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Environmental Institutions and Law. Source: Antonio A. Oposa Jr. Environmental Institutions and Law. By John A. Boyd formerly a lawyer for the Asian Development Bank (ADB) and the U.S. Department of State

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Environmental institutions and law

Environmental Institutions and Law

Source: Antonio A. Oposa Jr.


Environmental institutions and law1

Environmental Institutions and Law

By John A. Boyd

formerly a lawyer for the Asian Development Bank (ADB) and the U.S. Department of State

currently a member of the Commission on Environmental Law of IUCN (World Conservation Union)

views expressed are not necessarily those of ADB, U.S. Government, or IUCN


Environmental institutions and law

ENVIRONMENTAL INSTITUTIONS AND LAW

I. INTRODUCTION

II. ENVIRONMENTAL INSTITUTIONS

A. NATION STATES

B. TREATY ORGANIZATIONS INCLUDING THE UN

C. PRIVATE SECTOR

D. FOUR EXAMPLES

III. ENVIRONMENTAL LAW

A. INTRODUCTION

B. FOUR QUESTIONS IN INTERNATIONAL LAW

C. SUSTAINABLE DEVELOPMENT AS A CONCEPT

D. MULTILATERAL ENVIRONMENTAL AGREEMENTS (MEAs)

E. JOHANNESBURG PRINCIPLES ON THE ROLE OF LAW AND

SUSTAINABLE DEVELOPMENT

IV. CONCLUSION


Environmental institutions and law2

ENVIRONMENTAL INSTITUTIONS AND LAW

I. INTRODUCTION

  • Your questions are welcome, but I may not be able

    to answer every good question.

    B. Many environmental institutions are based on law.

    C. Environmental law is like a layer cake, with

    i) international law the top layer,

    ii) national law the next layer down,

    iii) local law further below,

    iv) but the bottom layer is based on experience and actions by scientists and others, including lawyers.

    D. Environmental law seeks to conform the laws of human society to the laws of nature.


Environmental institutions and law3

ENVIRONMENTAL INSTITUTIONS AND LAW

I. INTRODUCTION

E. An example of the evolution of environmental law--Oposa v. Factoran, described on page 188 of An Introduction to Sustainable Development [ISD]:

The Petitioners, including minors represented by their parents, and a Philippine NGO, sought to have the defendant, the Philippine Secretary of the Department of Environment and Natural Resources, ordered to rescind all existing Timber License Agreements, and desist from approving new agreements.

Professor Oposa argued in behalf of children that a right to the environment had been breached.


Inter generational responsibility

Inter-Generational Responsibility

Source: Antonio A. Oposa Jr.


Responsibility to future generations

RESPONSIBILITY TO FUTURE GENERATIONS

“The case … has a special and novel element. Petitioners claim that they represent their generation as well as generations yet unborn.”

Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources, Donna Craig, Nicholas A. Robinson, and Koh Kheng Lian, eds., ADB 2003, Vol. I, pages 720-726.


Responsibility to future generations1

RESPONSIBILITY TO FUTURE GENERATIONS

Philippine Supreme Court:

“We find no difficulty in ruling that they can, for themselves, for others in their generation and for their succeeding generations, file a class suit.” (Ibid)

Source: Antonio A. Oposa Jr.


Responsibility to future generations2

RESPONSIBILITY TO FUTURE GENERATIONS

Hilario Davide Jr. for Philippine Supreme Court:

“Their personality to sue in behalf of the succeeding generations can only be based on the concept of inter-generational responsibility.” (Ibid)

Source: Antonio A. Oposa Jr.


Responsibility to future generations3

RESPONSIBILITY TO FUTURE GENERATIONS

Davide: “While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it is no less important than any of the civil and political rights of human beings.” (Ibid)

Source: Antonio A. Oposa Jr.


Environmental institutions and law

Davide: “Such a right belongs to a different category of rights altogether for it concerns nothing less than the right to self-preservation and self-perpetuation, a right that may even be said to predate all governments and constitutions.”(Ibid)

Source: Antonio A. Oposa Jr.


Environmental institutions and law

Davide: “If they [basic rights] are now specially mentioned in the fundamental law of the land, it is because of the fear of the framers that unless it is written in the constitution itself, …” (Ibid)

Source: Antonio A. Oposa Jr.


Responsibility to future generations4

RESPONSIBILITY TO FUTURE GENERATIONS

Davide: “the day would not be too far when all else would be lost

not only for the present generation, but also for those to come-- generations which stand to inherit nothing but a parched earth incapable of sustaining life.” (Ibid)

Source: Antonio A. Oposa Jr.


Responsibility to future generations5

RESPONSIBILITY TO FUTURE GENERATIONS

Davide held that, without the forests which were threatened by the Timber License Agreements, “a balanced and healthful ecology would not …be achievable.”

Subsequently, all Timber License Agreements were cancelled. (Ibid)

Professor Antonio A. Oposa Jr.


Introduction future generations f brundtland commission report

INTRODUCTION – future generationsf. Brundtland Commission Report:

"Humanity has the ability to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs."

"Making the difficult choices involved in achieving sustainable development will depend on the widespread support and involvement of an informed public and nongovernmental organizations, the scientific community, and industry."

Capacity Building for Environmental Law: Approaches and Resources, Donna Craig, Nicholas Robinson, and Koh Kheng Leng (ADB: 2nd-2003)" pages 93 and 96.


I introduction g legislation from britain

I. INTRODUCTION. g. Legislation from Britain

  • “Environmental regulation is not new. Britain’s first recorded legislation dates from 1273 when King Edward I, known better for fighting the Scots [Sir William WALLACE and Robert the Bruce] and the Welsh, prohibited the burning of “Sea Coal” in order to protect the health of its subjects. In the 1500s, it is understood that Elizabeth I banned the use of coal while Parliament was sitting with the penalty of death in default.”

    Paul Stookes, A Practical Approach to Environmental Law

    (Oxford University Press, 2005), page 13 (Paul Stookes).


I introduction g legislation from britain1

I. Introduction. g. Legislation from Britain

2. “By the 1840s, Victorian England had to tackle the adverse consequences of the industrial revolution. During this period, the UK government began to legislate more generally for public health including the introduction of the Alkali Act 1863 [to deal with heating common salt with sulfuric acid to produce salt cake (sodium sulfate) and hydrochloric acid for the glass, textile, and soap industries] to try and reduce the heavy build up of acid in the local atmosphere…”

Paul Stookes, page 13;http://pubs.acs.org/subscribe/journals/tcaw/11/i01/html/01chemchron.html


I introduction g legislation from britain2

I. Introduction. g. Legislation from Britain

3. “It has really been in the latter part of the twentieth century that environmental law has evolved with perhaps the most significant changes brought about by the enactment of the Town and Country Planning Act 1947, which created local planning authorities and required all land to be subject to planning control recognizing that landowners could not simply build and use land at will and without planning permission.”

