International Environmental Law: Overview

1. International Environmental Law: Overview 1 April 2013

2. Issues • Institutions and processes • General principles of international environmental law • Multilateral environmental agreements (MEAs) • Specific climate-related examples • Implementation, enforcement and dispute settlement

3. IEL ‘sources’ • General principles and rules of public international law, e.g. • Sovereignty, sovereign rights and jurisdiction • Areas beyond national jurisdiction • Sources of international law (including establishment of rules of customary international law) • Law of treaties (including treaty-making and effect; interpretation; consequences of breach) • State responsibility for internationally wrongful acts

4. ‘IEL sources’ • General principles of IEL • Specific treaty regimes • ‘Soft law’

5. Institutions and Processes • UN system • UNEP • GA; ECOSOC; CSD; MDGs and post-2015 development agenda • Rio+20 → • Establish ‘High Level Political Forum’ • ‘Upgrade’ UNEP – universal membership of Governing Council • Establish Sustainable Development Goals • Specialised agencies (e.g. FAO; IMO) and other IGOs • Multilateral environmental agreements (MEAs) • COPs

6. Environment and . . . . • Trade • Foreign Investment • Human rights • Development

7. Principles of IEL • ‘No harm’ • Principle 2 Rio Declaration • Cooperation/Good neighbourliness • Role of environmental impact assessment • Precautionary principle/approach • Principle 15 Rio Declaration • Common but differentiated responsibility • Principle 7 Rio Declaration • Polluter pays principle • Principle of sustainable development

8. ‘No harm’ • States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and 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 (Principle 2, Rio Declaration) • Scope and application • Due diligence • Transboundarycf global context

9. ‘No harm’ • “The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.” (ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996) • A State is thus obliged to use all of the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another state” (ICJ, Pulp Mills on the River Uruguay, para 101)

10. Cooperation and EIA • Obligation to notify and consult re activities that may have transboundary impact – e.g. international watercourses • EIA – ‘it may now be taken as a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial; activity may have a significant adverse impact in a transboundary context (ICJ, Pulp Mills, para. 204) • Scope and content of EIA?

11. Precautionary principle In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. (Principle 15, Rio Declaration) • Application in law and practice • Legal status? • ICJ and WTO • International Tribunal for the Law of the Sea, Advisory Opinion 2011 – incorporation of precautionary approach in treaties and other instruments ‘has initiated a trend towards making this approach part of customary international law’

12. CBDR • States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. (Principle 7, Rio Declaration) • Scope and application

13. MEAs • Development of specific principles and rules through sectoral treaties • Autonomous instruments (and institutions) • ‘Clusters’ of MEAs, e.g. • Hazardous substances • Biodiversity • Air and atmospheric pollution • Marine pollution

14. MEAs • Process • Common Elements and Approaches: • Objective and principles • Substantive obligations (differentiated?) • Finance and technology • Capacity development • Institutional arrangements and decision-making processes • Amendment/Evolution • Dispute settlement • Entry into force • Technical annexes

15. Example: Convention on Biological Diversity • A ‘Rio Convention’ • Relationship with other biodiversity-related conventions – e.g. CITES; Ramsar; Bonn migratory species convention (CMS) • Biodiversity impact of climate mitigation and adaptation measures • Climate impact of biodiversity loss/degradation

16. ExampleProtection of marine environment • Numerous treaties address protection of marine environment at global or regional level • Overarching framework: 1982 UN Convention on the Law of the Sea (UNCLOS) – Part XII addresses protection of marine environment • Specific treaties include MARPOL (pollution from ships) and London Convention on Dumping of Wastes at sea. Also regional seas agreements.

17. Protection of marine environment • MARPOL • 2011 revisions to Annex VI (Air pollution from ships) in effect from January 2013– energy efficiency requirements for shipping • Tacit amendment procedure • London Convention • CCS

18. Examples • Convention on Biological Diversity: www.cbd.int • CITES: www.cites.org • Migratory Species: www.cms.int • Basel Convention on Hazardous Waste: www.basel.int (and links to hazardous chemicals conventions) • Pollution from ships (MARPOL Convention) – www.imo.org

19. Enforcement of IEL • How to ensure, oversee and enforce implementation and effectiveness of MEAs? • Domestic implementation and enforcement • National reporting • Role of COP and other MEA institutions • Review of reports/other forms of review? • Dispute settlement – recourse to binding third party dispute settlement (court/arbitration) usually requires consent of parties to dispute • Compliance mechanisms • Sanctions? • Reviews of effectiveness of MEA