Presentation on theme: "INTERNATIONAL ENVIRONMENTAL LAW"— Presentation transcript:
1 INTERNATIONAL ENVIRONMENTAL LAW UNIVERSITY OF PADUA FACULTY OF ENGINEERING Second Cycle Degree in Environmental EngineeringINTERNATIONAL ENVIRONMENTAL LAWGENERAL ASPECTS OFB&P Avvocati
2 Index Introduction: sources of international environmental law; Organizations for environmental law protection;Main treaties on international environmental law;General principles of international environmental law: outlines.
3 Preliminary question: International Environmental “Law” or “Policy”? LACK OF TRADITIONAL ATTRIBUTES OF LAWNo conventional legislative, executive, or judicial bodies;Often too general without national implementation;Few and imperfect enforcement mechanism;Usually binding between States, not for individuals.AMBIGUOUS RELATION WITH DOMESTIC LAWMonistic vs. dualist systems;Practical application by domestic courts.
4 1. Introduction: sources of international environmental law (IEL) Treaties;Custom;General Principles of law;Judicial Decisions;Voluntary agreements;Hard and soft law.
5 1. Introduction: sources of international environmental law (IEL) TREATIES“Written agreements between two or more states, governed by international environmental law, creating or restating legal rights and duties”Also described as “conventions”, “agreements”, “protocols”, “covenants”, “pacts”, etc.
6 1. Introduction: sources of international environmental law (IEL) Why are TREATIES the principle source of IEL?Nature of ENVIRONMENTAL PROBLEMS:they range over a wide spectrum of factual situations;they demand continuous observation and monitoring, as well as quick legal action and implementation in response to relatively rapid changes in scientific knowledge;IEL shall be able to deal with wide and varied kinds of investigations, scientific monitoring, assessments, and findings.NONE OF THE SOURCES OF IEL CAN FULFILL ALL OF THESE REQUIREMENTS WITH A MIX OF GENERALITY, SPECIFICITY, AND ADAPTABILITY, BUT TREATIES ARE AT BEST ABLE TO SATISFY SOME OF THEM.
7 MAIN ASSETS OF TREATIES 1. Introduction: sources of international environmental law (IEL)MAIN ASSETS OF TREATIESThey offer a superior framework for dealing with environmental issues, by allowing for:- flexibility of law making;- machinery for inducing compliance and non-compliance;- dispute resolution mechanisms.Treaties are reduced to writing and are therefore – confronted with customary law - more accessible and applicable: this is important when approaching a subject that requires clarity and certainty of legal response.
8 THE ENTRY INTO FORCE OF A TREATY 1. Introduction: sources of international environmental law (IEL)THE ENTRY INTO FORCE OF A TREATYIt corresponds to the date on which a treaty officially binds the parties;Even though signed, a multilateral treaty typically does not enter into force until a minimum number of states have deposited their ratifications.Ratification is the process by which the respective national governments give legal force to the signatures entered by their representatives.Example: the United Nations Framework Convention on Climate Change, Dec. 31, 1992, entered into force Mar. 21, 1994, as 50 ratifications were required (art. 23 of the UNFCCC).
9 1. Introduction: sources of international environmental law (IEL) RESERVATIONSA party to a treaty may enter into reservations to the extent that they are not prohibited;Reservations allow parties to agree to all of the provisions of a treaty except those specified in the reservation.Particular cases: conventions such as the Montreal Protocol on Substances that Deplete the Ozone Layer (Sep. 16, 1987, entered into force Jan. 1, 1989) or the Climate Change Convention disallow reservations.Parties have attempted to get around this by making “interpretative declarations” such as those entered by the UK to the Biodiversity Convention: the legal effect of such declarations is undetermined.
10 1. Introduction: sources of international environmental law (IEL) AMENDMENTSTreaties may be amended where allowed by their provisions, but amendments generally do not enter into force unless ratified or accepted by all the parties;The formal amendment procedure contained in a treaty has proved to be anachronistic, as inadequated in incorporating new technologies and new scientific findings;For this reason some environmental treaties are composed by threee parts consisting of:1- a “framework treaty” (containing general principles);2- “protocols” (supplemeting or implementing the framework treaty);3- technic and scientific “annexes” containing details that may need quick amendment according to changing needs.
11 INTERPRETATION OF TREATIES 1. Introduction: sources of international environmental law (IEL)INTERPRETATION OF TREATIESGENERAL ISSUESWhen a treaty is drafted it is impossible to anticipate and provide for every factual or legal contingency that might arise in the future;Only concepts of wide scope – lacking specificity and exactitude – can be applied to the facts of a new case through interpretation: anyway, when a new case arises, the extent to which it may be covered by existing provisions may be discussed;The parties to a treaty often do not agree upon specific obligations or upon the formulation of such obligations: so they often leave inspirational and unspecific expressions to be later resolved by interpretation.
