International Environmental Law [1]
“International Environmental Law” is a
branch of “International Law” which consists of rules relevant to the
environment. It aims at protection of
environment and attainment of sustainable development. It is the newest or the youngest branch of
International Law; it emerged in the mid-1960s.
The increasing recognition of the need to
protect the global environment by laying down new principles and rules to
govern its various issues has required that International Law be developed in
order to establish such new principles and rules. Thus, International Environmental Law emerged
as the result of such development of International Law.
Actually, the concerns for environment
have been reflected for a long time in the various branches of International
Law, namely the Law of the Sea, Space Law, State responsibility, and the legal
regime of Antarctica . However, these branches do not specifically
focus on solving environmental problems.
International Environmental Law has emerged specifically to resolve
environmental problems and issues. It is
different from the other branches of International Law; nevertheless, it
overlaps and interacts with them.[2]
In the following sections, we will deal
with the codification and development of International Environmental Law, and
its contents and its main emergent legal principles.
Section 1: The Codification and Development of
International Environmental Law
Since the mid-1960s, the need to protect
the environment resulting from the increase in the level of understanding of
the dangers facing the earth’s environment has instigated an effort, by
governments and by the United Nations as well as by non-governmental
organizations, to invoke legal protection of the environment both at domestic
and international levels.[3] At the domestic level, most countries have
promulgated environmental legislation to that end. At the international level, the United
Nations initiated in 1972 the long international process for the codification
and development of international environmental law as a separate new branch of
International Law.[4] Although
the United Nations had convened some conferences addressing environmental issue
before 1972.[5] For instance, the 1949 “United Nations
Scientific Conference on the Conservation and Utilization of Resources” which
focused on exchanging experience in resources use and conservation techniques,
and the 1968 “UNESCO Conference of Experts on the Scientific Basis for Rational
Use and Conservation of the Resources of the Biosphere” which addressed the
issues with respect to the life-support systems of plants and animals.[6] In this latter Conference, the United Nations
addressed for the first time a range of ecological issues and recognized Man’s
relationship to nature at the international level.[7]
By the early 1970s, environmental issues
were appearing on the agenda of various United Nations organs and its
specialized agencies as well as other organizations and agencies.[8] In 1972, the United Nations convened its
“Conference on the Human Environment” (UNCHE) in Stockholm
Since 1972 Stockholm Conference, there has
been a remarkable proliferation of international instruments concerning various
environmental problems. These involve
air pollution, marine pollution, global warming and ozone depletion, the
dangers of nuclear and other extra-hazardous substances, Antarctica ,
and threatened wildlife species.[12]
In the same year after the 1972 Stockholm
Conference, the United Nations General Assembly established “the United Nations
Environmental Programme” (UNEP)[13]
as a subsidiary organ to deal with environmental issues. The UNEP is based in Nairobi , Kenya
In 1989, “the Basel Convention on the
Control of the Transboundary Movements of Hazardous Wastes and their Disposal”
was concluded.[16] In 1991 “the Convention on Environmental
Impact Assessment in a Transboundary Contest”, was concluded.[17] In 1992 “the Helsinki Convention on the
Protection and Use of Transboundary Watercourses and Lakes” and “the Helsinki
Convention on the Transboundary Effect of Industrial Accidents”[18]
were conclude. Moreover, after the 1972,
the General Assembly of the United Nations has adopted a number of resolutions
concerning the environment.[19]
The process of the development of
International Environmental Law was culminated in “the United Nations
Conference on Environmental and Development” (UNCED) which was held in Rio de Janeiro
(1) “The Rio
Declaration on Environment and Development”:[22]
A universal
statement of general rights and obligations of States affecting the
environments formulated in twenty-seven non-binding principles.
(2) Agenda 21:[23] A programme of action consisting of forty
chapters covering many issues, ranging from alleviation of poverty to
strengthening national and international society’s ability to protect the
atmosphere, oceans, and other waters, mountains, and areas vulnerable to
desertification. This Programme
recognizes more explicitly than “the Stockholm Action Plan” the interrelations
between economic, environment, poverty and development issues. Agenda 21 outlines global strategies for
cleaning up the environment and encouraging environmentally sound development.
