General Aspects of Iel

7/29/2019 General Aspects of Iel

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UNIVERSITY OF PADUA

FACULTY OF ENGINEERINGSecond Cycle Degree in Environmental Engineering

2011-2012

INTERNATIONAL ENVIRONMENTAL LAW

GENERAL ASPECTS OF

INTERNATIONAL ENVIRONMENTAL LAW

B&P Avvocati

[email protected]

www.buttiandpartners.com



Index

1. Introduction: sources of international

environmental law;

2. Organizations for environmental law protection;

3. Main treaties on international environmental law;

4. General principles of international environmental

law: outlines.



Preliminary question:

International Environmental “Law”

or “Policy”?

LACK OF TRADITIONAL ATTRIBUTES OF LAW

No conventional legislative, executive, or judicial

bodies;Often too general without national implementation;

Few and imperfect enforcement mechanism;

Usually binding between States, not for individuals.

AMBIGUOUS RELATION WITH DOMESTIC LAW

Monistic vs. dualist systems;

Practical application by domestic courts.




environmental law (IEL)

A. Treaties;

B. Custom;C. General Principles of law;

D. Judicial Decisions;

E. Voluntary agreements;

F. Hard and soft law.



A. TREATIES

“Written agreements between two or more states,governed by international environmental law,

creating or restating legal rights and duties”

Also described as “conventions”, “agreements”, “protocols”, “covenants”, “pacts”, etc.





Why are TREATIES the principle source of IEL?

Nature of ENVIRONMENTAL PROBLEMS:

they range over a wide spectrum of factual situations; they demand continuous observation and monitoring, as well as quick

legal action and implementation in response to relatively rapid changes

in scientific knowledge;

IEL shall be able to deal with wide and varied kinds of investigations,

scientific monitoring, assessments, and findings.

NONE OF THE SOURCES OF IEL CAN FULFILL ALL OF THESE

REQUIREMENTS WITH A MIX OF GENERALITY, SPECIFICITY, AND

ADAPTABILITY, BUT TREATIES ARE AT BEST ABLE TO SATISFY

SOME OF THEM.





MAIN ASSETS OF TREATIES

They offer a superior framework for dealing with

environmental issues, by allowing for:- flexibility of law making;

- machinery for inducing compliance and non-compliance;

- dispute resolution mechanisms.

Treaties are reduced to writing and are therefore – confrontedwith customary law - more accessible and applicable: this isimportant when approaching a subject that requires clarityand certainty of legal response.





THE ENTRY INTO FORCE OF A TREATY

It corresponds to the date on which a treaty officially bindsthe parties;

Even though signed, a multilateral treaty typically does notenter into force until a minimum number of states havedeposited their ratifications.

Ratification is the process by which the respective national

governments give legal force to the signatures entered bytheir representatives.

Example: the United Nations Framework Convention on Climate Change,Dec. 31, 1992, entered into force Mar. 21, 1994, as 50 ratifications wererequired (art. 23 of the UNFCCC).





RESERVATIONS

A party to a treaty may enter into reservations to the extent thatthey are not prohibited;

Reservations allow parties to agree to all of the provisions of atreaty except those specified in the reservation.

Particular cases: conventions such as the Montreal Protocol onSubstances that Deplete the Ozone Layer (Sep. 16, 1987, entered into force Jan. 1, 1989) or the Climate Change Convention disallow reservations.

Parties have attempted to get around this by making “interpretative declarations” such as those entered by the UK to the Biodiversity Convention: the legal effect of such declarations is undetermined.





AMENDMENTS

Treaties may be amended where allowed by their provisions, butamendments generally do not enter into force unless ratified or

accepted by all the parties;The formal amendment procedure contained in a treaty has

proved to be anachronistic, as inadequated in incorporating newtechnologies and new scientific findings;

For this reason some environmental treaties are composed by

threee parts consisting of:1- a “ framework treaty ” (containing general principles);

2- “ protocols” (supplemeting or implementing the framework treaty);

3- technic and scientific “ annexes” containing details that may

need quick amendment according to changing needs.





INTERPRETATION OF TREATIES

GENERAL ISSUES

When a treaty is drafted it is impossible to anticipate and providefor every factual or legal contingency that might arise in the future;

Only concepts of wide scope – lacking specificity and exactitude –

can be applied to the facts of a new case through interpretation:

anyway, when a new case arises, the extent to which it may be

covered by existing provisions may be discussed;

The parties to a treaty often do not agree upon specific obligations

or upon the formulation of such obligations: so they often leave

inspirational and unspecific expressions to be later resolved by

interpretation.






EXAMPLES OF UNDETERMINED STATEMENTS

The Biodiversity Convention contains generic obligations

such as “as far as possible and as appropriate” (arts. 5, 6, 7)

and “in accordance with its particular conditions and

capabilities” (art. 6);

The Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal requires

each party to take “appropriate measures” to minimize the

generation of hazardous wastes (art. 4(2)a).






