International Environmental Law | PUBLIC INTERNATIONAL LAW

International Environmental Law

International Environmental Law is a branch of public international law that governs the protection of the global environment. It involves legal norms, principles, and treaties created to prevent, mitigate, and manage environmental issues that transcend national borders. This body of law seeks to reconcile the right of sovereign states to exploit their natural resources with the need to preserve the global environment for present and future generations.

Key Concepts in International Environmental Law

1. State Sovereignty and Responsibility

   • States have sovereignty over their natural resources, as recognized by customary international law and various treaties, including the United Nations Charter.
   • However, this sovereignty is limited by the principle that activities within a state’s jurisdiction should not cause environmental harm beyond its borders (principle of no-harm rule or transboundary harm). This principle is codified in the 1992 Rio Declaration on Environment and Development and is a key tenet of customary international law.

2. Sustainable Development

   • Sustainable development is a central concept in international environmental law. It was notably advanced in the 1987 Brundtland Report and codified in the Rio Declaration of 1992.
   • Sustainable development emphasizes that development should meet the needs of the present without compromising the ability of future generations to meet their own needs.
   • It integrates economic development, social development, and environmental protection as interdependent and mutually reinforcing pillars.

3. Precautionary Principle

   • This principle asserts that where there is a threat of serious or irreversible environmental harm, the lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
   • It is enshrined in Principle 15 of the Rio Declaration and various multilateral environmental agreements, such as the Convention on Biological Diversity (1992) and the UN Framework Convention on Climate Change (UNFCCC, 1992).

4. Polluter Pays Principle

   • The polluter pays principle mandates that those who cause environmental harm should bear the costs of managing or preventing such harm. This principle is widely recognized in both national and international law.
   • Principle 16 of the Rio Declaration formalizes this concept and ensures that the economic burden of pollution does not fall on the general public or future generations.

5. Common but Differentiated Responsibilities (CBDR)

   • CBDR is a principle that acknowledges that while all states are responsible for addressing global environmental issues, they do not bear equal responsibility. Developed nations, having historically contributed more to environmental degradation, are expected to take the lead in addressing these issues.
   • The principle is found in Principle 7 of the Rio Declaration and forms a cornerstone of treaties such as the Kyoto Protocol and the Paris Agreement under the UNFCCC.

Key Multilateral Environmental Agreements (MEAs)

International Environmental Law is mainly developed through multilateral environmental agreements (MEAs). These treaties address a wide range of issues, including climate change, biodiversity, marine pollution, and hazardous waste.

1. Stockholm Declaration (1972)

   • The Stockholm Conference on the Human Environment marked the first major international gathering focusing on environmental issues. It led to the establishment of the United Nations Environment Programme (UNEP) and laid the groundwork for future environmental treaties.
   • The Stockholm Declaration includes 26 principles, emphasizing the need for a healthy environment and outlining state responsibilities.

2. Rio Declaration (1992)

   • Adopted at the United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit in Rio de Janeiro, this declaration contains 27 principles aimed at guiding states in environmental protection and sustainable development.
   • The Agenda 21, a non-binding action plan on sustainable development, was also adopted during this conference.

3. United Nations Framework Convention on Climate Change (UNFCCC, 1992)

   • The UNFCCC is the primary international treaty to address climate change. It sets an overarching framework for global action to stabilize greenhouse gas concentrations and mitigate the effects of global warming.
   • The convention was supplemented by the legally binding Kyoto Protocol (1997) and later by the Paris Agreement (2015), which aims to limit global temperature rise to below 2°C, ideally to 1.5°C, above pre-industrial levels.

4. Convention on Biological Diversity (CBD, 1992)

   • The CBD aims to conserve biological diversity, promote sustainable use of its components, and ensure fair and equitable sharing of benefits arising from genetic resources.
   • It also gave rise to additional protocols, such as the Nagoya Protocol on Access and Benefit-sharing and the Cartagena Protocol on Biosafety.

