crucial role in concretising some of the key
principles of international environmental law such as state responsibility for
transboundary harm.
 Third, soft laws form a starting point for the development of hard law. Several
environmental soft law instruments have played a crucial role in the development of
legally binding treaties.
 For Example: the Helsinki Rules on the Uses of the Waters of International Rivers, 1966
adopted by the International Law Association formed the basis of a treaty subsequently
adopted on international watercourses - the UN Convention on the Non-Navigational
Uses of International Watercourses, 1997.
MAJOR INTERNATIONAL CONFERENCES

STOCKHOLM CONFERENCE, 1972

 The early 1960s saw the emergence of environmentalism based on scientific evidence of
environmental degradation. This led to the realisation that national measures are not
sufficient to protect the environment.
 Pressure was put on the international community to formulate a strategy for the
protection of the global environment.
 The United Nations responded to this pressure by convening the United Nations
Conference on the Human Environment, 1972 (Stockholm Conference).
 The Stockholm Conference was attended by 114 government delegations.
 The results of the Stockholm Conference were a non-binding Stockholm Declaration
and an Action Plan consisting of 109 recommendations.
 The Stockholm Conference also led the United Nations Environment Programme
(UNEP) in December 1972 to coordinate the global efforts to safeguard our natural
human environment.
 The Stockholm Declaration of 1972 broadly recognizes global issues and has
eventually come up with 26 principles and with some frameworks as well to bind all the
countries together to deal with these environmental issues.
 The main purpose of the Stockholm Declaration was to save the world from all the
evils that were destroying the environment, to preserve natural resources, to control the
pollution and to protect from several other environmental issues.
 In other words, we could say that the main purpose was to save the earth, there even is a
slogan of the Stockholm Declaration, 1972 i.e., “Only One Earth”.
 The 26 principles are as follows:
 Principle 1: Right to Protect Environment
 Principle 2: Management of Natural Resources
 Principle 3: Management of Renewable Resources
 Principle 4: Conservation of Wildlife
 Principle 5: Management of Non-Renewable Resources
 Principle 6: Pollution Control
 Principle 7: Prevention of Pollution of Seas
 Principle 8: Economic and Social Development
 Principle 9: Underdevelopment and Natural Disaster
 Principle 10: Stability of Prices of Primary Commodities
 Principle 11: Environmental Policies
 Principle 12: Environment Protection Education
 Principle 13: Rational Management of Resources
 Principle 14: Rational Planning
 Principle 15: Human Settlement
 Principle 16: Human Population
 Principle 17: Setting of Environmental Pollution Control Agencies at National Level
 Principle 18: Use of Science and Technology
 Principle 19: Education in Environmental Matters
 Principle 20: Further Scientific Research
 Principle 21: Rights and Responsibility of Sovereign Nation
 Principle 22: Development of International Law
 Principle 23: Implementation of Agenda by Every Country
 Principle 24: International Cooperation
 Principle 25: Coordinated and Dynamic Role
 Principle 26: Ban on Nuclear Weapons

 The second document adopted at Stockholm - the Action Plan - contains 109
recommendations adopted by consensus. The Action Plan identifies specific actions to
address environmental issues and divides them into three categories: a global
environmental assessment program (Earthwatch); environmental management
activities; and international measures to support the national and international
actions of assessment and management.

 Effectiveness of Stockholm Declaration

The Stockholm Declaration had created history in the world as it was the very first
conference held by the United Nations on the subject of Environmental issues at the global
level. The purpose behind holding this Stockholm declaration was to emphasize various
nations and to make the citizens of nations aware of the environmental issues which affect the
well-being of people and economic development throughout the world. It is the responsibility
of every nation and every person to come up with some necessary measures for management
and planning in order to save our environment which is badly polluted today because of the
acts we do in our daily routines which are harming our environment.
RIO CONFERENCE, 1992

 The second major global conference on the environment - United Nations Conference
on Environment and Development (UNCED or the Rio Conference) - took place in
Rio de Janeiro in 1992.
 More than 30,000 participants from 176 countries were present at the Rio Conference.
 The Rio Conference produced five documents setting out the international agenda for
sustainable development for the twenty-first century. They are:
1. Rio Declaration on Environment and Development, a non-legally binding document
containing key principles to guide international action;
2. Agenda 21, an ambitious plan of measures and actions to concretely promote sustainable
development;
3. United Nations Framework Convention on Climate Change;
4. Convention on Biological Diversity; and
5. Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the
Management, Conservation and Sustainable Development of all Types of Forests (Rio Forest
Principles).

Other Outcomes:

 the issue of desertification was highlighted by state parties during the Rio Conference
and this eventually led to the adoption of the United Nations Convention to Combat
Desertification in 1994.
 the concerns of people living in the island countries were highlighted and this led to the
Global Conference on the Sustainable Development of Small Island Developing
States in 1994. A programme of action to assist the environmentally and economically
vulnerable countries was also adopted by the Conference.
 The Rio Conference is a landmark in terms of participation of representatives of states
and nongovernmental organisations.
 More than 700 NGOs participated in the Conference, which constituted a decisive
moment from the participation perspective.
 This is a significant shift from the traditional practice where the international law
making process was the exclusive domain of sovereign states.
 It also triggered a ‘paradigm shift’ from international environmental law to the
international law of sustainable development because a large number of
developmental issues got merged with environmental debates.
 The Rio Conference also led to the establishment of the UN Commission on
Sustainable Development (CSD) to ensure effective follow-up of the UNCED.
 The High Level Political Forum on Sustainable Development has replaced CSD in
2013.