SUBJECTS EMPOWERED TO INTERPRET A TREATY

Similarly to national legal systems, the interpretative task is undertaken bythe Courts:

The International Court of Justice (ICJ) is the best known amonginternational courts, but it depends on the acquiescence of the Partiesfor its jurisdiction (Statute of the ICJ, art. 36, June 29, 1945 – enteredinto force Oct. 24, 1945);

Judicial or arbitral tribunals created by treaties such as the ClimateChange Convention are also empowered to interpret the law;

There is a number of new judicial bodies consisting of Courts and of quasi-judicial Tribunals of different kinds which are empowered tointerpret law: this could lead to jurisdictional conflicts;

Interpretation may further be rendered by the declaration of diplomaticconferences (such as the 1972 Stockholm Conference on the HumanEnvironment), the General Assembly of the United Nations and by

institutions created by environmental treaties.






RULES ACCORDING TO WHICH THE LAW IS

INTERPRETED

The Vienna Convent ion outlines basic rules of treatyinterpretation. Art. 31 stipulates that a treaty shall beinterpreted:

- in good faith; and

- in accordance with the ordinary meaning given to theterms in context; and

- in the light of the treaty’s object and purpose.





Art. 32 allows for supplementary means of interpretation where interpretation according to art.31 leaves the meaning ambiguous or obscure, or

leads to a result that is manifestly absurd or unreasonable.

THESE RULES MAY APPEAR OBJECTIVE,BUT THE PROCESS OF APPLYING THEMCREATES UNAVOIDABLY SUBJECTIVE HUMANELEMENTS, WHICH CAN LEAD TO DIFFERENTRESULTS.





B. CUSTOM

Unwritten law inferred from the conduct of States,

undertaken in the belief that they were bound to do so by law(opin io jur is ).

According to art. 38 of the Statute of the InternationalCourt of Justice, custom is the “evidence of a general

pract ice accepted as law ”.

Customary international law is created by the fusion of an objective element (PRACTICE ) and a subjective element

(OPINIO JURIS).





B. CUSTOM

PRACTICE (objective element):

The evidence necessary to establish it may be drawnfrom:

- national legislation;

- diplomatic notes and correspondence;

- statements and votes by governments in internationalorganizations and forums;

- ratification of treaties containing the obligations inquestion;

- opinions of legal advisers.





B. CUSTOM

OPINIO JURIS (subjective element):

If the pratice is regarded as discretionary, or simply convenientor self-serving rather than obligatory, it does not possess thecritical element of opinio juris and it is not consideredcustomary law.

THE UNWRITTEN, UNCODIFIED FORM OF CUSTOM ISONE OF ITS WEAKNESSES. A REMEDY MAY CONSIST INCODIFYING OR RESTATING CUSTOMARY LAW, MAKING ITKNOWN AND ACCESSIBLE, AND SO REDUCING THE LAW’S UNCERTAINTY.





C. GENERAL PRINCIPLES OF LAW

According to art. 38 of the Statute of ICJ, “the Court,

whose function is to decide in accordance with international law such disputes, shall apply … the general princ iples of

law recogn ized by civ i l ized nations ”.

The reference to “the general principles of law recognized by civi l ized nations ” is an embarrassingly anachronistic

phrase of the 1940s.





C. GENERAL PRINCIPLES OF LAW

When strictly interpreted, the general principles of lawenjoy a parity of status with treaties and custom;

Courts – and not States – have now the power and

discretion to enunciate relevant general principles of lawby induction.





D. JUDICIAL DECISIONS

The Statute of ICJ restricts the role of judicial decisionsto that of a “subsid iary means for the determ inat ion o f

rules o f law ” (art. 38,(1)d) of the Statute);

One of the reasons is that judicial decisions, includingthose of the ICJ, have no binding force “(e)xcept

between the parties and in respect of that particular case” (art. 59 of the Statute);

The international legal process lacks a hierarchial systemof courts or a machinery of justice: so it cannot adopt a

strict doctrine of binding precedent.





D. JUDICIAL DECISIONS

Judicial decisions play an important role in any systems

of customary law by restating, codifying and clarifyinguncertain and unwritten customary law;

Moreover, when a Court exercises its responsibilities anddecides a case, it tends to learn from what has beenachieved: the judicial use of precedents by internationaltribunals reflects a practical habit of mind that looks topast history for guidance;

Judicial decisions have become part of the substantivecorpus of IEL.





E. VOLUNTARY AGREEMENTS

In addition to international treaties, recent years haveincreasingly given rise to numerous types of voluntary

international agreements.Example: partnership agreements involving countries and privatesector entities, pledges found in political resolutions, codes of conduct, and declarations, agendas, programs, and various other non-binding instruments.

