International Environmental Law: Overview 1 April

‘IEL sources’ General principles of IEL

Specific treaty regimes

‘Soft law’<br>

Institutions and Processes UN system
UNEP
GA; ECOSOC; CSD; MDGs and post-2015 development agenda
Rio+20 →
Establish ‘High Level Political Forum’
‘Upgrade’ UNEP – universal membership of Governing Council
Establish Sustainable Development Goals
Specialised agencies (e.g. FAO; IMO) and other IGOs

Multilateral environmental agreements (MEAs)
COPs<br>

Environment and . . . . Trade

Foreign Investment

Human rights

Development<br>

Principles of IEL ‘No harm’
Principle 2 Rio Declaration
Cooperation/Good neighbourliness
Role of environmental impact assessment

Precautionary principle/approach
Principle 15 Rio Declaration
Common but differentiated responsibility
Principle 7 Rio Declaration
Polluter pays principle
Principle of sustainable development<br>

‘No harm’ States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction (Principle 2, Rio Declaration)

Scope and application

Due diligence
Transboundary cf global context<br>

‘No harm’ “The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.” (ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996)

A State is thus obliged to use all of the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another state” (ICJ, Pulp Mills on the River Uruguay, para 101)<br>

Cooperation and EIA Obligation to notify and consult re activities that may have transboundary impact – e.g. international watercourses

EIA – ‘it may now be taken as a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial; activity may have a significant adverse impact in a transboundary context (ICJ, Pulp Mills, para. 204)
Scope and content of EIA?<br>

Precautionary principle In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. (Principle 15, Rio Declaration)

Application in law and practice

Legal status?
ICJ and WTO
International Tribunal for the Law of the Sea, Advisory Opinion 2011 – incorporation of precautionary approach in treaties and other instruments ‘has initiated a trend towards making this approach part of customary international law’<br>

CBDR States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. (Principle 7, Rio Declaration)

Scope and application<br>

MEAs Development of specific principles and rules through sectoral treaties
Autonomous instruments (and institutions)
‘Clusters’ of MEAs, e.g.
Hazardous substances
Biodiversity
Air and atmospheric pollution
Marine pollution<br>

MEAs Process
Common Elements and Approaches:
Objective and principles
Substantive obligations (differentiated?)
Finance and technology
Capacity development
Institutional arrangements and decision-making processes
Amendment/Evolution
Dispute settlement
Entry into force
Technical annexes<br>

Example: Convention on Biological Diversity A ‘Rio Convention’
Relationship with other biodiversity-related conventions – e.g. CITES; Ramsar; Bonn migratory species convention (CMS)
Biodiversity impact of climate mitigation and adaptation measures
Climate impact of biodiversity loss/degradation<br>

ExampleProtection of marine environment Numerous treaties address protection of marine environment at global or regional level
Overarching framework: 1982 UN Convention on the Law of the Sea (UNCLOS) – Part XII addresses protection of marine environment
Specific treaties include MARPOL (pollution from ships) and London Convention on Dumping of Wastes at sea. Also regional seas agreements.<br>

Protection of marine environment MARPOL
2011 revisions to Annex VI (Air pollution from ships) in effect from January 2013– energy efficiency requirements for shipping
Tacit amendment procedure
London Convention
CCS<br>

Examples Convention on Biological Diversity: www.cbd.int
CITES: www.cites.org
Migratory Species: www.cms.int
Basel Convention on Hazardous Waste: www.basel.int (and links to hazardous chemicals conventions)
Pollution from ships (MARPOL Convention) – www.imo.org<br>

Enforcement of IEL How to ensure, oversee and enforce implementation and effectiveness of MEAs?
Domestic implementation and enforcement
National reporting
Role of COP and other MEA institutions
Review of reports/other forms of review?
Dispute settlement – recourse to binding third party dispute settlement (court/arbitration) usually requires consent of parties to dispute
Compliance mechanisms
Sanctions?
Reviews of effectiveness of MEA<br>