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.
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: 354ReferencesGabčikovo-Nagymaros Project, Hungary v Slovakia, Merits, ICJ GL No 92, [1997] ICJ Rep 7, [1997] ICJ Rep 227, ICGJ 66 (ICJ 1997), (1998) 37 ILM 162, 25th September 1997, United Nations [UN]; International Court of Justice [ICJ] ICGJIndus Waters Kishenganga Arbitration, Pakistan v India, Order on interim measures application of Pakistan dated 6 June 2011, 23rd September 2011, Permanent Court of Arbitration [PCA]MOX Plant Case, Ireland v United Kingdom, Order, provisional measures, ITLOS Case No 10, [2001] ITLOS Rep 95, ICGJ 343 (ITLOS 2001), (2002) 41 ILM 405, (2005) 126 ILR 260, 3rd December 2001, International Tribunal for the Law of the Sea [ITLOS] ICGJNuclear Tests, Australia v France, Judgment, admissibility, ICJ GL No 58, [1974] ICJ Rep 253, ICGJ 133 (ICJ 1974), 20th December 1974, United Nations [UN]; International Court of Justice [ICJ] ICGJPassage through the Great Belt, Finland v Denmark, Order, removal from list, ICJ GL No 86, [1992] ICJ Rep 348, 10th September 1992, United Nations [UN]; International Court of Justice [ICJ]Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment, ICJ GL No 135, [2010] ICJ Rep 14, ICGJ 425 (ICJ 2010), 20th April 2010, United Nations [UN]; International Court of Justice [ICJ] ICGJ(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: 355ReferencesCase concerning Land Reclamation by Singapore in and around the Straits of Johor, Malaysia v Singapore, Order on provisional measures, ITLOS Case No 12, [2003] ITLOS Rep 10, ICGJ 345 (ITLOS 2003), (2005) 126 ILR 487, 8th October 2003, International Tribunal for the Law of the Sea [ITLOS] ICGJConvention Relative to the Preservation of Fauna and Flora in their Natural State 172 LNTS 241Convention between the United States and Mexico for the Protection of Migratory Birds and Game MammalsIndus Waters Kishenganga Arbitration, Pakistan v India, Order on interim measures application of Pakistan dated 6 June 2011, 23rd September 2011, Permanent Court of Arbitration [PCA]International Agreement for the Regulation of Whaling (1937) 190 LNTS 79MOX Plant Case, Commission of the European Communities v Ireland, Judgment, action for failure to fulfil obligations, Case C-459/03, ECLI:EU:C:2006:345, [2006] ECR I-4635, ILEC 047 (CJEU 2006), [2006] 2 CMLR 59, [2006] All ER (EC) 1013, 30th May 2006, Court of Justice of the European Union [CJEU]; European Court of Justice [ECJ]; European Court of Justice (Grand Chamber) ILECPassage through the Great Belt, Finland v Denmark, Order on provisional measures, ICJ GL No 86, [1991] ICJ Rep 12, ICGJ 84 (ICJ 1991), 29th July 1991, United Nations [UN]; International Court of Justice [ICJ] ICGJPulp Mills on the River Uruguay, Argentina v Uruguay, Judgment, ICJ GL No 135, [2010] ICJ Rep 14, ICGJ 425 (ICJ 2010), 20th April 2010, United Nations [UN]; International Court of Justice [ICJ] ICGJSouthern Bluefin Tuna Cases, New Zealand v Japan, Order on provisional measures, ITLOS Case No 3, ITLOS Case No 4, [1999] ITLOS Rep 280, ICGJ 337 (ITLOS 1999), (1999) 38 ILM 1624, (2000) 117 ILR 148, 27th August 1999, International Tribunal for the Law of the Sea [ITLOS] ICGJ(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: 356ReferencesConvention on Biological Diversity (United Nations [UN]) 1760 UNTS 79 OXIOGabčikovo-Nagymaros Project, Hungary v Slovakia, Merits, ICJ GL No 92, [1997] ICJ Rep 7, [1997] ICJ Rep 227, ICGJ 66 (ICJ 1997), (1998) 37 ILM 162, 25th September 1997, United Nations [UN]; International Court of Justice [ICJ] ICGJUnited Nations Framework Convention on Climate Change (United Nations Framework Convention on Climate Change [UNFCCC]) 1771 UNTS 107, UN Reg No I-30822 OXIO(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):
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
The polluter-pays principle
51 is again not so much a rule as a ‘general guideline’.
52 Article 16 of the Rio Declaration expresses the idea in these terms:
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:
Page Id: 359ReferencesGabčikovo-Nagymaros Project, Hungary v Slovakia, Merits, ICJ GL No 92, [1997] ICJ Rep 7, [1997] ICJ Rep 227, ICGJ 66 (ICJ 1997), (1998) 37 ILM 162, 25th September 1997, United Nations [UN]; International Court of Justice [ICJ] ICGJ(p. 360) EC Directive 85/337/EEC
58 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
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.
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.
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.
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.
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).
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.
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.