Voluntary agreements could be used as evidence of practice, both with regard to the interpretation of treaties under article 31(3)b of the Vienna Conventionon Treaties, as well as to establish customary law.





F. HARD AND SOFT LAW

The terms “hard law” and “soft law” refer to the typeof instruments used to lay down rules in internationallaw.

The criterion commonly used to distinguish betweenhard and soft law is that only hard law instrumentsare legally binding.

- hard law includes treaties and customs;- soft law includes declarations of principle, codesof practice, recommendations, guidelines,resolutions and standards.





F. HARD AND SOFT LAW

States may feel just as bound by provisions of soft lawinstruments:

soft law instruments are negotiated in a politicalclimate, implicating an intrinsic pressure to live uptheir terms;

States might choose to adhere soft law norms outof concern for reciprocity;

Nations seek to maintain an image of trustworthiness amongst other Nations;

there often exists the threat of retaliation and other sanctions from other States in the event of noncompliance.





Main Challenges to IEL

Implementation

• Ineffective negotiations and compromises;

• Signatures given much before implementing

legislation;• Growing number and fragmentation of Multilateral

Environmental Agreements (MEAs);

• Unclear priorities;

• Poor enforcement mechanisms;• High staff turnover;

• Insufficient financial and technical assistance.



Innovative Approaches to MEAs

Implementation

• Negotiation preparation at regional level;

• Harmonization of implementing legislation;

• Institutional coordination (also taking advantage of synergies among related MEAs);

• More careful data collection and management;

• Exploring common reporting formats, schedules, etc.;

• Implementation plans (Biosafety, Climate, Ozone, etc.);

• New compliance mechanisms (idem, plus Basel, Kyoto);

• Public involvement: Aarthus, etc.



IEL Application

by Domestic Courts

• Upholding domestic legislation or regulation;

• Upholding other governmental or administrative

actions;• Voiding governmental actions;

• Constraining the scope of domestic laws or regulations;

• Challenging actions by a private party;

• Assisting in interpreting domestic provisions;

• As a normative cause of action;

• For judicial review, standing and other procedural

matters.



A. Global Organizations;

B. Regional Organizations;

C. Specific Treaty Organization;

D. Non-governmental Organization (NGOs).

2. Organizations for environmental law

protection



A. GLOBAL ORGANIZATIONS

United Nations were founded in 1945 – before thedawning of environmental awareness.

Its Charter establishes seven principal organsincluding the General Assembly, the Security Council,the Economic and Social Council (ECOSOC), and the

International Court of Justice (ICJ).

The UN Charter neither creates an environmental organ nor specifically mandates the protection of theenvironment.


protection




A number of international organizations created by

treaty or agreement are known as Specialized

Agencies of the UN.

They own juridical personality and may exercise rights

and duties as subjects of international law.

A number of them have interpreted their constituent

treaties to adopt an environmental competence.


protection




Specialized Agencies of the UN presently assuming

environmental responsibilities include:

Food and Agricoltural Organization (FAO);

International Labour Organization (ILO);

World Health Organization (WHO);

World Meteorological Organization (WMO);

International Maritime Organization (IMO);

UN Educational, Scientific and cultural Organization(UNESCO).


protection




Perhaps the most important of the UN Environmental

Organizations is the UN Environmental Program (UNEP),created by a General Assembly resolution.

UNEP was established to act as a focal point for environmentalaction and coordination, but possesses no executive power.

Its mission is to persuade States of the need for environmentalaction, provide information, expertise and advice.

All UNEP programs are directly financed by member States.


protection




Financial mechanisms and technology transfers have becomepart of the architecture of IEL.

The World Bank Group consists of:

the International Bank for Reconstruction and Development(IBRD);

the International Development Bank (IDB);

the International Finance Corporation (IFC).


protection



After having encouraged environmentally damaging

developments, the World Bank mended its ways and in2001 released its Environmental Strategy (Making Sustainable Commitments: An Environmental Strategy for the World Bank, 2001).

It was a comprehensive pledge to consider environmental factors while pursuing its goals of poverty reduction and social growth


protection





To complete the review of global legal institutions, it is finally necessaryto make a reference to:

a. the International Court of Justice (ICJ);b. the International Law Commission (ILC).

a. The ICJ is the main judicial organ of the UN system, and exercises jurisdiction by consent.

It has now set up an environmental chamber and demonstrated in the

Advisory Opinion on the Threat or Use of Nuclear Weapons that itpossesses the authority to address vexing environmental issues (and toapply the law to changing situations).

b. The ILC was created by the UN General Assembly to work toward thecodification and development of international law. It has reported onsubjects of great importance to IEL – such as state responsibility and

international watercourses.