(3) “The Framework Convention on Climate
Change” (known as “Global Warming Convention”):[24] An international treaty creating a regulatory
regime to deal with the effects of energy use at the Climate. It aims to stabilize the greenhouse gas
emissions at a level that would prevent dangerous anthropogenic (chiefly of
pollution, originating from human activities) interference with the climate
system. It requires States to reduce
their emission of carbon dioxide, methane, and other “greenhouse” gases thought
to be responsible for global warming. It contains a set of principles that the
parties shall be guided by in their efforts to achieve the objective of the
Convention, and a set of principles constituting commitments to be undertaken
by the parties under the Convention.
(4)
“The Convention on Biological Diversity”:[25] An international treaty creating a regulatory
regime to deal with the large-scale natural resources depletion. It aims at the
conservation and sustainable use of biological diversity, the fair and
equitable sharing of the benefits from its use, and the regulation of
biotechnology. It requires States to
take inventories of their plants and wild animals and protect their endangered
species.
(5)
“The Non-legally Binding Authoritative Statement of Principles for a
Global Consensus on the Management, Conservation and Sustainable Development of
all Types of Forests”:[26] As the title of this instrument suggests it
is not a treaty, but a statement of principles with no binding force.
This
Statement of Principles aims at preserving the world's rapidly vanishing
tropical rainforests. It recommends that
nations monitor and assess the impact of development on their forest resources
and take steps to limit the damage done to them.
In addition, the Rio de Janeiro Conference
of 1992 established “the Inter- Agency Committee on Sustainable Development” in
order to improve co-operation between the various United Nations organs and
agencies concerned with this issue. In
the same year, “the Commission on Sustainable Development” (CSD) was
established by the General Assembly and “the Economic and Social Council of the
United Nations” in order to follow up the 1992 Rio de Janeiro
Since the 1992 Rio de Janeiro Conference,
several international instruments, whether universal or regional, dealing with
various environmental issues have been adopted.[28] The instruments deal with issues such as
trans-boundary pollution, marine environment and pollution, nuclear safety and
damage, desertification, Hazardous wastes, and watercourses, rivers and
lakes. Among these instruments, there is
“the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate
Change”.[29]
It is important to mention that in 1994
the Global Environmental Facility, which was established earlier, was
transformed into a permanent financial mechanism to award grants and funds to
developing countries for global environmental protection projects. The Facility
focuses upon climate change, the destruction of biological diversity, the
pollution of international waters and ozone depletion.
Section 2: The
Major Emergent Principles of International
Environmental
Law
The emergent principles and rules of
International Environmental Law are laid down in the various environmental
instruments, conventions as well as non-binding statements, declarations and
resolutions, which have been adopted in the last thirty-three years. These principles and rules accords rights and
obligations to individuals, peoples and States with respect to global
environment and sustainable development.
Although not all these principles and rules are binding, the non-binding
ones may constitute an evidence of the tendency of international community with
regard to such subjects. The most
significant emergent principles and rules of environment and sustainable
development are the following:
(1)
The Human Environmental Right:[30] This principle accords all persons the right
to a secure, healthy and ecologically sound environment. It provides that every
person has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permits a life of dignity and
well-being.
(2)
The Principle of Sustainable
Development:[31] This principle considers human beings to be
at the center of concerns for sustainable development. It provides that the
right to development must be fulfilled so as to equitably meet developmental
and environmental needs of present and future generations.
(3)
The Right to Development:[32] This principle accords each State the right
to development, and the sovereign right to exploit its own resources pursuant
to its own environment and developmental policies. It provides that
environmental protection should not outweigh the need of a State for economic
development. It also provides that
economic and social development is essential for ensuring a favorable living
and working environment for human being and for creating conditions on earth
that are necessary for the improvement of the quality of life.
(4)
The Principle of Integration of Environmental Protection and
Development:[33] This principle provides that environmental
protection should constitute an integral part of the development process and
cannot be considered in isolation from it.
(5)
The Principle of Environment Protection and Precaution: [34] This principle requires all states to take
all the precautionary measures according to their capabilities in order to
protect the environment. States should
take precautionary measures to prevent or minimize environmental
degradation. They should minimize in an
economically efficient manner harmful environmental impacts. They should endeavor to limit and, as far as
possible, gradually reduce and prevent air pollution, including long-range
transboundary air pollution.
(6)
The Principle of Co-operation:[35]
This principle provides that international matters concerning the protection
and improvement of the environment should be handled in a co-operative
spirit. It requires States to co-operate
in a spirit of global partnership to conserve, protect and restore the health
and integrity of the Earth’s ecosystem; and to develop policies and strategies
by means of exchanges of information and consultation and to exchange
information to combat generally the discharge of air pollution.
