Advanced Studies of International Environmental Law

Advanced Studies of International Environmental Law
Prof. Dr. Eike Albrecht Department for Civil and Public Law with References to the Law of Europe and the Environment BTU Cottbus Lecture No Thursdays, LG 4 B 3.22 1

Semester Schedule Date Topic 18.10.12
Schedule; Module Structure; Exam Requirements; Introduction to IEL Climate Change (Overview) Transboundary Water Pollution Introduction to IEL (to be shifted) Ozone Depletion (Overview) World Trade and the Environment Introduction to IEL (to be shifted) Toxic and Hazardous Substances EMS; Outlook Land and Vessel-Based Pollution Exam Biodiversity (Overview) Marine Resources Discussion of the exam Prof. Dr. E. Albrecht, BTU Cottbus

Literature Literature:
Albrecht/Hoffmann/Knopp: Selected Conventions and Treaties on International Environmental Law (IEL), 3rd ed. 2007 Guruswamy: International Environmental Law in a Nutshell, 3rd ed. 2007 Hunter/Salzman/Zaelke: International Environmental Law and Policy, 3rd ed. 2007 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Major global environmental problems (excerpts)
climate change ozone depletion species extinction pollution from toxic chemicals and hazardous waste Of course there are more global environmental problems, which will be discussed later in the lecture, e.g. access to fresh water, air pollution, food security and agriculture, poverty, etc. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Major global environmental problems climate change
rise of atmospheric concentration of CO2 by 31% from rise of methane increasing by 150% from Increase of extreme weather events increase of the global average surface temperature over the 20th century by ca. 0,6 Celsius and it is very likely (90-99 % chance) that the warming in the 20th century has contributed significantly to the observed sea level rise Of course Data from the “Summary for Policymakers of the Third Assessment Report of Working Group I of the IPCC (Intergovernmental Panel on Climate Change) – Climate Change 2001: The Scientific Basis, pp. 1-8 (2001) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Climate Change – continue
global average surface temperature is projected to increase by 1,4-5,8°Celsius by 2100 relative to 1990, with a corresponding rise in sea level of 0,09-0,88 m. expected severe human health impacts (increased summer deaths, increased risk of drowning, diseases, e.g. malaria, dengue and hunger from flooding small Island states, e.g. the Maldives or the Seychelles, and highly urbanised low-lying coastal areas are particularly vulnerable Data from the “Summary for Policymakers of the Third Assessment Report of Working Group I of the IPCC (Intergovernmental Panel on Climate Change) – Climate Change 2001: The Scientific Basis, pp. 1-8 (2001) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction ozone depletion
from the 1940s the use of Chlorofluorocarbons (CFCs) expanded increase of atmospheric chlorine and bromine in Antarctica up to 60% of the stratospheric (12-50 km high) ozone is depleted in September; the “ozone hole” is larger than the area of the USA a similar hole exists above the Arctic Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction ozone depletion (continue)
loss of ozone in the stratosphere not limited to the poles (- 10% over northern middle latitudes and 35% over Siberia) the increased amounts of UV-B radiation endangers human health (e.g. skin cancer is estimated to increase by 2% for every 1% loss in ozone coverage); a 10% reduction of atmospheric ozone could result in additional cases of skin cancer and up to 1,75 Mio additional cases of cataracts each year UV-B radiation damages the immune system Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction ozone depletion (continue)
UV-B radiation may inhibit the growth of plants, inclusive such important commercial species, e.g. soybeans, cotton and certain trees UV-B radiation causes developmental abnormalities in fish, shellfish and amphibians (e.g. the decline of frogs is partly a result of increased UV-B exposure reduction of the productivity of phytoplankton  potential threat of the marine food chain but: first successes could be recognised: the ozone hole is not increasing Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction species extinction and loss of biodiversity
species extinction is a normal evolutionary process, mass extinction is not in three billion years of life on earth, only 5 mass extinction are known, the last one 65 Mio years ago now: 6th mass extinction ( species lost per year) all tiger species most of the rhino species both gorilla species two of five freshwater dolphins all seven sea turtle species Species extinction in general is a normal evolutionary process. Species are driven extinct by predators that overhunt them, by competitors that co-opt their habitat or food sources, by diseases and by natural disasters. Reason for the last mass extinction probably a meteor species a year = 74 per day = three every hour, more than 1000 times higher than normal. And this is a conservative estimation (world Bank estimates 150,000 per year) reasons: overexploitation of species directly for food (-> fish), clothing, ornament, pets and raw materials harm by destroying their habitats through unsustainable logging, slash and burn agriculture, damming rivers, draining wetlands and water and air contamination ozone depletion, climate change the value of the ecosystem’s services was estimated to be worth between 16 and 54 trillion $ or billion (in British English) per year. The value of the output of the economy was estimated in 1997 up to 18 trillion $ or billion Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction species extinction and loss of biodiversity (continue)
reason: human behaviour on the planet effects of extinction are unknown, but humanity depends for its existence on the “ecosystem’s services” provided by nature (cycling of oxygen, carbon and nitrogen; decomposition of waste; stabilisation of the climate; water purification etc.) ethical and moral reasons for measures against species extinction Reaction: Biodiversity Convention, CITES, UNCLOS, ..., and a number of regional treaties reasons: overexploitation of species directly for food (-> fish), clothing, ornament, pets and raw materials harm by destroying their habitats through unsustainable logging, slash and burn agriculture, damming rivers, draining wetlands and water and air contamination ozone depletion, climate change the value of the ecosystem’s services was estimated to be worth between 16 and 54 trillion $ or billion (in British English) per year. The value of the output of the economy was estimated in 1997 up to 18 trillion $ or billion CITES = Convention on International Trade of Endangered Species UNCLOS = United Nation’s Convention on the Law of the Seas Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Value of Ecological Services in Comparison with Economical Output Species extinction in general is a normal evolutionary process. Species are driven extinct by predators that overhunt them, by competitors that co-opt their habitat or food sources, by diseases and by natural disasters. Reason for the last mass extinction probably a meteor species a year = 74 per day = three every hour, more than 1000 times higher than normal. And this is a conservative estimation (world Bank estimates 150,000 per year) reasons: overexploitation of species directly for food (-> fish), clothing, ornament, pets and raw materials harm by destroying their habitats through unsustainable logging, slash and burn agriculture, damming rivers, draining wetlands and water and air contamination ozone depletion, climate change the value of the ecosystem’s services was estimated to be worth between 16 and 54 trillion $ per year. The 12 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction pollution from toxic chemicals and hazardous waste
in the 1950s and 1960s it was found out, that certain synthetic chemicals have substantial impacts on human health and the environment examples: DDT, PCBs Many of these chemicals persist for decades and longer These chemicals dissolve in fat (not water) and thus are absorbed and concentrated in the body, fat and milk of animals (and humans) concentration of persistent chemicals increase at the top of a food chain Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction pollution from toxic chemicals and hazardous waste (continue) more than synthetic chemicals are now on the market only in a few countries there is an obligation to test (certain) chemicals before bringing them into the market the number of new chemicals even exceed the testing capacities of the most developed countries more than 250 are now found in our body regardless where we live the impact of persistent chemicals is not clear; (surprising) lack of knowledge about the effects of chemicals to human health and the environment long time exposure to DDT have been shown to cause cancer Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction pollution from toxic chemicals and hazardous waste (continue) there are some standards for the exposure to hazardous substances, but there are often standards without difference between adults and children, women and man, workers or non-workers in a “famous” German criminal case (wood preservative case), it was suspected (but not finally proven) that DDT and similar substances ruin the human immune system a fantastic description (a thriller) you find in: Erich Schöndorf, “Von Menschen und Ratten”, ISBN: (in German) e.g. women have a significant higher amount of body fat (and because most of these chemicals are dissolving in fat, this is relevant) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 16 production of hazardous waste in tons:
similar problem: hazardous waste 16 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction pollution from toxic chemicals and hazardous waste (continue) generation of large amounts of hazardous substances places economical and political pressure to export the waste lot of countries do not have the technical abilities and capacities to handle the waste safely this practice has been criticised as “toxic colonialism” disposal cost for hazardous waste in developed countries: $ per ton in Africa: ~ 40 $ per ton Reaction: Basel Convention; Bamako Convention Prof. Dr. E. Albrecht, BTU Cottbus 17

I. Introduction International Environmental Law
Environmental Law  Law about/against pollution and depletion of natural resources International Law  Law created by nation states for nation states, to govern problems that arise between nation states IEL has been shaped primarily by bio-physical (or ecological) not geo-political forces  IEL used to be sheltered from political dissension and games Already 200 international environmental agreements (+ uncountable bilateral agreements) Prof. Dr. E. Albrecht, BTU Cottbus 18

I. Introduction History of IEL First Treaties Stockholm Conference
UNCLOS World Commission on Environment and Development United Nations Conference on Environment and Development in Rio de Janeiro 1992 World Summit on Sustainable Development in Johannesburg 2002 Further Development Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 1. First Treaties
1794: Jay-Treaty (USA – UK) on the Great Lakes 1867: Treaty on Fishery Rights (France – UK) 1891: Agreement on the modus vivendi on Seals in the Bering-Sea (USA – UK) 1902: Convention to Protect Birds Useful to Agriculture (USA – Canada) 1909: Boundary Waters Treaty (Canada – UK) 1931: International Convention on the Regulation on Whaling But: these treaties were mainly agreed to balance economical interests and not because of ecological reasons Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 1. First Treaties – continue
1900: “Convention destinée á assurer la conservation des diverses espèces animales vivant à l’état sauvage en Afrique qui sont utiles à l’homme ou inoffensives” 1933: Convention Relative to the Preservation of Fauna and Flora in the Natural State 1940: Convention on Nature Protection and Wild Life Protection in the Western Hemisphere These are some conventions with a more ecological target, but they regulate only special subject matters and have therefore limited effects Prof. Dr. E. Albrecht, BTU Cottbus

1. First Treaties – continue
I. Introduction 1. First Treaties – continue 1941: Trail-Smelter Arbitration (USA – Canada): CASE: between USA and Canada because of damages at agri- and silviculture in Washington/USA by air pollution caused by a Canadian installation for the melting of tin and lead. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Location of Trail (circle) in British Columbia, Canada* *Trail, British Columbia, British Columbia.

I. Introduction The arbitration ruled:
“that under the principles of international law (...) 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 of the properties or persons therein, when the case is of serious consequences and the injury is established clear and convincing evidence.” Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 1945 – 1972 UN-Charter does not mention environmental subject matters 1949: ECOSOC-Conference  UNCCUR (United Nation’s Conference on Conservation and Use of Resources 1949 – 1969 a number of agreements on the use of the high seas ( fishery) were agreed 1954 – 1970 a number of agreements on the protection of the high seas against pollution by oil and nuclear wastes 1950 – 1960 a number of mainly bilateral agreements on the use of international rivers and waters (e.g. Agreement on the protection of the Moselle, the Saar, the Rhine, the Lake of Constance and the Lake Geneva against pollution 1960 – 1962) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 1945 – 1972 1949: Corfu-Channel-Case:
CASE: 22nd of October 1946 in Albanian Waters the destroyer “Saumarez” and the destroyer “Volage“ were damaged by explosions from a minefield, laid in 1946 with knowledge of the Albanian government in an international highway; naval personnel were killed (44 people) or hurt (42). The total damage was estimated £ Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction The International Court of Justice (ICJ) stated that there is: “... every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.” Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 1945 – 1972 1957: Lac Lanoux*-Case (Spain – France):
© Prof. Dr. E. Albrecht, BTU Cottbus 28

I. Introduction 1945 – 1972 1957: Lac Lanoux-Case (Spain – France):
CASE: The French Government proposed to carry out certain works for the utilization of the waters of Lake Lanoux, in the Pyrenees, and the Spanish Government feared that these works would adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne of May 26, 1866, between France and Spain and the Additional Act of the same date. In any event, it was claimed that, under the Treaty, such works could not be undertaken without the previous agreement of both parties. Prof. Dr. E. Albrecht, BTU Cottbus 29

I. Introduction International arbitration stated that there is an obligation of one state in respect to international water courses, to take the interests of the another into consideration (“Harmon”-principle) (Arbitral Tribunal November 16, 1957) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 1968: African Convention on the Conservation of Nature and Natural Resources 1971: Ramsar-Convention on Wetlands of International Importance Especially as Waterfowl Habitat first environmental Conventions for the protection of certain habitats and not for the protection of certain species Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Summary: before 1972 the field of international environmental law was not much developed important parts of IEL for today (e.g. hazardous chemicals and waste, transboundary air pollution, climate change, ozone depletion) were no subject matter of any international treaty Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 2. Stockholm Conference
Stockholm Conference was influenced by discussion about the environmental situation, mainly in the USA and later in Europe also landmark in 1972: Study, paid by the Club of Rome “The Limits to Growth” by Donella H. Meadows, Dennis L. Meadows, Jörgen Randers, and William W. Behrens which painted an apocalyptic picture of the world Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction The Club of Rome, founded in April 1968, is a global think tank and centre of innovation and initiative. As a non-profit NGO, it brings together scientists, economists, businessmen, international high civil servants, heads of state and former heads of state from all five continents who are convinced that the future of humankind is not determined once and for all and that each human being can contribute to the improvement of our societies. Co-Presidents: Ashok Khosla (left) and Eberhard von Koerber (right) Source: Source: 34 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 2. Stockholm Conference
1972: Sweden hosted a special international conference to discuss the human environment is regarded as the best organised and best documented UN conference at this time attended with 114 of the then 131 UN members divided perception about the problem: developed countries: environmental degradation is one of the most serious problems Sweden had first problems with acid rain, caused by combustion, industrial and traffic emissions from the UK. the Soviet bloc abstained from attending; mainly not because of the subject matter. The reason was the status accorded to East Germany which was not accepted as a single state at that time. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction less developed countries: had different priorities (Group of 77) poverty which causes pollution resentment over the fact that the developed countries had consumed a great part of the earth’s resources were now asking the less developed countries to remain poor and to pay for the remediation and conservation of the Earth new environmental standards block goods from less developed countries from the markets of the developed countries Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction with this background the text of the Stockholm Declaration (prepared in Founex near Geneva/CH) therefore is a masterpiece of diplomacy compromise: economic development is not necessarily incompatible with environmental protection development could proceed provided it avoided damaging the environment Principle 1 (nascent right) is – unfortunately counterbalanced in Principle 11 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Stockholm Declaration has 26 principles which deal with the rights and obligations of citizens and governments with regard to the preservation and the improvement of the environment responsibility to future generations (Principles 1, 2, 5) nascent right to a quality environment (Principle 1) right of states to exploit its resources pursuant to their environmental (not: developmental) policies (Principle 21) states shall cooperate to develop international law regarding liability and compensation for extra-territorial harm (Principle 22) these Principles can be found in many later treaties Over 150 post-Stockholm environmental treaties are counted plan to create UNEP, the first international organisation with an exclusively environmental mandate Principle 1 (nascent right) is – unfortunately counterbalanced in Principle 11 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 3. UNCLOS negotiations on a Law of the Seas were made even before the Stockholm Conference opened for signature 1982, entry into force: 16. Nov. 1994 UNCLOS is a kind of an umbrella-convention; function as a framework for other international rules, regulations and implementing bodies; lot of the provisions are very general and need to be specified by additional agreements Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction UNCLOS is estimated to be the strongest environmental treaty; it possesses the fundamental and over-arching character of a constitution for the oceans 320 provisions in total and 59 with environmental background UNCLOS is seen as the codification of customary law in regard to the use of the oceans  is applicable to signatory states and to non signatory parties Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 4. World Commission on Environment and Development
better known as “Brundtland Commission” created by the General Assembly in 1983 to develop a long-term environmental strategy for sustainable development Result: Brundtland report “Our Common Future” in 1987 economic growth is desirable and possible within a context of sustainable development sustainability means: use the environmental resources in a manner that meets the needs of the present generation without compromising the ability of future generations to meet their own needs Sustainable development: The term development stands for “economical” development, the term sustainable contains mainly environmental ideas, but not solely. The development of the term sustainable development makes it clear, that mainly environmental questions should be subject, but the term itself leaves it open!!! e.g.: in respect to pension’s system, health insurance, public financing it is said, that they have to be sustainable. Prof. Dr. E. Albrecht, BTU Cottbus

