Environmental Law

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Dictionary / Encyclopedia Article

Reference

Environmental Law

BOISSON DE CHAZOURNES, Laurence

BOISSON DE CHAZOURNES, Laurence. Environmental Law. In: Goudie, Andrew S. & Cuff, David J. Encyclopedia of global change : environmental change and human society . Oxford : Oxford University Press, 2002. p. 378-386

Available at:

http://archive-ouverte.unige.ch/unige:43363

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ENVIRONMENTAL LAW ·

Because environmental law is a relatively new field, other branches of law--such as property or tort law-have histori:- cally been uscd to address environmental problems. In addition, international laws designed to protect the envirorunent were not very well developed until the early .1970s, when environmental perspectives and concerns began stimulating and ~atalyzing domestic and international legal development.

Since then, cnvironmental law, both nàtional and international, has experienced unprecedented growth. These developments are prernised on the globalization of environmental problems and concerns, attributable to two crucially interlin.ked factors, namely ecological apd econornic interdependence.

Although human activities have always contributed to environmental degradation, it was only during the last half of the 20th cer:tury that their effect~ were recognized as having become global and serious, and in som'e cases irre- versible. This recognition led to an incrcasing awareness that global environmental problems, such as climate change or the deplet~on of biological diversity, required doser cooperation arnong states, and that the interests of humankind must prevail over the interests of individual States. Moreov~r, new security conceptions included the degradation of the global environment as a threat to international peace and security.

This led to a call for new collective security strategies that would integrate environmental concerns. These developments led to important changes in envirorunental law.

National and International Dimensions of Envirorunental Law

Environmcntal challenges are global in scale and have global implications; consequently, they are becoming increasingly significant to ail nations. The depletion of the ozone layer and of biological diversity, climate change, and chemical pollution are but a· few examples that illustrate the need for the international community to have a new global approach to ecological issues. Global phenomena require doser cooperation among states and need to be address.ed by both national and international legal mcasures. These factors emphasize the complementary character of national and international environmental law in the regulation and protection of the environment. While domestic law refers to a legal system applicable to a defined territory over which a state exercises its jurisdiction, international law regulates the conduct of states and other international actors, such as internationàl organizations.

National environmental legislation has traditionally been drafted and organized around specific themes, such as nature conservation and the protection of natural media (i.e., air, water, soil). The close relationship between the various ele- nrents of the global environment has pushed states to adopt different 1tpproaches in their legislapve techniques. A grow- ing number of national legal frame<vorks, integrating various sectors and human activities, highlight the importance of holistic approaches in environmèntal and natural resource management (e.g., the 1999 Canadian Environmental Protection Act). Furthermore, states have created r:iational institutions that handle environmental issues and enjoy vaiy- ing degrees of interdependence, power, and jurisdiction.

Many counfries have created an independent environment /''fuinistry or ?stablished a specialized agcncy, such as the

U.?.

Environmcrital Protection Agency.

Norms of international law, on the other hand, are gen- erated through treaties and customary international law that constitute "hard law," which states are obliged to follow un der the threat of sanction from the interrtational legal system. In contrast, "soft law" is largely based on international

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· diplomacy and comity, and it is thus dependent on moral suasion or fear of diplomatie retribution. Soft law comprises nonbinding instruments, such as recommendations, œsolu- tions, and final declarations adopted at the end of international conferences. These instruments lay clown guidelines for future action, and through them states may commit themselves politically to meeting certain objectives. Soft-law instruments represent both a füst stage in the elaboration of

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hard international norms in treaty form, ~nd th~y contribut~.<

to the crystallization of environmental principlJs as customary international law. The 1972 Stockholm Declaration on Human Development and the 1992 Rio Declaration on Envirorunent and Development constitute good examples of soft law instruments. Both of these declarations embody a series of widely revered environmental principles, a number of which have crystallized into harder obligations of eus- tomary international law., !

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National and întefuational environmental

~aw

^share

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parallel and inseparable tasks in managing global environmental problems. While international environmental law reflects domestic experiences considered successful by states, it also shapes and significantly contributes to the development of dom es tic environmental law. The result is a complex relationship where both levels of environmental law are indispensable.

The D evelopment Of International Environmental Law

Huge conceptual leaps were made in international environmental law in the last quarter of the 20th century, resulting in a large number of international treaties and soft law instruments. Environrnental problems progressed from being tackled within a bilateral framework between neighboring states to a multilateral cooperation framework. Three phases can be identified as: (1) from the beginning of the lasfcen- tury to 1972, (2) from 1972 to 1992, and (3) from 1992 onward. Each phase has put in place different strategies for dealing with environmental problems.

In the early part of the last century, several agreements were concluded around specific activities such as fishing and the protection of some.identified natural species (e.g., the Convention for the Protection of Birds Useful to • Agriculture, signed in 1902, and the Treaty for the

· Preservation and Protection .of Fur SeaRs, signed in 1911).