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B. REGIONAL ORGANIZATIONS

A number of legal organizations are playing an important role indeveloping IEL.

The most important of these is the European Union (EU): it isthe most advanced form of international organization in the world.

3 key attributes of EU:

law-making agencies;

law interpreting and enforcing agencies;

a court with compulsory jurisdiction.

The EU has enacted a large number of environmental jurisdictions over a wide range of subject areas.


protection



B. REGIONAL ORGANIZATIONS

Other relevant regional bodies are:

Council of Europe;

Organization for Economic Cooperation and

Development (OECD);

Organization of American States (OAS);

South Pacific Regional Environmental Programme

(SPREP).


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C. SPECIFIC TREATY ORGANIZATIONS

Many treaties set up institutional arrangements (or rudimentaryinternational organizations) for their implementation.

A number of them are called Conferences of the Parties, whichinclude a permanent secretariat and a budget, and, in somecases, special science advisory bodies.

Examples:

- regular meetings of the parties under the Montreal Protocol on substances that deplete the Ozone Layer, Sep. 16, 1987;

- the Climate Change Convention institutes an annual Conference of the Parties (the last was COP-17, which took placein Durban, South Africa, november 2011).


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D. NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

NGOs (such as World Wildlife Fund – WWF) have become

established actors in the implementation of environmental law for

several reasons:

• they are closer to people affected by environmental degradation

and can represent them more faithfully and diligently then their

governments;

• they have played a major role in organizing the once invisible

colleges of scientists for studying the effects and impacts of

various environmental problems;

• they have an undeniable international political standing.


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D. NON-GOVERNMENTAL ORGANIZATIONS(NGOs)

NGOs are not subjects of international law lacking thestatus of States. However, States and International

Organizations have recognized to environmental NGOs therole of “watchdogs” of the IEL implementation.

Some treaties go in the same direction:

E.g.: the Aarhus Convention on Access to Information, PublicParticipation in Decision-making and Access to Justice inEnvironmental Matters, 1998, is a regional treaty negotiated under the auspices of the UNECE. It provides citizens and NGOs access to information and participation;

It empowers NGOs to nominate experts for the election of the

Compliance Committee.


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Interesting cases are also arising in judicial practice:

E.g. the recent Orion Project controversy:

The potentiality of non binding soft-law and use of

“name and shame game”; Political pressure and use of public-interest litigation.

D. NON-GOVERNMENTAL ORGANIZATIONS(NGOs)


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A. From early fisheries conventions to the creation of

United Nations;

B. From the creation of United Nations to Stockholm(1945-1972);

C. From Stockholm to Rio (1972-1992);

D. 1992 UNCED;

E. Conclusions: trends and directions.

3. Main treaties on international

environmental law



A. FROM EARLY FISHERIES CONVENTIONS TO THECREATION OF UNITED NATIONS

First developments of international environmental Rules

aimed to the conservation of wildlife (fisheries, birds andseals);

Treaties were adopted ad hoc , so they were sporadic and

limited in their scopes;

Bilateral fisheries conventions were adopted in the mid-nineteenth century to avoid overexploitation (E.g. Conventionbetween France and Great Britain Relative to Fisheries, Paris, 11

November 1867).


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Another theme of cooperation was the conservation of

migratory birds. In 1872, Switzerland proposed an InternationalRegulatory Commission for the protection of birds: anInternational Ornithological Committee was created in 1884 andled to the adoption in 1902 of the Convention to Protect BirdsUseful to Agricolture.

It laid down some proh ib i t ions (birds’ killing, destruction/takingof their eggs, etc., with except ions concerning scientificresearch and repopulation techniques).

To strengthen links between American and European birdprotection groups a International Committee for Bird Protection

was founded in 1922.


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The 1909 Water Boundaries Treaty between the US and

Canada was the first to commit its parties to prevent pollution; Other treaties were adopted to limit the spread of phylloxera and

epizootic diseases, and to prevent damage from corrosive andpoisonous substances;

The 1909 meeting of the International Congress for the

Protection of Nature, in Paris, proposed the creation of aninternational nature protection body in 1913 an Act of Foundation of a Consultat ive Comm ittee for the Internat ional

Protect ion of Nature was signed in Berne by 17 countries(aimed to collect, classify and publish information on theinternational protection on nature).


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In this period two disputes were submitted to international

arbitration:1. Pacific Fur Seal Arbitration: Dispute between US and Great Britain

on the over-exploitation of fur seals. Regulations for the“ proper protection and preservation” of fur seals were set.

2. The Trail Smelter case concerned a 1930 dispute between US andCanada over the emission of sulphur fumes from a smelter situatedin Canada which caused damage in the State of Washington.

The Tribunal established that “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, or the properties or personstherein”.


