International Environmental Law

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International Environmental Law

Introduction

International environmental law is a body of international law concerned with protecting the environment, primarily through bilateral and multilateral international agreements. International environmental law developed as a subset of international law in the mid-twentieth century. Although conservation movements developed in many nations in the nineteenth century, these movements typically only addressed environmental concerns within a single nation. A growing body of environmental scientific evidence from the 1950s and 1960s, however, illustrated global environmental stresses, along with the need for a multinational solution to environmental issues. Scientific research established that air and water pollution, overfishing, and other environmental issues often have effects that reach far beyond the borders of any particular nation. By the late-1960s, the international community realized that an international approach to environmental issues was required.

Historical Background and Scientific Foundations

International environmental law is derived primarily from three sources: customary international law; international treaties; and judicial decisions of international courts. Customary international law refers to a set of unwritten laws that have arisen from widespread custom and usage among nations. Examples of environmental international customary law include warning a neighboring nation about a major accident that could affect its environment.

Decisions by international courts or arbitrators, such as the International Court of Justice or the International Tribunal for the Law of the Sea, also shape international environmental law. The Trail Smelter Arbitration case of 1938 and 1941, one of the earliest international environmental law cases, involved a dispute between the United States and Canada over air pollution from a Canadian smelting factory. The pollution blew across the American-Canadian border and destroyed crops in the State of Washington. After 15 years, an international arbitration panel established the “polluter pays principle,” a key foundation of international environmental law. The polluter pays principle holds that if pollution from one nation causes harm in another nation, then the polluter nation must pay to remedy the damage.

International treaties are the most recent, and most effective, source of international environmental law. The sovereignty of nations persists as the primary obstacle to all forms of international law. The principle of sovereignty holds that every nation has complete control over the activities within its borders unless that nation agrees to relinquish some control. Nations typically abrogate (eliminate) part of their sovereignty through bilateral or multilateral international treaties.

The destruction of ecosystems and the exploitation of wild flora and fauna were the first environmental issues to receive widespread international attention. In 1963, the World Conservation Union (IUCN), a nongovernmental organization (NGO) dedicated to environmental conservation, called on all nations to take steps to protect endangered species. Following a conference on the issue, 80 nations promulgated the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES is an international agreement designed to protect endangered plants and animals by regulating the trade of endangered species or products derived from them. Since going into effect in 1975, CITES has developed widespread international support. Currently, 172 nations are party to the convention.

Since the 1970s, the United Nations has pressed for increased multilateral international environmental

WORDS TO KNOW

BIOSPHERE: All life-forms on Earth and the interactions among those life-forms.

CONSERVATION: The act of using natural resources in a way that ensures that they will be available to future generations.

ECOSYSTEM: The community of individuals and the physical components of the environment in a certain area.

FAUNA: The animal life existing in a defined area.

FLORA: The plant life of an area.

GREENHOUSE GAS: A gas whose accumulation in the atmosphere increases heat retention.

NON-GOVERNMENTAL ORGANIZATION (NGO): A voluntary organization that is not part of any government; often organized to address a specific issue or perform a humanitarian function.

SUSTAINABLE DEVELOPMENT: Development (i.e., increased or intensified economic activity; sometimes used as a synonym for industrialization) that meets the cultural and physical needs of the present generation of persons without damaging the ability of future generations to meet their own needs.

treaties. In 1968, scientists and representatives from 60 nations met at the United Nations Biosphere Conference in Paris to discuss pollution, natural resource depletion, and wetland destruction. The Biosphere Conference did not produce any formal international treaties. The Biosphere Conference laid the groundwork for future international environmental conferences and treaties by expressing the desire for a balance between utilization and conservation of natural resources.

The United Nations convened the first major international conference on the environment, the United Nations Conference on the Human Environment (UNCHE), in Stockholm, Sweden, in 1972. In addition to environmental issues, UNCHE, or the Stockholm Conference, also addressed the related issue of sustainable development. The Stockholm Conference produced two conventions related to these issues: the Declaration of the Conference on the Human Environment and the action plan.

The Declaration of the Conference noted that many diverse factors contribute to environmental degradation, including population growth, economic development, industrialization, and technological advancements. The Declaration of the Conference stated that every human is entitled to a clean, healthy environment. The declaration also called on humans to manage wildlife and their ecosystems to ensure their continued existence, including a reduction in pollution. It also recommended that industrialized nations provide financial and technological support to developing nations so they could develop their economies in an environmentally responsible manner. The action plan of the Stockholm Conference contained 109 specific recommendations for achieving the goals of sustainable development and environmental conservation. The United Nations established the United Nations Environment Programme (UNEP) to implement the recommendations of the action plan and to coordinate assistance to developing economies.

In 1982, the United Nations opened the United Nations Conference on the Law of the Sea (UNCLOS) for signatures. UNCLOS is the primary international agreement regarding the use and protection of the oceans. The need for international agreement on the use of the oceans had become apparent by the mid-twentieth century. Technological advancements increased the use and exploitation of the ocean and its resources on an unprecedented level. Fish populations declined rapidly, and increased marine pollution destroyed coastal and open-water ecosystems.