economic develop-ment environ-mental develop-ment
I. Introduction Sustainable Development (1987) economic develop-ment environ-mental develop-ment social develop-ment ? 42 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 43 Gro Harlem Brundtland
born in Oslo, Norway, on 20 April 1939. 1974 Minister of the Environment in Norway 1981 Prime Minister as the youngest person and the first woman ever to hold the office of Prime Minister in Norway. 1983 Chairperson of the World Commission on Environment and Development; report „Our Common Future“ published in April 1987 PM of Norway PM of Norway Director-General of the World Health Organization Now works for Pepsi (an American multinational corporation) as a consultant Source: *Gro Harlem Brundtland, 43 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 5. UNCED Full name: United Nations Conference on Environment and Development Took place 1992 in Rio de Janeiro/Brazil better known as “Earth Summit” ~ delegates from 176 countries and 103 head of states more than 700 NGOs as official observers at the conference more than NGOs at the parallel conference “Global Forum 92” biggest summit level conference ever Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction UNCED – continue: four institutional results:
Rio Declaration on Environment and Development Agenda 21 World Forest Declaration ceremonial signing of the Climate Change Convention and the Biodiversity Convention Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction UNCED – continue: Resume:
Agenda 21 “allows” a lot of exceptions in respect to environmental issues when developmental issues have priority Rio Declaration replaced the “Earth Charter” as successor of the Stockholm Declaration some steps back in the Rio Declaration in respect to the Stockholm Declaration the nascent right to a wholesome environment was abandoned in favour of a right to development “allows” – Agenda 21 is soft law anyway Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction UNCED; Resume – continue:
the obligation to avoid transboundary damage (Principle 21 of the Stockholm Declaration) was weakened in Principle 2 of the Rio Declaration by adding an authorisation for states “to exploit their own environmental and developmental policies”. obligation to protect the environment for the benefit of future generations is replaced by a right to consume or develop (Principle 3) Rio Declaration states that unilateral action in respect to environmental challenges should be avoided  weakens possibilities of states to react to certain problems (example: prohibiting the import of tuna caught without a dolphin extruding technique, should be avoided) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 6. World Summit on Sustainable Development
Johannesburg/South Africa 2002 Johannesburg Summit was intended primarily to stimulate implementation of Agenda 21 ~ delegates from governments and ~ delegates from NGOs new level of dialogue between NGOs, social groups and state representatives Output: two documents Political Declaration Implementation Plan 48 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction World Summit on Sustainable Development Johannesburg/South Africa 2002 – continue Political Declaration Art. 5: affirmation of a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development at the local, national, regional and global levels introduction of a third element into sustainable development with the term “social development” this means a loss of importance of environmental protection, because it is now one out of three subject matters “social development” formerly has been subsumed under “economic development” Prof. Dr. E. Albrecht, BTU Cottbus 49

I. Introduction The Johannesburg Declaration on Sustainable Development Principle 5 Accordingly, we assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels. Prof. Dr. E. Albrecht, BTU Cottbus

economic develop-ment environ-mental develop-ment
I. Introduction Sustainable Development (2002) economic develop-ment environ-mental develop-ment social develop-ment 51 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction World Summit on Sustainable Development Johannesburg/South Africa 2002 – continue Implementation Plan goals to be met until 2022: meeting people’s basic sanitation needs production and use of non harmful chemicals restoration of the world’s fish stocks reduction in the rate of loss of biological diversity Widening of Agenda 21 on non-state actors, stating the importance and role of NGOs in the implementation progress of environmental policies “social development” formerly has been subsumed under “economic development” Prof. Dr. E. Albrecht, BTU Cottbus

International (Environmental) Law
I. Introduction Types of International (Environmental) Law: International (Environmental) Law soft law hard law endeavour obligation / aspirational norms obligation to act soft law: includes declarations of principle, codes of practice, recommendations, guidelines, resolutions and standards hard law: treaties and customs main difference: hard law is legally binding, soft law is not. But soft law is not irrelevant: it can help in respect to interpretation can prepare the agreement of treaties examples: Langwaki Declaration on the Environment 1989 prepared the UN resolution banning driftnet fishing in the South Pacific Helsinki Declaration on the Protection of the Ozone Layer => Montreal Protocol The UNEP Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Waste => Basel Convention Berlin Mandate 1995 => Kyoto Protocol to the UNFCCC Agenda 21 principles are increasingly subject in new international agreements and judicial decisions 53 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction soft law hard law
declarations of principle, codes of practice, recommendations, guidelines, resolutions, standards treaties, customs legally not binding legally binding no judicial control judicial control, if agreed as compliance mechanism political situation allows often lack of precision and specifity often precise and specified provisions politically easier to agree often difficult to obtain consensus often preparing hard law Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Sources of IEL Treaties Custom
General Principles of Law Decisions Judicial Sources Other Treaties Sources of IEL Treaties Custom General Principles of Law Judicial Decisions Other Sources 55 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Sources and Forms of IEL
Treaties, Custom, General Principles of Law, Judicial Decisions are mentioned in Art. 38 para 1 of ICJ-Statutes the different sources and forms have different weight, e.g. treaty is written and agreed within the parties customary law and general principles are usually unwritten judicial decisions are directly binding only between the parties ICJ = International Court of Justice, Den Haag (?) Prof. Dr. E. Albrecht, BTU Cottbus 56

I. Introduction Art. 38 ICJ-Statute
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; subject to the provisions of Article 59 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Treaties An international treaty is:
a written agreement governed by international law between two or more states creating or restating legal rights and duties other names: conventions protocols covenants pacts, etc. between two or more states (and/or other organisations which could be subject of international law, e.g. EC) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction A treaty is the principle source of International Environmental Law, because nature of environmental problems range over a wide spectrum of future contingencies demand of continuous observation and monitoring demand quick (relatively) legal action and implementation in response to ongoing and relatively rapid change in scientific knowledge and conclusions necessity to react with a mixture of generality, specificity and adaptability e.g. customary law is made up of state practice and opinio juris which usually takes time to crystallise general principles of law even take longer to identify and ascertain even where these sources are clear, there are no mechanisms for inducing compliance or considering infractions treaties offer a superior framework for dealing with environmental issues by allowing for targeted laws, flexibility of law-making, machinery for inducing compliance and non compliance and dispute resolution mechanisms treaties can be tailored to the problems at hand because treaties are written and have to written they are more accessible and applicable => this leads to better solutions if the subject requires clarity and certainty of legal response finally: a written document is more accepted and seems to be more binding in the public; a court is not necessarily needed to know, if the behaviour of one state is within the law or not. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction But: even a written treaty could be unclear or could easily be misunderstood: The Vienna Convention on the Law of Treaties Vienna Treaty Convention consists provisions about: entry into force or date when the treaty binds the parties officially stipulated minimum member of states which have deposited their ratification document sometimes additional conditions (e.g. Kyoto Protocol) The Vienna Convention on the Law of Treaties, 23. May 1969 (1155 U.N.T.S. 331 (1988)) entry into force: an international treaty typically does not come into force with signature ratification is the process by which the respective national government gives legal force to the signature entered by their representatives Prof. Dr. E. Albrecht, BTU Cottbus

Entry into Force – Procedure
I. Introduction Entry into Force – Procedure Signature by representative of the state Ratification/ Acceptance/ Approval by legislatory or other competent organ Deposition of the Ratification Document Entry into Force no further act necessary e.g.: Signature by the Minister for Foreign Affairs or for the Minister for the Environment, or by the President, depends on the importance of the subject Ratification by the legislative organ or the organ which is competent by constitutional provisions; in Germany: Bundestag, in USA: Senate, in Russia: Duma Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Vienna Treaty Convention comprises provisions about:
Reservations Reservations allows parties to agree to all of the provisions of a treaty except those specified in the reservation Some treaties do not allow reservations (e.g. Climate Change Convention, Montreal Protocol or Biodiversity Convention) Reservations: Why? It is normally better when a treaty is accepted by 99 or 95 % than not; additionally even if a state has some reservations, this state counts as a signatory and ratification state. When no reservations allowed, some states try to find a way not to follow the provisions of the treaty by “interpretive declarations” (e.g. Fiji, Kiribati, Nauru and Tuvalu to the UNFCCC; UK to the Biodiversity Convention); the legal effect is not clear because not decided yet. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Vienna Treaty Convention comprises provisions about:
Amendments amendments do not enter into force unless ratified or accepted by all parties this procedure is complicated and time consuming could block any progress solution: framework treaty + protocols + technical and scientific annexes/appendices framework treaty functions as a constituent instrument containing general principles and provisions protocols supplement or implement the framework treaty technical and scientific annexes contain details that my need quick amendment according to changing needs protocols and annexes do not necessarily require an unanimous vote (e.g. Art. 9 and 10 of the Vienna Convention for the Protection of the Ozone Layer from 22 March 1985) Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Treaties Interpretation
(even) treaties are often vague or unclear parties are not able to anticipate and provide for future developments or changes abstractions are necessary when novel cases arise, they could be solved with abstract provisions Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction During conferences, state parties often resort to drafting aspirational and hortatory expressions when they are unable to agree upon specific obligations when parties want to move beyond aspirational to the obligatory norms, sometimes the form and extent of such obligations are subject to interpretation treaties consist of aspirational norms (endeavour-obligations) general norms containing inchoate and open-textured obligations rules and principles that codify contentious or competing rules Example from UNFCCC: parties, taking into account their undefined “common but differentiated responsibilities” shall include climate change considerations “to the extent feasible” (Art. 4 para 1 f of the UNFCCC) from Biodiversity Convention obligations of aspiration, such as “as far as possible and as appropriate” (Art. 5, 6, 7) and “in accordance with its particular conditions and capability (Art. 6) from Basel Convention requires each party to take “appropriate measures” to minimise the generation of hazardous wastes (Art. 4 para 2 a) Basel-Convention) requires that parties manage waste in an “environmentally sound” manner (Art. 4 para 2 d) Basel Convention) “t Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction treaties consist of
norms which could compete with norms in other treaties; if two norms with a different content rule the same subject, the question which norm should be relevant is subject to interpretation Additional question in regard of the interpretation of treaties Who is empowered to interpret a treaty How, or according to what rules, is the provision interpreted Example for variation/conflict: Art. 193 UNCLOS requires states “to protect and preserve” the marine environment; Art. 3 of the Biodiversity Convention requires that states “not cause damage” to areas outside their jurisdiction this means of course also oceans there seems to be a clear difference between these two formulations Interpretation Rules same problem occurs in national law also; of course also in e.g. European Law but here: courts and administrative bodies (controlled by courts) do the interpretative work Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Interpretation in international treaties by
International Court of Justice ? Problem: ICJ depend on the acquiescence of the parties for his jurisdiction judicial or arbitral tribunals created by the respective treaty by Declarations, e.g. Stockholm Declaration by institutions created by treaties by (annual) conferences of parties (COPs) by expert groups/organisations, e.g. mentioned in an annex IJC: Art. 36 of the ICJ-Statutes tribunals: e.g. UNCLOS or UNFCCC Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Interpretation in international treaties by the rules of the Vienna Treaty Convention (Part 2, Section 3, Art. 31 ff.) Art. 31: General Rule of Interpretation interpretation in good faith use the context, e.g. preamble, annexes use of subsequent agreements or practice Art. 32 Supplementary Means of Interpretation use of preparatory work use of the circumstances of its conclusion historical interpretation Art. 33 Interpretation of Treaties Authenticated in Two or More Languages principle: the text is authoritative in each language (except other rule is agreed) if unclear, the meaning which best reconciles the text is adopted Examples: ICJ Decision 8 July 1996 (1996 ICJ 66): no right of the WHO to give Advisory Opinions on the legality of the threat or use of nuclear weapons. Reason: narrow and restricted interpretation of the mandate of the WHO On the other side: wide and expansive interpretation of provisions of the Montreal Protocol by the COPs 68 Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Treaties Conflict with other Treaties, e.g. „Trade“
some treaties mandate trade restrictions Help by Vienna Treaty Convention, how to handle diverging treaties (Art. 30) if all parties are parties to both treaties, the treaty that is later in time prevails if one treaty is not agreed to all parties and the other is, the treaty which is agreed by all parties prevail e.g.: environmental protection  free trade (Montreal Protocol, Basel Convention, Convention on International Trade in Endangered Species and Wild Fauna and Flora) Example: Montreal Protocol, CITES, Basel Convention came into force earlier than GATT/WTO => GATT/WTO prevails; UNCLOS came into force later => UNCLOS prevails; but questions are open: does the Basel Convention deal with the same subject matter as the GATT/WTO??? There is also a rule, that the more specialised provision prevails in respect to the more general norm. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 2. Customary Law
usually unwritten, uncodified principles that are established by evidence of practice and opinio juris Art. 38 para 1 b): ICJ Statute: evidence of a general practice accepted as law Regional general practice is sufficient, if the parties come from the same region Customary law is partly codified by the ILC and others  Problem: Difficult decision, if that what has been codified is exactly what has been a custom ILC = International Law Commission; others: scholars and jurists, courts, legal tribunals, conference declarations and treaties, empowered by Art. 13 of the UN Charta to “initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codifications” Problems: scholars, jurists, courts et. al might not be generally accepted. Question is, how independent they are, which historical, political and social background they have etc. manifestation of customs into written law, maybe the best example is UNCLOS: What has been customary law in respect to the use of the marine environment were put to a written form in UNCLOS. Furthermore: as far as the treaty is not in force, the provisions of a treaty could be customary law; when the treaty enters into force the quality changes into treaty. Attention: both sources are binding, but the customary law might be more difficult to fix. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Sources of customary law: national legislation
diplomatic notes and correspondence statements and votes by governments in international organisations and forums ratification of treaties containing the obligations in question opinions of legal advisers restatement of the law by scholars and jurists like the ILC ILC = International Law Commission; Problem Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Customary Law could be agreed in a treaty
can often be found in treaties as „principles“, rarely as „rules“ only a few principles are accepted as customs obligation to prohibiting transboundary harm ( comes from the more general principle: „sic utere tuo ut alienum non laedus“); codified as Principle 21 of the Stockholm Declaration, Art. 3 of the Biodiversity Convention Principle 2 of the Rio Declaration Rules: typically embody standards that are definitively applied to a specifically described state of affairs and the application of such a rule frequently determines a particular controversy Principles: are more abstract general norms from which specific rules or standards are derived, and embody reasons that argue for moving in a particular direction, rather than arriving a particular result => principles do not postulate obligations of result few principles accepted as customs: Reason: the element of generality (which is a basic element of customs) requires that the practice is widespread among at least a majority of states  This is difficult in a world which is divided along cultural, economic, social and religious lines „sic utere tuo ut alienum non laedus“ = „use your own property in such a manner as not to injure that of another“ Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Customary Law – continue:
duty to preserve and protect the marine environment and its national resources (Art UNCLOS) Principle of notification and consultation before embarking on potentially damaging environmental activities transboundary water pollution Principle of Sustainable Development Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction not (yet) customary law are the following:
principle of common but differentiated responsibility polluter pays principle preventive and precautionary principle principle of good neighbourliness and cooperation they all might become customary law in the future Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 3. General Principles of Law
the systematic in Art. 38 para 1 c) ICJ Statutes indicate that the “general principles of law” have a parity status in respect to customs and treaties (arg. Art. 38 para 1 d)  judicial decisions are subsidiary source) what are the “general principles of law”? common principles of all major legal systems General principles easier to be found in regional context, e.g. European “Basic Laws”, which are not written in the European Constitution, are more than the “freedoms” or freedom rights in the EC Treaty, e.g. freedom of religious activities, guarantee of property etc. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 3. General Principles of Law (continue)
problem: how to find out which general principles exist? search, discover and distil such principles not limited to “civilised nations” this task was attempted but by no means finished worldwide general principles are found rarely ICJ and other juridical bodies: almost no principles accepted mainly procedural (no substantive) rights General principles easier to be found in regional context, e.g. European “Basic Laws”, which are no written in the European Constitution, are more than the “freedoms” or freedom rights in the EC Treaty, e.g. freedom of religious activities, guarantee of property etc. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 4. Judicial Decisions
subsidiary meaning (Art. 38 para 1 d) ICJ Statutes) binding only between the parties and in respect to the particular case important in respect to identify customary law necessary to avoid duplication (repeated investigation, interpretation) earlier decisions could influence later decisions, but it is possible to change the decision in the meantime a number of judicial decisions on IEL are existing and the number is growing  more relevance of IEL In common law systems (e.g. England) – that means: no or almost or rarely codified law –, the importance of judicial decisions is much higher. Judicial decisions form the law, because the relevant cases are recorded by lawyers and then used in other cases to decide. But, this system works only if the decision of the higher court’s level is binding the subsequent courts. But in IEL or international law in general, there is no hierarchy of courts, so there is no binding force. Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 4. Judicial Decisions
Trail Smelter Arbitration (USA vs. Canada, 1938) Corfu Channel Case (U.K. vs. Albania, 1949) Lake Lanoux Arbitration (Spain vs. France, 1957) Nuclear Test Case (New Zealand vs. France) Case concerning the Gabčíkovo-Nagymaros project (Hungary vs. Slovakia) ICJ installed a Chamber for Environmental Law (1993) In common law systems (e.g. England) – that means: no or almost or rarely codified law –, the importance of judicial decisions is much higher. Judicial decisions form the law, because the relevant cases are recorded by lawyers and then used in other cases to decide. But, this system works only if the decision of the higher court’s level is binding the subsequent courts. But in IEL or international law in general, there is no hierarchy of courts, so there is no binding force. Source: Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction 5. Other Sources
teachings of the most highly qualified publicists of the various nations also subsidiary meaning ( Art. 38 para 1 d) ICJ Statutes work of the ILC resolutions, declarations, action plans, agendas of the UN or other inter-governmental organisations (e.g. Stockholm Conference or UNCED) ILC = International Law Commission; others: scholars and jurists, courts, legal tribunals, conference declarations and treaties, empowered by Art. 13 of the UN Charta to “initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codifications” UNCED = United Nations Conference on Environment and Development (1992 – Rio) soft law instruments Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Decision ex aequo et bono
Possibility of the ICJ to decide by reasons of equity (= fairness) ICJ is more an arbiter Aim: Closing of loopholes in IEL Until now: no decision ex aequo et bono Reason: most of the parties (states !) accept the law, but no party wants to depend on the decision made by a few judges only ILC = International Law Commission; others: scholars and jurists, courts, legal tribunals, conference declarations and treaties, empowered by Art. 13 of the UN Charta to “initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codifications” UNCED = United Nations Conference on Environment and Development (1992 – Rio) soft law instruments Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Implementation Institutions and Organisations
Compliance Mechanisms Diplomatic Possibilities Judicial Remedies Relationship between IEL and National Law Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Problem:
in international law we have coequal sovereign states one state, one vote  principally all states have the same importance no overarching pyramid of authority consisting of law-making, law-interpretating, law-implementating or law-enforcing institutions difficulty for sovereign states to accept international jurisdiction loss of sovereignty exceptions of course are possible, e.g. Kyoto-Protocol: Different quota of CO2-emissions means different power to stop the treaty Prof. Dr. E. Albrecht, BTU Cottbus