5. Kyoto Protocol (1997)

   • An international agreement under the UNFCCC, the Kyoto Protocol imposes legally binding emission reduction targets on developed countries. It operates on the principle of CBDR, placing heavier obligations on industrialized nations to combat climate change.
   • The Protocol established mechanisms such as Emissions Trading, Clean Development Mechanism (CDM), and Joint Implementation to help states meet their commitments.

6. Paris Agreement (2015)

   • The Paris Agreement under the UNFCCC replaced the Kyoto Protocol as the main instrument for addressing climate change.
   • It aims to limit global warming to well below 2°C, with an ambition to reduce it to 1.5°C. It establishes a framework for national commitments known as Nationally Determined Contributions (NDCs).
   • The agreement also focuses on adaptation, climate finance, and loss and damage due to climate change.

7. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES, 1973)

   • CITES regulates international trade in endangered species to ensure that such trade does not threaten their survival.
   • The convention provides various levels of protection to more than 35,000 species of animals and plants through a permit system.

8. Basel Convention (1989)

   • The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal seeks to reduce the generation of hazardous wastes and control their cross-border movement.
   • It promotes the disposal of hazardous wastes close to the source of generation and prohibits shipments of waste to countries lacking the capacity to manage them safely.

9. Montreal Protocol (1987)

   • The Montreal Protocol on Substances that Deplete the Ozone Layer is one of the most successful environmental treaties. It aims to phase out the production and consumption of ozone-depleting substances (ODS).
   • The protocol has been amended multiple times, most notably by the Kigali Amendment (2016), which targets the phase-down of hydrofluorocarbons (HFCs), potent greenhouse gases.

10. UNCLOS and Marine Protection

    • The United Nations Convention on the Law of the Sea (UNCLOS, 1982) governs various aspects of marine law, including the protection of the marine environment. Part XII of UNCLOS obliges states to take measures to prevent, reduce, and control pollution of the marine environment from land-based sources, seabed activities, and vessels.
    • Additional agreements related to marine protection include the International Convention for the Prevention of Pollution from Ships (MARPOL, 1973) and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention, 1972).

Enforcement and Compliance Mechanisms

1. National Implementation

   • Treaties typically require states to adopt implementing legislation or policies at the national level. Compliance is primarily based on good faith and reciprocity.

2. International Dispute Resolution

   • Dispute resolution mechanisms include arbitration, negotiation, and adjudication through bodies such as the International Court of Justice (ICJ) and the Permanent Court of Arbitration.

3. Non-Compliance Mechanisms (NCMs)

   • Several treaties establish NCMs to address cases where states fail to meet their treaty obligations. These mechanisms are non-adversarial and aim to facilitate compliance through dialogue and assistance, rather than punitive measures. For example, the Kyoto Protocol and the Montreal Protocol both include NCMs to handle compliance issues.

4. Monitoring and Reporting

   • Many environmental treaties require regular reporting and monitoring of compliance. For example, under the Paris Agreement, states must submit their NDCs and report on progress through a transparent review process.

Emerging Issues in International Environmental Law

1. Climate Change and Loss & Damage

   • Climate change is increasingly recognized as a threat to global security and human rights. The issue of loss and damage—the harm caused by climate impacts that cannot be avoided—is a pressing concern, particularly for vulnerable countries.

2. Biodiversity Loss

   • The rapid loss of biodiversity poses a serious risk to ecosystems and human livelihoods. Efforts to address this issue include the Post-2020 Global Biodiversity Framework, which is expected to set new targets for biodiversity conservation.

3. Plastic Pollution

   • The growing threat of plastic pollution, particularly in oceans, has prompted calls for a global treaty to address the lifecycle of plastics, from production to disposal.

Conclusion

International Environmental Law plays a vital role in addressing global environmental challenges. Through principles like sustainable development, the precautionary approach, and common but differentiated responsibilities, the international community seeks to balance economic development with environmental protection. Multilateral environmental agreements and their enforcement mechanisms form the backbone of this legal framework, ensuring that states cooperate in addressing issues such as climate change, biodiversity loss, and pollution. With emerging issues like plastic pollution and loss and damage from climate change, international environmental law continues to evolve to meet the needs of the global community.

