International Environmental Law Rough Outline
Professor Jessica Scott
International Law Defined
“Public International Law is commonly defined as the set of rules and concepts that apply to the relations between nation-states and intergovernmental organizations, as well as international rules that apply to individuals” (Shoenbaum Young) Thus, Environmental law can be defined as the same or similar but applied to rules, institutions and concepts that apply to the protection of natural resources, global environment, oceans, atmosphere and that govern the relations between states and other subjects of international law in addressing international environmental problems.
When is a treaty Customary Law? P. 84-87
Require adequate proof of state practice
Opinio juris: a state believes it is obligated to follow a certain practice of law
Hierarchy of IEL
(1) Jus Cogens: Certain human right norms that are undeniable and peremptory, such as genocide, slavery, and official torture.
(2) Erga omnes: obligations owed by states to the international community as a whole; thus, every state has an interest as a whole of these norms and may sue the country that violates these norms. A broader example of this would be Transboundary issues-these are binding. There are no countries that are not impacted, therefore there is universal acceptance.
(3) Hard Law = Treaties
(4) Soft Law
Three types of soft law
(1) Norms may be found in authoritative but NON-BINDING resolutions.
Rio Declaration of Environmental Development – similar to Stockholm principles
(2) Binding laws that create open ended flexibility for the State to be compliant.
UN Convention on Biological Diversity
Asks that states carry out in-situ and ex-situ – conserve as much as possible
(3) Rules and standards promulgated by non-government industrial, environmental, and consumer protection organizations.
ISO 9000 for environmental development
Why is soft law used so frequently?
States lack political binding abilities but national leaders make suggestions for non-binding or flexible accord. Intergovernmental organizations lack the capacity to adopt biding decisions so they make declarations or recommendations.
Characteristics of IEL
· We get treaties through volunteer agreements.
· States/Parties create norms within their country that become legal.
· International documents are not binding if they are not ratified.
· If a State agrees to be a party to a treaty, they are agreeing to be bound.
· Sovereignty is ceded if treaty is signed, ratified.
· Resources do not obey political boundaries = Transboundary issues.
· Each nation has exclusive jurisdiction over its nation/State/territory.
· When a country agrees to monitoring, reporting, and verification this indirectly means the developing country has ceded its sovereignty by accepted funds.
· Environmental law is not self contained, and not a coherent body of international law
· Basically, it is the application of international law to environmental problems
· Concerns are: Environmental degradation, Transboundary issues and resource impacts, problem areas and resources beyond national jurisdiction.
Developed quickly and is a branch of Public International Law. Only a dozen or so multilateral agreements existed and dealt with the environment: ocean resources and endangered species and birds. States lacked adequate domestic laws and lawyers were unfamiliar with “green” terms.
United Nations General Assembly
Bering Sea Fur-Seals Case (UK v US)
1972 Stockholm Conference on Human Environments – p.2 (1972)
1. United Nations Environmental Programme (UNEP)
2. Declaration of guiding environmental principles (Stockholm Declaration)
3. Action Plan with 109 substantive recommendations
Stockholm Declaration Principle 21 (1972)
Gives guiding principles on how people should treat the earth, respect boundaries and other countries in terms of resources.
· Known as the No Harm Rule
· There is a right for states to exploit their own resources
· Sovereignty is the starting and key point
· Ensure that state actions/activities within jurisdiction don’t cause harm to the environment of nations close to them.
· Create agreements between states
· Domestic law with the prevention principle helps protect neighboring states
Common but differentiated responsibilities (Principle 24-25)
· Recognizes different responsibilities that developed and developing countries have contributed to environmental issues and should apply different standards and considerations for compliance timetables, less stringent commitments and exceptions.
· Developed countries are better posed to find substitutes.
· Developing countries do not have funds for better substitutes v developing countries
· Developed country GDP has a better threshold than a developing country has
Arguments against common but differentiated
· Monitoring reporting, misusing finances, human health, length of time as a developing country.
· Urgent problems such as climate change to use altern
currently 196 parties
· Governing Council of UNEP
· Decides on council, functions, responsibilities and reports to GA through the economic and social council
· Article II
· Decides small secretariat, environmental secretariat to provide, coordinate, advise, secure, submit, bring attention, administer, and report.
· Environmental Fund
· Decides additional financing from voluntary funds, financing from governing council to include the Action plans for the Human Environment.
The United Nations Environment Programme (UNEP) is the leading global environmental authority that sets the global environmental agenda, promotes the coherent implementation of the environmental dimension of sustainable development within the United Nations system and serves as an authoritative advocate for the global environment.
UNEP's mission is “to provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations.”
· Part of the Stockholm Convention and was used in the 1962 document
· Discusses the use of resources within 2 States
· Pushes to further development of international environmental law
· NO founding document and just part of the UN
· Under the economic and social body of the UN as a program established by General Assembly Resolutions
· UNEP and the Stockholm convention both acted as catalysts for the Declaration of International Environmental Law.
This led to International Environmental Law
UNEPàStockholm Convention/Declaration (Agenda 21)àMontevideo Program
Montevideo Program (launched by UNEP) from the Brundtland Report
where sustainable development was first articulated.
Montevideo Program is the development and periodic review of environmental law that advances the effectiveness of environmental law, compliance, enforcement, capacity building, mitigation, international disputes, production and consumption.