Rio Declaration
 PRINCIPLES TO BE READ FROM OTHER FILE UNDER
https://thefactfactor.com/facts/law/civil_law/environmental_laws/rio-declaration/
874/
Summary of the principles:
 Human beings should be concerned about sustainable development and every human is
eligible for a better life.
 States have the right to exploit their own resources and it is the responsibility of States to
ensure that their exploitation does not harm the environment of any other State.
 Environment protection shall be integrated into any new policy of a country.
 Least developed countries and poor countries shall be given required help and they shall
be given assistance in their time of need.
 There shall be international co-operation among States for the protection of the
environment and to seek a sustainable development of resources.
 To achieve such sustainable development, the State shall remove all unnecessary practice
which degrades our environment.

Agenda 21
 Agenda 21 was a part of the Earth Summit under the United Nations Conference on
Environment and Development.
 The main focus of Agenda 21 is to attain sustainable development throughout the world
and to commit every local government of every country to make their own Agenda 21
plans to secure sustainable development
 It came into existence at the Rio Earth Summit in the year 1992 and the slogan for
Agenda 21 was “think globally and act locally.
 Agenda 21 is in reference to the 21st Century and that is what the number 21 stands for
in Agenda 21.
Structure and Contents of Agenda 21

Section I: Social and Economic Dimensions

Section I of Agenda 21 which talks about Social and Economic Dimensions can further be
divided into 7 parts and these 7 parts are as follows:

 International collaboration to speed up sustainable development in developing

countries and the introduction of new policies.
It planned to introduce socialist ideas by having a much more equitable world
economy. The need for such collaboration was due to the fact that speeding up of new
changes and development required support on international grounds.
 Combating poverty
The reason the United Nations opted for country-specific plans is that countries face
poverty at different levels and each country can come up with their own plans and such plans
will be backed by international support. The main aim was to provide poor people with a
sustainable means of livelihood. Another aim was to provide funding in poverty-stricken
areas and to opt for urbanization.
 Changing consumption patterns
Unsustainable pattern needs more natural resources and it lacks the efficiency to use
natural resources. Consumption is really high in a certain part of the society and hence there
is zero equilibrium which actually harms us more than we anticipate. The lifestyle of the
richer class is a prime example of why there is a need to change the consumption pattern.

 Demographic dynamics and sustainability

As the population keeps on growing and when that is combined with the unsustainable
pattern it ultimately would result in damaging our planet and it will be irreversible at some
point. There is an absolute need for comprehensive and dynamic policies that are in touch
with the changing demographic pattern. Such policies must be focused on turning the
unsustainable growth to a sustainable one and it shall benefit the earth’s environment. There
is also a need for finding a newer and better alternative to natural resources because the
world’s population will exceed 8 billion by the year 2020 and it certainly means the
demand would be higher and supply will be lower.

 Promoting and protecting human health

WHO shall coordinate with each member state and help them lay down new
policies regarding the health and development of the citizens of their countries. On the
other hand, countries should at least provide primary healthcare to all its population and
control communicable diseases. The government shall provide financial aid and also all
necessary help to non-government or volunteering programs that are helping out sick people
or creating awareness.
 Promoting sustainable human settlement development
Under the enabling method or the enabling approach the developed countries and
give assistance in the form of investment or research to the developing countries. Also, both
the developed countries and the developing countries shall improve and manage the human
settlement and lay down policies for sustainable use of land and environmental resources.
 Integrating environment and development in decision making
The government of many countries do not inculcate the environment when they are
making any policy, planning or any management plan. The environment is separated from the
economy when such policies are being made and this is without a doubt destroying our
ecosystem. There is a need for a new institutional structure that will focus and ensure
integration of environment in development planning or policy.
Section II: Conservation and management of resources for development
 It is safe to assume that humans lack management when it comes to conservation of the
environment and our biological diversity. The way to tackle all of this is simply
installing new legal mechanism and laws in the country that will make it an obligation
for the citizens and the government to conserve our natural resources before they become
nil. Also, there is a need for research for a newer and renewable form of energy which
will make it viable for humans to use such resources without the worry of them going
extinct. There is also a need to protect animals so that the food chain remains balanced
and our bio-diversity is not destroyed.

Section III: Strengthening the role of major groups

 The need for increasing the section of women involved in making policy or decision is
an absolute necessity as well. The other groups that also need to be considered are the
children and youth.
 It is a requirement for integrating youth to participate actively in the decision-making
process because it is the youth that is the future generation and any long term policy will
affect them more than it would affect elders who are making such policy. So there should
be a considerate amount of contribution from the youth in making of any policy.
 With the modernisation of our world, we must not forget about the indigenous people
and their community. They are the original inhabitants of the land and they share a
special bond with such land. They should be given the ability to participate fully in
 policies that are made regarding their lands because it is their right. Refusal to include
them is nothing less than a violation of human rights.

Section IV: Means of Implementation

 There is a need for transfer of technology which is environment friendly. Such transfer
will assist in a better form of sustainable development in our society.
 Along with such transfer of resources, there is a need for science for sustainable
development. Scientists are already improving their ideas behind climate change, rates in
resource depletion and more. But such science can also teach us the way through which
we can develop new long term strategies related to sustainable development and
conservation of resources.
 Finally, there is a need to create awareness among the people, promoting education and
imparting training to the general masses of people so that we can have a better
sustainable lifestyle and development and we can preserve our biodiversity.