I. Introduction Organisation in a state and international (Example)
Federal Government Federal State (Province Administration) Middle Administration Local Administration Constitutional Court example by the German Administrative Structure, e.g. Consumer Protection Federal, district and local Courts Federal Constitutional Court Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Nature of the Problem Environmental Impacts Causes
Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Nature of the Problem
Life on Earth is supported by communities of plants, animals, and micro organisms interacting with each other within ecosystems, and with physical environment Biodiversity encompasses three concepts: genetic diversity within each species diversity of species diversity of ecosystems within a region Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Value of Biodiversity is the
maintaining atmospheric quality regulating local climates absorbing pollutants protecting watersheds generating and maintaining soils the greater an ecosystem’s diversity is, the greater is its capacity to support life and adapt to changing conditions Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Protecting Biodiversity has an economic value as
food, medicines, chemicals, fibres, structural materials, fuel etc. benefit-cost figure for known species could be calculated, for unknown estimated an ecological value the weaker the species, the more vulnerable the ecosystem loss of genetic diversity leads to uniformity to higher susceptibility to diseases and pests an aesthetic value as a source for recreation and beauty Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity 2. Environmental Impacts
richest remaining areas of biodiversity are rain forests coral reefs coastal wetlands Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity 3. Legal Response Ramsar Convention (a.)
World Heritage Convention (b.) Convention on Biodiversity (c.) Cartagena Protocol on Biosafety (d.) CITES (e.) Bonn Convention (f.) Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity a. Ramsar Convention Convention on Wetlands of International Importance Especially as Waterfowl Habitat concluded at Ramsar (Iran), 2nd Feb. 1971 amended by Protocol of 3rd Dec and 28th May 1987 160 Contracting Parties (May 2012) oldest international treaty created solely for the protection of ecosystems attempts to safeguard wetlands COP has created a Record of Ramsar Sites at the present: 2,006 sites totalling 192,822,023 hectares, designated for inclusion in the Ramsar List of Wetlands of International Importance with emphasis on those areas of international importance to waterfowl Record of Ramsar Sites: Sites in Danger (analogue WH-Convention) Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Ramsar Sites – examples Mühlenberger Loch
near Hamburg (1992) 91 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Peitzer Teiche (1978) Ramsar Sites – examples 92
Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Everglades (1987) Ramsar Sites – examples 93

II. Biodiversity Karakul Lake Tajikistan (2001)
Ramsar Sites – examples Karakul Lake Tajikistan (2001) 94 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Okavango Delta Botswana (1996)
Ramsar Sites – examples Okavango Delta Botswana (1996) 95 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Waituna Lagoon New Zealand (1992)
Ramsar Sites – examples Waituna Lagoon New Zealand (1992) 96 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Ramsar Sites – examples 97 Bañados del Río Dulce y
Laguna de Mar Chiquita Argentina (2002) 97 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage Convention
Convention concerning the Protection of the World Cultural and Natural Heritage signed in Paris 16 Nov. 1972 recognition and protection of “ cultural” and “natural” heritage 936 sites in 153 State Parties (March 2012) 725 cultural, 183 natural and 28 mixed sites importance for biodiversity because of the protection of “natural sites” or mixed “cultural/natural sites” Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage – Examples Wartburg Near Eisenach
(1999) 100 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage – Examples Muskauer Park (2004) 101

II. Biodiversity b. World Heritage – Examples Speyer Cathedral (1981)
102 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage – Examples
Middle Rhine Valley (2002) 103 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage – Examples 104 Limes (2005)

II. Biodiversity b. World Heritage – Examples Völklingen Ironworks
(1994) 105 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage – Examples Castel del Monte (1996)

II. Biodiversity b. World Heritage – Examples Siena (1995) 107

II. Biodiversity b. World Heritage – Examples Venice Lagoon (1987) 108

Uluru-Kata Tjuta National Park
II. Biodiversity b. World Heritage – Examples Uluru-Kata Tjuta National Park (1987/1994) 109 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage – Examples
Yellowstone National Park (1978) 110 Prof. Dr. E. Albrecht, BTU Cottbus

Galapagos Islands/Ecuador
II. Biodiversity b. World Heritage – Examples Galapagos Islands/Ecuador (1978/2001) 111 Prof. Dr. E. Albrecht, BTU Cottbus

Old Walled City of Shibam/Yemen
II. Biodiversity b. World Heritage – Examples Old Walled City of Shibam/Yemen (1982) 112 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity b. World Heritage – Examples Victoria Falls (1989)

Ilulissat Icefjord/ Greenland
II. Biodiversity b. World Heritage – Examples Ilulissat Icefjord/ Greenland (2004) 114 Prof. Dr. E. Albrecht, BTU Cottbus

II. Biodiversity c. Biodiversity Convention
1987 ad hoc working group, installed by UNEP, to “explore the desirability and possible form of an umbrella convention to rationalize current activities” in the field of biodiversity target: consolidate existing treaties eliminate jurisdictional overlap fill perceived gaps Prof. Dr. E. Albrecht, BTU Cottbus

politically not attainable  result: Art. 22 para 1 and Art. 23 para 4 h) of the current Biodiversity Convention seek only “appropriate forms of cooperation” with the executive bodies of other biodiversity conventions framework treaty  mainly aspirational norms two overriding principles 1. Equity and Resource Transfer 2. Sustainable Development (Conservation and sustainable use) both principles linked by the third principle known as 3. Common But Differentiated Responsibility Prof. Dr. E. Albrecht, BTU Cottbus

1. Principles of Equity and Resource Transfers basic facts: most of the biological diversity’s resources exist in the South/developing countries arguments: preservation measures supported by the North/developed countries  threat to sovereignty, also in respect to financial transfers use of land for internal development  preservation of biodiversity North has already consumed a substantial degree of its own resources  restrictions for the South to preserve resources reduce developmental possibilities North views the problem less from a historic point, more as a present global problem which needs shared sacrifice, every country has the duty to protect and preserve resources and biospheres Prof. Dr. E. Albrecht, BTU Cottbus

Common Concern of Humankind one outcome of this conflict UNCLOS earlier proposals: “common heritage” (formulation during negotiations, rejected) “plant genetic resources are a heritage of mankind” (FAO formulation, rejected) in other treaties (UNCLOS, Outer Space Treaty) such formulations were agreed !!! but: biodiversity resources are resources (mainly) within the borders of the developing countries formulation “common concern of humankind” recognises that the loss of biodiversity is a global environmental problem Prof. Dr. E. Albrecht, BTU Cottbus

international/regional treaties
II. Biodiversity c. Biodiversity Convention Relationship to other Conventions CBD (for terrestrial biodiversity) UNCLOS (for marine biodiversity) international/regional treaties even WTO/GATT: exercise of rights and obligations “would cause serious damage or a threat to biological diversity” (Art. 22 para 1 WTO/GATT) 119 Prof. Dr. E. Albrecht, BTU Cottbus

Relationship to other Conventions CBD directs Secretariat to seek “appropriate forms of cooperation” with the executive bodies of other biodiversity treaties to facilitate the exchange of information harmonise reporting procedures coordinate respective programmes of work consult on how such conventions can contribute to the implementation of the CBD 120 Prof. Dr. E. Albrecht, BTU Cottbus

Relationship to other Conventions (continue) Memoranda of Cooperation with a number of executive bodies of other treaties, e.g. Ramsar Convention CITES Bonn Convention World Heritage Convention similar Memoranda of Cooperation with international organisations ( Convention on International Trade in Endangered Species of Wild Fauna and Flora Convention on the Conservation of Migratory Species of Wild Animals Convention on Wetlands of International Importance, especially as Waterfowl habitat Intergovernmental Oceanographic Commission Pan-European Biological and Landscape Diversity Strategy UNCTAD - United Nations Conference on Trade and Development UNESCO - United Nations Educational, Scientific and Cultural Organization IUCN - World Conservation Union FAO 121 Prof. Dr. E. Albrecht, BTU Cottbus

III. Climate Change Facts Human Responsibility Possible Impacts
Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

III. Climate Change Facts (IPPC – Intergovernmental Panel on Climate Change, 2007) rise of atmospheric concentration of CO2 by 31% between 1750 and 2000, and by 80% between 1970 and 2004 rise of methane increasing by 150% from increase of extreme weather events eleven of the years between 1995 and 2006 rank among the warmest years in the instrumental record of global surface temperature (since 1850) increase of the global average surface temperature over the 20th century by ca. 0,74° Celsius and it is very likely (90-99 % chance) that the warming in the 20th century has contributed significantly to the observed sea level rise The temperature increase is widespread over the globe and is greater at higher northern latitudes. Quelle: IPCC Fourth Assessment Report (AR4) - The AR4 Synthesis Report; Prof. Dr. E. Albrecht, BTU Cottbus

III. Climate Change Facts (continue)
Global average sea level has risen since 1961 at an average rate of 1.8 [1.3 to 2.3] mm/yr and since 1993 at 3.1 [2.4 to 3.8] mm/yr global average surface temperature is projected to increase by 1,1-6,4° Celsius at relative to , with a corresponding rise in sea level of 0,18-0,59 m since 1978 the annual average Arctic sea ice extent has shrunk by 2.7 [2.1 to 3.3]% per decade, with larger decreases in summer of 7.4 [5.0 to 9.8]% per decade expected severe human health impacts (increased summer deaths, increased risk of drowning, diseases, e.g. malaria, dengue and hunger from flooding) small Island states, e.g. the Maldives or the Seychelles, and highly urbanised low-lying coastal areas are particularly vulnerable Prof. Dr. E. Albrecht, BTU Cottbus