12 INTERPRETATION OF TREATIES 1. Introduction: sources of international environmental law (IEL)INTERPRETATION OF TREATIESEXAMPLES OF UNDETERMINED STATEMENTSThe Biodiversity Convention contains generic obligations such as “as far as possible and as appropriate” (arts. 5, 6, 7) and “in accordance with its particular conditions and capabilities” (art. 6);The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal requires each party to take “appropriate measures” to minimize the generation of hazardous wastes (art. 4(2)a).
13 INTERPRETATION OF TREATIES 1. Introduction: sources of international environmental law (IEL)INTERPRETATION OF TREATIESSUBJECTS EMPOWERED TO INTERPRET A TREATYSimilarly to national legal systems, the interpretative task is undertaken by the Courts:The International Court of Justice (ICJ) is the best known among international courts, but it depends on the acquiescence of the Parties for its jurisdiction (Statute of the ICJ, art. 36, June 29, 1945 – entered into force Oct. 24, 1945);Judicial or arbitral tribunals created by treaties such as the Climate Change Convention are also empowered to interpret the law;There is a number of new judicial bodies consisting of Courts and of quasi-judicial Tribunals of different kinds which are empowered to interpret law: this could lead to jurisdictional conflicts;Interpretation may further be rendered by the declaration of diplomatic conferences (such as the 1972 Stockholm Conference on the Human Environment), the General Assembly of the United Nations and by institutions created by environmental treaties.
14 INTERPRETATION OF TREATIES 1. Introduction: sources of international environmental law (IEL)INTERPRETATION OF TREATIESRULES ACCORDING TO WHICH THE LAW IS INTERPRETEDThe Vienna Convention outlines basic rules of treaty interpretation. Art. 31 stipulates that a treaty shall be interpreted:in good faith; andin accordance with the ordinary meaning given to the terms in context; andin the light of the treaty’s object and purpose.
15 1. Introduction: sources of international environmental law (IEL) Art. 32 allows for supplementary means of interpretation where interpretation according to art. 31 leaves the meaning ambiguous or obscure, or leads to a result that is manifestly absurd or unreasonable. THESE RULES MAY APPEAR OBJECTIVE, BUT THE PROCESS OF APPLYING THEM CREATES UNAVOIDABLY SUBJECTIVE HUMAN ELEMENTS, WHICH CAN LEAD TO DIFFERENT RESULTS.
16 1. Introduction: sources of international environmental law (IEL) B. CUSTOMUnwritten law inferred from the conduct of States, undertaken in the belief that they were bound to do so by law (opinio juris).According to art. 38 of the Statute of the International Court of Justice, custom is the “evidence of a general practice accepted as law”.Customary international law is created by the fusion of an objective element (PRACTICE) and a subjective element (OPINIO JURIS).
17 1. Introduction: sources of international environmental law (IEL) B. CUSTOMPRACTICE (objective element):The evidence necessary to establish it may be drawn from:- national legislation;- diplomatic notes and correspondence;- statements and votes by governments in international organizations and forums;- ratification of treaties containing the obligations in question;- opinions of legal advisers.
18 1. Introduction: sources of international environmental law (IEL) B. CUSTOMOPINIO JURIS (subjective element):If the pratice is regarded as discretionary, or simply convenient or self-serving rather than obligatory, it does not possess the critical element of opinio juris and it is not considered customary law.THE UNWRITTEN, UNCODIFIED FORM OF CUSTOM IS ONE OF ITS WEAKNESSES. A REMEDY MAY CONSIST IN CODIFYING OR RESTATING CUSTOMARY LAW, MAKING IT KNOWN AND ACCESSIBLE, AND SO REDUCING THE LAW’S UNCERTAINTY.
19 C. GENERAL PRINCIPLES OF LAW 1. Introduction: sources of international environmental law (IEL)C. GENERAL PRINCIPLES OF LAWAccording to art. 38 of the Statute of ICJ, “the Court, whose function is to decide in accordance with international law such disputes, shall apply … the general principles of law recognized by civilized nations”.The reference to “the general principles of law recognized by civilized nations” is an embarrassingly anachronistic phrase of the 1940s.
20 C. GENERAL PRINCIPLES OF LAW 1. Introduction: sources of international environmental law (IEL)C. GENERAL PRINCIPLES OF LAWWhen strictly interpreted, the general principles of law enjoy a parity of status with treaties and custom;Courts – and not States – have now the power and discretion to enunciate relevant general principles of law by induction.
21 1. Introduction: sources of international environmental law (IEL) JUDICIAL DECISIONSThe Statute of ICJ restricts the role of judicial decisions to that of a “subsidiary means for the determination of rules of law” (art. 38,(1)d) of the Statute);One of the reasons is that judicial decisions, including those of the ICJ, have no binding force “(e)xcept between the parties and in respect of that particular case” (art. 59 of the Statute);The international legal process lacks a hierarchial system of courts or a machinery of justice: so it cannot adopt a strict doctrine of binding precedent.
