Part V The Environment and Natural Resources, 15 Legal Aspects of the Protection of the Environment

From: Brownlie's Principles of Public International Law (8th Edition)

James R Crawford

Latest edition (9 ed.)

Next Edition: 9th Edition Latest edition (9 ed.)

Content type:: Book content

Product:: Oxford Scholarly Authorities on International Law [OSAIL]

Published in print:: 27 September 2012

ISBN:: 9780199699698

Prev | Next

Subject(s):: Precautionary principle — Sustainable development — Endangered species — Climate change — Marine environment, protection

(p. 352) 15 Legal Aspects of the Protection of the Environment

1. The Role of International Law in Addressing Environmental Problems

Increased appreciation of the many risks to the earth’s environment and the potentially irreversible damage which may be caused by human activity has resulted in a conscious effort by governments acting collectively, by international organizations, and by non-governmental organizations, to enhance legal protection of the environ-ment.¹ The resulting agenda is extensive: it includes the depletion of the ozone layer, problems of transboundary air pollution and anthropogenic climate change, the risks created by reliance upon nuclear power, the protection of the polar regions, the conservation of endangered species of flora and fauna, the control of the disposal of ultrahazardous wastes, and a range of procedural obligations from information exchange to environmental assessment. The policy issues generated by such an agenda are oft en difficult to resolve: inevitably the issues do not concern the ‘environment’ in isolation, but relate to economic and social priorities, systems of loss distribution and issues of development. Reconciling the protection of the environment with other issues such as these is sometimes referred to as the goal of sustainable development.

(p. 353) (A) Environmental Issues under General International Law

Environmental concerns are reflected in many areas of international law: relevant categories include the law of the sea, the legal regime of Antarctica, and the non-navigational uses of international watercourses. Simultaneously, it is evident that general international law does not provide the focused problem-solving which results from carefully prepared standard-setting treaties linked with domestic and international support systems and funding. The development of specialized environmental regimes by treaty serves to address this deficiency.

Nonetheless, the legal underpinnings of the protection of the environment continue to be institutions of general international law. This is apparent from the literature, which typically invokes the principles of state responsibility of the territorial sovereign for sources of danger to other states created or tolerated within its territory, and cites Trail Smelter² and (less appropriately) Corfu Channel.³ It comes as no surprise that cases concerning environmental issues have also—and centrally—involved issues of general international law. Nuclear Tests concerned issues of admissibility and remedial law, as well as the status of unilateral promises.⁴ Certain Phosphate Lands in Nauru related to issues of admissibility, the regime of a former UN trust territory, and state responsibility.⁵ The advisory opinion of the ITLOS Seabed Disputes Chamber, on responsibility and liability for international seabed mining, addressed important questions of treaty interpretation.⁶

In practice, specific transboundary problems will have a background in treaty relations and other dealings between states. Gabčíkovo-Nagymaros, relating to a joint hydroelectric project on the Danube, was concerned with the law of treaties and related points of state responsibility (issues of justification for alleged breaches of treaty obligations).⁷ Pulp Mills dealt with the law of treaties, international organizations, and international watercourses.⁸ Environmental concerns may arise in connection with law of the sea issues,⁹ and international trade disputes brought before the WTO Dispute Settlement Body,¹⁰ among others.

Page Id: 353References(p. 354) (B) Deficiencies in the Adversarial System of Responsibility

The key problem with focusing on responsibility as a means of ensuring environmental protection is that it addresses issues after damage has already occurred, instead of focusing on the need for prevention of damage in the first place. This deficiency is reflected in the growing support for the principle of preventive action in the area of environmental protection.

A particular difficulty is the selection and deployment of an appropriate basis of claim. Environmental impacts are often, in physical terms, incremental and may involve complex and diffuse causal mechanisms. The requirement of material or significant damage as a necessary condition of claim bears an uneasy relation to the scientific proof of a certain threshold of damage caused by an overall rise in radiation or other forms of pollution, and problems of multiple causation oft en arise.