(Paul Stookes p 14)


I introduction g legislation from britain3

I. Introduction. g. Legislation from Britain

4. “Sustainable Development was introduced into UK Legislation in the Environmental Act 1995, which, among other things, established the Environment Agency and the Scottish Environment Protection Agency. Section 4(1) of the Act provides that:

“It shall be the principal aim of the Agency (subject to and in accordance with the provisions of this Act or any other enactment and taking into account any likely costs) in discharging its functions so to protect or enhance the environment, taken as a whole, as to make the contribution towards attaining the objective of achieving sustainable development. [Italics added.]”

Paul Stookes, page 14


Ii environmental institutions

II. ENVIRONMENTAL INSTITUTIONS

A. NATION STATES—EXAMPLES FROM USA

1. Congress and the President

a. National Environmental Policy Act (NEPA) of 1969

b. Environmental Protection Agency, est'd 1970

c. Departments of Interior, Commerce, Transportation, Labor, the Council on Environmental Quality, State Dept.

d. Multilateral Environmental Agreements such as the UN Framework Convention on Climate Change

2. Federal Courts

3. State and Local Legislation, Institutions, and Courts (cont'd)

(S. Ferry, Environmental Law (2nd Ed. 2001) [EL])


Ii environmental institutions1

II. ENVIRONMENTAL INSTITUTIONS

A. NATION STATES—EXAMPLES FROM USA (cont'd)

4. Nongovernmental Organizations--such as the Sierra Club and the Natural Resources Defense Council (both of which have international aspects)

5. Scientific Organizations and Educational Institutions such as the Massachusetts Institute of Technology

6. Industry

7. The Media including newspapers and television

8. Civil Society


Ii environmental institutions2

II. ENVIRONMENTAL INSTITUTIONS

1. Congress and the President (cont'd)

b. Environmental Protection Agency (NEPA) administers

nine major environmental statutes including legislation dealing with Clean Air; Clean Water; Marine Protection, Research and Sanctuaries; Solid Waste, Insecticides, Fungicides and Rodenticides; Toxic Substances; Noise Control; Safe Drinking Water

c. Departments of Interior, Commerce, Transportation, Labor, and the Council on Environmental Quality are responsible for much more environmental legislation dealing with such topics as

Coastal Zone Management, Deepwater, Endangered Species, Federal Land, Fishery Conservation, Forests,Wildlife, Occupational Safety and Health, Rivers

(EL)


Ii environmental institutions3

II. ENVIRONMENTAL INSTITUTIONS

1. Congress and the President (cont'd)

d. Department of State and U.S. Agency for International Development (USAID)

1) Department of State negotiates treaties, monitors international organizations

2) USAID provides grants to foreign governments, schools, NGOs, others


Ii environmental institutions4

II. ENVIRONMENTAL INSTITUTIONS

A. NATION STATES—EXAMPLES FROM USA

2. Federal Courts

a. Common Law Environmental Remedies including nuisance, trespass, negligence, strict liability, public trust doctrine

b. Federal Environmental Legislation (NEPA, etc.)

c. Administrative Procedure Act, Freedom of Information Act, Federal Tort Claims Act, etc.

d. Constitutional Issues such as the Federal Commerce Clause versus State Power and Legislation


Ii environmental institutions5

II. ENVIRONMENTAL INSTITUTIONS

A. NATION STATES– EXAMPLES FROM USA

3. State Courts--An example

a. Common Law:

1). "Nuisance is the most frequently pled common law tort action in environmental litigation. Nuisance law traditionally protected the right of a landowner to use and enjoy property. This is a broad interest that can be violated without direct physical invasion." (EL p. 33).

2). In Village of Wilsonville v. SCA Services (1981), the court granted an injunction and ordered a site clean-up of the "defendant's hazardous chemical landfill" which presented "a substantial danger of groundwater contamination and explosions from chemical reaction." (EL p 26)


A nation states a constitutional example from south africa

A. Nation States—A Constitutional Example from South Africa

“Article 24 of the South African Constitution 1994 states that everyone has the right to:

  • Have an environment, that is not harmful to his or her health or well-being;

  • An environment protected for the benefit of present and future generations, through reasonable legislative and other measures that—

    (i) prevent pollution and ecological degradation;

    (ii) promote conservation; and

    (iii) secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.”

    (Paul Stookes, page 28; emphasis added.)


Ii environmental institutions6

II. ENVIRONMENTAL INSTITUTIONS

B. TREATY ORGANIZATIONS

1. United Nations System

a. General Assembly and the Security Council

b. International Court of Justice

c. UN Environmental Programme (UNEP)

d. UN Development Programme

e. UN Division for Sustainable Development

f. Committee on Economic, Social and Cultural Rights

g. Other committees and commissions on women, etc.

h. World Health Organization

i. UN Educational, Scientific and Cultural Organization

j. World Trade Organization


Ii environmental institutions7

II. ENVIRONMENTAL INSTITUTIONS

B. TREATY ORGANIZATIONS

1. United Nations System (cont'd)

k. World Meteorological Organization, others

l. Secretariats of Multilateral Environmental

Agreements

m. International Financial Institutions

1). The World Bank including its Inspection Panel

2). The International Finance Corporation

including its Compliance Advisor Ombudsman


Ii environmental institutions8

II. ENVIRONMENTAL INSTITUTIONS

2. Non-UN System such as the Asian Development Bank (ADB) and its Accountability Mechanism

a. Program loans for poverty eradication such as "Access to Justice Program in Pakistan"; see Rogers, Jalal, Boyd, An Introduction to Sustainable Development [ISD]at page 194;

b. Project loans for water, sanitation, health

c. Grants for reform of the land administration law of the People's Republic of China

d. Monitoring of sustainable development aspects throughout the project cycle


Ii environmental institutions9

II. ENVIRONMENTAL INSTITUTIONS

C. PRIVATE SECTOR

1. NON-GOVERNMENT ORGANIZATIONS

a. International NGOs such as IUCN, known as the World Conservation Union, WWF, The Nature Conservancy, World Resources Institute

b. Industrial NGOs such as World Business Council for Sustainable Development.

2. Educational Organizations such as the UN University

3.The Media including cable news networks and international newspapers such as the International Herald Tribune and Financial Times


Ii environmental institutions10

II. ENVIRONMENTAL INSTITUTIONS

4. Private Foundations

a. Bill and Melinda Gates Foundation

b. David and Lucile Packard Foundation

c. MacArthur Foundation

d. Pew CharitableTrusts

e. Ted Turner/UN Foundation

f. Others

Source:WBCSD, Finding Capital for Sustainable Livelihoods Business <wbcsd.org>


Ii environmental institutions11

II. ENVIRONMENTAL INSTITUTIONS

D. FOUR EXAMPLES

1. UN Environment Programme (UNEP)

a. Established by UN General Assembly in 1975

b. Governing Council has 58 Member States

c. Reports through the Economic and Social Council to the General Assembly

d. Total projected expenditures of $360.6 for 2008-2009 (UNEP/GC.24/9/Add.1, page 3)

e. Programs include Biodiversity, Climate Change, Environmental Assessment, Energy, Freshwater, Governance & Law, Indigenous People, Poverty & Environment, and Sustainable Consumption.