22 1. Introduction: sources of international environmental law (IEL) JUDICIAL DECISIONSJudicial decisions play an important role in any systems of customary law by restating, codifying and clarifying uncertain and unwritten customary law;Moreover, when a Court exercises its responsibilities and decides a case, it tends to learn from what has been achieved: the judicial use of precedents by international tribunals reflects a practical habit of mind that looks to past history for guidance;Judicial decisions have become part of the substantive corpus of IEL.
23 1. Introduction: sources of international environmental law (IEL) VOLUNTARY AGREEMENTSIn addition to international treaties, recent years have increasingly given rise to numerous types of voluntary international agreements.Example: partnership agreements involving countries and private sector entities, pledges found in political resolutions, codes of conduct, and declarations, agendas, programs, and various other non-binding instruments.Voluntary agreements could be used as evidence of practice, both with regard to the interpretation of treaties under article 31(3)b of the Vienna Convention on Treaties, as well as to establish customary law.
24 1. Introduction: sources of international environmental law (IEL) F. HARD AND SOFT LAWThe terms “hard law” and “soft law” refer to the type of instruments used to lay down rules in international law.The criterion commonly used to distinguish between hard and soft law is that only hard law instruments are legally binding.- hard law includes treaties and customs;- soft law includes declarations of principle, codes of practice, recommendations, guidelines, resolutions and standards.
25 1. Introduction: sources of international environmental law (IEL) F. HARD AND SOFT LAWStates may feel just as bound by provisions of soft law instruments:soft law instruments are negotiated in a political climate, implicating an intrinsic pressure to live up their terms;States might choose to adhere soft law norms out of concern for reciprocity;Nations seek to maintain an image of trustworthiness amongst other Nations;there often exists the threat of retaliation and other sanctions from other States in the event of noncompliance.
26 Main Challenges to IEL Implementation Ineffective negotiations and compromises;Signatures given much before implementing legislation;Growing number and fragmentation of Multilateral Environmental Agreements (MEAs);Unclear priorities;Poor enforcement mechanisms;High staff turnover;Insufficient financial and technical assistance.
27 Innovative Approaches to MEAs Implementation Negotiation preparation at regional level;Harmonization of implementing legislation;Institutional coordination (also taking advantage of synergies among related MEAs);More careful data collection and management;Exploring common reporting formats, schedules, etc.;Implementation plans (Biosafety, Climate, Ozone, etc.);New compliance mechanisms (idem, plus Basel, Kyoto);Public involvement: Aarthus, etc.
28 IEL Application by Domestic Courts Upholding domestic legislation or regulation;Upholding other governmental or administrative actions;Voiding governmental actions;Constraining the scope of domestic laws or regulations;Challenging actions by a private party;Assisting in interpreting domestic provisions;As a normative cause of action;For judicial review, standing and other procedural matters.
29 2. Organizations for environmental law protection Global Organizations;Regional Organizations;Specific Treaty Organization;Non-governmental Organization (NGOs).
30 2. Organizations for environmental law protection GLOBAL ORGANIZATIONSUnited Nations were founded in 1945 – before the dawning of environmental awareness.Its Charter establishes seven principal organs including the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), and the International Court of Justice (ICJ).The UN Charter neither creates an environmental organ nor specifically mandates the protection of the environment.
31 2. Organizations for environmental law protection GLOBAL ORGANIZATIONSA number of international organizations created by treaty or agreement are known as Specialized Agencies of the UN.They own juridical personality and may exercise rights and duties as subjects of international law.A number of them have interpreted their constituent treaties to adopt an environmental competence.
32 2. Organizations for environmental law protection GLOBAL ORGANIZATIONSSpecialized Agencies of the UN presently assuming environmental responsibilities include:Food and Agricoltural Organization (FAO);International Labour Organization (ILO);World Health Organization (WHO);World Meteorological Organization (WMO);International Maritime Organization (IMO);UN Educational, Scientific and cultural Organization (UNESCO).
33 2. Organizations for environmental law protection GLOBAL ORGANIZATIONSPerhaps the most important of the UN Environmental Organizations is the UN Environmental Program (UNEP), created by a General Assembly resolution.UNEP was established to act as a focal point for environmental action and coordination, but possesses no executive power.Its mission is to persuade States of the need for environmental action, provide information, expertise and advice.All UNEP programs are directly financed by member States.
34 2. Organizations for environmental law protection GLOBAL ORGANIZATIONSFinancial mechanisms and technology transfers have become part of the architecture of IEL.The World Bank Group consists of:the International Bank for Reconstruction and Development (IBRD);the International Development Bank (IDB);the International Finance Corporation (IFC).