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A. FROM EARLY FISHERIES CONVENTIONS TOTHE CREATION OF UNITED NATIONS

The principle established by the Tribunal in the Trail

Smelter Case represent a turning point for IEL, influencingsubsequent developments.

Nevertheless, in this period international rules werelimited:

- to the region they covered;

- to the subject matter they addressed.

EVENTUALLY THE INTERNATIONAL COMMUNITYSTARTED TO BE AWARE THAT THE EXPLOITATIONOF NATURAL RESOURCES COULD NOT OCCOUR ON

AN UNLIMITED BASIS.


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B. FROM THE CREATION OF UNITED NATIONS TOSTOCKHOLM (1945-1972)

The creation of the UN in 1945 represented the beginningof the second phase in the development of IEL:

- international and regional organizations began to beinvolved in environmental issues;

- the attention on this global and regional subjects wasaddressed also to the causes of pollution deriving fromultra-hazardous activities.

The link between economic development and environmental

protection had not been really recognised yet.


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The UN Charter did not include provisions on

environmental protection or the conservation of natural resources, neither an environment body wasestablished among the specialised agencies.

THE BASIS FOR THE SUBSEQUENT

ENVIRONMENTAL ACTIVITIES OF THE UNITED

NATIONS WERE FOUND IN THE PROVISIONS

CONCERNING INTERNATIONAL COOPERATION

IN ECONOMIC, SOCIAL, CULTURAL AND

HUMANITARIAN MATTERS.


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B. FROM THE CREATION OF UNITED NATIONSTO STOCKHOLM (1945-1972)




Food and Agriculture Organization (FAO) and the United NationsEducational, Scientific and Cultural Organization (UNESCO) included

provisions with environmental aspects.

In October 1948, a conference convened with the assistance of UNESCO, attended by representatives of 18 governments, 7 nationalorganizations and 107 national organizations, established theInternational Union for the Protection of Nature (IUPN):

- it was the first major international organization to addressenvironmental issues;

- it aimed at promoting the preservation of wildlife and the naturalenvironment, public knowledge, education, scientific research andlegislation;

- its members are governments and non-governmental actors.


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In 1947, an Economic and Social Council (ECOSOC) resolution convenedthe 1949 United Nations Conference on the Conservation andUtilisation of Resources (UNCCUR).

The aim was the management and conservation of natural resources,important to the reconstruction of devastated areas.

The resolution determined the competence of the UN over environmentalmatters – more recently resulting in the 1972 Stockholm Conference andthe 1992 UNCED.

UNCCUR was held from august 17 to September 6 in N.Y. State and wasattended by over 1,000 individuals from more than 50 countries.

The Conference concerned six issues: MINERALS; FUELS AND

ENERGY; WATER; FORESTS; LAND; WILDLIFE AND FISH.


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In 1954, the General Assembly of the UN convened a major Conference on

the Conservation of the Living Resources of the Sea, which led to the

conservation rules adopted in the 1958 Geneva Convention.

In 1954, the first global convention for the prevention of oil pollution was

adopted. It would be followed, 15 years later, by treaties permitting

intervention to combat the effects of oil pollution, establishing civil liability for

oil pollution damage and creating oil pollution compensation fund.

The 1959 Antarctic Treaty committed parties to peaceful activities in that

region and prohibited nuclear explosions or the disposal of radioactive waste.

In 1967, the European Community (EC) adopted its first environmental act,

on the packaging and labelling of dangerous goods (in the absence of

express environmental provisions in the 1957 Treaty of Rome).

The 1972 Ramsar Convention was the first environment treaty to establish

rules addressing the conservation of a particular type of ecosystem.


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Letting aside the developments represented by Conferences and

Conventions, other principles were settled by judicial decisions:

In 1949, the International Court of Justice confirmed States’ obligation not to knowingly allow their territory to be used for actscontrary to the rights of other States.

In 1957, in the Lac Lanoux Arbitration, the Tribunal affirmedprinciples concerning limitations on the rights of States to useshared rivers. The meaning of cooperation principle in IEL wasparticularly underlined.


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B. FROM THE CREATION OF UNITED NATIONSTO STOCKHOLM (1945-1972)

All these treaties and institutional developments were

developing in a lack of coordination and without a

coherent environmental strategy.

There were no international procedures to ensure theimplementation of IEL and no international authority with

a responsibility for coordination.


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In this context the 1972 Stockholm Conference (5-16 June

1972) was convened in December 1968 by the United Nations

General Assembly. the conference considered the impact of human activities

on biosphere, including the effects of air and water

pollution, deforestation and drainage of wetlands;

the significant elements of innovation concerned:1- the redefinition of international issues;

2- the attention for cooperation;

3- the approach to international responsibility;

4- the conceptualization of international relationships.