III. Climate Change Glaciers of the Alps – Pasterze near Großglockner/Austria 1938 2003 Quelle der Bilder: 125 Prof. Dr. E. Albrecht, BTU Cottbus

III. Climate Change Glaciers of the Alps – Rhone Glacier, Furka, Switzerland 1906 2003 126 Prof. Dr. E. Albrecht, BTU Cottbus

III. Climate Change Glaciers of the Alps – Zugspitze/Germany 1910 2003

III. Climate Change Glaciers of the Alps – Blaueis/Germany 128
Prof. Dr. E. Albrecht, BTU Cottbus Source:

III. Climate Change 2. Human Responsibility
IPPC (2007): most of the observed warming over the last 50 years is very likely to have been caused by the increase in GHG concentrations Almost no doubts in scientific community about human responsibility Prof. Dr. E. Albrecht, BTU Cottbus

III. Climate Change UNFCCC and Kyoto Protocol 130
Canada: Withdrawal to 15 December 2012 USA 130

III. Climate Change Emissions per capita 131 Source:

III. Climate Change False GHG-reports of China?
Alone 2010, there is a gap between the sum of GHG emissions of the provinces in China and the official report for China as a whole of 1,4 billon tons of CO2 (= 5 % of the annual global emissions of CO2) (The gigatonne gap in China’s carbon dioxide inventories, Dabo Guan, Zhu Liu, Yong Geng, Sören Lindner & Klaus Hubacek), Nature Climate Change, 2012) 132

III. Climate Change EU Burden Sharing
European Community (now: European Union) is party to UNFCCC and Kyoto Protocol collective fulfilling of the 8 %-reduction target, in relation to the economical capacity Followed by numerous activities (directives, decisions, programmes, etc.) 133

III. Climate Change EU Burden Sharing
collective fulfilling of the 8 %-reduction target, in relation to the economical capacity 134

III. Climate Change Withdrawal to 15 December 2015 All Kyoto Protocol Annex B- parties (including EU burden sharing) 135

III. Climate Change EU Burden Sharing 136
Decision no. 406/2009/EC of the European Parlia-ment and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to OJ L 140, p. 136 136

III. Climate Change Jacqueline McGlade, EEA Executive Director
(Press release from 24 Oct. 2012) “The European Union as a whole will over-deliver on its Kyoto target... Considerable progress has been made since 1997 but all Member States need to deliver on their plans.” Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Nature of the Problem Causes of the Problem
Environmental Impacts Remedial Objectives Legal Response The Impact of the Regime Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Nature of the Problem
increase in reactive halogen gases in the stratosphere is considered to be the primary cause of the average depletion Observed ozone depletion varies significantly with latitude on the globe. The largest losses occur at the highest southern latitudes as a result of the severe ozone loss over Antarctica each late winter/early spring period. The next largest losses are observed in the Northern Hemisphere, caused in part by late winter/early spring losses over the Arctic. Ozone is destroyed completely between 14 and 20 km (8 to 12 miles) in the Antarctic in spring. Average October values in the ozone layer now are reduced by 90% from pre-1980 values (as for 2 October 2001); the “ozone hole” is larger than the area of the USA (a similar hole exists above the Arctic) The formation of the Antarctic ozone hole requires abundant reactive halogen gases, temperatures low enough to form polar stratospheric clouds (PSCs), isolation of air from other stratospheric regions, and sunlight. Quelle: “Twenty Questions and Answers About the Ozone Layer: 2006 Update” by National Oceanic and Atmospheric Administration, National Aeronautics and Space Administration, United Nations Environment Programme, World Meterological Organization and European Commission Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Nature of the Problem (continue)
loss of ozone in the stratosphere not limited to the poles (- 10% over northern middle latitudes and 35% over Siberia) global ozone is about 4% below the 1964-to-1980 average. Stratospheric ozone is considered good for humans and other life forms because it absorbs ultraviolet (UV)-B radiation from the Sun and also because it initiates the chemical removal of many pollutants, such as carbon monoxide and nitrogen oxides, as well as greenhouse gases such as methane. the increased amounts of UV-B radiation endangers human health (e.g. skin cancer is estimated to increase by 2% for every 1% loss in ozone coverage); a 10% reduction of atmospheric ozone could result in additional cases of skin cancer and up to 1,75 Mio additional cases of cataracts each year UV-B radiation damages the immune system Quelle (for impacts on human health): (Stand 2001) Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Nature of the Problem (continue)
UV-B radiation may inhibit the growth of plants, inclusive such important commercial species, e.g. soybeans, cotton and certain trees UV-B radiation causes developmental abnormalities in fish, shellfish and amphibians (e.g. the decline of frogs is partly a result of increased UV-B exposure reduction of the productivity of phytoplankton  potential threat of the marine food chain but: first successes could be recognised: the ozone hole is not increasing WMO/UNEP: Scientific Assessment of Ozone Depletion: 2006 It is unlikely that total ozone averaged over the region 60°S-60°N will decrease significantly below the low values of the 1990s, because the abundances of ozone-depleting substances have peaked and are in decline. Two-dimensional models and three-dimensional Chemistry-Climate Models suggest that the minimum total column ozone values in this region have already occurred. This conclusion is consistent with the observation that over this region, ozone has not declined further in the period. The Antarctic ozone hole is expected to continue for decades. Antarctic ozone abundances are projected to return to pre-1980 levels around , roughly years later than estimated in the 2002 Assessment. The projection of this later return is primarily due to a better representation of the time evolution of ozonedepleting gases in the polar regions. In the next two decades, the Antarctic ozone hole is not expected to improve significantly. Climate change will also influence surface UV radiation through changes induced mainly to clouds and the ability of the Earth’s surface to reflect light. Aerosols and air pollutants are also expected to change in the future. These factors may result in either increases or decreases of surface UV irradiance, through absorption or scattering. As ozone depletion becomes smaller, these factors are likely to dominate future UV radiation levels. Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion 2. Causes of the Problem and
3. Environmental Impacts See slight show from: Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion The ozone layer is a thin layer of ozone in the atmosphere, 10 – 50 kilometres above the earth “ 143 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Ozone (O3) has three atoms. It is very rare, only three out of 10 million molecules in the air are ozone. Ninety per cent of ozone is in the upper atmosphere “ Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion The ozone layer absorbs most of the harmful ultraviolet-B (UV-B) radiation from the sun “ 145 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion “Wonder gas” CFCs were invented in 1928 for commercial applications “ 146 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion ...use of CFCs increases rapidly... “ 147

IV. Ozone Depletion “ Scientists discover a link between CFCs and ozone layer depletion 148 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion If the ozone layer depletes, more harmful UV-B radiation will reach the earth through the damaged ozone layer “ 149 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion More UV-B radiation means more skin cancers, more diseases and eye cataracts, less yield from plants, less productivity from oceans, damage to plastics... “ 150 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion “ In 1977, UNEP sets up a co-ordinating committee to study the ozone layer 151 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion In 1978, the United States of America, Canada, Sweden and Norway ban the use of CFCs in aerosols “ 152 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion In 1981, UNEP starts inter-governmental negotiations to protect the ozone layer “ 153 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion After 1982, in the absence of other moves, the consumption of CFCs increases again. Industry demands proof of ozone depletion due to CFCs Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Governments agree to study, exchange information and protect the ozone layer – through the Vienna Convention for the Protection of the Ozone Layer (1985). Scientists continue to find proof of ozone depletion Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion The British Antarctic Team discovers severe thinning in the ozone layer over Antarctica – the ozone hole Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion In 1987, 46 governments agree to a fifty per cent cut in the production and consumption of CFCs by the year 2000; a freeze in production and consumption of halons by 1992; further controls linked to assessments by experts  Montreal Protocol on Substances that Deplete the ozone Layer – 1987 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion 4. Remedial Objectives
In order to restore the ozone shield, prohibition of the production and use of CFCs was agreed Institution of control mechanism Most striking success of IEL Factors: Growing scientific consensus about the causes and effects Relative small number of producing nations Powerful „leader states“, e.g. USA which banned CFC before any international agreement Development of an innovative institutional mechanism that attracted reluctant parties Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion 5. Legal Response
Vienna Convention for the Protection of the Ozone Layer agreed 22nd March 1985 in Vienna Entry into force: 22nd Sept. 1988 took four years to prepare and agree Vienna Convention 20 nations signed it in Vienna, including all relevant producer nations (except Japan), but ratification took some time Actual: 191 nations ratified the Convention Convention stresses cooperation and research (instead of control  COP empowered to adopt protocols on control mechanism) Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Vienna Ozone Convention
to take "appropriate measures...to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the Ozone Layer“ to encourage research and overall cooperation among countries and exchange of information took four years to prepare and agree provided for future protocols and specified procedures for amendments and dispute settlement Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Vienna Ozone Convention (continue)
set an important precedent: For the first time nations agreed in principle to tackle a global environmental problem before its effects were felt, or even scientifically proven As the experts began to explore for specific measures to be taken, the journal 'Nature' published a paper in May 1985 by British scientists – led by Dr. Joe Farman – about severe ozone depletion in the Antarctic. The paper's findings were confirmed by American satellite observations and offered the first proof of severe ozone depletion and making the need for definite measures more urgent. As a result, in September 1987, an agreement was reached on specific measures to be taken and the Montreal Protocol on Substances that Deplete the Ozone Layer was signed. Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) Adopted 16th Sept. 1987, Entry into Force: 1st Jan. 1989 Amendments by two-thirds majority, but: not binding for non ratifying party (Art. 9 para 3 and 4 Vienna Ozone Convention !!!)  different mechanism in comparison to other protocols  traditional rule of consent in IEL (Art. 9 para 5 Vienna Ozone Convention) Once an amendment is adopted, “adjustments” (Art. 2 para 9a Montreal Protocol: about changes in the reduction or the phase-out schedules, or the ozone-depleting potential) are possible  two-thirds majority, representing separate majorities between developed and developing countries; adjustment then is binding (Art 2 para 9c) Prof. Dr. E. Albrecht, BTU Cottbus

Amendments and Adjustments
IV. Ozone Depletion Protocol from Entry into force Ratifications Montreal 1987 1 Jan. 1989 191 Amendments and Adjustments London 1990 10 Aug. 1992 186 Copenhagen 1992 14 June 1994 179 1997 10 Nov. 1999 159 Beijing 1999 25 Feb. 2002 135 Adjustments Vienna 1995 5 August 1996 – 163 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Consumption and production controls for seven types of chemicals (additional information in Annexes A – E) Substance Provision CFCs Art. 2 A, 2 C Halons Art. 2 B Carbon tetracloride Art. 2 D Methyl chloroform (1,1,1-Trichloroethane) Art. 2 E Hydrochlorofluorocarbons (HCFCs) Art. 2 F Hydrobromofluorocarbons (HBFCs) Art. 2 G Methyl bromide Art. 2 H 164 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Phase-out schedules
Montreal Protocol Phase-out schedules Different obligations between developed and developing countries Exceptions for “basic domestic needs” for developing countries Exceptions for “essential use” (pesticides, asthma sprays … ) for all countries  not unilateral, but decision of the Technology and Economic Assessment Panel (example for 1997: USA – 331 tons; EU – tons) Problem: danger of abuse or creation of loopholes in the Convention/Protocol Montreal Protocol talks to consider exemptions from methyl bromide ban Montreal/Nairobi, 23 March 2004 – A three-day meeting of the Montreal Protocol on Substances that Deplete the Ozone Layer will consider granting exemptions to 12 developed countries so that they can use the pesticide methyl bromide for certain “critical uses” after its phase-out date of 1 January 2005. Like Halons and CFCs, which were phased out by developed countries in 1994 and 1996, respectively, methyl bromide damages the stratospheric ozone layer. According to the agreed phase-out schedule, developed countries reduced methyl bromide by 70% by 2003, 50% by 2001 and 25% by For developing countries the schedule started with a 2002 freeze (at average levels) and continues with reductions of 20% by 2005 and 100% by 2015. The nominations for exemptions from the 12 countries total some 17,000 metric tonnes. Of this amount, the TEAP is recommending that 12,900 tonnes be approved. This compares with a world consumption in 2001 of 41,545 metric tons, about 60% of which occurred in the developed countries. In 1997, total world consumption was 62,733 tonnes, of which 75 % in the developed countries. This important decline reflects the fact that both developed and developing countries have found alternatives for many uses of methyl bromide. The countries that requested exemptions are Australia, Belgium, Canada, France, Greece, Italy, Israel, Japan, the Netherlands, Portugal, Spain, the UK and the US. Methyl bromide is used as a fumigant for high value crops, for pest control and for the quarantine treatment of agricultural commodities awaiting export. Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion ANDREW C. REVKIN, New York Times, 29th Jan 2003
Bush Wants continue Use of Ozone-Depleting Pesticide in Agriculture ANDREW C. REVKIN, New York Times, 29th Jan 2003 U.S. to Seek Waiver on Weed Killer Harmful to Ozone Layer The Bush administration is considering seeking scores of exemptions for industries that want to keep using an ozone-depleting pesticide that is to be banned by 2005 under an international treaty. Environmental campaigners say the result, should all the exemptions be granted, would be years of further delay in undoing damage to the ozone layer from decades of emissions of the pesticide, methyl bromide, and other similar compounds. Experts said that the exemptions from the ban would undermine the Montreal Protocol, a 15-year-old pact protecting the ozone layer and widely perceived as the most effective environmental treaty ever negotiated. … Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion The Chemical That Must Not Be Named
Stephen Leahy, published on Friday, 21st Sept by Inter Press Service .. the use of methyl bromide in developed countries was supposed to have been completely phased out by Jan. 1, 2005 under the Montreal Protocol. Methyl bromide is a highly toxic fumigant pesticide which is injected into soil to sterilise it before planting crops. It is also used as a post-harvest decontaminant of products and storage areas. While alternatives exist for more than 93 percent of the applications of methyl bromide, some countries such as the U.S., Japan and Israel claimed that because of regulatory restrictions, availability, cost and local conditions, they had little choice but to continue its use as a pest control. And so despite the ban, the Montreal Protocol allows ‘critical use exemptions’ for countries to continue to use banned substances for a short period of time until they can find a substitute. In 2006, the United States received an exemption to use 8,000 tonnes of methyl bromide, compared to 5,000 tonnes for the rest of the developed world combined. At the 19th Meeting of the Parties here in Montreal, the committee reporting on methyl bromide use reported ‘excellent progress’ in the continuing phase-out of the chemical and that not many applications for critical use exemptions had been received. The notable exception continues to be the U.S., which has applied for 6,500 tonnes for 2008 and 5,000 tonnes for 2009, even as the rest of the developed world has dropped significantly to just 1,900 and 1,400 tonnes, respectively. … 40 percent of the stocks were not being used for critical uses… Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Montreal Protocol
Transfer and receiving of production Originally in the Montreal Protocol only for small producing parties as far as the combined levels of the exchanging parties did not exceed production level Widening to all parties by London Amendment (1990) and for all controlled substances except HBFCs ( Art. 2 para 5 Montreal Protocol) With regard to HCFCs transfer between developed countries is allowed under certain conditions (Art. 2 para 5 bis Montreal Protocol, amended by Copenhagen Amendment, 1992) Joint fulfilment is allowed (Art. 2 para 8 Montreal Protocol) Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Trade Restrictions
Ban of all imports of controlled substances from non-parties (except HCFCs and methyl bromide – Art. 4 para 1, para 1 bis, para 1 ter Montreal Protocol) Ban of all exports to non parties (Art 4 para 2, para 2 bis, para 2 ter Montreal Protocol) Discouraging the export of technology for the production or utilisation of such substances (Art. 4 para 5 Montreal Protocol)  possible violation of WTO-rules !!! Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Technological and Financial Assistance
Linking between compliance of developing countries and provision of technological and financial assistance by developed countries by London Amendment (1990) Creation of a Multilateral Fund (Art. 10 Montreal Protocol) Controlled by the COP Administered by World Bank, UNEP and UNDP Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Ozone Secretariat
Vienna Ozone Convention/Montreal Protocol – Institutions Ozone Secretariat Secretariat for the Vienna Ozone Convention and for the Montreal Protocol Seat in Nairobi (Kenya) Executive Secretary: Marco Gonzalez (right) Deputy Executive Secretary: Paul Horwitz 171 Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Montreal Protocol – Institutions
Secretariat: main duties Arranging for and servicing the COP, MOP, their Committees, the Bureaux, Working Groups and Assessment Panels; Arranging for the implementation of decisions resulting from these meetings; Monitoring the implementation of the Convention and the Protocol; Report to the MOP and to the Implementation Committee; Receiving and analysing data and information from the Parties on the production and consumption of Ozone Depleting Substances (ODSs); Providing information Prof. Dr. E. Albrecht, BTU Cottbus