(7)
The Principle of State Responsibility for Damages to the Environment:[36] This principle imposes upon the States the
responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or areas beyond the
limits of national jurisdiction. States
are liable for any damage caused by their breach of their obligations. Such liability is absolute; States are liable
for any adverse effects irrespective of fault.
(8)
The Polluter-Pays Principle (the Civil Liability Principle):[37] This principle entails that the polluter
should, in principle, bear the costs of pollution.
(9)
The Principle of Notification
and Consultation:[38]
This principle requires a State immediately to notify other States of any
natural disasters or other emergencies that likely to produce sudden harmful
effects on the environment of those States. States should provide prior and
timely notification and relevant information to potentially affected States on
activities that may have a significant adverse transboundary environmental
effect and shall consult with those States at an early stage and in good faith.
(10) Environmental Impact
Assessment (EIA) Principle:[39] This principle involves a procedure for
evaluation the likely impact of a proposed activity on the environment. The object of the assessment is to provide
decision-makers with information about possible environmental effects when
deciding whether to authorize the activity to proceed. Under this principle States are required to
establish an environmental assessment procedure that permits public
participation and the preparation of environmental impact assessment documentations.
(11) Environmental Monitoring
Principle:[40]
This principle involves a process whereby States observe, measure, evaluate and
analyze, by recognized scientific methods, the risks or effects of pollution or
environmental harm. Unlike EIA, monitoring is generally undertaken after the
project has begun; its object is to check initial EIA prediction and determine
whether measures are needed in order to abate or avoid pollution or
environmental harm.[41]
[1] See generally P. Birnie and A Boyle, International
Law & The Environment, 2nd ed., Oxford
[2] See Birnie & Boyle, p.2.
[3] See generally Malanczuk, pp. 241-51;
and Shaw, pp. 753-60.
[4] See Birnie & Boyle, pp.38-47.
[5] Id. pp. 37-8.
[6] See id. p. 37.
[7] Id.
[8] Id. p. 38.
[9] See U.N. Doc. A/CONF. 48/14/Rev. 1; 11
I.L.M. (1972) 1416. This Conference was held in Stockholm , Sweden
[10] See
Birnie & Boyle, pp. 38-9.
[11] Known
also as “The Declaration of the United Nations Conference on the Human
Environment.”
[12] See
Malanczuk, pp. 242-45.
[13] G.A.
Res. 2997(XXVII).
[14] Text in
26 I.L.M. (1987) 1516.
[15] Text in
id. p. 1550.
[16] Text in
28 I.L.M. (1989) 657.
[17] Text in
30 I.L.M. (1991) 802.
[18] Text in
31 I.L.M. (1992) 1333.
[19] For
example G.A. Res. 2398(XXII); G.A. Res. 2997(XXII); G.A. Res. 188(34); G.A.
Res. 250(37);
G.A. Res.
187(42); G.A. Res. 228(44); G.A. Res.
212(45) ; and G.A. Res. 188(47).
[20] See Report
of the UNCED, Vol. I-III , New York
[21] See
Birnie & Boyle, pp. 43-44; and generally the Report of the UNCED, id.
[22] See
the Report of the UNCED, vol. I.
[23] Id.
[24] Text in
31 I.L.M. (1992) 851.
[25] Text in
id., p. 818.
[26] Text in
id., p. 881.
[27] See
Shaw, p.755.
[28] See
Malanczuk, pp. 242-5.
[29] Text in
37 I.L.M. (1998) 22.
[30]
Stockholm Declaration, principle 1.
[31] Id.
[32]
Stockholm Declaration, principle 8; and Rio Declaration, principle 3.
[33] Rio
Declaration, principle 4.
[34]
Stockholm Declaration, principles 6 &7; Rio declaration, principle 15; the
1979 Convention on Long-Range Transboundary Air Pollution, art. 1; the 1985
Vienna Convention for the Protection of Ozone Layer, art. 2; and the 1997
Convention on International watercourses, art. 7.
[35]
Stockholm Declaration, principle 24; Rio Declaration, principle 7.
[36]
Stockholm Declaration, principle 21; Rio Declaration principles 2 &13.
[37] Rio
Declaration, principle 16.
[38] Id.
principles 18 & 19.
[39] Rio Declaration,
principle 17; and the 1991 Convention on Environmental Impact Assessment in the
Transboundary Context, art. 1(vi).
[40] The
1982 Convention on the Law of the Sea, art. 204.
[41] Birnie
& Boyle, pp. 130-1.
