International Environmental Law Outline

 
International Environmental Law Rough Outline
Professor Jessica Scott
Fall 2015
 
International Law Defined
Definition
 “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.
 
History
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.
 
TIME
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