IV. Ozone Depletion Technology and Economic Assessment Panel (TEAP)
provides, at the request of Parties, technical information related to the alternative technologies that have been investigated and employed to make it possible to virtually eliminate use of Ozone Depleting Substances provides reports and documents produced by itself and its specific Technical Options Committees and Task Forces TEAP Co-chairs (2007) Stephen O. Andersen, Environmental Protection Agency, USA Lambert Kuijpers, Technical University Eindhoven, Netherlands Jose Pons Pons, Spray Quimica, Venezuela TEAP Co-chairs (2007) Prof. Dr. E. Albrecht, BTU Cottbus

V. Toxic and Hazardous Substances
Nature of the Problem Sources and Environmental Impacts Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem in the 1950s and 1960s it was found out, that certain synthetic chemicals have substantial impacts on human health and the environment examples: DDT, PCBs Many of these chemicals persist for decades and longer These chemicals dissolve in fat (not water) and thus are absorbed and concentrated in the body fat and milk of animals (and humans) concentration of persistent chemicals increase at the top of a food chain Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem (continue) > synthetic chemicals are now on the market only in a few countries there is an obligation to test (certain) chemicals before bringing them into the market the number of new chemicals even exceed the testing capacities of the most developed countries more than 250 are now found in our body regardless where we live the impact of persistent chemicals is not clear; surprising lack of knowledge about the effects of chemicals to human health and the environment Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem (continue) long time exposure to DDT have been shown to cause cancer there are some standards for the exposure to hazardous substances, but there are often standards without difference between adults and children, women and man, workers or non-workers in a “famous” German criminal case (wood preservative case), it was suspected (but not finally proven) that DDT and similar substances ruin the human immune system  a fantastic description (a thriller) you find in: Erich Schöndorf, “Von Menschen und Ratten”, ISBN: (in German) e.g. women have a significant higher amount of body fat (and because most of these chemicals are solving in fat, this is relevant) Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem (continue) production of hazardous waste in tons: similar problem: hazardous waste 178 Prof. Dr. E. Albrecht, BTU Cottbus

Nature of the Problem (continue) Burning Cables to get Copper in Ghana (Source: Spiegel Online, ) melting lead from computer circuit boards in India (Source: Spiegel Online, ) similar problem: hazardous waste 179 Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem (continue) generation of large amounts of hazardous substances places economical and political pressure to export the waste lot of countries do not have the technical abilities and capacities to handle the waste safely this practice has been criticised as “toxic colonialism” disposal cost for hazardous waste in developed countries: $ per ton in Africa: ~ 40 $ per ton Reaction: Basel Convention; Bamako Convention Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem (continue) “toxic” and “hazardous” – definition toxicity of a substance is identified by a number of factors including the length of time it will persist in the environment how it tends to bioaccumulate the extent to which it reacts with other substances to form a more harmful contaminant whether it produces carcinogenic (cancer-causing), mutagenic (gene-altering) or teratogenic (birth defect-causing) effects in humans Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem (continue) “toxic” and “hazardous” – definition “hazardous” is defined by national legislation in IEL Conventions, e.g. Basel Convention ( waste): explosive, flammable, oxidising, poisonous, infectious, corrosive, toxic, ecotoxic ... ( Annex 3 Basel Convention) in IEL Conventions in lists Basel Convention ( waste): Art. 1 in conjunction with Annex I Bamako Convention ( waste): Art. 2 in conjunction with Annex I if a substance is defined as hazardous in at least one of the three categories, it is “hazardous” in the sense of the conventions Prof. Dr. E. Albrecht, BTU Cottbus

2. Sources and Environmental Impacts group of chemicals substances included toxic metals mercury, cadmium, lead, zinc, copper, iron petrochemicals organic: based on carbon atoms with hydrogen, ethylene, methylene chloride, formaldehyde, benzene, DDT and polychlorinated biphenyls (PCBs) inorganic: not based on carbon, include sulphuric acid, aluminium, chromium pesticides* 1. organochlorines (DDT, lindane ...), 2. organos-phosphates, 3. carbamates, 4. botanicals radioactive materials radiation from: uranium, plutonium * counted separately because of importance (mainly products of group 1+2-substances) 183 Prof. Dr. E. Albrecht, BTU Cottbus

2. Sources and Environmental Impacts group of chemicals used for toxic metals different product, colours, batteries, pesticides, fertilizers petrochemicals food, medicine, cosmetics, lumber, household appliances, fuels, plastics, papers ... pesticides pesticides ( different products!!!) radioactive materials weapons, medical treatment, scientific research, power generation 184 Prof. Dr. E. Albrecht, BTU Cottbus

2. Sources and Environmental Impacts group of chemicals entrance to the environment (soil and water) toxic metals natural processes, dumping, use of metals in pesticides and fertilizers petrochemicals liquid discharges, waste disposal, accidental spills pesticides intentional use radioactive materials nuclear waste, fallout from accidents; sources: natural resources: 78% medical treatment: 14% fallout, discharges, exposure (nuclear weapons and power generation: < 1% 185 Prof. Dr. E. Albrecht, BTU Cottbus

2. Sources and Environmental Impacts group of chemicals entrance to the environment (air) toxic metals natural processes, volcanism, burning of coal and oil, refining, incineration, cement production petrochemicals gaseous emission during production and use pesticides spraying radioactive materials accidents (Chernobyl/Ukraine; Fukushima/Japan ...), natural radiation 186 Prof. Dr. E. Albrecht, BTU Cottbus

3. Remedial Objectives hazardous chemicals and wastes are consequences of modern living almost all products involve the use of chemicals control of the dangers: reduce of the demand of products that entail the use of such substances adoption of a comprehensive view of the problem by regulating and managing local, regional and global material and energy flows in products, processes and industrial sectors integrated pollution control (to avoid shifting the problem from one media to another  fragmented control) Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response a) hazardous substances before 1998 no international agreement existed regarding the distribution and the use of hazardous substances across all media  to fill this gap, FAO and UNEP launched two sets of (voluntary) guidelines (FAO: 1985/1989, revised 2002; UNEP: 1987) focused on “obligations” of developed and developing nations in respect to trade allowing transfer of substances banned in another country under the principle of “Prior Informed Consent” (PIC) Prof. Dr. E. Albrecht, BTU Cottbus

a) hazardous substances (continue) 2002: (revised) FAO International Code of Conduct on the Distribution and Use of Pesticides regulation of principle of “Prior Informed Consent” requires governments to develop necessary legislation on control and registration of pesticides rules on availability and safe use supports the use of generalised pictograms and symbols for the industry clear labelling of pesticide containers ( FAO Guidelines on Good Labelling Practice, 1985) Prof. Dr. E. Albrecht, BTU Cottbus

a) hazardous substances (continue) 1987: UNEP London Guidelines for the Exchange of Information on Chemicals in International Trade close to the FAO Code of Conduct not relevant for pesticides ( FAO Code of Conduct is primary source) regulation of principle of “Prior Informed Consent” and establishment of a formalized procedure Establishment of the “International Register of Potentially Toxic Chemical” as general information clearing house require all states to provide the clearing house with information about ban and restriction of chemicals Prof. Dr. E. Albrecht, BTU Cottbus

a) hazardous substances (continue) 1994: Code of Ethics on the International Trade in Chemicals complement to the UNEP London Guidelines furthermore voluntary instrument for private sector parties, i.e. corporations increase of chemical safety through providing education and training for safe purpose clear and concise labelling reduction of the use of hazardous chemicals exchange of information in international trade testing and assessment, quality assurance, safety information developing safer packaging ending production and trade with unacceptable risks steps to promote chemical safety 191 Prof. Dr. E. Albrecht, BTU Cottbus

a) hazardous substances (continue) 1998: Rotterdam Convention Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade Adopted 10th Sept. 1998, entry into force 24th Feb. 2004 Signatories: 73, Parties: 120 (June 2008) Provisions to make PIC-principle legally binding Import of toxic and hazardous substances is still possible, but only if they have been notified of the potential hazards and the reasons for its ban in the exporting country Prof. Dr. E. Albrecht, BTU Cottbus

a) hazardous substances (continue) International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention) agreed 3rd May 1996, entry into force: 18 months after the following conditions have been fulfilled: 12 States and four of them have not less than two million units of gross tonnage Actual: only 8 ratifications owner of HNS is liable for any damage caused by the carrying of such substances by sea (Art. 7 para 1 HNS Convention) if owner is not liable or cannot compensate the injured for the entire amount, the HNS Fund will provide for compensation (Art. 14 para 1 HNS Convention) each owner must have financial security (insurance, bank guarantee etc.) Prof. Dr. E. Albrecht, BTU Cottbus

a) hazardous substances (continue) Stockholm Convention on Persistent Organic Pollutants (POPs) agreed 22nd May 2001, entry into force: 17th May 2004, Signatories: 152, Parties: 154 for elimination and reduction at the source obligation for development of a strategy to identify, reduce and eliminate releases of chemicals, listed in Annex A, B and C, from stockpiles and wastes obligation for submitting an “implementation plan” within two years after entry into force evaluation of the current and projected releases of Annex C chemicals evaluation of laws and policies of the parties Prof. Dr. E. Albrecht, BTU Cottbus

a) hazardous substances (continue) Doha Declaration 2003 EU REACH Regulation Xxx Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal adopted 22nd March 1989 Entry into Force: 5th May 1992 primarily about transboundary movement of wastes also: general provisions about “environmentally sound management” Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes (continue) “environmentally sound management” = taking all practicable steps to ensure that hazardous wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from wastes” (Art. 2 para 8 Basel Convention)  all parties must reduce the generation of hazardous and other wastes to a minimum  generally strong obligation but limited by “taking into account social, technological and economic aspects (Art. 4 para 2a. Basel Convention) Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes (continue) general obligations each parties has to organise adequate disposal facilities within its boundaries (Art. 4 para 2b. Basel Convention) each party has to take necessary steps to prevent pollution (Art. 4 para 2c. Basel Convention) parties have to cooperate in exchange of information, monitoring of effects and in the development of environmentally sound technology and its transfer Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes (continue) transboundary movement reduction as far as possible ( sound and efficient management of wastes, Art. 4 para 2d. Basel Convention) prohibition of export to parties which have prohibited all imports prohibition of any transfer to non-parties (except: environmentally sound management is provided, Art. 4 para 5 Basel Convention) Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes (continue) transfers between parties in the following circumstances: state of export cannot dispose the waste adequately wastes in question are required as raw materials for recycling or recovery industries transfer is in accordance with other criteria to be decided by the parties (Art. 4 para 9 Basel Convention)  all movements of wastes not designated for recycling between from all OECD and EU states to all non-OECD and non-EU states (Art. 4 A para 1 Basel Convention) are prohibited Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes (continue) provisions on information (Art. 6 para 1 Basel Convention & Annex V hazardous wastes: Annex I: Categories of wastes to be controlled Annex III: List of hazardous characteristics (see slide 315 above) Wastes that are defined as hazardous by domestic law of the party of export, import or transit (Art. 1 para 1 Basel Convention) Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes (continue) 1999 amendment of the convention by “Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and their Disposal” Signatories 13, Parties 10 (May 2012); entry into force pending on the ratification of 20 parties financial responsibility in relation to each phase of a transboundary movement Prof. Dr. E. Albrecht, BTU Cottbus

b) hazardous wastes (continue) Convention on the Ban of Imports Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa – Bamako Convention signed in Bamako/Mali 30th Jan. 1991, entry into force 22nd April 1998 – signatories: 33, ratifications: 24 (February 2010) similar provisions and approach as Basel Convention main difference: ban of all hazardous wastes from non-parties (Art. 4 para 1 Bamako Convention)  Lomé Convention bans import of all wastes from EU to African, Caribbean and Pacific States Prof. Dr. E. Albrecht, BTU Cottbus

VI. Land and Vessel-Based Pollution
Nature of the Problem Environmental Impacts Causes of Vessel-Based Oil Pollution Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

Nature of the Problem – Land based pollution ~ 80% of marine pollution comes from sources located on land environmental pathways atmosphere, outfalls rivers, canals, underground watercourses urban expansion close to the oceans 22 of the world’s 35 largest cities are situated on coasts, 17 in developing countries dumping Prof. Dr. E. Albrecht, BTU Cottbus

Nature of the Problem – Vessel based pollution different sources of marine pollution release of oil in the course of routine shipping oil spills caused by accidents air emissions from ships accidental release of chemicals transported by ships discharge of garbage only 1/10000 of all oil trades by ships is lost at sea ships are responsible for 11,5% of oil in the oceans (Study of US National Academy of Sciences, 2001)  visual effects are much more threatening  large oil release in a small area dumping  threat for marine resources and ecosystems Prof. Dr. E. Albrecht, BTU Cottbus

2. Environmental Impacts – land based pollution 8 groups of pollutants: chemical nutrients sewage and bacterial agents oil organic chemicals metals sediments and litter heat radioactive substances 207 Prof. Dr. E. Albrecht, BTU Cottbus