In Nuclear Tests, the applicants employed the international law equivalent of trespass to deal with this problem: the deposit of radioactive fall-out was classified as a violation of their territorial sovereignty.¹¹ Likewise, the concept of ‘decisional sovereignty’ was used, referring to their right to determine what acts should take place within their territory. Implicit in these arguments was the proposition that little or no material harm to the applicants or their nationals would be caused by levels of fall-out which—over the distances involved—were rather less than the natural background radiation. The Court in a somewhat contrived manner avoided the problem, and French atmospheric testing ceased.¹²

It has been said that the decision in Nuclear Tests ‘suggested that an international tribunal cannot grant injunctions or prohibitory orders restraining violations of international law’.¹³ This is unjustified, and declarations are given by the Court which are injunctive in effect, as the joint dissenting opinion pointed out.¹⁴

But international claims—whether before the Court or a tribunal—can take many years to resolve, during which time the project in question—whether dam,¹⁵ bridge,¹⁶ or Page Id: 354References(p. 355) large-scale land reclamation project¹⁷—may have been completed with little prospect of reversal. Requests for interim measures of protection addressed to the International Court or other tribunals thus have a crucial role.¹⁸

(C) The Rio Conference 1992 and the Development of International Environmental Law

Evidence of international concern for environmental protection may be found in earlier international agreements¹⁹ such as the Convention relative to the Preservation of Fauna and Flora in their Natural Habitat (1936),²⁰ the Convention between the United States of America and Mexico for the protection of migratory birds and game mam mals (1937),²¹ and the International Agreement for the Regulation of Whaling (1938).²² But greater momentum and political impact was afforded by such organizations as World Wildlife Fund (founded 1961) and Greenpeace (founded 1971). The earlier sectoral approach was to a degree subsumed in a broader political and legal agenda culminating in the Rio Conference in 1992. An important step was the Brundtland Report, produced in 1987 by the World Commission on Environment and Development to address the challenge of finding multilateral paths toward sustainable development.²³ It was the first major report to focus on global sustainability, linking environmental and developmental issues; further, it proposed solutions based on international cooperation, and institutional and legal change.

In 1992, more than 100 governments met in Rio de Janeiro for the UN Conference on Environment and Development. The Earth Summit produced Agenda 21, a comprehensive plan of action calling for the ‘further development of international law on sustainable development, giving special attention to the delicate balance between environmental and developmental concerns.’²⁴ It also produced the Rio Declaration on Environment and Development,²⁵ containing 27 principles linked to the concept of sustainable development, and the non-binding Authoritative Statement of Principles for a Page Id: 355References(p. 356) Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (the Forest Principles).²⁶ In addition, the Convention on Biological Diversity (Biodiversity Convention)²⁷ and the Framework Convention on Climate Change (UNFCCC)²⁸ were opened for signature.

2. Emergent Legal Principles

A number of candidate legal principles have emerged from this ferment of activity: the more important of these may be briefly reviewed.

(A) The Preventive Principle²⁹

As the International Court has observed, the ‘often irreversible’ character of environmental damage, and the limitations of reparation after the fact, mean that prevention is of the utmost importance.³⁰ The preventive principle requires action to be taken at an early stage. It is supported through a wide range of domestic and international measures directed at prohibiting harmful activities and enforcing compliance with standards.

In 2001 the ILC adopted the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities.³¹ This was the result of dividing its work on transboundary harm into two parts,³² the other pertaining to liability for transboundary harm.³³ The Draft Articles dealing with prevention ‘apply to activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences’. Limiting activities to those ‘not prohibited by international law’ was ostensibly intended to separate issues of international liability from the topic of responsibility.³⁴

The Draft Articles draw on other established principles of international environmental law. For example, the requirement that a state ‘shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof ’ invokes the precautionary principle, though the formulation used has Page Id: 356References(p. 357) been criticized.³⁵ Draft Article 7 includes environmental impact as a tool to assess the likelihood of transboundary harm. In requiring co-operation between states to prevent transboundary harm the Draft Articles also rely on the dynamics of international politics and supporting structures of international law to implement the provisions of any convention based upon them. Seeking to address circumstances which formed the basis of disputes in cases such as Trail Smelter, the ILC also sets out the ‘fundamental principle that the prior authorization of a state is required for activities which involve a risk of causing significant transboundary harm undertaken in its territory or otherwise under its jurisdiction or control’.