35 2. Organizations for environmental law protection GLOBAL ORGANIZATIONSAfter having encouraged environmentally damaging developments, the World Bank mended its ways and in 2001 released its Environmental Strategy (Making Sustainable Commitments: An Environmental Strategy for the World Bank, 2001).It was a comprehensive pledge to consider environmental factors while pursuing its goals of poverty reduction and social growth
36 2. Organizations for environmental law protection GLOBAL ORGANIZATIONSTo complete the review of global legal institutions, it is finally necessary to make a reference to:the International Court of Justice (ICJ);the International Law Commission (ILC).a. The ICJ is the main judicial organ of the UN system, and exercises jurisdiction by consent.It has now set up an environmental chamber and demonstrated in the Advisory Opinion on the Threat or Use of Nuclear Weapons that it possesses the authority to address vexing environmental issues (and to apply the law to changing situations).b. The ILC was created by the UN General Assembly to work toward the codification and development of international law. It has reported on subjects of great importance to IEL – such as state responsibility and international watercourses.
37 B. REGIONAL ORGANIZATIONS 2. Organizations for environmental law protectionB. REGIONAL ORGANIZATIONSA number of legal organizations are playing an important role in developing IEL.The most important of these is the European Union (EU): it is the most advanced form of international organization in the world.3 key attributes of EU:law-making agencies;law interpreting and enforcing agencies;a court with compulsory jurisdiction.The EU has enacted a large number of environmental jurisdictions over a wide range of subject areas.
38 B. REGIONAL ORGANIZATIONS 2. Organizations for environmental law protectionB. REGIONAL ORGANIZATIONSOther relevant regional bodies are:Council of Europe;Organization for Economic Cooperation and Development (OECD);Organization of American States (OAS);South Pacific Regional Environmental Programme (SPREP).
39 C. SPECIFIC TREATY ORGANIZATIONS 2. Organizations for environmental law protectionC. SPECIFIC TREATY ORGANIZATIONSMany treaties set up institutional arrangements (or rudimentary international organizations) for their implementation.A number of them are called Conferences of the Parties, which include a permanent secretariat and a budget, and, in some cases, special science advisory bodies.Examples:- regular meetings of the parties under the Montreal Protocol on substances that deplete the Ozone Layer, Sep. 16, 1987;- the Climate Change Convention institutes an annual Conference of the Parties (the last was COP-17, which took place in Durban, South Africa, november 2011).
40 D. NON-GOVERNMENTAL ORGANIZATIONS (NGOs) 2. Organizations for environmental law protectionD. NON-GOVERNMENTAL ORGANIZATIONS (NGOs)NGOs (such as World Wildlife Fund – WWF) have become established actors in the implementation of environmental law for several reasons:they are closer to people affected by environmental degradation and can represent them more faithfully and diligently then their governments;they have played a major role in organizing the once invisible colleges of scientists for studying the effects and impacts of various environmental problems;they have an undeniable international political standing.
41 D. NON-GOVERNMENTAL ORGANIZATIONS (NGOs) 2. Organizations for environmental law protectionD. NON-GOVERNMENTAL ORGANIZATIONS (NGOs)NGOs are not subjects of international law lacking the status of States. However, States and International Organizations have recognized to environmental NGOs the role of “watchdogs” of the IEL implementation.Some treaties go in the same direction:E.g.: the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 1998, is a regional treaty negotiated under the auspices of the UNECE.It provides citizens and NGOs access to information and participation;It empowers NGOs to nominate experts for the election of the Compliance Committee.
42 D. NON-GOVERNMENTAL ORGANIZATIONS (NGOs) 2. Organizations for environmental law protectionD. NON-GOVERNMENTAL ORGANIZATIONS (NGOs)Interesting cases are also arising in judicial practice:E.g. the recent Orion Project controversy:The potentiality of non binding soft-law and use of “name and shame game”;Political pressure and use of public-interest litigation.
43 3. Main treaties on international environmental law From early fisheries conventions to the creation of United Nations;From the creation of United Nations to Stockholm ( );From Stockholm to Rio ( );1992 UNCED;Conclusions: trends and directions.
44 A. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONS 3. Main treaties on international environmental lawA. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONSFirst developments of international environmental Rules aimed to the conservation of wildlife (fisheries, birds and seals);Treaties were adopted ad hoc, so they were sporadic and limited in their scopes;Bilateral fisheries conventions were adopted in the mid-nineteenth century to avoid overexploitation (E.g. Convention between France and Great Britain Relative to Fisheries, Paris, 11 November 1867).