Principle 21 of Stockholm Declaration | International Environmental Law | PUBLIC INTERNATIONAL LAW

Principle 21 of the Stockholm Declaration: International Environmental Law

Introduction to the Stockholm Declaration

The Stockholm Declaration on the Human Environment, adopted during the United Nations Conference on the Human Environment in 1972, is a foundational document in the development of international environmental law. It represents the first global recognition of environmental protection as an integral component of sustainable development. The Declaration sets out several principles to guide states in their environmental actions, one of which is Principle 21.

Principle 21: Key Provisions

Principle 21 of the Stockholm Declaration states:

"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 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."

This principle encapsulates two fundamental tenets of international environmental law:

1. Sovereignty over Natural Resources: The right of states to utilize and manage their natural resources according to their national policies.
2. Duty to Prevent Environmental Harm: The responsibility of states to prevent their activities from causing environmental damage to other states or areas beyond their jurisdiction.

Elements of Principle 21

1. Sovereign Right to Exploit Resources

   • States possess sovereign control over the natural resources within their territories. This is aligned with the principle of state sovereignty under customary international law.
   • The right to exploit resources includes the freedom to develop policies concerning the management, conservation, and utilization of these resources.
   • However, this right is not absolute. States must exercise it in accordance with their international obligations and ensure environmental protection.

2. Environmental Responsibility

   • No-Harm Rule: Principle 21 introduces a limitation on state sovereignty by imposing the duty not to cause environmental harm beyond national borders. This is a reflection of the no-harm principle, a customary rule of international law, requiring states to prevent, reduce, or control activities within their jurisdiction or control that could cause environmental damage to other states or the global commons.
   • The due diligence standard applies here, meaning that states must take all necessary precautions to avoid significant environmental harm to other states or areas beyond their national jurisdiction.

3. International Law and Environmental Policies

   • Principle 21 ties the exploitation of natural resources and environmental responsibility to the Charter of the United Nations and general principles of international law.
   • This emphasizes that the sovereignty of states over their natural resources must be exercised in good faith, respecting international environmental obligations and cooperative efforts to address global environmental challenges.

Legal Status of Principle 21

Although the Stockholm Declaration itself is not a legally binding treaty, Principle 21 has been recognized as a norm of customary international law. This has been affirmed in several international legal instruments and case law.

1. United Nations General Assembly Resolution 2995 (XXVII)

   • The 1972 resolution confirmed that the Stockholm Declaration, and particularly Principle 21, reflects the emerging norms of international environmental responsibility.

2. Subsequent Treaties and Declarations

   • Principle 2 of the Rio Declaration on Environment and Development (1992) largely reaffirms Principle 21, strengthening its status in international law.
   • Various multilateral environmental agreements (MEAs), such as the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC), incorporate the principles of sovereignty over resources and responsibility to avoid transboundary harm.

3. Case Law

   • Trail Smelter Arbitration (1941): Although predating the Stockholm Declaration, this case between the United States and Canada recognized the principle that no state has the right to use or permit the use of its territory in such a way as to cause injury by fumes in or to the territory of another state. This established the no-harm rule as a principle of international law.
   • ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996): The International Court of Justice (ICJ) referred to Principle 21 when affirming that states have a general obligation to ensure that activities within their jurisdiction and control respect the environment of other states and areas beyond national jurisdiction.

Interaction with Other Principles of International Environmental Law

1. Sustainable Development

   • Principle 21 supports the broader objective of sustainable development, which seeks a balance between economic development and environmental protection. States must exploit their resources in a way that ensures environmental sustainability and does not harm future generations.

2. Precautionary Principle

   • The precautionary approach to environmental protection, endorsed in later declarations such as the Rio Declaration, complements Principle 21 by requiring states to take preventive action when there is a risk of significant environmental harm, even in the absence of scientific certainty.

3. Polluter Pays Principle

   • Principle 21 is indirectly linked to the polluter pays principle, which holds that states or entities causing environmental harm should bear the costs of preventing and remedying such harm.

4. Principle of Cooperation

   • The principle of international cooperation is closely related to Principle 21. It recognizes that many environmental issues, such as climate change and biodiversity loss, are transboundary in nature and require cooperative efforts among states to address effectively. The UN Convention on the Law of the Sea (UNCLOS) and other environmental treaties reflect the need for cooperation in managing shared resources and environmental risks.