Despite the uncertainty surrounding their future status, the Draft Articles provide an authoritative statement on the scope of a state’s international legal obligation to prevent a risk of transboundary harm.³⁶

(B) The Precautionary Principle³⁷

Probably the best known of the still evolving legal principles of environmental protection is the precautionary principle. This has been described as ‘an attempt to codify the concept of precaution in law’³⁸ where ‘precaution’ is defined as a strategy for addressing risk.³⁹ It concerns ‘the manner in which policy-makers, for the purposes of protecting the environment, apply science, technology and economics’.⁴⁰ Although well known, it is difficult to define. Sands observes that there is ‘no uniform understanding of the meaning of the precautionary principle among states and other members of the international community’.⁴¹ It has been noted that the consequences of applying a precautionary approach differ widely, depending on the context.⁴²

On the other hand, from the 1970s a precautionary approach has been used in some national systems (e.g., Germany and the US),⁴³ and it is part of European law.⁴⁴ Extending the logic of precaution to the international level, the ‘precautionary approach’ receives clear support in the Rio Declaration (Principle 15):

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 Page Id: 357References(p. 358) damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

Different permutations of the precautionary principle are found in numerous multilateral instruments, such as the UNFCCC and the Biodiversity Convention. The precautionary principle can be interpreted to imply that precautionary regulation is justified when there is no clear evidence about a particular risk scenario, when the risk itself is uncertain, or until the risk is disproved.⁴⁵ The precautionary approach was affirmed as an obligation of sponsoring states in the advisory opinion of the ITLOS Seabed Disputes Chamber.⁴⁶

(C) The Concept of Sustainable Development⁴⁷

Although emerging as a distinct field of scholarship, the existence of sustainable development as a distinct legal concept, that is, one which gives rise to or defines actionable rights, is controversial. Given the breadth of the concept, which includes trade, investment, and social concerns, it can be argued that sustainable development is better understood as a collection, or collocation, of different legal categories, and as a ‘general guideline’.⁴⁸

The most commonly cited definition, from the Brundtland Report, is ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.⁴⁹ Development, a process of change toward improving quality of life for human beings and their communities, is said to be sustainable when it is achieved by the integration of social, economic, and environmental considerations in a way that provides for and protects the long-term well-being of populations. The field of sustainable development law refers to the emerging body of legal instruments, norms, and treaties directed at implementing this balance, as well as to the distinctive procedural elements (often based upon human rights law) underpinning them. The objective of sustainable development is increasingly included in general economic treaties and regional integration treaties.⁵⁰

Page Id: 358References(p. 359) (D) The Polluter-Pays Principle

The polluter-pays principle⁵¹ is again not so much a rule as a ‘general guideline’.⁵² Article 16 of the Rio Declaration expresses the idea in these terms:

National authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

Birnie, Boyle, and Redgwell describe the principle as ‘an economic policy for allocating the costs of pollution or environmental damage borne by public authorities’ with ‘implications for the development of international and national law on liability for damage’.⁵³ It is clear from the language of Article 16 of the Rio Declaration that the principle is essentially programmatic and hortatory: ‘it is doubtful whether it has achieved the status of a generally applicable rule of customary international law…’.⁵⁴ Its content is vague; it is unclear for example whether it entails strict liability. If so, it goes beyond normal principles of state responsibility for damage affecting the legal interest of another state.

(E) The Sic Utere Tuo Principle

The general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states (and of areas beyond national control) was affirmed by the International Court in Legality of the Threat or Use of Nuclear Weapons.⁵⁵

(F) The Obligation of Environmental Impact Assessment⁵⁶

Environmental impact assessment is a technique for integrating environmental considerations into decision-making processes.⁵⁷ In international law, the duty to undertake an environmental impact assessment is expressed in Principle 17 of the Rio Declaration:

[E]nvironmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

References(p. 360) EC Directive 85/337/EEC⁵⁸ was the first international instrument to adopt environmental impact assessment, although implicit recognition can also be found in Principle 21 of the Stockholm Declaration of 1972.⁵⁹ The most prominent international convention in the field is the Espoo Convention on Environmental Impact Assessment in a Transboundary Context of 1991,⁶⁰ which ‘requires its parties to assess the transboundary environmental effects of certain actions within their jurisdiction and to notify and consult with potentially affected states about those effects.’⁶¹ The latest periodic review of the Convention notes the inconsistent levels of application and communication issues between states.⁶² Nonetheless, the requirement to conduct environmental impact assessments is an important element of preventing transboundary harm from hazardous activities. This was recognized by the International Court in Pulp Mills, where it was said that the practice of undertaking environmental impact assessments

has gained so much acceptance among States that it may now be considered 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, in particular, on a shared resource.⁶³

On the other hand, the Court held, the content of any such assessment is a matter to be defined by the relevant national law.⁶⁴ This ‘hybrid’ obligation raises problems, in particular, for the evaluation of transboundary harm.