45 A. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONS 3. Main treaties on international environmental lawA. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONSAnother theme of cooperation was the conservation of migratory birds. In 1872, Switzerland proposed an International Regulatory Commission for the protection of birds: an International Ornithological Committee was created in 1884 and led to the adoption in 1902 of the Convention to Protect Birds Useful to Agricolture.It laid down some prohibitions (birds’ killing, destruction/taking of their eggs, etc., with exceptions concerning scientific research and repopulation techniques).To strengthen links between American and European bird protection groups a International Committee for Bird Protection was founded in 1922.
46 A. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONS 3. Main treaties on international environmental lawA. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONSThe 1909 Water Boundaries Treaty between the US and Canada was the first to commit its parties to prevent pollution;Other treaties were adopted to limit the spread of phylloxera and epizootic diseases, and to prevent damage from corrosive and poisonous substances;The 1909 meeting of the International Congress for the Protection of Nature, in Paris, proposed the creation of an international nature protection body in 1913 an Act of Foundation of a Consultative Committee for the International Protection of Nature was signed in Berne by 17 countries (aimed to collect, classify and publish information on the international protection on nature).
47 A. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONS 3. Main treaties on international environmental lawA. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONSIn this period two disputes were submitted to international arbitration:1. Pacific Fur Seal Arbitration: Dispute between US and Great Britain on the over-exploitation of fur seals Regulations for the “proper protection and preservation” of fur seals were set.2. The Trail Smelter case concerned a 1930 dispute between US and Canada over the emission of sulphur fumes from a smelter situated in Canada which caused damage in the State of Washington The Tribunal established 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”.
48 A. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONS 3. Main treaties on international environmental lawA. FROM EARLY FISHERIES CONVENTIONS TO THE CREATION OF UNITED NATIONSThe principle established by the Tribunal in the Trail Smelter Case represent a turning point for IEL, influencing subsequent developments.Nevertheless, in this period international rules were limited:- to the region they covered;- to the subject matter they addressed.EVENTUALLY THE INTERNATIONAL COMMUNITY STARTED TO BE AWARE THAT THE EXPLOITATION OF NATURAL RESOURCES COULD NOT OCCOUR ON AN UNLIMITED BASIS.
49 3. Main treaties on international environmental law B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )The creation of the UN in 1945 represented the beginning of the second phase in the development of IEL:- international and regional organizations began to be involved in environmental issues;- the attention on this global and regional subjects was addressed also to the causes of pollution deriving from ultra-hazardous activities.The link between economic development and environmental protection had not been really recognised yet.
50 3. Main treaties on international environmental law B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )The UN Charter did not include provisions on environmental protection or the conservation of natural resources, neither an environment body was established among the specialised agencies.THE BASIS FOR THE SUBSEQUENT ENVIRONMENTAL ACTIVITIES OF THE UNITED NATIONS WERE FOUND IN THE PROVISIONS CONCERNING INTERNATIONAL COOPERATION IN ECONOMIC, SOCIAL, CULTURAL AND HUMANITARIAN MATTERS.
51 3. Main treaties on international environmental law B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )Food and Agriculture Organization (FAO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) included provisions with environmental aspects.In October 1948, a conference convened with the assistance of UNESCO, attended by representatives of 18 governments, 7 national organizations and 107 national organizations, established the International Union for the Protection of Nature (IUPN):- it was the first major international organization to address environmental issues;- it aimed at promoting the preservation of wildlife and the natural environment, public knowledge, education, scientific research and legislation;- its members are governments and non-governmental actors.
52 3. Main treaties on international environmental law B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )In 1947, an Economic and Social Council (ECOSOC) resolution convened the 1949 United Nations Conference on the Conservation and Utilisation of Resources (UNCCUR).The aim was the management and conservation of natural resources, important to the reconstruction of devastated areas.The resolution determined the competence of the UN over environmental matters – more recently resulting in the 1972 Stockholm Conference and the 1992 UNCED.UNCCUR was held from august 17 to September 6 in N.Y. State and was attended by over 1,000 individuals from more than 50 countries.The Conference concerned six issues: MINERALS; FUELS AND ENERGY; WATER; FORESTS; LAND; WILDLIFE AND FISH.
53 3. Main treaties on international environmental law B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )In 1954, the General Assembly of the UN convened a major Conference on the Conservation of the Living Resources of the Sea, which led to the conservation rules adopted in the 1958 Geneva Convention.In 1954, the first global convention for the prevention of oil pollution was adopted. It would be followed, 15 years later, by treaties permitting intervention to combat the effects of oil pollution, establishing civil liability for oil pollution damage and creating oil pollution compensation fund.The 1959 Antarctic Treaty committed parties to peaceful activities in that region and prohibited nuclear explosions or the disposal of radioactive waste.In 1967, the European Community (EC) adopted its first environmental act, on the packaging and labelling of dangerous goods (in the absence of express environmental provisions in the 1957 Treaty of Rome).The 1972 Ramsar Convention was the first environment treaty to establish rules addressing the conservation of a particular type of ecosystem.