Challenges and Criticisms of Principle 21

1. Tension Between Sovereignty and Global Environmental Responsibility

   • Principle 21 balances state sovereignty with international environmental obligations. However, this balance can create tensions, particularly when national development goals conflict with the responsibility to prevent environmental harm.
   • Developing countries, in particular, argue that restrictive environmental obligations may hinder their economic growth and access to natural resources. They call for differentiated responsibilities in addressing environmental harm, recognizing the historical contribution of developed nations to global environmental degradation.

2. Implementation and Enforcement Issues

   • The implementation of Principle 21 relies heavily on states' commitment to their international obligations and the strength of domestic environmental policies. The lack of binding enforcement mechanisms in many environmental agreements poses a challenge to holding states accountable for transboundary harm.
   • Dispute resolution mechanisms, such as those available under the International Court of Justice (ICJ) or arbitration panels, are rarely utilized due to political sensitivities and the preference for diplomatic or negotiated solutions.

Conclusion: Significance of Principle 21 in International Environmental Law

Principle 21 of the Stockholm Declaration is a cornerstone of international environmental law. It affirms the sovereignty of states over their natural resources, while simultaneously imposing a duty to prevent environmental harm beyond national borders. Its incorporation into subsequent international declarations, treaties, and judicial decisions has solidified its status as a customary rule of international law.

Despite challenges in enforcement and balancing sovereignty with global responsibility, Principle 21 remains a crucial foundation for fostering state accountability and cooperation in addressing global environmental challenges. The principle continues to evolve in response to emerging environmental issues and the need for greater international collaboration to achieve sustainable development.

Precautionary Principle | International Environmental Law | PUBLIC INTERNATIONAL LAW

The Precautionary Principle is a foundational concept in International Environmental Law, aimed at ensuring that the lack of full scientific certainty should not be used as a reason to delay action where there is the risk of serious or irreversible harm to the environment. It emphasizes a proactive approach to environmental protection, encouraging states to take precautionary measures even when scientific evidence is inconclusive. In the context of international law, this principle balances environmental protection with economic development, placing the burden of proof on those who propose potentially harmful activities to demonstrate their safety.

Here’s a comprehensive breakdown of the Precautionary Principle within International Environmental Law:

1. Definition and Essence

The Precautionary Principle can be succinctly expressed as follows:

• When there is a threat of serious or irreversible damage to the environment, the absence of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The principle calls for decision-makers to err on the side of caution, especially when activities or policies could potentially harm the environment or human health, even if there is no conclusive scientific evidence linking the activity to harm.

2. Evolution and Legal Status

The Precautionary Principle first gained prominence in international environmental discourse in the late 20th century. It has evolved through various environmental treaties, declarations, and conventions:

(a) Stockholm Declaration (1972)

Though not explicitly mentioned, the idea of precaution was reflected in the Stockholm Declaration, particularly Principle 21, which underscores states’ responsibility to ensure that activities within their jurisdiction do not harm other states or the environment.

(b) Rio Declaration on Environment and Development (1992)

The Precautionary Principle was explicitly recognized in Principle 15 of the Rio Declaration:

• "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."

This principle has been reaffirmed and strengthened in subsequent international agreements.

(c) Convention on Biological Diversity (1992)

The Precautionary Principle is also embedded in the Convention on Biological Diversity (CBD), which encourages its application in biodiversity conservation efforts, particularly regarding the sustainable use of resources and protection against species extinction.

(d) Cartagena Protocol on Biosafety (2000)

The Cartagena Protocol, supplementing the CBD, applies the Precautionary Principle to the movement of genetically modified organisms (GMOs), allowing states to adopt measures to protect biodiversity even in the absence of full scientific certainty about potential risks.

(e) Kyoto Protocol (1997) and Paris Agreement (2015)

Both climate change treaties, while not explicitly referring to the Precautionary Principle, integrate precautionary thinking in their objectives to reduce greenhouse gas emissions and avoid catastrophic environmental impacts. The notion of mitigating harm even without complete scientific certainty underpins the actions agreed upon by states.