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The conference adopted three non-binding instruments:

1. a resolution on institutional and financial arrangements

(which proposed that UN General Assembly established newinstitutional arrangements);

2. a Declaration containing 26 principles;

3. an Action Plan containing 109 recommendations.

109 points were generally accepted by States and involved six mainsubject areas:

1. planning and management of human settlements for environmentalquality;

2. environmental aspects of natural resources management;

3. identification and control of pollutants and cultural aspects of

environmental issues; ...


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...

4. educational, informational, social and cultural aspects of environmental issues;

5. development and environment;6. international organizational action proposals.

Some reservations were made:E.g. USA did not accept the principle of “additionality”, according to which an increase in its foreign aid budget wouldbe required to cover also the costs imposed by environmentalmeasures on development projects.


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The most relevant provisions were Principles 21, 22, 23 and 24:

Principle 21: the States are responsible to ensure that activities withintheir jurisdiction or control do not cause damage in another State or beyond national jurisdiction – such as in outer space or in the high seas;

Principle 22: states have to co-operate in developing internationalenvironmental law;

Principle 23: certain standards of environmental regulation have to betaken at national level, basing on the value systems applying in eachcountries and their social costs;

Principle 24: international co-operation is necessary to control, prevent,reduce and eliminate adverse environmental effects resulting fromactivities carried out in all spheres.


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Other Principles were affirmed in non-legal language. Examples:

Principle 1: man has “the fundamental right to freedom, equality andadequate conditions of life, in an environment that permits a life of dignityand well-being, and he bears a solemn responsibility to protect andimprove the environment for present and future generations”;

Principles 2, 3, 5: set general guidelines for the natural resources of theEarth to be safeguarded;

Principles 8-15: concerns issues reflecting the relationship betweeneconomic and social development and the environment;

Principles 16-20: appropriate demographic policies are needed;application of science and technology, education and scientific researchhave to be encouraged.


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C. FROM STOCKHOLM TO RIO (1972-1992)

Two of the most significant achievements of the StockholmConference were:

the creation of United Nations Environmental Program

(UNEP); the adoption of Principle 21.

Within the UNEP system the Regional Seas Programme was to beimplemented and important global treaties were to be adopted (suchas those on ozone depletion, trade in hazardous waste and

biodiversity).

Other treaties were adopted outside UNEP but within UN system:the most important was the UNCLOS – United Nations Conventionon the Law of the Sea. (It established a framework for the creation of global rules on the protection of the marine environment and marine

living resources).


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UN economic and financial organizations started to deal withimplications of national and international environmental law on their respective activities.

The 1971 General Agreement on Tariffs and Trade (GATT) established agroup on Environmental Measures and International Trade: a fundamentalissue to be faced was whether unilateral trade restrictions adopted in thename of environmental protection were justified under GATT rules.

The World Bank and the regional development banks needed to integrateenvironmental considerations into their loan-making process anEnvironmental Department was created in the World Bank.

ENVIRONMENTAL OBLIGATIONS WERE INTEGRATED INTO THE1990 STATUTE ESTABLISHING THE EUROPEAN BANK FOR

RECONSTRUCTION AND DEVELOPMENT.


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Among the non-binding instruments adopted after Rio

Conference, three are particularly of note:1. 1978 UNEP draft Principles;

2. 1981 Montevideo Programme;

3. 1982 World Charter of Nature.

In 1978 UNEP adopted draft “Principles of conduct inthe Field of the Environment for the Guidance of Statesin the Conservation and Harmonious Utilization of Natural Resource shared by Two or more States”.


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They comprise 15 principles to govern the use of shared natural resources, e.g.:

Principles 1 and 2 recognise the duty of states to co-operate to control, prevent, reduce and eliminateadverse environmental effects – also concludingbilateral and multilateral agreements;

Principle 7 elaborated the principle of “good neighbourliness”;

Principles 12 and 13 addressed settles of disputes,responsibility and liability.


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In 1981 a meeting of officials experts of IEL was held inMontevideo: the Montevideo Programme (Programme for the Development and Periodic Review of Environmental Law)

was adopted by the UNEP governing Council in May 1982,influencing posterior UNEP’s legal activities for years.

It was divided into three parts:1- guidelines, principles and agreements have to be adopted toaddress marine pollution, protection of the stratospheric ozonelayer, the transport, handling and disposal of toxic and hazardouswastes;2- action has to be taken in some relevant areas (such astransboundary air pollution, protection of rivers, legal andadministrative measures to prevent pollution damage,environmental impact assessment);

3- the development of IEL has to be promoted (research, writing,teaching, dissemination of information).


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In 1982 United Nations adopted the World Charter for Nature, setting

“pr incip les of c onservat ion by wh ich al l hum an co nduc t af fect ing

nature is to be gu ided and judged ”.