54 B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM (1945-1972) 3. Main treaties on international environmental lawB. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )Letting aside the developments represented by Conferences andConventions, other principles were settled by judicial decisions:In 1949, the International Court of Justice confirmed States’ obligation not to knowingly allow their territory to be used for acts contrary to the rights of other States.In 1957, in the Lac Lanoux Arbitration, the Tribunal affirmed principles concerning limitations on the rights of States to use shared rivers. The meaning of cooperation principle in IEL was particularly underlined.
55 B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM (1945-1972) 3. Main treaties on international environmental lawB. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )All these treaties and institutional developments were developing in a lack of coordination and without a coherent environmental strategy.There were no international procedures to ensure the implementation of IEL and no international authority with a responsibility for coordination.
56 3. Main treaties on international environmental law B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )In this context the 1972 Stockholm Conference (5-16 June 1972) was convened in December 1968 by the United Nations General Assembly.the conference considered the impact of human activities on biosphere, including the effects of air and water pollution, deforestation and drainage of wetlands;the significant elements of innovation concerned:1- the redefinition of international issues;2- the attention for cooperation;3- the approach to international responsibility;4- the conceptualization of international relationships.
57 B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM (1945-1972) 3. Main treaties on international environmental lawB. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )The conference adopted three non-binding instruments:1. a resolution on institutional and financial arrangements(which proposed that UN General Assembly established new institutional arrangements);2. a Declaration containing 26 principles;3. an Action Plan containing 109 recommendations.109 points were generally accepted by States and involved six main subject areas:1. planning and management of human settlements for environmental quality;2. environmental aspects of natural resources management;3. identification and control of pollutants and cultural aspects of environmental issues;
58 3. Main treaties on international environmental law B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )...4. educational, informational, social and cultural aspects of environmental issues;5. development and environment;6. international organizational action proposals.Some reservations were made:E.g. USA did not accept the principle of “additionality”, according to which an increase in its foreign aid budget would be required to cover also the costs imposed by environmental measures on development projects.
59 B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM (1945-1972) 3. Main treaties on international environmental lawB. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )The most relevant provisions were Principles 21, 22, 23 and 24:Principle 21: the States are responsible to ensure that activities within their jurisdiction or control do not cause damage in another State or beyond national jurisdiction – such as in outer space or in the high seas;Principle 22: states have to co-operate in developing international environmental law;Principle 23: certain standards of environmental regulation have to be taken at national level, basing on the value systems applying in each countries and their social costs;Principle 24: international co-operation is necessary to control, prevent, reduce and eliminate adverse environmental effects resulting from activities carried out in all spheres.
60 B. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM (1945-1972) 3. Main treaties on international environmental lawB. FROM THE CREATION OF UNITED NATIONS TO STOCKHOLM ( )Other Principles were affirmed in non-legal language. Examples:Principle 1: man has “the fundamental right to freedom, equality and adequate conditions of life, in an environment that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”;Principles 2, 3, 5: set general guidelines for the natural resources of the Earth to be safeguarded;Principles 8-15: concerns issues reflecting the relationship between economic and social development and the environment;Principles 16-20: appropriate demographic policies are needed; application of science and technology, education and scientific research have to be encouraged.
61 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )Two of the most significant achievements of the Stockholm Conference were:the creation of United Nations Environmental Program (UNEP);the adoption of Principle 21.Within the UNEP system the Regional Seas Programme was to be implemented and important global treaties were to be adopted (such as those on ozone depletion, trade in hazardous waste and biodiversity).Other treaties were adopted outside UNEP but within UN system: the most important was the UNCLOS – United Nations Convention on the Law of the Sea. (It established a framework for the creation of global rules on the protection of the marine environment and marine living resources).
62 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )UN economic and financial organizations started to deal with implications of national and international environmental law on their respective activities.The 1971 General Agreement on Tariffs and Trade (GATT) established a group on Environmental Measures and International Trade: a fundamental issue to be faced was whether unilateral trade restrictions adopted in the name of environmental protection were justified under GATT rules.The World Bank and the regional development banks needed to integrate environmental considerations into their loan-making process an Environmental Department was created in the World Bank.ENVIRONMENTAL OBLIGATIONS WERE INTEGRATED INTO THE 1990 STATUTE ESTABLISHING THE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT.
63 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )Among the non-binding instruments adopted after Rio Conference, three are particularly of note:UNEP draft Principles;Montevideo Programme;World Charter of Nature.In 1978 UNEP adopted draft “Principles of conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resource shared by Two or more States”.
64 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )They comprise 15 principles to govern the use of shared natural resources, e.g.:Principles 1 and 2 recognise the duty of states to co-operate to control, prevent, reduce and eliminate adverse environmental effects – also concluding bilateral and multilateral agreements;Principle 7 elaborated the principle of “good neighbourliness”;Principles 12 and 13 addressed settles of disputes, responsibility and liability.