(f) Customary International Law

There is debate on whether the Precautionary Principle has reached the status of customary international law. Some states and scholars argue that it has, due to its widespread acceptance in environmental treaties and national legislation. Others argue that its precise content and application remain too contested for it to be considered a binding customary norm.

3. Components of the Precautionary Principle

The principle consists of several key components:

(a) Risk of Harm

The principle applies in situations where there is a threat of serious or irreversible environmental damage. The exact nature of this threat need not be fully understood, and it does not need to be backed by conclusive scientific evidence.

(b) Scientific Uncertainty

The precautionary principle is triggered by scientific uncertainty. It recognizes that scientific processes are often slow, and absolute certainty may be impossible. Therefore, it shifts the focus away from proving harm has occurred to assessing potential risks and taking preemptive actions.

(c) Preventive Action

The principle promotes preventive measures in response to uncertain risks. States are encouraged to adopt risk-averse policies, invest in clean technologies, and design legal frameworks that minimize environmental harm before it occurs.

(d) Burden of Proof

One of the principle's most radical aspects is the shifting of the burden of proof. Instead of requiring environmental advocates or affected parties to prove harm, the principle places the burden on those proposing potentially harmful activities (such as corporations or states) to demonstrate that their activities will not cause significant damage.

4. Application in National Laws

Several countries have incorporated the Precautionary Principle into their national legislation. In the Philippines, for instance, the principle is entrenched in environmental laws and jurisprudence, notably:

• Philippine Clean Air Act (Republic Act No. 8749)

  • The act adopts the precautionary approach to air pollution, stating that measures to prevent pollution should not be delayed due to scientific uncertainty about the precise impact.

• Oposa v. Factoran (1993)

  • This landmark Supreme Court case, involving a group of children represented by their parents (known as the “Oposa Doctrine”), recognized the Precautionary Principle by asserting the right to a balanced and healthful ecology under the Philippine Constitution. The Court noted that such rights impose obligations not only to prevent harm but to take action even in the face of scientific uncertainty.

• Environmental Impact Statement System (PD 1586)

  • This law mandates environmental impact assessments (EIAs) for projects with potential environmental risks. While it does not explicitly refer to the Precautionary Principle, it embodies its spirit by requiring early evaluation of environmental risks.

5. Criticism and Limitations

While widely supported, the Precautionary Principle is not without criticism:

(a) Over-Regulation and Stifling Innovation

Opponents argue that the principle could lead to over-regulation, stifling technological innovation and economic development by halting projects based on speculative risks. This concern is particularly voiced in fields like biotechnology and nanotechnology, where emerging technologies are treated cautiously without conclusive evidence of harm.

(b) Ambiguity and Interpretation

The Precautionary Principle lacks a single, universally accepted definition, leading to varied interpretations across jurisdictions. This ambiguity can result in inconsistent application, making it difficult to enforce internationally.

(c) Economic and Technological Feasibility

The principle requires measures to be cost-effective, but balancing environmental protection with economic and technological feasibility can be difficult. Critics argue that it often fails to account for the economic burdens it may impose on developing countries.

6. Significance in Climate Change and Biodiversity

The Precautionary Principle is particularly relevant in addressing global challenges like climate change and biodiversity loss, where the stakes of inaction are extremely high. For instance, precautionary measures in these areas include:

• Reducing emissions even when the precise impact on global temperatures remains uncertain.
• Halting deforestation and protecting endangered species before conclusive proof of ecosystem collapse is established.

Conclusion

The Precautionary Principle plays a pivotal role in International Environmental Law, promoting early action to prevent environmental degradation even when scientific evidence is uncertain. It shifts the burden of proof to those proposing potentially harmful activities and encourages risk-averse policies to protect the environment. Despite its criticisms, it remains a critical tool in addressing modern environmental challenges, particularly in the face of threats like climate change and biodiversity loss.

In the Philippine context, the principle has found traction in legal and judicial precedents, reinforcing the country's commitment to environmental protection as enshrined in the Constitution and domestic laws.