LL.M.

in Sustasinable Development
International, European and Comparative
Environmental Law

Module 1
Class 1
The Development of International Environmental Law
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The subjects of international environmental law

– States
– International organizations
– Individuals and groups in society
• Non-governmental organizations (NGOs)
• Private sector actors
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Sources of international environmental law

– Customary international law

– International treaties
– Soft law
– Droit dérivé (not formal sources)
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International environmental law today

• The proliferation of environmental lawmaking leads to:
− A few successes, mainly at the regional level
− BUT overall the environment is deteriorating
− Global challenges still need to be effectively dealt with

• International environmental law is “going brownish”

• Is the concept of sustainable development an asset or a liability in

addressing the current implementation challenges?
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Initial approaches to the international regulation of

environmental problems

• (1893) The Bering Sea Fur Seals Arbitration (US v. UK)

– Exploitation of resources beyond national jurisdiction
– Claim of “responsibility to protect” from overexploitation: rejected
• (1941) The Trail Smelter Arbitration (US v. Canada)
– Transboundary pollution
– First statement of the “no harm principle”
• (1957) The Lake Lanoux Arbitration (Spain v. France)
– Shared watercourses
– Principle of co-operation
– Is there a principle of “sustainable use” by the upstream State?
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Post-1946 International Environmental Law

• International organizations at the regional and global level began

to address environmental issues

• The range of environmental concerns addressed by international

regulatory activity broadened to include a focus on the causes of
pollution resulting from certain ultra-hazardous activities.

• Limited recognition of the relationship between economic

development and environmental protection.

• International law began to move beyond the sole protection of

State interest
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Post-1946 International Environmental Law

• Pull factors
• Structure of International law
• Developed/Developing States divide

General Assembly resolution 1803 (XVII) of 14 December

1962, "Permanent sovereignty over natural resources"
“[t]he right of peoples and nations to permanent sovereignty
over their natural wealth and resources must be exercised in
the interest of their national development and of the well-
being of the people of the State concerned”
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– Short reminder: State sovereignty in international law

• (1) a jurisdiction, prima facie exclusive, over a territory and a
permanent population living there;
• (2) a duty of non-intervention in the area of exclusive jurisdiction
of other states; and
• (3) the dependence of obligations arising from customary law and
treaties on the consent of the obligor.

• Push factors
- New awareness towards environmental issues
- Catastrophic events which become relevant in the public eye
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The foundations of international environmental law

The Stockholm Conference on the Human Environment
(1972)

• The road to Stockholm

– UNGA Res. 2398 (XXIII) “Problems of the Human Environment”
– Tension development/environmental protection
• The Conference
• The outcomes
– The Stockholm Declaration on the Human Environment
– The Action plan
– Call for the establishment of what later became UNEP (UNGA
res. 2997 (XXVII), 1972
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The impact of the Stockholm Conference

• Domestic level
• Regional level
• International level:
– First wave of MEAs: Wetlands, endangered species,
transboundary atmospheric pollution
– Further development of principles: UN Charter of Nature,
UNGA res. 37/7 (1982)
– First comprehensive environmental regulation of a “global”
environmental issue: UNCLOS 1982
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The consolidation of international environmental law

The Rio Conference on the Environment and Development
(1992)

• The road to Rio

– First “modern” MEA: The Vienna Convention on the protection
of the Ozone Layer (1985) - the emergence of global
environmental problems as common concerns
– UNEP Governing Council (Nairobi Declaration, 1982) + UNGA
Res.38/161
– “Brundtland” Commission - “Our Common Future” (1985)

• The Conference
– Renewed confrontation between developed / developing
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The Rio Conference on the Environment and Development

(1992)

• The outcomes
– The Rio Declaration on Environment and Development
– The Action plan: Agenda 21
• Comprehensive plan of action balancing development and
environment
– MEAs dealing with emerging global issues / common
concerns
– UNFCCC
– UNFCBD
– Creation of the UN Commission for Sustainable Development
(CDS)
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International environmental law today

The 2000 Millennium Development Goals
1. Eradicate extreme poverty and hunger
2. Achieve universal primary education
3. Promote gender equality and empower women
4. Reduce child mortality
5. Improve maternal health
6. Combat HIV/AIDS, malaria and other diseases
7. Ensure environmental sustainability
8. Global partnership for development
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International environmental law today

The Millennium Development Goals
7. Ensure environmental sustainability

• Integrate principles of sustainable development into country policies and

programmes;
reverse the loss of environmental resources
• Reduce biodiversity loss, achieving, by 2010, a significant reduction in the
rate of loss
• Halve the proportion of people without access to safe drinking water and
basic sanitation
• Improve the lives of at least 100 million slum dwellers by 2020
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International environmental law today

The Johannesburg Summit (2002)
• Legal policy outcomes
– The Political Declaration
– The Plan of Implementation

• Institutional innovations
– The Public-Private Partnerships: Some 220 initiatives including different
stakeholders (governments, local authorities, NGOs, private sector) for SD
objectives

• Weak results… a step backwards…

– Preponderance of economic interests
– Predominance of social objective within the SD framework
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International environmental law today

The Rio+20 Conference on Sustainable Development

• Still looking for a balance in the environment-development

equation
− The focus on the millennium summit was on economic and social
development
• Troubled conference
• Outcome document: “The Future we want”
• Strengthening of the UNEP
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International environmental law today

The UN SD Summit (2015) and the SDGs
UNGA: “transforming our world: the 2030 agenda for sustainable
development”:
• Short preamble
• A “declaration”
• 17 SD goals
- Goal 6: ensuring availability and sustainable management of water and
sanitation for all.
- Goal 13: taking urgent action to combat climate change and its impacts.204
- Goal 14: conserving and sustainably using the oceans, seas and marine
resources for sustainable development; and
- Goal 15: protecting, restoring and promoting sustainable use of terrestrial
ecosystems, sustainably managing forests, combating desertification, and
halting and reversing land degradation and halting biodiversity loss.
• A set of observations on implementation
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