65 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )In 1981 a meeting of officials experts of IEL was held in Montevideo: the Montevideo Programme (Programme for the Development and Periodic Review of Environmental Law) was adopted by the UNEP governing Council in May 1982, influencing posterior UNEP’s legal activities for years.It was divided into three parts:1- guidelines, principles and agreements have to be adopted to address marine pollution, protection of the stratospheric ozone layer, the transport, handling and disposal of toxic and hazardous wastes;2- action has to be taken in some relevant areas (such as transboundary air pollution, protection of rivers, legal and administrative measures to prevent pollution damage, environmental impact assessment);3- the development of IEL has to be promoted (research, writing, teaching, dissemination of information).
66 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )In 1982 United Nations adopted the World Charter for Nature, setting “principles of conservation by which all human conduct affecting nature is to be guided and judged”.The main difference from precedent instruments was that those were anthropocentric and focused on the protection of nature for the benefit of the mankind, whereas the Charter aimed to protect nature itself (“deep ecology”).The Charter was not binding, but many if its provisions are now reflected in treaties.It was divided into three sections:1- “General Principles”;2- “Functions”: more operational, including aspect on environmental impact assessment;3- “Implementation”: for example, elements on public access to information, consultation and participation.
67 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )The Bruntland Report derives his name from that of the Norwegian Prime Minister who chaired the 1983 World Commission on Environment and Development (WCED). The final report of the Commission (Bruntland Report) was published in 1987.The Commission was an independent body, just linked to governments and to the UN system.The Report provided support for expanding the role of sustainable development and proposed a UN programme on this subject.- Policy matters involved: population, food security, biodiversity, energy, industry and human settlements;- International co-operation and institutional reform: role of the international economy, relationships between peace, security, development and environment.
68 C. FROM STOCKHOLM TO RIO (1972-1992) 3. Main treaties on international environmental lawC. FROM STOCKHOLM TO RIO ( )By 1990 there was a discrete area of law called international environmental law:- there was a large number of substantive rules limiting the right of States to engage in activities that could be harmful to the environment;- new techniques for the implementation of standards had been adopted, such as environmental impact assessment and access to environmental information;- new institutions had been created.
69 3. Main treaties on international environmental law C. FROM STOCKHOLM TO RIO ( )In December 1989 the UN General Assembly convened a UN Conference on Environment and Development for June 1992 in Brazil (UNCED).UNCED was held in Rio de Janeiro on 3-14 June 1992 and was attended by:- 176 states;- more than 50 intergovernmental organizations;- several thousands corporations and NGOs.
70 3. Main treaties on international environmental law D. UNCEDUNCED adopted 3 non-binding instruments:the Rio Declaration on Environment and Development (the Rio Declaration);a Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development for All Types of Forests (the UNCED Forests Principles);3. Agenda 21.UNCED was concerned with the BALANCE BETWEEN ENVIRONMENTAL PROTECTION AND ECONOMIC DEVELOPMENT.
71 3. Main treaties on international environmental law D. UNCEDThe RIO DECLARATION was:- a compromise between developed and developing countries;- a balance between the objectives of environmental protection and economic development.It comprised 27 Principles representing the basis upon which states and people have to co-operate and develop international law in the field of sustainable developmentIt was non-binding but represented in part rules of customary law and emerging rules, providing guidance as to future legal developments.Principle 1: Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.
72 3. Main treaties on international environmental law D. UNCEDPrinciple 2: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction .
73 3. Main treaties on international environmental law D. UNCEDPrinciples 3 and 4 should be read together: the first represents a “victory” for developing countries, the second is the response of the developed countries:Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.Principle 4: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
74 3. Main treaties on international environmental law Principle 15: 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 full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. PRECAUTIONARY PRINCIPLEPrinciple 16: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment . POLLUTER-PAYS PRINCIPLED. UNCED
75 3. Main treaties on international environmental law D. UNCEDPrinciple 7: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. COMMON BUT DIFFERENTIATED RESPONSIBILITIES.The Rio Declaration supported the development of procedural techniques for environmental impact assessment, notification, information exchange and consultation.
76 3. Main treaties on international environmental law D. UNCEDAGENDA 21it was conceived as a non-binding action plan for sustainable development, directed to the whole international community;it was negotiated over 2 years and reflects a global consensus at the highest level towards the implementation on national strategies, plans, policies and processes;the implementation of Agenda 21 is a responsibility of governments;the tangible developments deriving from the text are limited, but the Agenda represented a relevant moment of international consensus on principles, practices and rules which might contribute to the development of new rules of conventional and customary law.