Ii environmental institutions12

II. ENVIRONMENTAL INSTITUTIONS

D. FOUR EXAMPLES 2. World Conservation Union (IUCN)

a. Founded in 1948, a Swiss corporation. IUCN consists of 83 state members, 110 Gov. agencies, more than 800 NGOs, 10,000 scientists and experts, 1100 staff located in 40 countries (iucn.org).

b. External operating income in 2005 was 101 million Swiss francs ($87 million) [total including all operating income was near $133 million] (iucn.org)

c. IUCN has six Commissions dealing with species survival; protected areas; environmental law, education and communication; environmental, economic and social policy; ecosystem management.

d. IUCN “has played an essential role in the elaboration of some half dozen major international conventions, including … the 1973 Washington Convention on Trade in Endangered Species (CITES)”. IUCN also helped with Convention on Biological Diversity, one of the key products of UNCED”. An Introduction to Sustainable Development (ISD) at page 210.


Ii environmental institutions13

II. ENVIRONMENTAL INSTITUTIONS

D. FOUR EXAMPLES (cont'd)

3. World Business Council for Sustainable Development (http://www.wbcsd)

a. First publication in 1992; formally established 1994.

b. Coalition of 180 international companies in such sectors as cement, electricity, forest products, mining and minerals; members include Alcoa, Bayer, BP, Caterpillar, Chevron, China Petroleum Corporation, Coca Cola, Deloitte Touche Tohmatsu, Dow Chemical, Dupont, Johnson & Johnson, New York Times, Nokia, Proctor and Gamble, Panama Canal Authority, Royal Dutch Shell, Sony, Toyota Motors, and Volkswagen.


Ii environmental institutions14

II. ENVIRONMENTAL INSTITUTIONS

D. FOUR EXAMPLES (cont'd)

3. World Business Council for Sustainable Development (wbcsd.org)

c. Mission: “to provide business leadership as a catalyst for change toward sustainable development, and to support the business license to operate, innovate and grow in a world increasingly shaped by sustainable development issues.”

d. Four Focus Areas: Energy & Climate, Development, the Business Role, Ecosystems.


Ii environmental institutions15

II. ENVIRONMENTAL INSTITUTIONS

D. FOUR EXAMPLES (cont'd)

4. a. The 1992 UN Conference on Environment and Development resulted in part inthe United Nations Framework Convention on Climate Change (UNFCCC), Article 3 of which states under the heading “Principles”:

“The Parties have a right to, and should, promote sustainable development.”

b. On15/10/92 U.S. Government ratified this Convention, which entered into force on 21/03/94.

c. UNFCCC resulted in part in the Kyoto Protocol, which was adopted at the third Conference of the Parties of the UNFCCC in December 1997.

d. The US Government signed but did not ratify the Kyoto Protocol, which entered into force 2/16/05.

e. In Bali, Indonesia, this December, representatives of member countries of the UNFCC will begin negotiations on a post-2012 framework for greenhouse gas emission reductions. One objective is to reduce emissions by 50 percent by 2050.

f. At Bali representatives of governments, including in some cases members of corporations and nongovernmental organizations, will negotiate behind closed doors. Open side events sponsored by corporations, nongovernmental organizations, and individuals will facilitate discussion of climate change issues. YOU CAN ATTEND SUCH MEETINGS!

(http://unfccc.int/2860.php)


Iii environmental law

III. ENVIRONMENTAL LAW

Source:<http://www.bbc.co.uk/nature/wildfacts/factfiles/174.shtml>


Iii environmental law a introduction

III. ENVIRONMENTAL LAW A. Introduction

1. Why study environmental law?

a. Of what legal force is a "Declaration"?

b. What has the International Court of Justice said about the environment and sustainable development?

c. What is "customary international law" and can it be enforced?

d. What is "soft law"?

e. When did "the law" of sustainable development begin?


Iii environmental law a introduction1

III. ENVIRONMENTAL LAW A. Introduction

PACIFIC FUR SEALS CASE

“From the legal point of view, the concept of sustainable development began more than 100 years ago with the Behring Sea Fur Seals Fisheries case, decided in international arbitration.” (ISD p 211)

Source:<http://www.bbc.co.uk/nature/wildfacts/factfiles/174.shtml>


Pacific fur seals case

PACIFIC FUR SEALS CASE

According to Professor Phillippe Sands: "Indeed, the inherent features of the concept [of sustainable development] have been an aspect of international legal relations since at least 1893, when the United States asserted a right to protect Pacific fur seals, for the benefit of mankind, from wanton destruction, in opposition to the assertion by Great Britain that its nationals were entitled to exploit these resources for their own developmental purposes.” (ISD p 211; emphasis added.)


Iii environmental law a introduction 2 law

III. ENVIRONMENTAL LAW A. Introduction 2. Law

Oxford English Reference Dictionary (1966) defines law as "a rule enacted or customary in a community, and recognized as enjoining or prohibiting certain actions, and enforced by the imposition of penalties."

Mark Twain: "Laws are sand, customs are rock. Laws can be evaded and punishment escaped, but an openly transgressed custom brings sure punishment."

(ISD p 184.)


Iii environmental law a introduction2

III. ENVIRONMENTAL LAW A. Introduction

3. INTERNATIONAL LAW

In a well known US State Department publication, international law is defined as a “standard of conduct” pertaining to both “states” and “other entities”:

“International law is the standard of conduct, at a given time, for states and other entities subject thereto. It comprises the rights, privileges, powers, and immunities of states and entities invoking its provisions, as well as the correlative fundamental duties, absence of rights, liabilities, and disabilities.” (Whiteman, 1963, Vol.1, p. 1, quoted in

ISD p 185)


Environmental institutions and law

  • 4. "ENVIRONMENT"

  • International treaty law describes

  • the word “environment.” The late Professor

  • of law Alexandre Kiss and Professor Dinah

  • Shelton point out that the European Convention

  • on Civil Liability for Damage Resulting from

  • Activities Dangerous to the Environment

  • describes the “environment” as including the following:

    • natural resources both abiotic and biotic, such as air, water,

  • soil, fauna and flora and the interaction between the same factors;

    • property which forms part of the cultural heritage; and

    • the characteristic aspects of the landscape [footnote omitted].

    • ( ISD p 185)

Source: Antonio A. Oposa Jr.


Environmental institutions and law

4. ENVIRONMENT--a social dimension

Furthermore, as Kiss and Shelton note, the International Court of Justice (ICJ) in its opinion on the Legality of the Threat or Use of Nuclear Weapons “includes a social dimension in the definition of the environment“: This opinion states that “the environment is not an abstraction, but represents the living space, the quality of life, and the very health of human beings, including generations unborn.” (International Environmental Law p 2)


Environmental institutions and law

5. SOURCES OF INTERNATIONAL LAW(a) international conventions; (b) international custom; (c) general principles of law; (d)judicial decisions and teachings

Source: Antonio A. Oposa Jr.


