Transcript International Environmental Law: Overview

International
Environmental
Law: Overview
1 April 2013
Issues
 Institutions
and processes
 General principles of international
environmental law
 Multilateral environmental agreements
(MEAs)
 Specific climate-related examples
 Implementation, enforcement and
dispute settlement
IEL ‘sources’
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General principles and rules of public
international law, e.g.
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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
‘IEL sources’
 General
principles of IEL
 Specific
treaty regimes
 ‘Soft
law’
Institutions and Processes
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UN system
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UNEP
GA; ECOSOC; CSD; MDGs and post-2015 development
agenda
Rio+20 →
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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)
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COPs
Environment and . . . .
 Trade
 Foreign
Investment
 Human
rights
 Development
Principles of IEL
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‘No harm’
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Principle 2 Rio Declaration
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Cooperation/Good neighbourliness
Role of environmental impact assessment
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Precautionary principle/approach
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Common but differentiated responsibility
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Principle 15 Rio Declaration
Principle 7 Rio Declaration
Polluter pays principle
Principle of sustainable development
‘No harm’
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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)
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Scope and application
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Due diligence
Transboundary cf global context
‘No harm’
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•
“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)
Cooperation and EIA
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Obligation to notify and consult re activities
that may have transboundary impact – e.g.
international watercourses
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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)
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Scope and content of EIA?
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)
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Application in law and practice
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Legal status?
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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’
CBDR
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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)
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Scope and application
MEAs
 Development
of specific principles and
rules through sectoral treaties
 Autonomous instruments (and institutions)
 ‘Clusters’ of MEAs, e.g.
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Hazardous substances
Biodiversity
Air and atmospheric pollution
Marine pollution
MEAs
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Process
Common Elements and Approaches:
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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
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
Example
Protection of marine
environment
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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.
Protection of marine
environment
 MARPOL
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2011 revisions to Annex VI (Air pollution from
ships) in effect from January 2013– energy
efficiency requirements for shipping
Tacit amendment procedure
 London
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CCS
Convention
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
Enforcement of IEL
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How to ensure, oversee and enforce
implementation and effectiveness of MEAs?
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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