77 3. Main treaties on international environmental law D. UNCEDSTRUCTURE OF AGENDA 21Preamble;First Section: Social and Economic DimensionCo-operation in relation to poverty, consumption patterns, population, human health, sustainable human settlement and integration of environment in decision/making.Second Section: Conservation and Management of Resources for DevelopmentSubstantive issues for the protection and sustainable use of natural resources.Third Section: Strengthening the Role of Major GroupsPublic participation in decision-making.Fourth Section: Means of ImplementationActions relating to financial resources, technologies transfer, science, education, etc.
78 E. CONCLUSIONS: TRENDS AND DIRECTIONS 3. Main treaties on international environmental lawE. CONCLUSIONS: TRENDS AND DIRECTIONSSince UNCED, a number of important new instruments have been adopted and the negotiation of other continues.Relevant instruments are:- the 1997 Kyoto Protocol to the 1992 Climate Change Convention;- the 2000 Biosafety Protocol to the 1992 Biodiversity Convention.Both instruments reflected the new approach of international regulation and the role of various actors, including the private sector.In 1998, under the auspices of the UNECE, States adopted the Aarhus Convention, the first treaty to address the rights of participation reflected in Principle 10 of the Rio Declaration.
79 E. CONCLUSIONS: TRENDS AND DIRECTIONS 3. Main treaties on international environmental lawE. CONCLUSIONS: TRENDS AND DIRECTIONSIn September 2002 the World Summit on Sustainable Development (WSSD) was held in Johannesburg, as a follow-up of UNCED.The WSSD did not adopt any convention or statement of principles;It contained a Plan of Implementation without specific actions to be taken, but with general commitments and aspirations regarding:hunger, drinking water, basic sanitation, energy, chemicals, hazardous waste, water efficiency plans, fishing, marine environment, biological diversity, sustainable development, etc.IEL is moving into a next phase: as focus is on its implementation, it will be more and more concerned with procedural and institutional issues, and increasingly integrated into economic and development aspects (see 2002 UNEP Guidelines and 2006 Manual).
80 3. Main treaties on international environmental law E. CONCLUSIONS: TRENDS AND DIRECTIONS AT REGIONAL LEVEL: THE EUROPEAN UNIONTHE USE OF HUMAN RIGHTS TO FOSTER IELTrough the European Convention on Human RightsLopez Ostra v. Spain;Guerra v. Italy;Giacomelli v. Italy;Fredin v. Sweden etc.Trough the UNECE Aarthus Convention;Towards a Human right to Healthy environment.
81 4. General principles of international environmental law – outlines Sovereignty over natural resources. Responsibility not to cause damage to the environment of other states or to areas beyond national jurisdiction;Principle of preventive action;Sustainable development;Polluter-pays principle;Precautionary principle;Principle of common but differentiated responsibility.
82 4. General principles of international environmental law – outlines SOVEREIGNTY OVER NATURAL RESOURCES. RESPONSIBILITY NOT TO CAUSE DAMAGE TO THE ENVIRONMENT OF OTHER STATES OR TO AREAS BEYOND NATIONAL JURISDICTIONStockholm Declaration - art. 21States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
83 PRINCIPLE OF PREVENTIVE ACTION 4. General principles of international environmental law – outlinesPRINCIPLE OF PREVENTIVE ACTIONRelated to the Principle 21 is the obligation requiring not to cause damage to the environment and to reduce or control activities which may cause or risk such damage (in violation of the standards established under the rules of IEL);This obligation is distinguishable from Principle 21;The preventive principle requires action to be taken at an early stage and, if possible, before damage has actually occurred. It is supported by an extensive body of domestic environmental protection legislation which establishes authorization procedures.
84 SUSTAINABLE DEVELOPMENT 4. General principles of international environmental law – outlinesSUSTAINABLE DEVELOPMENTThe term “sustainable development” is usually considered to have been coined by the 1987 Bruntland Report, which defined it as “the development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.Elements:future generations;sustainable use of natural resources (acceptance of limits placed upon the use and exploitation of natural resources);equitable use of natural resources (role of equitable principles in the allocation of rights and obligations);integration of environment and development.
85 POLLUTER-PAYS PRINCIPLE 4. General principles of international environmental law – outlinesPOLLUTER-PAYS PRINCIPLEThe principle establishes the requirement that the costs of pollution should be borne by the person responsible for causing the pollution;The meaning of the principle and its application to particular cases or situations remains open to interpretation (particularly in relation to the extent of the costs included and the circumstances in which the principle will perhaps not apply);It is related to civil and state liability for environmental damage.
86 PRECAUTIONARY PRINCIPLE (cfr. Slide no. 74 of Presentation: the Precautionary Principle in International Environmental Law).PRINCIPLE OF COMMON BUT DIFFERENTIATED RESPONSIBILITY(cfr. Slide no. 75 of Presentation: the Principle of CBDR in International Environmental Law (Kyoto Protocol)).
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