Environmental institutions and law

5. SOURCES OF INTERNATIONAL LAW

Article 38(1) of the international agreement establishing the International Court of Justice, which forms the apex of the judicial branch of the UN, describes four sources of international law:

(a) international conventions, general or particular,

establishing rules expressly recognized by the contesting

States;

(b) international custom, as evidence of a general practice

accepted as law;

(c) the general principles of law recognized by civilized

nations;

(d) subject to the provisions of Article 59, judicial decisions

and the teachings of the most highly qualified publicists

of the various nations, as subsidiary means for the

determination of rules of law [Emphasis added].

(ISA p. 186-187)


Environmental institutions and law

I. INTRODUCTION

5. SOURCES OF INTERNATIONAL LAW

a. .INTERNATIONAL CONVENTIONS OR TREATIES

Black’s Law Dictionary (1999) states, “A convention is an agreement or compact among nations….”

Thus, an international convention includes agreements which are often called treaties. The Vienna Convention on the Law of Treaties (1969) states in part:

For the purposes of the present Convention: (a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;…. (ISD p 186)


Environmental institutions and law

5. SOURCES OF

INTERNATIONAL

LAW (cont'd)

a. INTERNATIONAL

CONVENTIONS OR

TREATIES

Since a treaty may exist

“whatever its particular designation,” and since such agreements have been negotiated for thousands of years, treaties have been designated with a wide variety of titles, including agreement, compact, protocol, and the like. One of the earliest treaties, written on a clay tablet, was between King Silis of the Hittites and Ramses II of Egypt. [Italics added] That was in 1269 B.C….”

(ISD p 186)

http://un.org


Environmental institutions and law

A. INTRODUCTION

5. SOURCES OF INTERNATIONAL LAW

b. INTERNATIONAL CUSTOM

Professor of law Anthony D’Amato, in an article quoted by law Professors David Hunter, James Salzman and Durwood Zaelke, states that “customary rules represent regularities of behavior” while noting qualifications under three headings:

1. Empirical

2. Acceptance

3. Regularities

(Source: International Environmental Law and Policy; ISD pp. 188-189)


Environmental institutions and law

b. INTERNATIONAL CUSTOM(cont'd)--empirical

First, the approach is empirical rather than normative. It attempts to describe the existing norms that govern the relations among states, but does not advocate or prescribe new norms….

(ISD pp 186-187)


B international custom cont d acceptance

b. INTERNATIONAL CUSTOM (cont'd)--acceptance

Second, customary rules are not equivalent to simple behavioral regularities…. Customary norms depend not only on state practice (that is, on observable regularities of behavior), but also on acceptance of these regularities as law by states….

(ISD pp 187)


B international custom cont d regularities

b. INTERNATIONAL CUSTOM (cont'd)--regularities

“Finally, customary rules represent regularities, but not necessarily uniformities, of behavior. The behavioral approach requires a general congruence between rules and behavior. If a purported rule says one thing and states generally do something else, one can no longer say that the rule “governs” behavior. Nevertheless, mistakes and violations of rules are possible.”

(ISD pp 187)


Environmental institutions and law

5. SOURCES OF INTERNATIONAL LAW

c. GENERAL PRINCIPLES

Hunter, Salzman, and Zaelke, while pointing out that “what is included within [general] principles is a matter of debate,” quote Professor of Law Ian Brownlie, who “states that ‘general principles’ may refer to ‘rules accepted in the domestic law of all civilized states,’ or alternatively, to the general principles of private law used within all or most States,… insofar as those principles are applicable to relations of States. General principles, then, fill in the gaps in international law that have not already been filled by treaty or custom.” [G]eneral principles include principles which have emerged from municipal legal systems….“

(ISD pp 188)


5 sources of international law c general principles an example

5. SOURCES OF INTERNATIONAL LAW c. GENERAL PRINCIPLES--an example

The environmental impact assessment (EIA) procedure began in the United States at the end of the 1960s in Michigan.

EIA procedure was adopted in the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution in 1978.

EIA procedure was adopted at the global level in the 1982 Convention of the Law of the Sea (UNCLOS). (Kiss and Shelton p 44)


Environmental institutions and law

5. SOURCES OF INTERNATIONAL LAW

d. JUDICIAL DECISIONS AND THE TEACHINGS OF THE MOST QUALIFIED

Law Professor Antonio A. Oposa, Jr. gives the following description of the role of “Judicial Decisions and Scholarly Writings” in the articulation of international law:

"International Law may also be expressed through the judicial decisions of international courts and tribunals, and of national courts. It must be noted that a judicial decision is not, by and of itself, the International Law. Rather, the judicial decision is said to be only an expression or an articulation of the principle of International Law which is applied to a particular controversy or case at hand. In other words, it is not International Law itself but only evidence of the existence of the legal principle involved.“ (ISD p 187)


Environmental institutions and law

5. SOURCES OF INTERNATIONAL LAW

d. JUDICIAL DECISIONS AND THE TEACHINGS OF THE MOST QUALIFIED (cont'd)

Teachings of the Most Qualified

Law Professor Antonio A. Oposa, Jr.:

“So also with the writings and learned explanations of the “most highly qualified” scholars. The writings of these scholars, who through years of labor, research, and experience, have become intimately acquainted with the principles and practice of international law are in a position to explain what it is….”

(ISD p 187)


Environmental institutions and law

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

1. Armed with these definitions, we can go back to our original questions about how international law would interpret a) the Stockholm Declaration of 1972, b) UN General Assembly resolutions, c) UN Security Council Resolutions, andd) the Rio Declaration at the World Summit on Sustainable Development in 1992.

First, would any of these satisfy the definition of a convention or treaty, the first source of international law?


Environmental institutions and law

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

2. Would "Declarations" usually be considered an international convention?

No, they would not. When states have acted on these three instruments through their representatives, they usually do so without the requisite intent to be bound to an international convention or treaty. However, this is not to suggest that Declarations and like instruments are unimportant.


Environmental institutions and law

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

3. Declarations as Soft Law

Documents such as the Rio Declaration are often referred to as “soft law,” which Black’s Dictionary defines in part as “Guidelines, policy declarations, or codes of conduct that set standards of conduct but are not directly enforceable.”


Environmental institutions and law

  • Hard law compared to Soft Law

  • Hard Law

  • 1. Treaties (or conventions or agreements)

  • 2. Custom (Implicit Agreements)

  • 3. Generally recognized principles of law. “They are mostly used to identify basic

  • rules of procedure.. (e.g. evidence is admissible) [use of EIAs]. They are not to

  • be confused with ‘principles’ of International Environmental Law, which are

  • contained either in treaties or which may be distilled from treaties…”)

  • Bell & McGillivray, page 153. See 2 below under b. Soft Law.

  • 4. Judicial decisions and the teachings of the most qualified

  • b. Soft Law

  • 1. Declarations

  • 2. Principles contained in Treaties: “The Parties have a right to, and should promote sustainable development” from Article 3 of the Climate Change Convention

  • 3. Recommendations

  • 4. Standards [also Guidelines, Codes of Conduct, etc.]