Representatives from 160 nations met at the Third United Nations Conference on the Law of the Sea to address establishing international maritime rules and environmental protection regulations. After nine years of negotiations, the conference passed UNCLOS. UNCLOS addressed marine territorial limits, economic rights over marine resources, and rights of vessel transit. UNCLOS also addressed pollution and other environmental concerns. Article 192 of UNCLOS states that all nations have a general obligation “to protect and preserve the environment.” UNCLOS went into effect in 1994; as of 2008, 155 nations have signed UNCLOS.

In 1983, the United Nations General Assembly convened the United Nations World Commission on Environment and Development (WCED), or the Brundtland Commission. In 1987, the Brundtland Commission issued its final findings and proposals in Our Common Future. The report asserted that sustainable development must be at the heart of every international environmental proposal. Our Common Future defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

Representatives from 172 nations met in Rio de Janeiro, Brazil, in June 1992 for the United Nations Conference on Environment and Development (UNCED), also called Earth Summit 1992. The summit produced the Rio Declaration on Environment and Development, Agenda 21, and the United Nations Framework Convention of Climate Change (UNFCCC). These documents continue to shape international action on environmental issues.

The Rio Declaration on Environment and Development defines the rights and responsibilities of nations in the areas of environmental protection and sustainable development. The Rio Declaration states that nations have the right to use natural resources within their borders so long as their actions do not harm the environment in other countries. The Rio Declaration also demands that governments develop and implement environmental plans that preserve and protect natural resources for future generations.

The UNFCCC combats global climate change primarily by regulating greenhouse-gas emissions. UNFCCC produced the Kyoto Protocol, one of the most influential international treaties to address global climate change. The Kyoto Protocol is an international treaty that commits countries to specific greenhouse-gas emission goals in order to stabilize such emissions. The Third Conference of the Parties to the UNFCCC adopted the Kyoto Protocol in 1997, and the treaty went into effect in February 2005. The Kyoto Protocol requires participating industrialized nations to reduce their greenhouse-gas emissions to 5% below 1990 levels by 2012.

In 2002, the United Nations held the United Nations World Summit on Sustainable Development, also called Earth Summit 2002, in Johannesburg, South Africa. Earth Summit 2002 focused on sustainable development and environmental preservation. The conference produced the Johannesburg Declaration on Sustainable Development, an international agreement on the environment and sustainable development. The Johannesburg Declaration echoes the proposals from the Rio Declaration on Environment and Development and Agenda 21. The Johannesburg Declaration contains modified targets and timetables for achieving the goals of Agenda 21. Numerous conference representatives and environmental organizations have criticized Earth Summit 2002 for failing to live up to the success of Earth Summit 1992.

Impacts and Issues

Many international environmental law treaties, especially those developed under the auspices of the United Nations, speak of environmental law as a human rights issue. The Declaration of the (Stockholm) Conference, for example, states that every human has the right to a clean and healthy environment. Few nations, however, have a legal framework that treats environmental law as a human rights issue. Most citizens cannot sue their government when their right to a clean environment is violated. Multilateral environmental treaties, therefore, take a more practical, regulatory approach toward environmental law.

International environmental law also must deal with the economic inequality that exists among nations. The Declaration of the United Nations Conference on the Human Environment was the first major international document to recognize that environmental problems originate from both developing and developed economies. The World Commission on Environment and Development and every subsequent United Nations conference on the environment have sought to address these seemingly contradictory sources of environmental degradation.

The Declaration of the (Stockholm) Conference noted that most environmental problems in developing economies occur because of underdevelopment. Poverty in these nations leads to poor health, sanitation, and toxic cleanup, which place chemical products harmful to humans and animals into the environment. Governments with developing economies also often seek advancement of the economy with little regard for environmental regulation. Industrialized nations contribute to environmental problems through technological advancements and industrial overproduction.

Most international environmental treaties, including Agenda 21 and the Kyoto Protocol, call on industrialized nations to bear a greater financial burden of imple-

mentation costs. This increased financial burden comes through monetary and technological support to developing economies. Conversely, developing economies often argue that international environmental treaties restrict their economic development. These nations note that their industries are not allowed to develop along the same path taken by developed nations.

BIBLIOGRAPHY

Books

Cullet, Philippe. Differential Treatment in International Environmental Law. Aldershot, UK: Ashgate, 2003.

Louka, Elli. International Environmental Law: Fairness, Effectiveness, and World Order. Cambridge: Cambridge University Press, 2003.

Web sites

CITES Secretariat. “What Is CITES?” http://www.cites.org/eng/disc/what.shtml (accessed May 5, 2008).

Secretariat of the United Nations Framework Convention on Climate Change. “Kyoto Protocol.” http://unfccc.int/kyoto_protocol/items/2830.php (accessed April 21, 2008).

United Nations. “The Biosphere Conference: 25 Years Later.” http://unesdoc.unesco.org/images/0014/001471/147152eo.pdf (accessed May 5, 2008).

United Nations. “U.N. Conference on Environment and Development (1992).” May 23, 1997. http://www.un.org/geninfo/bp/enviro.html (accessed April 21, 2008).

United Nations Environment Programme. “Stockholm 1972: Report of the United Nations Conference on the Human Environment.” http://www.unep.org/Documents.Multilingual/Default.asp?documentID=97 (accessed April 21, 2008).

Joseph P. Hyder

Environmental Science: In Context