3. Development of Multilateral Standard-Setting Conventions

A significant development in international law, and one that characterizes international environmental law, is the evolution of multilateral standard-setting conventions. These conventions, draft ed and agreed in response to international collective action problems pertaining to the environment, establish international environmental regimes which provide both the structure and resources for addressing the issue at their core. Both the development and the effectiveness of international environmental regimes have been the subject of interdisciplinary scholarship.⁶⁵

Page Id: 360References(p. 361) (A) Traffic in Endangered Species

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was agreed in 1973 and now has 175 parties.⁶⁶ An earlier meeting of the World Conservation Union (IUCN) in Nairobi (1963) was a catalyst for CITES;⁶⁷ IUCN continues to support CITES through scientific advice and advocacy. The CITES Secretariat is located in Geneva and is administered by the UN Environment Program (UNEP). CITES seeks to regulate trade in species threatened with extinction by providing that the trade in such species ‘must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.’⁶⁸ Parties are obliged to penalize trade in listed species and confiscate specimens when found; they are also required to make periodic reports to the Secretariat regarding their implementation of the Convention. CITES is an example of an environmental convention which targets the economic activity (trade) supporting the environmental harm (loss of species) as a means to address the problem; however, it does not directly address the demand-side drivers (such as consumer preference) or the supply-side drivers (such as poverty) of the trade in endangered species.⁶⁹

(B) Protection of the Ozone Layer

The Vienna Convention on the Protection of the Ozone Layer of 1985 is largely a framework requiring further action by the parties.⁷⁰ However, it did serve as an important step towards further control measures, notably the Montreal Protocol of 1987 which established substantive controls on substances linked to ozone depletion (Article 2), a mechanism for reporting progress (Article 7), and a multilateral fund ‘for the purposes of providing financial and technical co-operation, including the transfer of technologies’ to support implementation (Article 10).⁷¹ The Montreal Protocol incorporated a significant amount of the law concerning transboundary pollution (procedural and substantive) which attained customary status prior to its negotiation.⁷² This regime has been described as ‘dynamic and flexible’ in its operation,⁷³ and the high participation (191 parties) in combination with some evidence supporting a reduction in ozone depletion suggests a measure of success.⁷⁴

Page Id: 361References(p. 362) (C) Transboundary Movement of Hazardous Wastes

The Basel Convention of 1989⁷⁵ was negotiated in response to concerns that the transport of hazardous wastes between countries could pose an environmental hazard to both transit and recipient countries. It does not ban the transport of hazardous wastes, but places limits on their movement: it is permissible to export waste if the exporting country does not have sufficient disposal capacity or disposal sites capable of disposal in an environmentally sound manner, and if the wastes are required as raw material for recycling or recovery industries in the importing country. In addition, the exporting state must obtain the consent of the importing state and transit states before allowing a shipment of hazardous wastes. There is an obligation on parties to reduce hazardous waste and manage it in a manner consistent with environmental protection. Export of hazardous waste to Antarctica is explicitly banned (Article 6). The Basel Convention has been criticized for not adequately regulating the production of hazardous waste within states and, by allowing its trade, endorsing the export of an environmental problem from the developed to the developing world.⁷⁶ However, given the political realities underpinning what can be an expensive problem for exporting countries and a cost-effective solution offered by importers who develop an industry around transboundary shipments of such waste, the progress made in regulating some aspects of this issue through the Basel Convention could also be seen as a step forward.