The main difference from precedent instruments was that those were

anthropocentric and focused on the protection of nature for the benefit of

the mankind, whereas the Charter aimed to protect nature itself (“deep

ecology”).

The Charter was not binding, but many if its provisions are now reflected

in treaties.

It was divided into three sections:

1- “General Principles”;

2- “Functions”: more operational, including aspect on environmental impact assessment;

3- “Implementation”: for example, elements on public access to information, consultation

and participation.


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The Bruntland Report derives his name from that of the Norwegian

Prime Minister who chaired the 1983 World Commission on

Environment and Development (WCED). The final report of the

Commission (Bruntland Report) was published in 1987.

The Commission was an independent body, just linked to governments

and to the UN system.

The Report provided support for expanding the role of sustainable

development and proposed a UN programme on this subject.

- Pol icy matters involved : population, food security, biodiversity, energy,

industry and human settlements;

- Internat ional co-operat ion and inst i tut ional reform : role of the

international economy, relationships between peace, security,

development and environment.


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By 1990 there was a discrete area of law called

international environmental law:

- there was a large number of substantive rules limiting theright of States to engage in activities that could be harmful

to the environment;

- new techniques for the implementation of standards had

been adopted, such as environmental impact assessment

and access to environmental information;

- new institutions had been created.


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UNCED was held in Rio de Janeiro on 3-14 June 1992

and was attended by:

- 176 states;

- more than 50 intergovernmental organizations;

- several thousands corporations and NGOs.

In December 1989 the UN General Assembly

convened a UN Conference on Environment andDevelopment for June 1992 in Brazil (UNCED).


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D. UNCED

UNCED adopted 3 non-binding instruments:

1. the Rio Declaration on Environment and Development

(the Rio Declaration);

2. a Non-Legally Binding Authoritative Statement of

Principles for a Global Consensus on the Management,

Conservation and Sustainable Development for All

Types of Forests (the UNCED Forests Principles);

3. Agenda 21.

UNCED was concerned with the BALANCE

BETWEEN ENVIRONMENTAL PROTECTION AND

ECONOMIC DEVELOPMENT.


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D. UNCED

The RIO DECLARATION was:

- a compromise between developed and developing countries;

- a balance between the objectives of environmental protection andeconomic development.

It comprised 27 Principles representing the basis upon which states

and people have to co-operate and develop international law in the field

of sustainable development

It was non-binding but represented in part rules of customary law andemerging rules, providing guidance as to future legal developments.

Principle 1: Human beings are at the centre of concerns for

sustainable development . They are entitled to a healthy and

productive life in harmony with nature.


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D. UNCED

Principle 2: States have , in accordance with the Charter of

the United Nations and the principles of international law,

the sovereign r ight to exploi t their own resources

pursuant to their own environmental and developmental

policies, and the responsibi l i ty to ensure that act iv i t ies

with in thei r jur isd ict ion or contro l do not cause damage

to the environm ent of other States or of areas beyond the

limits of national jurisdiction .


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Principles 3 and 4 should be read together: the first

represents a “victory” for developing countries, the

second is the response of the developed countries:

Principle 3: The r ight to developm ent must be fulfilled

so as to equitably meet developmental and

environmental needs of present and future generations.

Principle 4: In order to achieve sustainabledevelopment, environmenta l protect ion shal l

const i tu te an integra l part of the development

process and cannot be considered in isolation from it.


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D. UNCED



Principle 15: In order to protect the environment, the precaut ionary

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. PRECAUTIONARY PRINCIPLE

Principle 16: National authorities should endeavour to promote the

internalization of environmental costs and the use of economic

instruments, taking into account the approach that the pol lu ter sh ould,

in pr inc iple, bear the cos t of pol lut ion , with due regard to the public

interest and without distorting international trade and investment .

POLLUTER-PAYS PRINCIPLE


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D. UNCED



D. UNCED Principle 7: 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 dif ferent iated

responsibi l i t ies . 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. COMMON BUT DIFFERENTIATED

RESPONSIBILITIES.

The Rio Declaration supported the development of procedural

techniques for environmental impact assessment, notification,

information exchange and consultation.


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D. UNCED

AGENDA 21

it was conceived as a non-binding action plan for sustainable

development, directed to the whole international community;

it was negotiated over 2 years and reflects a global consensus at

the highest level towards the implementation on national strategies,

plans, policies and processes;

the implementation of Agenda 21 is a responsibility of

governments; the tangible developments deriving from the text are limited, but the

Agenda represented a relevant moment of international consensus

on principles, practices and rules which might contribute to the

development of new rules of conventional and customary law.


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D. UNCED

STRUCTURE OF AGENDA 21

Preamble;

First Section: Social and Economic Dimension

Co-operation in relation to poverty, consumption patterns, population,human health, sustainable human settlement and integration of environment in decision/making.