  • (Stuart Bell & Donald MsGillivray, Environemental Law (Sixth Edition) Oxford University Press 2006, pp 152-154)


Stockholm

Stockholm

http://images.google.com.ph/images?svnum=10&hl=en&lr=&q=stockholm


A however the stockholm declaration of 1972

a) However, the Stockholm Declaration of 1972

Principle 21 of the Stockholm Declaration declaring no state may "cause damage to the environment of other States" has "evolved into international customary law. "Capacity Building p 87.

"States have, in accordance with the Charter of the United Nations and the principles of international law, …the responsibility 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." (ISD p 189)

<http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID=1503>


B however the stockholm declaration of 1972

b) However, the Stockholm Declaration of 1972

Principle 24 of the Stockholm Declaration concerning the "duty to cooperate" "also appears to have acquired this status" of a customary rule of international environmental law. (Kiss and Shelton p 43)

Principle 24:"…Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control,

prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.“ http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503


U n general assembly

U.N. General Assembly

http://update.unu.edu


1 b un general assembly resolutions

1.b) UN General Assembly resolutions

"A General Assembly resolution may contribute to the development of international law …

if the resolution gains virtually universal support,

if the members of the Generally Assembly share a lawmaking or law-declaring intent --

and if the content of that resolution is reflected in general state practice." (ISD p 190)


Un security council

UN Security Council

www.un.org


1 c un security council resolutions

1.c) UN Security Council Resolutions

Unlike UN General Assembly resolutions, UN Security Council resolutions adopted pursuant to Chapter VII of the UN Charter are "legally binding on all member states of the United Nations."

Chapter VII is entitled "Action with Respect to Threats of Peace, Breaches of the Peace, and Acts of Agression" (ISD p 190)


Rio de janeiro

Rio de Janeiro

www.millennium-ride.com


Environmental institutions and law

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

1.d. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT

The Rio Declaration on Environment and Development., adopted at the 1992 UN Conference on Environment and Development, is one of three nonbinding instruments that emerged in Rio de Janeiro. The other two are Agenda 21 and the Forest Principles.

(ISD p 190)


Environmental institutions and law

  • B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

  • 5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)

  • a.The Rio Declaration of 1992 consists of a preamble and 27 principles.

  • Kiss and Shelton suggest that the Rio Declaration contains principles that may be placed under four categories: i) legal, ii) policy, iii) economic, and iv) public policy.

  • (International Environmental Law p 71; ISD p. 190)


Environmental institutions and law

  • B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

  • 5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)

  • Concerning legal principles, Kiss and Shelton point out that

  • Principle 2 concerns transboundary effects.

  • Principle 15 concerns the formulation of the then-emerging principle of the precautionary principle.

  • Principle 17, the emerging “polluter pays” principle, requires internationalization of environmental costs.

  • (ISD p 191)


Environmental institutions and law

  • B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

  • 5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)

  • Kiss and Shelton: In the view of many, the key to the Rio Declaration is found in development policy Principle 3, which is a restatement of the definition of sustainable development proposed in the Brundtland Report.

  • Principle 3 states that “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” (ISD p 191)


Environmental institutions and law

  • B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

  • 5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)

  • Kiss and Shelton: PolicyPrinciple 5 declares that “All States and all people shall cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world."(ISD p 191)

  • The two primary concerns of sustainable development, preserving the ecological integrity of the earth and eradicating poverty, are thus found in policy Principles 3 and 5 of the Rio Declaration on Environment and Sustainable Development.


Environmental institutions and law

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)

f. Kiss and Shelton (at pages 72-73) indicate that economic norms can be found in

Principle 8, which provides that “States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies” and

Principle 14, providing that “States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradatoin or are found to be harmful to human health.”


Environmental institutions and law

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT—Principles concerning public policy, particularly participation.

g.Principle 20 indicates that “Women have a vital role in environmental management and development” and that “Their full participation is therefore essential to achieve sustainable development.”

h. Principle 22 of the Rio Declaration provides that “Indigenous people and their communities and other local communities have a vital role… in the achievement of sustainable development.” (ISD p 190)


B four questions in the context of international law

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

5. i) DOES THE RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT

CONSTITUTE INTERNATIONAL LAW?

NO, NOT AS HARD LAW. BUT IT IS CONSIDERED TO BE SOFT LAW. AS SUCH, THE "RIO DECLARATION" IS VERY IMPORTANT, CONTAINING MANY KEY PRINCIPLES RELATING TO THE ENVIRONMENT AND DEVELOPMENT.


Ii four questions in the context of international law

II. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

6. RIO'S LEGALLY BINDING INSTRUMENTS

“The legally binding instruments that emerged in Rio were two international conventions –

(i) the UN Framework Convention on Climate Change and

(ii) the Convention on Biological Diversity --both of which were signed in Rio and subsequently entered into force.”

(ISD p 190)


Iii c sustainable development as a concept

III. C. Sustainable Development as a Concept

Source: Antonio A. Oposa Jr.


International court of justice the hague the netherlands

International Court of Justice, The Hague, The Netherlands

www.aijac.org.au


Environmental institutions and law

  • C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?

  • Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997)

  • This ICJ case concerned a system of dams on the Danube River designed to produce electrical energy and improve the “navigability of the Danube, flood control and regulation of ice-discharge, and the protection of the environment.”

  • (ISD p 193)


Gabcikovo nagymaros project hungary slovakia

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

www.icj-cij.org


Environmental institutions and law

  • C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?

  • Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997)

  • The International Court of Justice judgment, delivered by the 15 Judges of the Court, with Stephen M. Schwebel, appointed by the US, serving as President, included the following paragraph dealing with “effects upon the environment,” “risks for mankind – for present and future generations,” and the “concept of sustainable development”:

  • (ISD p 193)


Environmental institutions and law

III. C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

“Paragraph 140.…Owing to new scientific insights

and to a growing awareness of the risks for mankind

for present and future generations –…new norms and

standards have been developed, set forth in a great

number of instruments during the last two decades.

Such new norms have to be taken into consideration,

….This need to reconcile economic development with

protection of the environment is aptly expressed in the

concept of sustainable development [italics added]”(ISD p 193)


Environmental institutions and law

III. C.. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?

Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997)

As pointed out by Kiss, in the case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) in 1997, the ICJ explained the “concept” of sustainable development, though a dissenting opinion argued that sustainable development is a “principle of international law.” (ISD p 194)


Environmental institutions and law

III. C. SUSTAINABLE DEVELOPMENT AS A PRINCIPLE OF INTERNATIONAL LAW

Gabcikovo-Nagymaros Project (Hungary/Slovakia)--dissenting opinion

The then Vice-President of the ICJ, Judge Christopher Gregory Weeraramtry, opined:

"In 1987, the Brundtland Report brought the concept of sustainable development to the forefront of international attention. In 1992, the Rio Conference made it a central feature of its Declaration, and it has been a focus of attention in all questions relating to development in the developing countries.“ (Capacity Building, vol. I, p 767)

.


Environmental institutions and law

III. C. SUSTAINABLE DEVELOPMENT AS A PRINCIPLE OF INTERNATIONAL LAW-- dissenting opinion-- JudgeWeeraramtry:

“The Court has referred to it as a concept in paragraph 140 of its Judgment. However, I consider it to be more than a mere concept, but as a principle with normative value….”