(D) Climate Change⁷⁷

The Fourth Assessment Report of the Intergovernmental Panel on Climate Change confirmed that the release of greenhouse gases into the atmosphere constitutes a major anthropogenic contribution to climate change.⁷⁸ The international climate change regime includes the UNFCCC and its Kyoto Protocol,⁷⁹ which is designed to facilitate climate protection through market-based initiatives. The Kyoto Protocol established a carbon market until 2012, with rules pertaining to emissions trading and ‘flexible mechanisms’ to be used by member states to help them meet their emissions reduction targets. The concept of carbon trading is controversial, and the nature of a successor Page Id: 362References(p. 363) agreement to the Kyoto Protocol is the subject of heated debate. The success of emissions trading as a strategy depends not only on binding targets, but on robust reporting and a strong national and international infrastructure to track, verify, and compel compliance, features largely still lacking.⁸⁰

(E) Protection of the Marine Environment⁸¹

Controlling marine pollution is an increasingly important matter of environmental concern, which features in a large number of international treaties and instruments. UNCLOS Article 192 provides generally that states have the obligation to protect and preserve the marine environment, and the rest of Part XII is dedicated to that objective, with further relevant provisions found throughout.⁸² In addition to UNCLOS, numerous regional agreements address aspects of the protection of the marine environment, including the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),⁸³ and the framework conventions developed under the UNEP Regional Seas programme.⁸⁴

Specific sources of marine pollution are also covered by separate instruments. The early focus was on oil spills,⁸⁵ but over time international rules have developed to address pollution from a range of sources including land-based activities, dumping at sea, other effects of maritime transport, and seabed activities.⁸⁶ Particularly prominent among the specific instruments are MARPOL 73/78,⁸⁷ regulating pollution from vessels, and the London Convention regulating dumping of waste.⁸⁸ Instruments such as these have had some impact; however, the biggest difficulties lie in effectively regulating pollution from land-based activities, by far the largest source of marine pollution. Chapter 17 of Agenda 21, the plan of action adopted at the Earth Summit in 1992, establishes a programme on marine environmental protection and urges states to adhere to the 1985 Montreal Guidelines for the Protection of the Marine Environment from Land-Based Sources.⁸⁹

Page Id: 363References(p. 364) (F) Other Conventions and Institutions

Numerous other environmental regimes, established by international conventions, exist to regulate different types of environmental risks and impacts. Examples include the Convention on Early Notification of a Nuclear Accident,⁹⁰ the Convention on the Protection and Use of Transboundary Watercourses and Lakes,⁹¹ the Convention on the Transboundary Effect of Industrial Accidents,⁹² the Biodiversity Convention, the Protocol on Further Reduction of Sulphur Emissions,⁹³ and the Convention on the Law of the Non-Navigational Uses of International Watercourses.⁹⁴

There is a clear trend towards the development of issue-specific legal mechanisms as a preferred means of dealing with environmental problems; the articulation of international legal principles through dispute resolution processes is gradual and cannot address issues of prevention and collective action in the fine-grained way that law-making via treaty can. Nonetheless, political compromises in negotiation and a reliance on national implementation of texts once adopted both raise their own difficulties, and there can be striking differences between the text of an international environmental agreement and how it operates in practice.

4. Evaluation

Since the 1970s, general principles of international law have been adapted to reflect concerns as to the protection of the environment, including the prevention of transboundary environmental harm, with some new approaches to collective action emerging: an emphasis on preventing foreseeable harm (the precautionary principle), on assigning responsibility (the polluter-pays principle), and emphasizing the importance of integrating environmental protection within economic activity (sustainable development). In addition, numerous treaty-based regimes have responded to particular environmental issues.

The instruments of international environmental law are found in multilateral, regional, and bilateral agreements. States increasingly have duties not just in respect of transboundary environmental harm or the global environment, but also in respect of conserving their own domestic environment.⁹⁵ Although implementation in national law and practice remains uneven, the authoritative statement of principles in international environmental agreements, and the dispute resolution and law-making institutions attached to them, provide a reference point for future development in the field.

References

Footnotes:

¹ Kummer, International Management of Hazardous Wastes (1995); Okowa, State Responsibility for Transboundary Air Pollution (2000); de Sadeleer, Environmental Principles (2002); Sands, Principles of International Environmental Law (2nd edn, 2003); Yamin & Depledge, The International Climate Change Regime (2004); Stephens (2006) 25 AYIL 227; Bodansky, Brunnee & Hey, The Oxford Handbook of International Environmental Law (2007); Birnie, Boyle & Redgwell, International Law and the Environment (3rd edn, 2009); Stephens, International Courts and Environmental Protection (2009); Hunter, Salzman & Zaelke, International Environmental Law and Policy (2010); Redgwell, in Evans (ed), International Law (3rd edn, 2010) 687.

² (1938) 3 RIAA 1905; (1941) 3 RIAA 1938.