However, these conventions were oflimited application and their aim was the rational exploitation of certain comrner- cially valuable species, rather than that of ensuring their protection. Since the 1930s, new approaches to environmental conservation and preservation have appeared. The 1933 London Convention on Preservation of Fatma and Flora in their Natural State and the 1940 Washington Convention on Nature Protection and Wildlife Preservation are cases in point. Moreovcr, in certain fields, such as transboundary air pollution and the management of common natural resources, general cnvironmental principles were alr~ady eme~ging through state practice and judi- cial application. Among these principlcs are the obligation of states not to cause damage to other states by activities within their borclers (exemplified by the 1941 Trail Smelter arbitration case between Canada and the United States) and the ?bligations of notification, consultation, and cooperation (exemplified by the 1957 Lake Lanoux arbitration' case betweeri France and Spain), which continue to have an important piace in environmental law. Over the years, the adopti_on of several international instruments, whether they be binding or not, has made it possible to specify rules and principles aiming to protect the environment.

Since the 1960s, political, ecooornic, and social factors have catalyzed and stimulated the attention of international public opinion. Most notably, the 1970s oil crisis and ecological disasters su ch as the wrecking of the oil tankers Torrey Canyon (1967) and Amoco Cadiz (1978), which caused massive environmental destruct.ion, gave an impetus to the international corrtmunity for strengthening international action in the environmental field.

The development of modern international environmental law is rooted in two main events: the 1972 UN Conference on the Human Environment held in Stock.holrn and the UN Conference on Environment and Development held in Rio de Janeiro in 1992. If the period surrounding and after the 1972 Stockholm Conference marked. the period of burgeoning international envfronmental con- sciousness, the 1992 Rio Conference heralded the coming age of international environmental law.

C~nventi9ns adopted in the wake of the Stockholm Conference dealt with issues of transboundary ·pollution, the

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Firemen assist in pumping away crude oil ]rom a beach in Brittany, France,following the wreck of tire massive oil tanker Ainoco Cadiz three miles

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the French coast on March 16, 1978. The high-prefrle accident provided the neœssary impetus for the ratification

of

the International Conventio1i for the Prevention of Pollution

ji-0111

Ships (MARPOL 7 317 8) by the minimum number

of

states required for entry into force.

preseryation of specifi.c species of fauna and flora, and the promotion of environmental protection for certain regions of the world.Yct because they relied on sectoral approaches in their subject matter and were restricted in their geo- graphical application, thesc agreements were limited in their abi1ity to tacklc global environmental problems. The 197 4 Nordic Convention on the Protection of the Environment and the 1979 UN Economie Commission for Europe (ECE) Convention on Long-range Transboundary Air Pollution are examples of this limitation.

To face more complex: environmental challenges, new types of agreements were negotiated in the 1980s. Çlobal

environme~tal problems such as global warrning, the loss. of biodiversity, and contamination by chernical pollutants . have thus been dealt with in agreements of global app).ica- tion characterized by multisectoral approaches. The latter international conventions are more demanding in terms of

obligation~ and required actions. They frequently take the form of fra\nework conventions thÎ are followed by pro- tocols provlding for more detailcd obligations. This is the

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format of the 1985 Vienna Ozone Layer Convention (with the 1987 Montreal Protocol), the UN Framework Convention on Clim'clte Change (UNFCCC) of 1992 (with the Kyoto Protocol, 1997, in force as of2005) as well as many Regional Seas Conventions.

These conventions often rely on the pr.inciple of common but diffrei:itiated respons.ibilities. Because States have p:5iitributed cijfferedtly to global environmental problems,

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their responsil3ilities should reflect this. A good example of this principle is Article 4 of the 1992 UNFCC, which places an obligation on developed countries to take the lead in me.eti,ng the required reductions in greenhouse gas emis- sions. Developing country parties, however, are obliged to implement the.se commitments only to the extent that

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developed countries have met their commitments to provide financial resources and to transfcr technology. This principle was also used to govern furdier negotiations on the UNFCCC, in the context of the 1997 Kyoto Protocol.

A similar provision can be found in Article 20 (3) of the Convention on Biological Diversity of 1992.

Core Principles of Environmental La w

The core princip_Ies of environmental(law htve emergç;:l'/

through international instruments and nationalflaw. Sorne of the most significant principles of international environmental law were first enunciated in domestic environmental law and include the principles of environmental impact assessment (EIA) and the "polluter-pays" principle. The former, first established in 1972 by the U.S. National Environment Protection Act, permits the integration of environmental considerations in national decision-making processes, 1

thereby rendering thek more transparent. This\principle, crystallizing a preventive approach in

environment~

protection, is based on the premise that rational planning consti- tu tes an essentia] tool for reconciling development and environment. The EIA requirement is cmbodied in several international instruments, notably the 1991 UN ECE Convention on Environmental Impact Assessment in a Transboundary Context, the 1992 Biodiversity Convention, and the 1999World Bank Operational Policy 4.01.The value and legitimacy of the EIA process has been strengthened by the evolutiori of the right of access to information on the environmcnt and the right of public participation. Tliis notion has been validated in the 1998 UN ECE Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters.

