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International environmental law.

Module A: General aspects of international environmental law I.

Chapter 2: Development of international environmental law.

Mid-19th century to 1945: beginnings
Practical and anthropocentric rather than ecological. Human-centred conservation techniques: open and closed seasons, licensing, recording/reporting, restriction on the methods of killing and tools: e.g. 1893 Pacific Fur Seal Arbitration (USA/UK), 1902 Convention for the Protection of Birds Useful to Agriculture.

‘No state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another, or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’: 1941 Trail Smelter Arbitration (USA/Canada).

1945 to 1972: developments leading to the Stockholm Conference
Founex conference 1971 and Cocoyoc Declaration 1974.
 * Marine pollution, e.g. the International Maritime Organisation (IMO) was created in 1957; in 1954 the London Convention on Prevention of the Pollution of the Sea by Oil – now mostly supreceded by the 1973/1978 International Convention for the Prevention of Pollution from Ships (MARPOL).
 * Marine conservation, e.g. 1946 International Convention for Regulation of Whaling, 1959 Convention on Fishing and Conservation of the Living Resources of the High Seas (Geneva Convention).
 * 1959 Antarctic Treaty
 * 1971 Convention on Wetlands of International Importance (the Ramsar Convention)
 * Jurisprudence: 1949 Corfu Channel (UK/Albania) confirmed Trail Smelter by finding that Albania was obliged to warn others that its territorial waters were mined. 1954 Lake Lanoux confirmed the following: state sovereignty over natural resources within their territory, cooperation, taking the interests of other states into account.
 * Growing role of UN specialized agencies: e.g. FAO, IAEA, Unesco, WHO, WMO.

1972: Stockholm Conference on the Human Environment
This conference was around the time of the debate about a New International Economic Order. In addition to the Action Plan (109 recommendations, six areas e.g. settlements, resources, pollutants) and the recommendation on institutional and financial arrangements for the UN, there was the Declaration on the Human Environment (Stockholm Declaration). The law-related among its 26 principles: The United Nations Environmental Programme (UNEP; rebranded 2016 as UN Environment) was established in 1972.
 * Principle 21 confirmed Trail Smelter: “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 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 22: “States shall co-operate to develop further the international law regarding liability and compensation for the vIctims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.”
 * Principle 23 foresaw a limited role for international regulation.
 * Principle 24 called for international organizations to play a role.

1972 to 1992: developments leading to the Rio Conference
Piecemeal efforts however included important agreements, e.g.:
 * 1974 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area
 * MARPOL 1973/1978
 * 1973 Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES)
 * 1982 UN Convention on the Law of the Sea (UNCLOS)
 * 1987 Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol to 1985 Vienna Convention for the Protection of the Ozone Layer)
 * 1978 UNEP draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States
 * 1982 World Charter for Nature, a non-binding document adopted by the International Union for Conservation of Nature (IUCN, an NGO) and the UN General Assembly.

1992: Rio Conference on Environment and Development
The 1987 report Our Common Future by the Brundtland Commission defined the term “sustainable development” as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

Inspired by this, the UN Conference on the Environment and Development (UNCED) was held in Rio de Janeiro from 3 to 14 June 1992. Developing States and NGOs were involved more than in Stockholm. It adopted three non-binding instruments: the Rio Declaration on Environment and Development (with 27 principles), the UNCED Forest Principles, Agenda 21; and two treaties were opened for signature: the Convention on Biological Diversity, UN Framework Convention on Climate Change. The UN Commission on Sustainable Development was set up.

Principle 1, Rio Declaration: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”

Principle 2 (cf. Stockholm 21): “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.”

Principles 3 and 4: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” ¶ “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”

Principle 13 (cf. Stockholm 22): “States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”

The declaration introduced the basic principles of environmental cooperation: e.g. Principles 7 (common but differentiated responsibilities), 15 (precautionary approach), 16 (polluter pays) and 17 (environmental impact assessment). So far, this declaration is about as close as ius cogens in international environmental law: e.g. Separate Opinion of Vice-President Weeramantry in Gabčíkovo–Nagymaros (Hungary/Slovakia).

2000 Millennium Development Goals, 2002 Johannesburg Summit
The eight Millennium Development Goals were agreed in 2000, to be achieved in 2015. Goal 7: Ensure environmental sustainability.

The World Summit on Sustainable Development (WSSD) was held in Johannesburg from 26 August to 4 September 2002. It adopted two non-binding documents: Like its successor Rio+20, the main goals were combating poverty and creating a “green” economy (“sustained growth”?).
 * the Johannesburg Declaration on Sustainable Development
 * the WSSD Plan of Implementation.

2012 Rio+20, 2015 Sustainable Development Goals
The UN Conference on Sustainable Development (UNCSD) took place in Rio de Janeiro from 20 to 22 June 2012 and adopted The Future We Want, with 283 paragraphs but no action/implementation plan or legally-binding treaties. In 2012, the UN Environment Assembly of the UNEP was established. The Commission on Sustainable Development (from Rio 1992) was replaced by the High-level Political Forum on Sustainable Development in 2013.

“We recognize that poverty eradication, changing unsustainable and promoting sustainable patterns of consumption and production, and protecting and managing the natural resource base of economic and social development are the overarching objectives of and essential requirements for sustainable development. We also reaffirm the need to achieve sustainable development by: promoting sustained, inclusive and equitable economic growth, [...]; and promoting integrated and sustainable management of natural resources and ecosystems that supports inter alia economic, social and human development[...]”: Paragraph 4, The Future We Want.

The UN General Assembly adopted ‘Transforming our world: the 2030 Agenda for Sustainable Development’ in August 2015 with 17 Sustainable Development Goals and 169 targets.