³ (UK v Albania), ICJ Reports 1949 p 4.

⁴ (Australia v France), ICJ Reports 1974 p 253; (New Zealand v France), ICJ Reports 1974 p 457.

⁵ (Nauru v Australia), ICJ Reports 1992 p 240.

⁶ Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, ITLOS Case No 17 (Advisory Opinion, 1 February 2011) available at www.itlos.org.

⁷ (Hungary/Slovakia), ICJ Reports 1997 p 7.

⁸ Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ Reports 2010 p 14.

⁹ E.g. Southern Bluefin Tuna (1999) 117 ILR 148; MOX Plant (2001) 126 ILR 257.

¹⁰ E.g. US—Gasoline, WTO Doc WT/DS2/AB/R, 29 April 1996; US—Shrimp WTO Doc WT/DS58/AB/R, 12 October 1998; Brazil—Measures Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/AB/R, 3 December 2007.

¹¹ ICJ Pleadings, 1 Nuclear Tests, 479–90 (Argument of Byers QC).

¹² The Court dismissed the application on the basis that, as France had made a unilateral declaration that it would cease nuclear testing, the claim raised by Australia and New Zealand was rendered moot: Australia v France, ICJ Reports 1974 p 253, 271–2; New Zealand v France, ICJ Reports 1974 p 457, 477. See Elkind (1974) 8 Vand JTL 39; Thierry (1974) 20 AFDI 286; Franck (1975) 69 AJIL 612; Lellouche (1975) 16 Harv ILJ 614; Macdonald & Hough (1977) 20 GYIL 337; Stephens (2009) 137–50; Watts, ‘Nuclear Tests Cases’ (2007) MPEPIL. Also: Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case, ICJ Reports 1995 p 288.

¹³ Birnie, Boyle & Redgwell (3rd edn, 2009) 228.

¹⁴ ICJ Reports 1974 p 457, 494–523 (Judges Onyeama, Dillard, Jiménez de Aréchaga & Waldock, joint diss).

¹⁵ In GabčIkovo-Nagymaros, ICJ Reports 1997 p 7, the Special Agreement specifically excluded provisional measures. But for a successful application see Indus Waters Kishenganga Arbitration (Pakistan v India), Order of 23 September 2011, available at www.pca-cpa.org/showpage.asp?pag_id=1392.

¹⁶ Passage through the Great Belt (Finland v Denmark), Order of 10 September 1992, ICJ Reports 1992 p 348.

¹⁷ Land Reclamation by Singapore (Malaysia v Singapore) (2003) 126 ILR 487 (provisional measures).

¹⁸ See Southern Bluefin Tuna (1999) 117 ILR 148, the beneficial consequences of which were not entirely eliminated by the Annex VII tribunal’s denial of jurisdiction: (2000) 119 ILR 508. Likewise the improved interstate co-operation that resulted from the limited provisional measures orders in MOX Plant (2001) 126 ILR 257 assisted in the resolution of that problem, notwithstanding the subsequent decision of the ECJ: Case C–459/03, Commission v Ireland [2006] ECR I-4635. Further: Indus Waters Kishenganga Arbitration, Order of 23 September 2011. For environmental cases in which provisional measures were refused: Great Belt, Provisional Measures, Order of 29 July 1991, ICJ Reports 1991 p 12; Pulp Mills, Provisional Measures, Order of 23 January 2007, ICJ Reports 2007 p 3.

¹⁹ For discussion of environmental treaty ratification in the 1900s: Frank (1999) 69 Sociological Inquiry 523.

²⁰ 9 November 1933, 172 LNTS 241.

²¹ 7 February 1936, 178 LNTS 310.

²² 8 June 1937, 190 UNTS 79.

²³ World Commission on Environment and Development (WCED), Our Common Future (1987).

²⁴ A/CONF.151/26/Rev.1, Annex II, 12 August 1992.

²⁵ A/CONF.151/26 (Vol 1), Annex I, 12 August 1992.

²⁶ A/CONF.151/26 (Vol 3), Annex III, 14 August 1992.

²⁷ 5 June 1992, 1760 UNTS 79.

²⁸ 9 May 1992, 1771 UNTS 107. Further: Yamin & Depledge (2004).

²⁹ De Sadeleer (2002) ch 2; Sands (2nd edn, 2003) 246–9.