2. Environmental Impacts – vessel based pollution harm caused by the physical properties of oil destruction of plant life clog to bodies of seabirds, sea otters and other small marine animals  for example: destroys the water repellence of seabird’s plumage ( drowning or freezing; seabirds died as a result of the Exxon Valdez Accident in 1989) harm caused by the toxic properties of oil hydrocarbons  reduced hatching and early death discharging of garbage  non-biodegradable plastic debris is a serious problem (also: fishing nets ...) 208 Prof. Dr. E. Albrecht, BTU Cottbus

2. Environmental Impacts – dumping dumping of sewage, industrial effluents, sludge, radioactive wastes and polluted dredged spoils serious environmental problems drowning of oil-platforms (Brent Spar-Case) construction waste, wreckage, sand excavation debris minor environmental problems 209 Prof. Dr. E. Albrecht, BTU Cottbus

3. Remedial Objectives – Land-Based Pollution problems: pollution takes place in the territories of nations  sovereignty !! difficulty to prove the pathways of pollution environmental control in this field requires extremely expensive measures Prof. Dr. E. Albrecht, BTU Cottbus

3. Remedial Objectives – Vessel-Based Pollution ship design changes to avoid littering and spilled oil and bilge-waters accident prevention, especially in respect to coastal areas (higher ship traffic; rocks and reefs ...) double hull construction of tankers improvement of shore-cleaning techniques “ex ante”-provisions to provide injured parties with compensation rights Prof. Dr. E. Albrecht, BTU Cottbus

3. Legal Response – Land-Based Pollution UNCLOS Provides only a general scheme for reduction of land based pollution States should adopt measures to prevent, reduce and control pollution Regional Treaties Convention for the Prevention of Marine Pollution from Land-Based Sources (1974 Paris-Convention) about North Sea and North-East Atlantic Protocols to the UNEP Regional Seas Conventions Mediterranean Sea South-East Pacific Black Sea Caribbean Sea Prof. Dr. E. Albrecht, BTU Cottbus

3. Legal Response – Dumping UNCLOS Art. 210 mandates all states “to prevent, reduce and control pollution of the marine environment by dumping” ( London Convention, see above) Within own territorial sea, exclusive economic zone or continental shelf, stricter rules are allowed (Art. 210 para 5) Prof. Dr. E. Albrecht, BTU Cottbus

Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London Convention) adopted 13th Nov. 1972; entry into force: 30th Aug. 1975 Dumping does not include Discharge of oil and other harmful substances ( generally covered by MARPOL) Dumping includes disposal of wastes or other matter From vessel, aircraft and platforms Deliberate sinking of such structures ( Brent Spar) Prof. Dr. E. Albrecht, BTU Cottbus

London Convention (continue) Listing and permit system Black list for certain substances (listed in Annex I) E.g. mercury and crude oil and: netting and ropes (!!) Grey List (Annex II): dumping allowed with a special permit Trace amounts of Annex I-substances; chromium, nickel Dumping of all other waste allowed when a “general permit” exists  responsible national authority Prof. Dr. E. Albrecht, BTU Cottbus

1996 Protocol to the London Convention Entry into force: 24th March 2006, actually 34 parties Total ban of incineration Dumping of most of substances Exporting waste to non-parties for the purpose of dumping or incineration at sea Regional Treaties Baltic Sea Black Sea South Pacific Region Parties: Prof. Dr. E. Albrecht, BTU Cottbus

3. Legal Response – Vessel-Based Pollution MARPOL 1973/1978 International Convention for the Prevention of Pollution from Ships most important treaty for the prevention of pollution from the operation of ships governs the design and equipment of ships establishes a system of certificates and inspections requires the states to provide reception facilities for the disposal of oily waste and chemicals covers all technical aspects of pollution by ships except dumping Prof. Dr. E. Albrecht, BTU Cottbus

MARPOL (continue) MARPOL and Protocols supply general duties for parties (details in the Annexes) duties for the flag state: certification that ship complies with MARPOL’s construction and readiness guidelines by issuing an “International Oil Pollution Prevention Certificate” In case of objections of port states, flag states have to institute appropriate actions against the violating ship (+ notification to port state and IMO) duties/rights for the port state: inspection of ships within its ports in order to verify “that there is on board a valid certificate” (Art. 5 MARPOL) Prof. Dr. E. Albrecht, BTU Cottbus

3. Legal Response – Vessel-Based Pollution UNCLOS problem: what, if a coastal state requires stricter rules than agreed in MARPOL not possible in respect to MARPOL possible in respect to UNCLOS (codification of a customary rule that coastal states may adopt more stringent discharge rules in internal waters and in territorial sea – Art. 211 para 3 and 4 UNCLOS) but: only as far as innocent passage is not hindered (Art. 24 UNCLOS) in respect to accidental pollution: notification and cooperation in case of emergency (Art. 198, 199 UNCLOS) Prof. Dr. E. Albrecht, BTU Cottbus

3. Legal Response – Vessel-Based Pollution International Convention on Oil Pollution Preparedness, Response and Co-operation agreed in London, 30th Nov. 1990; Entry into force: 13th May 1995 obligation to carry “an oil pollution emergency plan” “national contingency plan for the preparedness and response” on national level Prof. Dr. E. Albrecht, BTU Cottbus

3. Legal Response – Vessel-Based Pollution (continue) International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969 Intervention Convention and 1973 Protocol) agreed 29th Nov. 1969, entry into force 6th May 1975 requirements for a coastal state’s intervention during high seas accidents (Art. I para 1) mandatory notification and consultation procedures, except in the case of extreme urgency (Art. III) Prof. Dr. E. Albrecht, BTU Cottbus

3. Legal Response – Vessel-Based Pollution (continue) Protocol on the Preparedness, Response and Cooperation for Pollution Incidents by Hazardous and Noxious Substances, 2000 (HNS Protocol) agreed 15th March 2000, Entry into Force: 14th June 2007 contracting parties actual: 25 (February 2010) parties are required to establish measures for dealing with pollution incidents ships are required to carry a “shipboard emergency plan” in respect to HNS SUMMARY OF STATUS OF CONVENTIONS AS AT 2 February Prof. Dr. E. Albrecht, BTU Cottbus

VII. Conservation of Marine Living Recourses
Nature of the Problem Sources and Impacts Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

VII. Conservation of Marine Living Resources
Nature of the Problem 90% of the marine life exists in shallow waters above the continental shelf Growth of population and economy especially in coastal areas with all negative effects Protection of marine ecosystems for itself and for food needs Prof. Dr. E. Albrecht, BTU Cottbus

2. Sources and Impacts Biodiversity decline by over-exploitation of fish stocks Ecological damage resulting from human pollutants Effect of development and soil erosion on estuarine and coastal habitats Prof. Dr. E. Albrecht, BTU Cottbus

3. Remedial Objectives Marine living resources are integral part of the biodiversity of the world  protection has to be approached together with the preservation of terrestrial biodiversity Integrated approach of managing natural resources within the framework of Sustainable Development Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response Ancient Law of the Sea 1702 van Bynkershoek (De Dominio Maris) 1793 US Proclamation of Neutrality 1958 Conventions on the Law of the Sea, Geneva (LOS Conventions) Convention on the Territorial Sea and the Contiguous Zone Convention on the High Seas Convention on the Fishing and Conservation of the Living Resources of the High Seas Convention on the Continental Shelf 1982 United Nations Convention for the Law of the Sea Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response (continue) UNCLOS Agreed 10th Dec 1982 Montego Bay, entry into force: 16th Nov 1996 Adoption of subsequent agreement on amending Part XI of UNCLOS on 28th July 1994 (entry into force: 28th July 1996) Actually: 155 states have ratified UNCLOS (June 2008) Institutions: Institutional Settlement of Disputes International Seabed Authority (“the Authority”) – Art. 156 UNCLOS Organs: Assembly, Council and Secretariat – Art. 158 ff. UNCLOS The Enterprise (Art. 170 UNCLOS) Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as at 04 June 2008: Prof. Dr. E. Albrecht, BTU Cottbus

Settlement of Disputes Comprehensive system for the settlement of disputes (Part XV UNCLOS) States Parties are required o settle their disputes concerning the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations If parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the Convention Prof. Dr. E. Albrecht, BTU Cottbus

Settlement of Disputes (continue) Mechanism: four alternative means for the settlement of disputes: ICJ ( Art. 287 para 1a. UNCLOS) Arbitral Tribunal (Art. 287 para 1c. UNCLOS) Special Arbitral Tribunal (Art. 287 para 1d. UNCLOS) International Tribunal on the Law of the Seas (ITLOS – Art. 287 para 1b. UNCLOS) State Party is free to choose one or more of these means by a written declaration to be made under Art. 287 of the Convention and deposited with the Secretary-General of the United Nations If parties to a dispute have not accepted the same settlement procedure, the dispute can be submitted only to arbitration in accordance with Annex VII, unless the parties agree otherwise Prof. Dr. E. Albrecht, BTU Cottbus

Settlement of Disputes – examples: (continue) Germany the International Tribunal for the Law of the Sea established in accordance with Annex VI; an arbitral tribunal constituted in accordance with Annex VII; the International Court of Justice. Canada the International Tribunal for the Law of the Sea established in accordance with Annex VI of the Convention; and an arbitral tribunal constituted in accordance with Annex VII of the Convention Austria a special arbitral tribunal constituted in accordance with Annex VIII; the International Court of Justice Prof. Dr. E. Albrecht, BTU Cottbus

Settlement of Disputes – examples: (continue) USA (-) United Kingdom of Great Britain and Northern Ireland Declaration made on 12 January 1998 "In accordance with article 287, paragraph 1, of the United Nations Convention on the Law of the Sea, the United Kingdom of Great Britain and Northern Ireland chooses the International Court of Justice for the settlement of disputes concerning the interpretation or application of the Convention. The International Tribunal for the Law of the Sea is a new institution, which the United Kingdom hopes will make an important contribution to the peaceful settlement of disputes concerning the law of the sea. In addition to those cases where the Convention itself provides for the compulsory jurisdiction of the Tribunal, the United Kingdom remains ready to consider the submission of disputes to the Tribunal as may be agreed upon on a case-by-case basis." Prof. Dr. E. Albrecht, BTU Cottbus

ITLOS Seat: Hamburg President: Rüdiger Wolfrum (Germany), Vice-President: Joseph Akl (Lebanon) for the period , 21 judges Chamber of Summary Procedure Chamber for Fisheries Disputes Chamber for Marine Environment Disputes special chamber to deal with the Cases concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) Seabed Disputes Chamber and Ad Hoc Chambers of the Seabed Disputes Chamber President: Hugo Caminos (Argentina) – period ending 30 September 2008 Presidency: Seabed Disputes Chamber: 233 Prof. Dr. E. Albrecht, BTU Cottbus

From left to right: Wolfrum, Akl, Caminos, Nelson 234 Prof. Dr. E. Albrecht, BTU Cottbus

Cases: Bluefin Tuna Case (New Zealand-Japan; Australia-Japan) Problem: relation between UNCLOS and other Conventions: here: trilateral regional fisheries agreement, called Convention for the Conservation for the Bluefin Tuna, agreed 10th May 1993, entry into force: 10th May This convention ruled only consensual arbitration. Convention allocated a certain quota to each party, and Japan was accused of having exceeded its quota by “research fishing” Resolving the case under the Tuna-Convention failed  New Zealand and Australia brought the case before the ITLOS charging Japan with the violation of UNCLOS August 1999: ITLOS asked Japan to stop the “research fishing programme” until the UNCLOS arbitration panel would decide the issue Decision of the Arbitral tribunal: consensual arbitration in the Tuna Convention displaces the Provisions of UNCLOS  no jurisdiction of UNCLOS institutions, if one party does not agree Prof. Dr. E. Albrecht, BTU Cottbus

Jurisdiction Zones Territorial Sea Exclusive Economic Zone (EEZ) Continental Shelf High Seas  See as follows Prof. Dr. E. Albrecht, BTU Cottbus

Structure of the Ocean (before 1958) (Internal Waters) Territorial Sea 1702 (van Bynkershoek) within the range of one cannon-shot 1793 US proclamation: cannon-shot rule accepted as 3 nautical miles (nm) 19th century: Scandinavia 4 nm; Spain and Portugal 6 nm Prof. Dr. E. Albrecht, BTU Cottbus

Structure of the Ocean (before 1958 – continue) 20th century: colliding interests fishing States with local fisheries try to extent their territorial sea to exclude foreign fishing vessels States with large and technological advanced fishing fleets favoured a narrow territorial sea Security Psychological pressure in times of crisis by display of naval force just beyond the 3 nm limit Restriction of the freedom of movement at their fleets (innocent passage for warships) and the strategic disadvantage High Seas Prof. Dr. E. Albrecht, BTU Cottbus

Structure of the Ocean (LOS Conventions) (Internal Waters) Territorial Sea Belt of sea adjacent to its coast Contiguous Zone Not beyond 12 miles from the territorial sea Continental Shelf Seabed and subsoil adjacent to the coast but outside the area of the territorial sea High Seas All parts of the sea that are not included in the territorial sea or in the internal waters of a State Prof. Dr. E. Albrecht, BTU Cottbus

Structure of the Ocean (UNCLOS) (Internal Waters) Territorial Sea: Establishment possible up to a limit of 12 nm measured from the baseline (low water line along the coast) Contiguous Zone: Not beyond 24 miles from baselines from which the breadth of the territorial sea is measured Exclusive Economic Zone: Not beyond 200 nm Continental Shelf High Seas: All parts of the sea that are not included in the economic exclusive zone, in the territorial sea or in the internal waters of a State The Area: Means seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction Prof. Dr. E. Albrecht, BTU Cottbus

UNCLOS (continue) Species Approach In combination with the general obligations laid down for the different juridical zones, UNCLOS provides specific groups of species with additional rules Unless not otherwise regulated, the general rules concerning the EEZ and the High Seas still remain valid, e.g. allowable catches or management measures Prof. Dr. E. Albrecht, BTU Cottbus

UNCLOS – Species Approach (continue) Straddling Stocks Fish, located both in a coastal state’s EEZ and an adjacent area of the High Seas In theory: management measures of coastal state and other states should be agreed, in practice, no real control is possible Regulation by the 1995 Agreement for the Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks from 4 Dec 1995 (SFSA) Prof. Dr. E. Albrecht, BTU Cottbus

UNCLOS – Species Approach (continue) Highly Migratory Species (HMS) Species listed in Annex I Includes some mammals, but focuses on non-mammals, like swordfish, marlin or tuna Coastal and other fishing states must cooperate, either directly or through organisations SFSA is applicable Prof. Dr. E. Albrecht, BTU Cottbus

UNCLOS – Species Approach (continue) Marine Mammals Allowance for any coastal state or any appropriate international organisation “to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for” in the general articles dealing with the EEZ (Art. 65 UNCLOS) Broadening by Art. 120 UNCLOS to the area of the High Seas Problem: identification of the “appropriate international organisation”: Example: Canada wanted to manage small cetaceans (whales and porpoises) by itself and not through the North-West Atlantic Fisheries Organization (NAFO  next two slides !) Prof. Dr. E. Albrecht, BTU Cottbus