(ISD p 194)

“There are plentiful indications …to that degree of ‘general recognition among states of a certain practice as obligatory’ to give the principle of sustainable development the nature of customary law."

(Capacity Building p 770)


Environmental institutions and law

III. C. SUSTAINABLE DEVELOPMENT: A DUTY AND SIX PRINCIPLES

These are the principles of international law in the field of sustainable development that Professor Kiss indicates “have been proposed to establish its concrete content”:

1. The duty of the States to ensure sustainable use of natural resources.

The principles of

2. …equity and the eradication of poverty.

3. …common but differentiated responsibilities.

4. …the precautionary approach to fields such as health, natural resources and ecosystems.

5. …public participation and access to information and justice.

6. …good governance.

7. …integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives.

(A.Kiss,"Academy Public Lectures on International Environmental Law,"IUCN Academy of Environmental Law p. 9; ISD pp 196-198)


Environmental institutions and law

III. C. SUSTAINABLE DEVELOPMENT:IMPLEMENTING THE SIX PRINCIPLES

As Kiss points out these principles must be implemented through policies dealing with such matters as land-use planning, energy, soil protection, education, and capacity building. Kiss further points out that implementation of each such policy involves [a] legal measures, [b] good institutions, and [c] good norms, and that among these legal measures are

international conventions,

constitutional provisions,

statutes providing basic services such as water,

statutes protecting the environment,

relevant regulations, and

judicial decisions.

(A.Kiss,"Academy Public Lectures on International Environmental Law,"IUCN Academy of Environmental Law pp. 14-15;

ISD p 199)


Environmental institutions and law

III. C. SUSTAINABLE DEVELOPMENT: A GENERAL CONCEPT

“ Sustainability is a general concept and should be applied in law in much the same way as other general concepts such as liberty, equality and justice.”

New Zealand Ministry for the Environments Working Paper November 24, 1989, quoted by Klaus Bosselmann, New Zealand Centre for Environmental Law, The University of Auckland, Faculty of Law in “The Environmental Jurisprudence of International Tribunals: making sustainability count


Iii d multilateral environmental agreements

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS

Source: Antonio A. Oposa Jr.


Environmental institutions and law

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS

1. CHARACTERISTICS OF ENVIRONMENTAL TREATIES

Kiss and Shelton describe seven main features of environmental treaties:

1. an emphasis on national implementing measures being taken by the states parties;

2. the creation of international supervisory mechanisms to review compliance by states parties;

3. simplified procedures to enable rapid modification of the treaties;

4. the use of action plans for further measures;

5. the creation of new institutions or the utilization of already existing ones to promote continuous cooperation;

6. the use of framework agreements; and

7. interrelated or cross-referenced provisions from other environmental

instruments.

(ISD p 201)


Iii d multilateral environmental agreements1

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS

2. The UNEP Global Judges Symposium “Status” (2002)

(ISD, p. 203) lists 5 Multilateral Environmental Agreements to be ratified:

  • Amendment to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,

  • Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal [now ratified],

  • Kyoto Protocol to the United Nations Framework Convention on Climate Change [now ratified],

  • Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC) [now ratified], and

  • Stockholm Convention on Persistent Organic Pollutants (POPs) [now ratified.]


Iii d multilateral environmental agreements2

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS

3. UNEP’s Global Judges Symposium “Status” lists 13 Multilateral Agreements which have been ratified but need assistance in implementation:

  • Convention on the Conservation of Migratory Species of Wild Animals,

  • Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),

  • Convention on Biological Diversity,

  • Cartegena Protocol on Biosafety to the Convention on Biological Diversity,

  • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,

  • Vienna Convention for the Protection of the Ozone Layer, (continued on next slide)

    (ISD p 203)


Iii d multilateral environmental agreements3

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS

3. The UNEP Global Judges Symposium “Status” lists 13 Multilateral Agreements which have been ratified but need assistance in implementation (cont'd):

7. Montreal Protocol on Substances that Deplete the Ozone Layer,

8. United Nations Framework Convention on Climate Change (UNFCCC),

9. UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD),

10. UN Convention on the Law of the Sea (UNCLOS),

11. Convention for the Protection of the World Cultural and Natural Heritage,

12. Convention on Wetlands of International Importance Especially as Waterfowl Habitat (RAMSAR), and

13. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matter (AARHUS). (ISD p. 203)


Environmental institutions and law

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS

4. SUSTAINABLE DEVELOPMENT AND TREATIES

a. Perhaps the most significant MEA in support of sustainable development is the UN Framework Convention on Climate Change, a treaty that has been signed by more than 175 nations and for which the total number of ratifications/accessions/ acceptances near 170 throughout the world. The first sentence of paragraph 4 of Article 3 of this UN Convention states,

The Parties have a right to, and should, promote sustainable development. [Italics added for emphasis.]

(ISD p 203)


Environmental institutions and law

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS

4 . SUSTAINABLE DEVELOPMENT AND TREATIES

b. The UN Framework Convention on Climate Change further provides in paragraph 1(d) of Article 4 that Parties to this Convention must

promote sustainable management [emphasis added], and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems.

Thus, the concepts of sustainable development and sustainable management have a firm foundation in a treaty with almost universal acceptance. (ISD p 201)


Environmental institutions and law

III. D. FIRST TREATY REFERENCE TO SUSTAINABLE DEVELOPMENT PRIOR TO BRUNDTLAND

“According to Sands the first formal treaty to refer to sustainable development was a 1985 ASEAN agreement on the Conservation of Nature and Natural Resources. Two years later the Brundtland Commission Report, which helped bring together the fields of study in development and environment, gave us the leading definition of sustainable development: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” (emphasis added; ISD p 211)


Environmental institutions and law

  • III. D. PROBLEMS ASSOCIATED WITH MEAs

  • 1. GOVERNANCE

  • One of these problems arises from the large number of MEAs. Professor Daniel Estes and Maria Ivanova, Director of the Global Environmental Governance Project at Yale, indicate that there are “more than 500 multilateral environmental agreements…, more than a dozen international agencies share environmental responsibilities, and yet environmental conditions are not improving across a number of critical dimensions.”

  • (ISD p 202)


Environmental institutions and law

III. D. PROBLEMS ASSOCIATED WITH MEAs

1. GOVERNANCE

b) Esty and Ivanova point out that

The haphazard development of international environmental laws and agencies has left three important institutional gaps in the existing global environmental governance system:

(1) a jurisdictional gap,

(2) an information gap, and

(3) an implementation gap.

(ISD p 202)


Environmental institutions and law

III. D. PROBLEMS ASSOCIATED WITH MEAs

1. GOVERNANCE

“They also explain … that the jurisdictional gap arises from the perception held by national legislatures that their role does not include ‘addressing worldwide transboundary harms, while global bodies often do not have the capacity or the authority to address them.’

The information gap, they add, arises from the “little coordination among data collection efforts” of international and other organizations and “poor… comparability across jurisdictions.”