³⁰ GabčIkovo-Nagymaros, ICJ Reports 1997 p 7, 78.

³¹ ILC Ybk 2001/II(2), 144–70.

³² Knox (2002) 96 AJIL 292, 308.

³³ In 2006 the ILC adopted a set of eight draft principles on the allocation of loss in case of transboundary harm arising out of hazardous activities; GAOR, 58th Session, Supplement No 10, A/61/10, 106–82. Further: Boyle (2005) 17 JEL 3. Unlike the case of prevention of harm, the adoption of a convention is not envisaged in relation to the allocation of loss.

³⁴ ILC Ybk 2001/II(2), 150 (Commentary to Art 1, §6).

³⁵ Ibid, 153–5 (Art 3): Handl, in Bodansky, Brunnee & Hey (2007) 540.

³⁶ Handl, in Bodansky, Brunnee & Hey (2007) 540.

³⁷ De Sadeleer (2002) ch 3; Freestone & Hey (eds), The Precautionary Principle and International Law (1996); Sands (2nd edn, 2003) 266–79; Birnie, Boyle & Redgwell (3rd edn, 2009) 159–64; Zander, The Application of the Precautionary Principle in Practice(2010); Foster, Science and the Precautionary Principle in International Courts and Tribunals (2011); Schröder, ‘Precautionary Approach/Principle’ (2009) MPEPIL.

³⁸ Bodansky, Brunnee & Hey (2007) 599.

³⁹ Ibid, 598.

⁴⁰ Hey (1991–92) 4 GIELR 307.

⁴¹ Sands (2nd edn, 2003) 212. For a critical perspective: Sunstein (2002–3) 151 U Penn LR 1003.

⁴² Birnie, Boyle & Redgwell (3rd edn, 2009) 161.

⁴³ For an exploration of how the precautionary approach developed in different national jurisdictions: Cameron & Abouchar (1991) 14 Boston Col ICLR 4.

⁴⁴ Bodansky, Brunnee & Hey (2007) 599–600.

⁴⁵ Birnie, Boyle & Redgwell (3rd edn, 2009) 604–7.

⁴⁶ ITLOS Advisory Opinion, §§125–35.

⁴⁷ Boyle & Freestone (eds), International Law and Sustainable Development (1999); EC Commission, The Law of Sustainable Development (2000); Sands (2nd edn, 2003) 252–66; Cordonier Segger & Khlalfan (eds), Sustainable Development Law (2004); Beyerlin, ‘Sustainable Development’ (2009) MPEPIL; Cordonier Segger, Gehring & Newcombe (eds), Sustainable Development in World Investment Law (2011). Further: ILA, Report of the 70th Conference (2002) 380; ILA New Delhi Declaration of Principles of International Law relating to Sustainable Development, A/57/329, 31 August 2002.

⁴⁸ Cassese, International Law (2nd edn, 2005) 492–3.

⁴⁹ WCED (1987) 43.

⁵⁰ E.g. Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 410, preamble; TFEU (2008) OJEU C 115/47, Art 11.

⁵¹ De Sadeleer (2002) ch 1.

⁵² Cassese (2nd edn, 2005) 492–3.

⁵³ Birnie, Boyle & Redgwell (3rd edn, 2009) 322.

⁵⁴ Sands (2nd edn, 2003) 280.

⁵⁵ ICJ Reports 1996 p 226, 241–2. Also: Rio Declaration, Principle 2; Institute of International Law, Resolution on Responsibility and Liability under International Law for Environmental Damage (1998) 67 Ann de l’Inst 487; GabčIkovo-Nagymaros, ICJ Reports 1997 p 7, 41.

⁵⁶ Generally: Knox (2002) 96 AJIL 291; Sands (2nd edn, 2003) ch 16; Craick, The International Law of Environmental Impact Assessment (2008); Epiney, ‘Environmental Impact Assessment’ (2009) MPEPIL.

⁵⁷ Sands (2nd edn, 2003) 799–800.

⁵⁸ Directive 85/337/EEC, Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, 85/337/EEC OJ L175, 05/07/1985 0040–0048.

⁵⁹ Further: Knox (2002) 96 AJIL 292.

⁶⁰ 25 February 1991, 1989 UNTS 309.

⁶¹ Knox (2002) 96 AJIL 292, 302.

⁶² Economic Commission for Europe, Review of Implementation of the Espoo Convention, ECE/ MP.EIA/11 (2008), Section 1.4: Findings of the Review.