The polluter-pays principle, which requires that the costs of pollution be borne by the party responsible for it, aims for better allocation of economic obligations and responsibilities. This principle should thus serve as a means of achieving sustainable utilization of natural resources. The principle is, for example, reflected in the 1972 Organisation for Economie Co-operation and Development (OECD) Council Recommendation on Guiding Principles Concerning the International Economie Aspects of Environmental Policies. It also shapes the European Union environmental liability regime (see Directive 2004/35/EC

of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage).

The increasing complexity of environmental challenges caUs for new approaches in environmental law. One of these is the need for erivironmental law to provide adequate tools and mechanisms to deal with environmental pr~blems that have not yet caused ecological damage. Although international environmental law mainly provides responses to events that have already occurred, environmental law has made the transition from being merely reactive to being proactive. From this perspective, the principles of prevention and precaution ·have a central rolc to play and are the main pillars of the strategies to be put in place. While the former holds that States must adopt measurcs to prevent environ- mentaJ damage, the "precautionary principle" enunciates that where sèrious harm is threatened, positive action to protect the environment should not be delayed until. irrefutabl,e scienti.fic proof ofharm is available.This pririciple has been endorsed by virtually all recent environmental treaties, including the UNFCCC, the 1992 Convention on Biological Diversity, the 1995 UN Agreement on Straddling Fish Stoéks and Highly Migratory Fish Stocks, and the 2001 Stockholm Convention on Persistent Organic Pollutants.

The management of global environmental problems. requires taking into account the interdependence between economic activities and ecological factors. The principle of sustainable development recognizes the integration of environmental cons!derations into economic and other develop- men t initiatives. Defined. by the 1987 .Brundtland Commission report, Our Commori Future, as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs;' the principle of sustainable development emphasizes the close relationship between the environment and development and ai~s to protect the rights of present and future genera.tions. Agenda 21 is a comprehensive plan of action adopted at the 1992 UN Rio Conference. It contains a cat- alogue of actions and strategies to be taken globally, nation- ally, and locally in every arca in which economic and development activities have an impact on the environment.

This principle is reflected

fo

many environmental agreements such as Article 3 (4) of the UNFCCC.

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Enf orce ment and C ompliance M echanisms

Enforcement and compliance mechanisms are of critical importance in order to ensure that the principles and rÙles embodied in national and international environmental laws are followed. States use various methods to regulate compliance with the rules embodied in their legislative acts.The use of economic instruments (including tax regimes, environmental auditing and the reduction of economic subsidies) comple- ments command-and-control measures and encourages the shaping of new practices. Using this approach, governments set targets and allow members of the regulated commurÙty to allo- cate the burden of compliance among themselvcs.

A range of techniques and a panoply of international actors are involved in the enfon::cment of and compliance with international environmental law. Mechanisms include diffusion of information, monitoring, verification, and inspection. The use of incentives or disincentives-the so-called "canot and stick" approach-is also used with the aim of obtaining partiè- ipation in the regulatory regime and ensuring compliance with it.

Multilateral institutional mechanisms also play a significant role in assuring compliance with environmental law. fu the principal arenas for interstate ~ooperation, they often ensure the elaboration of international environme~tal law, its ongoing revision, and compliance with it. International organiz.ations have enlarged the scope of their activities in the environmental field and created specialist bodies and institutional mechanisms for dealing with environmental protection. Examples incl!Jde the United Nations Environment Programme (UNEP) and the European Environ ment Agency. Other international organizations have created bodies to provide for the integration of environrnental protection issues into other fields of their activities; the Comrnittee on Trade and Environment, established within the World Trade Organization (WTO), is one such example.

Nonstate actors such as corporations, intergovernmental and nongovernmental organizations (IGOs and NGOs), and individuals ail play a critical role in ensuring compliance

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with the principles and rules of international environmental law. Interesting international initiatives of this nature inclµde .the UN Global Compact on human rights, ~abor conditions, and cnvironmental practices elaborated in 1999 and the

Equator Principlcs adopted by several private banks in 2003.

These initiatives engage private actors to enforce environmental principles in the activities of the concerned parties. In addition, NGOs such as Greenpeace oftcn play the role of s7lf-appointed "watchdogs" against the actions of national governments, and they thus help in the enforcement of and èompliance with international law. Moreover, with the increasing emphasis on public participation and provision of access to environmental information in international dis- course, the individual's role in ensuring international cnvironmental compliance is becoming increasingly important.

The ever-increasing complexity of environmental challenges calls for new approaches in national and international environmental law. One of these is the need for environ.mental law to provide adequate tools and mechanisms to deal with global environmental degradation issues that have not yet caused ecological damage but which are likely to do so.

Another challenge for environmental law is constituted by the need to integrate envirorunental protection in multiple sectors of activities and within different international regula- tions. Included here are the trade implications of negotiated environmental agreements and the call for addressing issues of consistency between enviromnental and trade regimes.

SeeAlso

Acid Rain; Agenda 21; Biological Diversity; Climate Change;

International Law; Marine Pollution; United Nations

\

EnvironmentaI Programme; DOC-31; DOC-32; DOC-33;

DOC-34; DbC-35; DOC-36; DOC-3/DOC-42; DOC-43;

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DOC-44; DOC-45; DOC-46; DOC-48; DOC-49; DOC-50

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- La11re11ce Boisso11 de Chazo11mes