NAFO Member States Iceland Japan Korea Norway Russian Federation Ukraine USA Canada Cuba Denmark ( Faroer Islands + Greenland) European Union (EU) France ( Saint Pierre et Miquelon) Parties: 246 Prof. Dr. E. Albrecht, BTU Cottbus

UNCLOS – Species Approach (continue) Seals Nearly all seals live within the EEZ Expired Convention Convention on Conservation of North Pacific Fur Seals Treaty for the Conservation of Seals in the Wadden Sea (entry into force 1991) between Denmark, Germany and the Netherlands Ecosystem approach Habitat protection and pollution control Prohibition of taking of seals fur seals, sea lions, seals, golden seals now in CITES Bonn Convention Appendix II comprises: South American fur seal, South American Sea lion, Common seal (only Baltic and Wadden Sea populations), Grey Seal (only Baltic Sea populations), Mediterranean monk seal  Agreement on the conservation of seal in the Wadden Sea 1990 and Memoranda of Understanding aiming to conserve Mediterranean Monk Seals CITES appendices (Liste der geschützten Tiere): Bonn Convention: Appendix II Migratory species that need or would significantly benefit from international co-operation are listed in Appendix II of the Convention. For this reason, the Convention encourages the Range States to conclude global or regional Agreements. South American fur seal Südamerikanischer Seebär (Arctocephalus australis) Familie der Ohrenrobben South American Sea lion Mähnenrobbe (Otaria flavescens), auch Südamerikanischer Seelöwe Familie der Ohrenrobben Common seal (only Baltic and Wadden Sea populations) Seehund (Phoca vitulina) Grey Seal (only Baltic Sea populations) Kegelrobbe (Halichoerus grypus) Mediterranean monk seal Mönchsrobben (Monachus) Agreement on the conservation of seal in the Wadden Sea: The trilateral Agreement was concluded between Denmark, Germany and the Netherlands on 16 October 1990 in Bonn, Germany, and entered into force one year later. The trilateral conservation area is situated within the Wadden Sea, and consists of certain areas in the Netherlands, Germany and Denmark. The geographical range of the Wadden Sea Plan is the Trilateral Wadden Sea Cooperation Area (or Wadden Sea Area), which is an offshore zone three nautical miles from the baseline as fixed nationally including all islands. The aim of the Agreement is to promote close cooperation amongst the Parties in order to achieve and maintain a favourable conservation status for the Common seal population, which is an irreplaceable component of the Wadden Sea and an important indicator of its environmental health. The Mediterranean Monk Seal is one of the most threatened marine mammals in the world. The Memorandum of Understanding concerning conservation measures for the Eastern Atlantic Population of the Monk Seal aims to save the last few animals (approximately 500) remaining in the wild. Recovery of the depleted population and reducing habitat loss are the main focus. During the Western African Talks on Cetaceans and their Habitats (16-20 October 2007, Tenerife, Spain), Mauritania, Morocco, Portugal and Spain signed the MoU, which is open for signature to all the Atlantic range States. Prof. Dr. E. Albrecht, BTU Cottbus

UNCLOS – Species Approach (continue) Anadromous Species Species, which spawn in freshwater rivers, migrate to the high seas and finally return to the same river to reproduce (e.g. salmon) State of origin sets an allowable catch after negotiations with other interested states State of origin obtains the first right to exploit these species, as far as this takes place in the EEZ In return to this right, the state of origin has the duty to ensure their conservation by proper regulatory measures Prof. Dr. E. Albrecht, BTU Cottbus

UNCLOS – Species Approach (continue) Catadromous Species Species spawned on the high seas, then migrate to freshwater rivers and lakes (e.g. eels) Right for the coastal state, “in whose waters catadromous species spend the greater part of their life cycle” the responsibility for management (Art. 67 para 1 UNCLOS) Harvesting at the high seas is prohibited In the EEZ the respective state has the right to exploit Prof. Dr. E. Albrecht, BTU Cottbus

b) UNEP Regional Seas Programme Umbrella programme of UNCLOS Often functions as the primary means for coordination environmental action with the respective geographic area Flexible instrument, even though Nearly all under-funded Not ratified or poorly implemented Procedure: Development of an Action Plan by UNEP Parties create a framework treaty Parties negotiate protocols to the treaty to deal specific concerns Prof. Dr. E. Albrecht, BTU Cottbus

c) International Convention for the Regulation of Whaling Signed 2nd Dec. 1946 Entry into force 10th Nov. 1948 At the moment 89 member states (No. 2012) Created more as an exploitation rather than a conservation treaty Supervising Body: International Whaling Commission Member states: Prof. Dr. E. Albrecht, BTU Cottbus

International Convention for the Regulation of Whaling (continue) Institutions Secretariat Seated in Cambridge, England; Secretary: Dr. Nicola Grandy Scientific Committee For scientific advice comprises up to 200 of the World's leading whale biologists subject matters encourage, recommend, or, if necessary, organise studies and investigations relating to whales and whaling; collect and analyse statistical information concerning the current condition and trend of the whale stocks and the effects of whaling activities thereon; study, appraise and disseminate information concerning methods of maintaining and increasing the populations of whale stocks. Prof. Dr. E. Albrecht, BTU Cottbus

c) International Convention for the Regulation of Whaling (continue) Simple institutional system: Protected and unprotected species Open and closed seasons Open and closed waters, including the designation of sanctuary areas Size limits for each species Time, methods and intensity of whaling (including a maximum catch of whales to be taken in one season) Types and specifications of gear and apparatus and appliances which may be used Catch returns and statistical and biological records Methods of measurements Prof. Dr. E. Albrecht, BTU Cottbus

c) International Convention for the Regulation of Whaling (continue) Possibility of the IWC to amend the schedule at any time, if necessary to carry out the objectives and purpose of the convention and if based on scientific findings 1982 decision about a moratorium on commercial whaling, beginning in 1985 Loopholes: parties can simply object to the moratorium  then it is not binding (Example: Norway) Whaling for scientific research is allowed (Examples: Japan, Iceland and Norway) 1991 Scientific Committee recommended partial lifting of the moratorium because of its success, but IWC refused Prof. Dr. E. Albrecht, BTU Cottbus

c) International Convention for the Regulation of Whaling (continue) Objection Procedure (Art. 5 para 3) Any government can “object” to any decision which it considers to seriously affect its national interest, provided it is done within 90 days of notification of the decision Should this happen, further time is allowed for other governments to object. The government or governments that object are subsequently not bound by that particular decision Problematic mechanism: Commission seems to be “toothless”, but without it the Convention would probably have never been signed. In addition a government would still have been able to withdraw from the Convention and thus not be bound by any of the regulations Prof. Dr. E. Albrecht, BTU Cottbus

d) Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific Agreed 23rd Nov. 1989, entry into force 17th May 1991 General prohibition of driftnet fishing in the EEZ of all state parties Prof. Dr. E. Albrecht, BTU Cottbus

VIII. Transboundary Water Pollution
Nature of the Problem Causes and Sources Environmental Impacts Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

Nature of the Problem Migration of air pollutants has created major global problems Climate change Ozone depletion Nuclear fallout Toxic and hazardous substances additional problems Acid rain Air pollution Prof. Dr. E. Albrecht, BTU Cottbus

2. Causes and Sources Pollutants emitted from industrial and commercial sources, from cars and private households In form of gases or suspensions of small liquids or solid particles If bound in the air, transport over hundreds of kilometres is possible Prof. Dr. E. Albrecht, BTU Cottbus

3. Environmental Impacts Acid rain or acid deposition USA, Midwest: coal and oil fired electric plants release gases containing sulphur oxide  Eastern states and Canada UK/France: industries were the major source of sulphur as a source for the acid rain in Scandinavia Trail-Smelter-Case as a very early example of IEL-arbitration Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response Custom – Trail Smelter Arbitration ruled: “that under the principles of international law (...) 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 of the properties or persons therein, when the case is of serious consequences and the injury is established clear and convincing evidence.” Prof. Dr. E. Albrecht, BTU Cottbus

Geneva Convention for the Control of Long-Range Transboundary Air Pollution (LRTAP) Created under the support of UN ECE Agreed 13th Nov. 1979, entry into force: 16th March 1983 51 Parties – most of the countries of the Northern hemisphere (including USA, Canada and Russia) In the meantime: 8 Protocols: Parties: Prof. Dr. E. Albrecht, BTU Cottbus

Year Protocol Entry into force 1999 to Abate Acidification, Eutrophication and Ground-level Ozone 17 May 2005 1998 on Persistent Organic Pollutants (POPs) 23 Oct. 2003 on Heavy Metals 29 Dec. 2003 1994 on Further Reduction of Sulphur Emissions 5 Aug. 1998 1991 concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes 29 Sep. 1997 1988 concerning the Control of Nitrogen Oxides or their Transboundary Fluxes 14 Feb. 1991 1985 on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30 per cent 2 Sep. 1987 1984 on Long-term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe (EMEP) 28 Jan. 1988 264 Prof. Dr. E. Albrecht, BTU Cottbus

Nature of the Problem Sources of Environmental Harm Environmental Impacts Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

Nature of the Problem Rivers and streams constitute only 0,5% of all water resources, but are essential for human habitation Abuse of trans- or international rivers do not cause global problems, but can cause harm to the states sharing this river Over 200 large river basins are shared by more than one state  possible conflicts because of water, i.e. water quality and quantity (examples: Nile, Euphrates and Tigris, Jordan) Prof. Dr. E. Albrecht, BTU Cottbus

Map about availability of freshwater in 2025 (Klett-Perthes, 2003) Prof. Dr. E. Albrecht, BTU Cottbus

2. Sources of Environmental Harm Discharge of chemicals (pulp and paper mills, iron and steelworks, refineries, petrochemical and kali industries, fertilizer factories Modern agriculture (pesticides, insecticides, nutrients, sediments Sewage (organic materials Improper storage of hazardous waste, chemicals (leaks and accidents) Introduction of toxic metals and gases to the water course by air Overuse of water by an upper riparian state Flood regulation (no natural nutrients for the lower riparian state) Straightening of rivers/deforestation (danger of floods for the lower riparian state) Prof. Dr. E. Albrecht, BTU Cottbus

3. Environmental Impacts Chemical and biological damage Physical damage to the riverbed and harbours Economic loss For agriculture For tourism For drinking water supply National utilisation of the benefits, externalisation of the damages Prof. Dr. E. Albrecht, BTU Cottbus

4. Remedial Objectives Control of water pollution Clarification of the rights and duties of upper and lower riparian owners of international rivers Considerations of the ILC Lake Lanoux Case Ex ante approach and ex post grievance remedial mechanisms Prof. Dr. E. Albrecht, BTU Cottbus

5. Legal Response Convention on the Law of the Non-Navigational Uses of International Watercourses 1970 (!!!) ILC was asked to develop a draft framework convention Broad based rules of customary law  ILC formed a Draft of the Convention Adopted: 21st May 1997; by 103 votes in favour to 3 against (Turkey, China, Burundi) with 27 abstentions entry into force when 35 ratification reached (Art. 36 para 1) -currently 16 signatories and 15 parties (Jan. 2008)  Not yet in force Status: Prof. Dr. E. Albrecht, BTU Cottbus

Main problems will to cooperate in some upper riparian states not well developed Turkey: Convention is more than a framework convention Procedural and formal problems ( abstention of France) Contents General obligation to cooperation (Art. 8) Communication, notification, consultation, negotiation Lace Lanoux Arbitration (obligation to examine the needs of the lower riparian state in good faith) Hungary – Slovakia Case by the ICJ ( “good faith negotiations”) Watercourse agreements should be reached (Art. 4 para 1) Prof. Dr. E. Albrecht, BTU Cottbus

Contents (continue) Equitable utilisation Fundamental norm of international water law (ICJ in the Hungary – Slovakia Case) Obligation not to cause transboundary harm Early principles of Rio Declaration (Principle 2) and Stockholm Declaration (Principle 21) Groundwater Definition of watercourse includes groundwater (Art. 2a) Prof. Dr. E. Albrecht, BTU Cottbus

Contents (continue) Further obligations: Duty to protect and preserve ecosystems of international watercourses (Art. 20) harmonise pollution prevention policies (Art. 21 para 2) Take all appropriate measures to prevent or mitigate conditions that may be harmful to other watercourse states (Art. 21 para 3) “Where appropriate”  limitation Relevant for (see Art. 27) - Flood or ice-conditions - Water-borne diseases - Erosion - Salt-water intrusion - … Prof. Dr. E. Albrecht, BTU Cottbus

Regional and Bilateral Agreements 1992 UN ECE Convention on the Protection and Use of Transboundary Watercourses and Lakes Agreed 17th March 1992 Entry into Force: 6th Oct. 1996 Comprises most of the existing customary water law Precautionary principle Polluter pays principle Environmental impact assessments Mutual assistance in critical situations Prof. Dr. E. Albrecht, BTU Cottbus

Protocol on Water and Health Adopted 17th June 1999 in London Ratified by 21 countries (Feb. 2008)  entry into force: 4th Aug. 2005 Objectives: Protection of human health and well being by better water management protection of water ecosystems, by preventing, controlling and reducing water-related diseases  Protocol is the first international agreement adopted to attain an adequate supply of safe drinking water and adequate sanitation for everyone, and effectively protect water used as a source of drinking water Status: Prof. Dr. E. Albrecht, BTU Cottbus

Protocol on Civil Liability Adopted in Kiev 2003 at the Ministerial Conference “Environment for Europe” on 21st May 2003 24 signatures, entry into force when 16 ratifications reached (actually 1 – Hungary) The Protocol will give individuals affected by the transboundary impact of industrial accidents on international watercourses (e.g. fishermen or operators of downstream waterworks) a legal claim for adequate and prompt compensation Companies will be liable for accidents at industrial installations, including tailing dams, as well as during transport via pipelines Status: Prof. Dr. E. Albrecht, BTU Cottbus

Protocol on Civil Liability (continue) Damages covered: physical damage damage to property loss of income the cost of reinstatement response measures financial limits of liability depending on the risk of the activity to cover this liability, companies have to establish financial securities (insurance or other guarantees) non-discrimination of victims: victims of the transboundary effects cannot be treated less favourably than victims from the country where the accident has occurred Prof. Dr. E. Albrecht, BTU Cottbus

Protocol on Civil Liability (continue) solves the problem of uncompensated damage in neighbouring countries  filling of major gaps in IEL encouraging companies to take measures to prevent damage they will henceforth be liable for  help to prevent accidents from happening in the first place financial limits of liability and the minimum amount of financial securities have been agreed by all the actors of the negotiation, including the insurance sector, and are therefore realistic and appropriate.  negotiators have drafted the agreement in such a way as to reduce the obstacles to ratification, taking into account the experience with other international civil liability instruments which failed to enter into force Prof. Dr. E. Albrecht, BTU Cottbus