(ISD p 202)


Environmental institutions and law

III. D. PROBLEMS ASSOCIATED WITH MEAs

1. GOVERNANCE--scattered financial mechanisms

c.Estes and Ivanova suggest at p 187 that the “implementation gap” may be the “biggest single obstacle to environmental progress at the global scale” and that this gap is caused by “the lack of an action orientation.” They also indicate that the implementation gap arises in part from the

existing financial mechanisms… scattered across the Global Environment Facility, UNEP, the World Bank, and separate treaty-based funds such as the Montreal Protocol Finance Mechanisms.

They also explain that “few international environmental agreements contain serious enforcement provisions.” (ISD p 202)


Iii d problems associated with meas d scattered financial mechanisms

III. D. PROBLEMS ASSOCIATED WITH MEAs--d. scatteredfinancial mechanisms

The Global Environment Facility (GEF) has provided since 1991 $6.2 billion in grants and $20 billion in co-financing to support 1,800 projects in 140 developing countries under the following headings:

1) biodiversity,

2) climate change

  • international waters,

  • land degradation,

  • ozone depletion,

  • persistent organic pollutants (POPs), such DDT, PCBs, and dioxens,

  • capacity building,

  • cross-cutting issues,

  • partners,

  • corporate programs.

    (http://www.gefweb.org/interior.aspx?id=44)


Iii d problems associated with meas d scattered financial mechanisms1

III. D. PROBLEMS ASSOCIATED WITH MEAs-- d. scattered financial mechanisms

Each of these GEF project areas is dealt with under one or more multilateral environmental agreements.

  • Convention on Biodiversity,

  • UN Framework Convention on Climate Change and the Kyoto

    Protocol,

    c. UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa.

  • Stockholm Convention on Persistent Organic Pollutants (POPs),

    (gefweb.org)


What are some key mea problems cont d

What are some key MEA problems (cont’d.)

2. Financial. UNEP’s annual budget of $360.6 million is comparable to that of many environmental, non-governmental organizations (NGOs).

(See ISD pp 205 and 207)


What are some key mea problems cont d1

What are some key MEA problems (cont’d.)

3. Lack of public participation. When governments are reluctant to complain about another government’s failure to comply with an environmental standard established in an MEA, people need to speak up, perhaps through an environmental NGO. Our future depends on public vigilance! It is possible for you to attend meetings of conferences of the parties of MEAs.

4. Lack of environment compliance indicators

-- measuring and reducing pollution

-- measuring improved environmental conditions such as water quality


Environmental institutions and law

3. RATIFICATION OF TREATIES--Problems

Environmental law professor Amber Pant of the Tribhuvan University Faculty of Law notes that Nepal has more than 100 sector legislative acts that bear on the environment. Of these, 20 are environmental treaties to which Nepal has become a signatory. However, Pant points out,

It would be wrong to say that we have legislation for every treaty to which Nepal is a party. He goes on to state that “this would not be possible unless we… suggest to the Government that they draft legislation….” [emphasis added]

“Pant closes by suggesting the need is to find funds “to engage ‘experts to … prepare draft legislation for the consideration of governmental authorities….’” (ISD p 205)


Environmental institutions and law

III. D. PROBLEMS ASSOCIATED WITH MEAs

3. RATIFICATION OF TREATIES

“Some [countries] have a two-step procedure wherein a treaty may become binding under international law, but years may pass before appropriate implementing domestic legislation is enacted. The case of Nepal provides an example.”

(ISD p 205)


Environmental institutions and law

III. D. PROBLEMS ASSOCIATED WITH MEAs

4. WORLD TRADE ORGANIZATION (WTO), AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS

The “treaty establishing WTO is likely one of the most important multilateral “environmental” agreements in the world, because it deals with a great many environmental issues under the heading of trade. Note the preamble to the treaty establishing WTO states the “Parties...recognize that their relations in the field of trade and economic endeavor should be conducted with a view to raising the standards of living… while allowing for optimal use of the world’s resources in accordance with the objective of sustainable development.”

(ISD p 207; emphasis added)


Environmental institutions and law

III. D. PROBLEMS ASSOCIATED WITH MEAs 4. WORLD TRADE ORGANIZATION (WTO), AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS (cont’d)

“For example, there is legislation in the US about net fishing, enacted to save the dolphin, the sea turtle, and other endangered marine species. However, these laws can be construed as a restriction on trade” and thus subject to the jurisdiction of the WTO [emphasis added] (ISD p 209)


Environmental institutions and law

III. D. PROBLEMS ASSOCIATED WITH MEAs

4. WORLD TRADE ORGANIZATION, AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS

a. Dolphins

“If Mexico ships fish to the US that were caught in violation of US legislation, someone can appear before the relevant bodies of WTO, which might decide the case in a manner not pleasing to environmental advocates. …”

“In this regard it is of interest to note that in cases involving net fishing for tuna that resulted in catches of dolphins, recent WTO decisions have recognized the role of NGOs in advancing rules implementing international law. In these WTO cases, the US sought to require Thailand and others to certify that techniques for catching tuna were safe for dolphins.” [emphasis added] (ISD p. 207)


Environmental institutions and law

4. WORLD TRADE ORGANIZATION, AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS

b. Effect on the Environment

“A second example relates to the rules permitting agricultural subsidies and the creation of trade barriers. These rules can have a profound effect on the environment. For example, subsidies can often result in wasteful, overproduction of goods and services that unnecessarily deplete natural resources in the country providing such subsidies. Similar problems may arise from trade barriers, which can prevent the sale of economically and environmentally sound goods and services originating in countries outside of such trade barriers.” [emphasis added] (ISD p 208)


Environmental institutions and law

III. D. JOHANNESBURG PRINCIPLES ON THE ROLE OF LAW AND SUSTAINABLE DEVELOPMENT

“On August 20, 2002, judges representing 59 countries at the Global Judges Symposium on Sustainable Development and the Role of Law adopted the Johannesburg Principles on the Role of Law and Sustainable Development.”

(ISD p 213)


Environmental institutions and law

III. D. JOHANNESBURG PRINCIPLES ON THE ROLE OF LAW AND SUSTAINABLE DEVELOPMENT

2.The second page of the Principles emphasizes the concept of sustainable development, including reducing poverty, for the present and succeeding generations:

We emphasize that the fragile state of the global environment requires the Judiciary as the guardian of the Rule of Law, to boldly and fearlessly implement and enforce applicable international and national laws, which in the field of environment and sustainable development will assist in alleviating poverty and sustaining an enduring civilization, and ensuring that the present generation will enjoy and improve the quality of life of all peoples, while also ensuring that the inherent rights and interests of succeeding generations are not compromised. [emphasis added]

(ISD p 213)


Environmental institutions and law

III. D. JOHANNESBURG PRINCIPLES ON THE ROLE OF LAW AND SUSTAINABLE DEVELOPMENT

3.“Accordingly, these judges agreed with the third page of the Principles on the need for guidance for the judiciary, including

full commitment to contributing towards the realization of the goals of sustainable development through the judicial mandate to implement, develop and enforce the law, and to uphold the Rule of Law and the democratic process.