Second Section: Conservation and Management of Resources for Development

Substantive issues for the protection and sustainable use of natural

resources. Third Section: Strengthening the Role of Major Groups

Public participation in decision-making.

Fourth Section: Means of Implementation

Actions relating to financial resources, technologies transfer, science,education, etc.


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E. CONCLUSIONS: TRENDS AND DIRECTIONS

Since UNCED, a number of important new instruments have been

adopted and the negotiation of other continues.

Relevant instruments are:

- the 1997 Kyoto Protocol to the 1992 Climate Change Convention;

- the 2000 Biosafety Protocol to the 1992 Biodiversity Convention.

Both instruments reflected the new approach of international regulation

and the role of various actors, including the private sector.

In 1998, under the auspices of the UNECE, States adopted the Aarhus

Convention, the first treaty to address the rights of participation

reflected in Principle 10 of the Rio Declaration.


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E. CONCLUSIONS: TRENDS AND DIRECTIONS

In September 2002 the World Summit on Sustainable Development

(WSSD) was held in Johannesburg, as a follow-up of UNCED.

The WSSD did not adopt any convention or statement of principles;

It contained a Plan of Implementation without specific actions to be

taken, but with general commitments and aspirations regarding:

hunger, drinking water, basic sanitation, energy, chemicals, hazardous

waste, water efficiency plans, fishing, marine environment, biological

diversity, sustainable development, etc.

IEL is moving into a next phase: as focus is on its implementation, it

will be more and more concerned with procedural and institutional

issues, and increasingly integrated into economic and development

aspects (see 2002 UNEP Guidelines and 2006 Manual ).


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Trough the European Convention on Human Rights Lopez Ostra v. Spain;

Guerra v. Italy;

Giacomelli v. Italy;

Fredin v. Sweden etc. Trough the UNECE Aarthus Convention;

Towards a Human right to Healthy environment.

E. CONCLUSIONS: TRENDS AND DIRECTIONS AT

REGIONAL LEVEL: THE EUROPEAN UNION

THE USE OF HUMAN RIGHTS TO FOSTER IEL


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A. Sovereignty over natural resources. Responsibility notto cause damage to the environment of other states or to areas beyond national jurisdiction;

B. Principle of preventive action;

C. Sustainable development;

D. Polluter-pays principle;

E. Precautionary principle;F. Principle of common but differentiated responsibility.

4. General principles of international

environmental law – outlines



A. SOVEREIGNTY OVER NATURAL RESOURCES.RESPONSIBILITY NOT TO CAUSE DAMAGE TOTHE ENVIRONMENT OF OTHER STATES OR TOAREAS BEYOND NATIONAL JURISDICTION

Stockholm Declaration - art. 21States have, in accordance with the Charter of theUnited Nations and the principles of international law,

the sovereign right to exploit their own resources

pursuant to their own environmental policies, and theresponsibility 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.





B. PRINCIPLE OF PREVENTIVE ACTION Related to the Principle 21 is the obligation requiring not to

cause damage to the environment and to reduce or

con tro l act iv i t ies which m ay cause or r isk such damage (in violation of the standards established under the rules of IEL);

This obligation is distinguishable from Principle 21;

The preventive principle requires action to be taken at anearly stage and, if possible, before damage has actuallyoccurred. It is supported by an extensive body of domesticenvironmental protection legislation which establishesauthorization procedures.





C. SUSTAINABLE DEVELOPMENT

The term “sustainable development” is usuallyconsidered to have been coined by the 1987 BruntlandReport, which defined it as “the development that

meets the needs of the present wi thout com prom ising the abi l i ty of futu re generat ions to

meet their own needs ”.

Elements:

future generations; sustainable use of natural resources (acceptance of limits

placed upon the use and exploitation of natural resources);

equitable use of natural resources (role of equitableprinciples in the allocation of rights and obligations);

integration of environment and development.





D. POLLUTER-PAYS PRINCIPLE

The principle establishes the requirement that the cos ts o f

po l lu t ion shou ld be borne by the person respons ib le for causing the pollution;

The meaning of the principle and its application to particular cases or situations remains open to interpretation(particularly in relation to the extent of the costs includedand the circumstances in which the principle will perhaps

not apply);

It is related to civil and state liability for environmentaldamage.





E. PRECAUTIONARY PRINCIPLE

(cfr . Slide no. 74 of Presentation: the Precautionary

Principle in International Environmental Law).

F. PRINCIPLE OF COMMON BUT

DIFFERENTIATED RESPONSIBILITY

(cfr . Slide no . 75 of Presentation : the Principle of

CBDR in International Environmental Law (Kyoto

Protocol)).



Thank you for your attention

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