River basin related treaties Rhine Moselle Saar Elbe Odra Danube Lake Constance Lake Geneva Great Lakes Colorado Prof. Dr. E. Albrecht, BTU Cottbus

IX. World Trade and the Environment
Nature of the Problem Environmental Impacts Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem In GATT the term „environment“ does not exist From the early 70‘s the Secretary and the Council of GATT discuss ecological aspects of the international trade The „Tokyo-Round“ (9th) some agreements to support environmental aspects were concluded Art. 2 para 2 of the Agreement on technical trade barriers (o.ä.) from 1979 allows the parties to use different rules for the protection of human health, life, the health of animals and plants and of the environment The “Uruguay-Round” (started 1986) was originally free from environmental topics, but the Earth-Summit led to a certain ecological paint of the Uruguay-Round which led to the creation of the WTO GATT: General Agreement on Tariffs and Trade, from Tokyo round: First, Art. 2 para 2 of the Agreement on technical trade barriers (o.ä.) from 1979 allows the parties to use different rules for the protection of human health, life, the health of animals and plants and of the environment Uruguay Round: some instruments which could be used for environmental protection were agreed in the conclusion of Marrakech/Maroc Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem Trade Restrictions in: Import Restrictions in: Montreal Protocol Basel Convention CITES Cartagena Protocol Convention on the Management of Straddling Fish Stocks and Highly Migratory Fish  Free Trade 283 Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem WTO Agreement Establishing the World Trade Organization Entered into Force: 1st Jan. 1995 Foundation Members: all Members of GATT + European Communities (now EU, beside their Member States) At the moment: 157 members 3 organs: Ministerial Conference General Council Secretary 284 Prof. Dr. E. Albrecht, BTU Cottbus

Source: Green: members; blue: observing parties; grey: non-members 285 Prof. Dr. E. Albrecht, BTU Cottbus

WTO (continue) General Council: current chairman: H.E. Mrs. Elin Østebø Johansen. Secretary: Director-general: Pascal Lamy. His appointment took effect on 1st Sep. 2005 for a four-year term. Elin Østebø Johansen and Pascal Lamy Source: Kristian Skeie; 286 Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem With membership the members accept all instruments agreed in the WTO-Agreement The instruments are: GATT 1994 Agreement on Technical Barriers to Trade GATS TRIPS-Agreement Understandings on Rules and Procedures Governing the Settlement of Disputes Trade Policy Review Mechanisms Plurilateral Trade Agreements GATT 1994: provisions of GATT 1947 in the current version and some rules of interpretation under the term “Understandings of the Interpretation” (see appendix 1 A to the WTO agreement) GATS = General Agreement on Trade in Services TRIPS = Agreement on Trade-Related Aspects of Intellectual Property Rights Trade Policy Review Mechanisms: Annex 3 to the WTO-Agreement Plurilateral Trade Agreements: Annex 4 to the WTO-Agreement; these are the former GATT-codices on the trade of civil airplanes, public Autragswesen, trade on milk products and meet Prof. Dr. E. Albrecht, BTU Cottbus

1. Nature of the Problem Judicial organisation Panel, which decisions are binding without previous acceptance of the parties and possibility of appeal at the Appellate Body Number of judicial cases with environmental background Tuna and Tuna Products (USA-Canada, 1982) Herring and Salmon (USA-Canada, 1988) Tuna and Dolphin (Mexico-USA, 1991 – not decided) Tuna and Dolphin (EC, Netherlands-USA, 1994) Gasoline (Venezuela, Brazil-USA, 1996) Shrimps-Turtle (India, Pakistan, Malaysia, Thailand-USA, 1998) Prof. Dr. E. Albrecht, BTU Cottbus

2. Environmental Impacts Example: Biotechnology is a multi-billion-business for foodstuffs and pharmaceuticals argument: better harvests with the use of LMOs  less starvation Cartagena Protocol allows restrictions and even the ban of import of LMOs  Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) of WTO addresses trade with LMOs argument: free trade is the best way for advanced economic growth and sustainable development Prof. Dr. E. Albrecht, BTU Cottbus

2. Environmental Impacts (continue) decision to ban the import of LMOs obstructs free trade  SPS Agreement requires that such decision has to be justified on principles of “sound scientific knowledge” based on scientific risk assessments as seen before: CBD (and protocols) range higher than WTO/GATT: allowance to ban import even in case when no or poor knowledge is available  ban of the import against free trade though but: any dispute over this issue falls into the jurisdiction of the Dispute Settlement bodies of the WTO !!! (no binding settlement procedures agreed in CBD or Cartagena Protocol)  danger of judicial decisions to much in favour of trade issues Prof. Dr. E. Albrecht, BTU Cottbus

3. Remedial Objectives Environmental aims could be used as a trade barrier (e.g. hormone meat) Environmental aims could be used to exclude certain countries/regions from the trade International trade provisions could be used to counteract environmental aims Regulation of the trade with environmental goods Difficult decision when a state wants to protect its own environment Much more difficult decision, if a state wants to protect the environment outside of its jurisdiction Prof. Dr. E. Albrecht, BTU Cottbus

3. Remedial Objectives (cont.) Trade barriers for the protection of environmental, health and other goods (example: hormone meat)  In principal possible, if threat is proved Trade barriers because of process and production methods – PPMs (example: ban of tuna caught with certain nets; ban of timber from unsustainable logging, etc.)  usually not in compliance with GATT-/WTO-rules, except, if specific agreement exists Trade barriers for the protection of the “global commons”  In principal possible, if threat is proved for the state, or when convention for the protection exists In all other cases, no trade barriers possible under GATT-/WTO- rules Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response Actually no legal response besides the conventions mentioned above Action plans and negotiations for clarification of the relationship between trade and environment Steady improvement of environmental issues by the Panel and Appellate Body by using environmental agreements as a basis for decisions The WTO “does not live in clinical isolation” (Appellate Body Report, AB , USA – Standards for Reformulated and Conventional Gasoline, 29 April 1996, WT/DS2/AB/R, p. 17) Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response (cont.) Shrimps-Turtle Case USA: In total eight Requirements for unilateral protection measures Trade restriction must serve legitimate public interests Principle of Consistence: measures must be consistent to internal legal system Trade restriction must be effective for the protection Trade restriction must be necessary; no other, less burdening measures must be possible Principle of cooperation must be considered; before unilateral measures are taken, “good-faith”-negotiations are required Trade restriction must not be discriminating between different exporting nations Principles of due process must be considered; equal treatment, transparency procedures, open for assessment Every arbitrarily discrimination or disguised trade restriction is prohibited  In the Shrimps-Turtle Case, the USA lost the case only, because of different action against different countries ( discrimination) and non-compliance to the cooperation principle, and not because of the environmental issue itself! Prof. Dr. E. Albrecht, BTU Cottbus

X. Environmental Management
Nature of the Problem Environmental Impacts Remedial Objectives Legal Response Prof. Dr. E. Albrecht, BTU Cottbus

Nature of the Problem Private sector could be active for the environment also, not only governments Eco-dumping by states in favour to promote industry International operating corporations often consume environmental goods  they are in the obligation to protect the environment International corporations prefer international standards Prof. Dr. E. Albrecht, BTU Cottbus

2. Environmental Impacts Consume of the environment by production methods (tropic forests etc.) Negative environmental effects by transport of raw materials, goods and products Production of goods with negative environmental effects Use of energy, water; production of waste and waste water etc. Prof. Dr. E. Albrecht, BTU Cottbus

3. Remedial Objectives Reasons for governments to promote EMS Compliance of private corporations with environmental law (required by all EMS) Improvement of the ecological situation in the corporation Privatisation of administrative control “Cutting red tapes” (minimise bureaucracy) and improvement of environmental procedures Prof. Dr. E. Albrecht, BTU Cottbus

Most commonly cited benefits of an EMS are: Improved perception of the key environmental issues by their employees and a better (greener) public image of the organisation. An increase in the efficiency and use of energy and raw materials (less waste) Improved ability to meet compliance with environmental regulations Dependence on a system rather than just the experience and capabilities of an individual to manage the environmental function of an organisation Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response ISO ff. Private norms of the International Standardization Organization ( quasi legal response) Combination with quality management series ISO ff. And risk management series (ISO ff.) possible EMAS Eco-Management and Audit Scheme, based on EMAS-I-Regulation (1993) and – improved – EMAS-II- and EMAS-III-Regulation (2001/2009) Regional and National EMS British Standard, DIN, Öko-Profit etc. Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – ISO and ISO in brief ISO 9001:2000 and ISO (1996 and 2004 versions) are implemented by over a million organizations in 161 countries. ISO is an international reference for quality management requirements in business-to-business dealings,  "quality management“ the customer's quality requirements, and applicable regulatory requirements, while aiming to enhance customer satisfaction, and achieve continual improvement of its performance in pursuit of these objectives Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – ISO ISO enables organizations to meet their environmental challenges  "environmental management" minimize harmful effects on the environment caused by its activities, and to achieve continual improvement of its environmental performance. The vast majority of ISO standards are highly specific to a particular product, material, or process Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – ISO (continue) ISO are "generic management system standards“ (like ISO 9.000)  same standards can be applied: to any organisation, large or small, whatever its product including whether its "product" is actually a service, in any sector of activity, and whether it is a business enterprise, a public administration, or a government department "Management system" refers to the organisation's structure for managing its processes – or activities – that transform inputs of resources into a product or service which meet the organisation's objectives, such as satisfying the customer's quality requirements, complying to regulations, or meeting environmental objectives Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – ISO (continue) ISO/IEC Guide 66:1999: General requirements for bodies operating assessment and certification/registration of environmental management systems (EMS) ISO 14001:1996: Environmental management systems – Specification with guidance for use ISO 14001:2004: Environmental management systems – Requirements with guidance for use ISO 14004:2004: Environmental management systems – General guidelines on principles, systems and support techniques ISO 14015:2001: Environmental management – Environmental assessment of sites and organizations (EASO) Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – ISO (continue) ISO 14031:1999: Environmental management – Environmental performance evaluation – Guidelines ISO/TR 14032:1999: Environmental management – Examples of environmental performance evaluation (EPE) ISO 14040:1997: Environmental management – Life cycle assessment – Principles and framework ISO/DIS 14040: Environmental management – Life cycle assessment – Principles and framework ISO 14041:1998: Environmental management – Life cycle assessment – Goal and scope definition and inventory analysis Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – ISO (continue) ISO 14042:2000: Environmental management – Life cycle assessment – Life cycle impact assessment ISO 14043:2000: Environmental management – Life cycle assessment – Life cycle interpretation ISO/DIS 14044: Environmental management – Life cycle assessment – Requirements and guidelines ISO/TR 14047:2003: Environmental management – Life cycle impact assessment – Examples of application of ISO 14042 ISO/TR 14049:2000: Environmental management – Life cycle assessment – Examples of application of ISO to goal and scope definition and inventory analysis Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – ISO (continue) ISO 14050:2002: Environmental management – Vocabulary ISO/AWI 14050:Environmental management – Vocabulary ISO/TR 14061:1998: Information to assist forestry organizations in the use of Environmental Management System standards ISO and ISO 14004 ISO/TR 14062:2002: Environmental management – Integrating environmental aspects into product design and development ISO/DIS 14063: Environmental management – Environmental communication – Guidelines and examples ISO 19011:2002: Guidelines for quality and/or environmental management systems auditing Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – EMAS II (2001) is a management tool for companies and other organisations to evaluate, report and improve their environmental performance Since 2001 EMAS II has been open to all economic sectors including public and private services integration of EN/ISO as the environmental management system required by EMAS Voluntary participation, but sometimes required by business partners (example: VW) For public or private organisations operating in the European Union and the European Economic Area (EEA) Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – main stages of EMAS (1) environmental review – considering all environmental aspects of the organisation’s activities, products and services, methods to assess these, its legal and regulatory framework and existing environmental management practices and procedures (2) environmental management system – aimed at achieving the organisation’s environmental policy defined by the top management. The management system needs to set responsibilities, objectives, means, operational procedures, training needs, monitoring and communication systems 309 Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – main stages of EMAS (continue) (3) environmental audit – assessing in particular the management system in place and conformity with the organisation’s policy and programme as well as compliance with relevant environmental regulatory requirements 310 Prof. Dr. E. Albrecht, BTU Cottbus

4. Legal Response – main stages of EMAS (continue) (4) statement – of its environmental performance which lays down the achievements and future steps to be undertaken in order to continuously improve the organisation’s environmental performance The environmental review, EMS, the audit procedure and the environmental statement must be approved by an accredited EMAS verifier the validated statement needs to be sent to the EMAS Competent Body for registration and made publicly available before an organisation can use the EMAS logo 311 Prof. Dr. E. Albrecht, BTU Cottbus

XI. Future of IEL Foundational and Systemic Norms
Primary Rules and Principles Secondary Rules und State Responsibility The Actors in IEL Prof. Dr. E. Albrecht, BTU Cottbus

XI. Future of IEL Foundational and Systemic Norms
Sustainable Development Concept of Rio: 2 Columns Economical Development and Environmental Protection Concept of Johannesburg: 3 Columns Economical Development Social Development and Prof. Dr. E. Albrecht, BTU Cottbus

XI. Future of IEL 1. Foundational and Systemic Norms (continue)
Common Law of Humankind Recognition of general legal principles prohibition of the use of one’s territory to damage another one’s Non-discrimination in respect to access to courts Provide NGOs with rights in environmental procedures etc. Prof. Dr. E. Albrecht, BTU Cottbus

XI. Future of IEL 2. Primary Rules and Principles Principles
Prohibition of transboundary pollution Principle of Conservation  equality of environmental protection to development (not: subordination) Common but differentiated responsibility and establishing financial mechanisms Prof. Dr. E. Albrecht, BTU Cottbus

XI. Future of IEL 2. Primary Rules and Principles (continue) Rules
Example Climate Change: Primary rules in respect to reduction of CO2, but mitigation of developing countries not to prevent, but to adapt ( defensive action against the effects of climate changes, instead of direct reduction of GHGs) – very questionable Embryonic Principles and Rules Precautionary Principle (on the way to a custom) Polluter Pays Principle Clash of Primary Principles Problem: Free trade  environmental protection Prof. Dr. E. Albrecht, BTU Cottbus

XI. Future of IEL 3. Secondary Rules und State Responsibility
Status of State Responsibility Customary law Treaty IEL Draft on State Responsibility fills the gap when states agree on certain obligations but do not comply Development of responsibilities and remedies Prof. Dr. E. Albrecht, BTU Cottbus

XI. Future of IEL 4. The Actors in IEL Entry into civil society
Change of actors from states to NGOs, corporations and other non-state actors Development of innovative strategies for participation and consideration the interests of these actors Infusion of people power into the law making process could reduce the “democratic deficit” Prof. Dr. E. Albrecht, BTU Cottbus

Advanced Studies of International Environmental Law
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Advanced Studies of International Environmental Law

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