The agreed upon program of work, call for “strengthening of environmental law education in schools and universities, including research and analysis as essential to realizing sustainable development” as well as the "achievement of sustained improvement in compliance with and enforcement and development of environmental law.“

(ISD p 213)


Conclusion

CONCLUSION

Source: Antonio A. Oposa Jr.


Iv e conclusion

IV. E. Conclusion

1. Historical Roots of Controlling Environmental Pollution

Platoon Water Pollution Law in about 347 B.C.

  • “And let this be the law:--If any one intentionally pollutes the water of another, whether the water of a spring, or collected in reservoirs, either by poisonous substances, or by digging, or by theft, let the injured party bring the cause before the wardens of the city, and claim in writing the value of the loss; if the accused be found guilty of injuring the water by deleterious substances,

    let him not only pay damages, but purify the stream or the cistern which contains the water, in such manner as the laws . . . order the purification to be made by the offender in each case.”

    Plato advocated payment of damages plus restitution!

    (Plato,Great Books of the Western World (1982), Robert Maynard Hutchins, Editor in Chief; ISD p 216)


Iv e conclusion1

IV. E. Conclusion

2. Historical Roots--Aristotle may have begun the discussion of the concept of intergenerational equity when he pointed out that

"human well-being is realized only partly by satisfying whatever people's preferences happen to be at a particular time; it is also necessary for successive generations to leave behind sufficient resources so that future generations are not constrained in their preferences."

(ISD p 10)


Environmental institutions and law

IV. E. Conclusion

3. Historical Roots- ETHICS.

The roots of environmental legislation, international law, MEAs, and sustainable development reach back into ancient times. Some might even suggest that the notion that we can stop our neighbor from polluting our backyard comes from such philosophers as Confucius, who in his lifetime dating from 551 to 479 B.C. wrote:

What you do not want done to yourself, do not do to others.

(ISD p 213)


4 what are some key problems concerning environmental law in developing countries

4. What are some key problems concerning environmental law in developing countries?

A.. Lack of political will for environmental legislation—to enact, implement (including finance), and amend

1. By the public

2. By political leaders

B. Lack of environmentally knowledgeable legislators, administrators, judges, lawyers — lack ofhuman resources

C. Lack of appropriateenvironmental legislation and regulations—“tools”

1. For national and local legislation

2. For multilateral environmental agreements

3. For “an international agency to monitor environmental damage” and to “guarantee that any environmental damage will be fully repaired, with clear and high standards set out for what that means.” (Joseph E Stiglitz, Making Globalization Work (Norton: 2006) at page 158)

D. Note these problems are not necessarily present in each developing country. Consider, for example, Thailand and the People’s Republic of China.


5 what are some solutions for these problems

5. What are some solutions for these problems?

A. Public awareness needs to be enhanced; action is needed!

B. Existing law schools and judicial academies need to be strengthened with respect to environmental law.

C. Role of UNEP concerning environmental law needs to be broadened and strengthened.

D. The sustainable development capacity of existing international institutions, such as the World Trade Organization, need to be enhanced to deal with environmental issues.

E. NGOs will have to undertake more capacity building, especially at national and local levels.

F. More good books on sustainable development need to be distributed and more local workshops conducted so that a wide variety of people, includingstudents, not just lawyers and judges, are better able to protect the environment.


Environmental institutions and law

IV. E. Conclusion

6. JUDICIAL ACADEMIES AND LAW SCHOOLS

“To achieve all of this, much will need to be done, particularly with respect to awareness-raising, education, training, and capacity building. From the legal perspective, each person will need to contribute both individually and through participation with others in formulating sustainable development policies, and then converting these policies into enforceable laws. Significant support will likely be required for such international organizations as UNEP, development banks, governments, schools, and universities. The lack of support for such basic institutions as judicial academies and law schools constitutes perhaps one of the leading problems in the worldwide effort to achieve sustainable development.” (emphasis added; ISD p 215)


Environmental institutions and law

ENVIRONMENTAL INSTITUTIONS AND LAW

Thank You

You may contact me at one of the following addresses:

(1) Email: [email protected]

(2) P.O. Box 14867, Long Beach, California, 90853.


What can i do

WHAT CAN I DO?

Source: Antonio A. Oposa Jr.


Think global act local

Think global, act local

Source: Antonio A. Oposa Jr.


Environmental institutions and law

“If there is anything I have learnt from my eight years at UNEP, it would be that sustainability needs to completely transform present governance and law if it is to make a difference for humanity’s future.”Klaus Topfer, Director, UN Environmental Programme, Key Note to the National Sustainability Conference, Berlin, G, Sept. 2005, Quoted by Klaus Bosselmann, “The Environmental Jurisprudence of International Tribunals: Making Sustainability Count.”


Partial bibliography

Partial Bibliography

  • Bosselmann, Klaus, The Environmental Jurisprudence of International Tribunals: “Making Sustainability Count” 4th International IUCN Academy of Environmental Law Colloquium, 16-20 October 2006, White Plains, New York

  • Bell, Stuart, and Donald McGillivray, Environmental Law (Oxford University Press: 2006, Sixth Edition)


Partial bibliography1

Partial Bibliography

3. Craig, Donna G., Nicholas A. Robinson, and Koh Kheng-Lian, editors of Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources, (2001);

4.Esty, Daniel C., and Maria H. Ivanova“ “Revitalizing   Global Environmental Governance: A Function-Driven Approach" in Global Environmental Governance: Options Opportunities edited by Daniel C. Esty and Maria H. Ivanova (Yale School of Forestry & Environmental Studies: 2002);

5.Ferry, Steven, Environmental Law (3rd Ed. 2004)

6.Hunter, David, J. Salzman, D. Zaelke, International Environmental Law and Policy (2nd Ed.: 2002)

7.Kiss, Alexandre and Dinah Shelton, International Environmental Law (2nd Edition: Transnational Publishers, Inc: 2000)


Bibliography cont d

Bibliography (cont’d)

8.Malone, Linda A. & Scott Pasternack, Defending the Environment: Civil Society Strategies to Enforce International Environmental Law (Transnational Publishers, Inc.: 2003)

9.Rogers, Peter, K. F. Jalal, J.A.Boyd, An Introduction to Sustainable Development (2006)

10.Sands, Philippe, “International Law in the Field of Sustainable Development” at page 306 of the 1994 edition of The British Year Book of International Law (1995);

11."Status of Ratification of Selected Multilateral Environmental Agreements” published on the occasion of Global Judges Symposium on Sustainable Development and the Role of Law Held in Johannesburg, South Africa, 18-20 August 2002;


Bibliography cont d1

Bibliography (cont’d)

12.Stookes, Paul, A Practical Approach to Environmental Law (Oxford University Press, 2005)

13.“The Johannesburg Principles on the Role of Law and Sustainable Development”, adopted at the Judges Symposium held in Johannesburg, South Africa, on 18-20 August, 2002.

14.UNEP 2003 ANNUAL REPORT

  • World Business Council for Sustainable Development, Finding capital for sustainable livelihoods business (2004)

  • World Business Council for Sustainable Development, Sustainable development reporting: Striking the balance (2004)

    25 October 2007

    Long Beach, California


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