⁶³ ICJ Reports 2010 p 14, 82q–3.

⁶⁴ Ibid, 83.

⁶⁵ For the effectiveness of international environmental regimes: Raustiala & Slaughter, in Carlsnales, Risse & Simmons (eds), Handbook of International Relations (2002); Young (ed), The Effectiveness of International Environmental Regimes (1999); Young, Rosenau & Czempiel (eds), Governance Without Government (1992).

⁶⁶ 3 March 1973, 993 UNTS 243.

⁶⁷ For the history: Sand (1997) 8 EJIL 29; Bowman, Davies & Redgwell (eds), Lyster’s International Wildlife Law (2nd edn, 2011) 483–6.

⁶⁸ CITES, Art 2(1)—Fundamental Principles.

⁶⁹ Favre (1993) 33 NRJ 875; Wijnstekers, The Evolution of CITES (1995); Hutton & Dickson (eds), Endangered Species Threatened Convention (2000); Young (2003) 14 CJIELP 167.

⁷⁰ 22 March 1985, 1513 UNTS 293.

⁷¹ Montreal Protocol on Substances That Deplete the Ozone Layer, 16 September 1987, 1522 UNTS 3.

⁷² Blegen (1987–88) 16 DJILP 413, 424.

⁷³ Birnie, Boyle & Redgwell (3rd edn, 2009) 354.

⁷⁴ Ibid, 355. Also: Christie, The Ozone Layer (2001); Yoshida, The International Legal Régime for the Protection of the Stratospheric Ozone Layer (2001).

⁷⁵ Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 1673 UNTS 57. Generally: Kummer (1992) 41 ICLQ 530; Kummer (1995); Sanders & Bowal (2001) 11 JEL & P 143; Sands (2nd edn, 2003) 691–5; Moen (2008) 32 Marine Policy 1053.

⁷⁶ Sands (2nd edn, 2003) 692; Sonak, Sonak & Guriyan (2008) 8 Int Environ Agreements 143; Quadri (2010) 22 Florida JIL 467.

⁷⁷ Generally: Yamin & Depledge (2004); Freestone & Streck (eds), Legal Aspects of the Kyoto Protocol Mechanisms (2005); Asselt, Sindico & Mehling (2008) 30 Law & Policy 423; Birnie, Boyle & Redgwell (3rd edn, 2009) 356–77; Held, Hervey & Theros (eds), The Governance of Climate Change (2011).

⁷⁸ Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: A Synthesis Report (2007): www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html. The IPCC’s Fifth Assessment Report is currently underway, with completion expected in 2014.

⁷⁹ Kyoto Protocol to the United Nations Framework Convention on Climate Change, FCCC/CP/1997/L.7/ Add.1, 10 December 1997. Also: UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 12 September 1994, 1954 UNTS 3.

⁸⁰ Peterson,’Mointoring, Accounting and enforcement in Emissisons Trading Regimes’, OECD Doc CCNM/GF/SD/ENV(2003)5/Final Yamin & Depledge (2004) 156; Tietenberg Emissions Trading Principles and Practice (2nd edn, 2006 170).

⁸¹ Sands (2nd edn, 2003) 391–458. Generally chapter 12.

⁸² 10 December 1982, 1833 UNTS 3. For discussion: Charney (1994) 28 Int Lawyer 879.

⁸³ 22 September 1992, 2354 UNTS 67.

⁸⁴ Generally: Sands (2nd edn, 2003) 399–408.

⁸⁵ Ibid, 393–5.

⁸⁶ Ibid, 415–48.

⁸⁷ International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978, 17 February 1978, 1340 UNTS 61.

⁸⁸ Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046 UNTS 138.

⁸⁹ A/CONF.151/26/Rev.1 (Vol I), 238.

⁹⁰ 28 September 1986, 1439 UNTS 275.

⁹¹ 17 March 1992, 1936 UNTS 269.

⁹² 17 March 1992, 2105 UNTS 457.

⁹³ 14 June 1994, 2030 UNTS 122.

⁹⁴ GA Res 51/229, 21 May 1997 (not yet in force).

⁹⁵ E.g. Biodiversity Convention, preamble, Arts 6, 8.

Recently viewed (0)

Recently viewed (0)

Share Link

Sign in to an additional subscriber account