International Environmental Law – Introduction
THE WORLD COMMUNITY AND INTERNATIONAL LAW
International Law
Modern international law has emerged from the ruins of two world wars. Before World War I, public international law regulated the conduct of war. During that period, states had the freedom to choose between war and peace. States had the right to pursue their goals by war. The distinction between just wars and unjust wars was not legally pertinent.
The reorientation of international law came with the establishment of the League of Nations following World War I. The League condemned external aggression against the territorial integrity and political independence of League members.
Another important development during this period was the establishment of the Permanent Court of International Justice (PCIJ) and the International Labor Organization (ILO). However, these developments did not prevent the eruption of World War II.
In the aftermath of World War II, one of the most important developments was the establishment of the United Nations. The United Nations Charter outlawed war as a general means for the resolution of disputes among states. After two world wars, states realized that some institutional framework must be established and some rules promulgated that would provide procedural and substantive safeguards to avert future wars. The United Nations was to serve primarily that purpose: preservation of peace among states.
International law is the law that states make to regulate matters among them: first and foremost, war and peace and, after the attainment of a minimum peace order, other matters including economic development, exchange rates, trade, the environment, and intellectual property rights. A number of organizations have been developed to deal with such matters, including the World Trade Organization (WTO) with regard to matters that affect trade and the United Nations Environment Program (UNEP) with regard to matters that affect the environment.
It would be wrong, however, to perceive international law as only the regulatory instrument of interstate relations. In order to prevent future egregious atrocities against human beings – prevailing especially during war – the international system developed a number of instruments that focus on the protection of the rights of the individual. These human rights instruments launched by the Universal Declaration of Human Rights present the order that the international system aspires to achieve.
In addition to what could be called traditional human rights (such as the right to life, the right to property, and the right to be free from discrimination), other rights have been proposed more or less persuasively. Such rights include the right to development, the right to a decent environment, and the right not to be forcibly displaced.
Human rights articulate the demands for a maximum order of law. This order goes beyond the achievement of elementary peace and incorporates the aspiration for a better quality of life. Human rights shape the notion of human dignity, which gives direction for the future development of international law. The ultimate goal of the international law process is the protection of human dignity.
States
Sovereignty
The United Nations Charter is based on the principle of sovereignty of states. According to the Charter, each state is sovereign and no state is to violate the sovereignty of another state. This principle of legal equality based on the sovereignty of states should not be confused with an assumption of equal power. In fact, the concept of sovereignty is fairly new in international affairs. Historically, sovereignty was not a given. Instead, states had to obtain the right to be called sovereign.
Sovereignty denotes the ability to self-govern, and many states today do not really possess that ability. In fact, some states are weaker than corporations and nongovernmental organizations (NGOs) in their capacity to run their own affairs.
As the reality of international politics indicates, certain states have more power, self-government, and control and, thus, yield more influence in the configuration of international relations than other states. The imbalance in the actual power of states is enshrined into the UN Charter. The Security Council of the United Nations, the body that makes decisions regarding war and peace, was formed by the victors of World War II. The structure of power in the Security Council may be anachronistic but, nevertheless, reflects that even the constitutive organs of the international system could not have afforded to be oblivious of the importance of power in the making of international relations. Sometimes this power is authoritative. In other cases, it lacks legitimacy but, nevertheless, could still be effective in shaping the future of international order.
The principle of sovereignty implies that states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”But, as explored later in this book, this principle contains its own antinomy in the UN Charter, as well as in the way that the Charter has been interpreted including the cases of use of force, self-defense, or anticipatory self-defense.
It is provided that the United Nations must not intervene “in matters which are essentially within the domestic jurisdiction of any state. . . . ” The International Court of Justice, however, in the Tunis-Morocco Nationality Decrees case, ruled that the scope of a state’s domestic jurisdiction is relative and depends on the development of international law. The mere inclusion of a matter in the agenda of the General Assembly or the Security Council does not in itself constitute intervention within the meaning of article 2(7). The United Nations has engaged in activities considered traditionally to be the prerogative of a nation-state, for example, in cases of self-determination, racial discrimination, mass starvation, and environmental regulation.
The unequal distribution of power is a constitutive element of international law from the creation of international regimes that formalize the division between haves and haves-not to the development of customary international law. The Nuclear Non-Proliferation Treaty is based on the presumption that it is legitimate for some countries to possess nuclear weapons, whereas for others it is not. And customary international law often is based on the practice of states that happen to be able to shape international developments in an area. Space law has been developed by states with the technology to explore space. The development of the Antarctic Treaty system is based on an alliance of states that were the first to be able to enunciate rights over the natural resources of Antarctica. The Antarctic Treaty regime could be characterized as a kind of trusteeship arrangement developed by the acquiescence of excluded states rather than by their willful consent.
During the Cold War, the common reference to the United States and the Soviet Union as the world’s superpowers, which mutually constrained each other, is well known. In today’s world, a world in which one superpower has remained, the question for other states has been how to constrain that power. A potential contender –the European Union – has yet to acquire an independent voice and to amass military resources that would match its economic breakthroughs. There are regionally powerful states as well, such as India and China, which exert significant authority in regional circles and, as a consequence, in international circles.
Wealth
After the wars of decolonization were fought, new states became members of the international community. There was, therefore, the danger of a potential clash between the new states and those states that are, so to speak, the founders of most international law. New states generally have not adopted an outlook of international law that fundamentally undermines the traditional view of such law by Western states. The new states, however, came into international fora with a new set of interests and demands. Developing states have pursued the right to development, for instance, as a fundamental human right that is a precursor of other human rights. Developing states often espouse the view that environmental protection should not jeopardize their pursuit of wealth and development.
As new states came to the fore of the international arena, the economic gap between developed states and developing countries became a permanent feature of international relations. This division between developed states and developing states intensified the challenge against some rules of international law developed by the economically prosperous Western states. The division between developed and less developed states created demands for a new international economic order (NIEO) based on notions of sharing in wealth creation by all states. Ideas for the development of a new international economic order eventually faded. Demands for sharing prosperity, however, have not ceased to present themselves under different disguises in various international fora, including that of environmental lawmaking.
Distinctions between developed and developing states (the North-South division) are made in most international instruments and are prevalent in the international discourse. Most recent distinctions are those made between newly industrialized states (including mostly the Southeast Asian states) and least-developed states (certain states in Africa). There is also the addition of states with economies in transition, states that came about after the breakup of the Soviet Union.
Because developing states do not have the same economic power as developed states, they have formed the group G-77 (which now includes more than seventy-seven states) to confront the power of the elite with the power of numbers. This cluster of developing countries presenting a unified façade against developed states should not obfuscate the fact that there are divisions and disagreements among developing states as well. Sometimes developing states remain unified – under the umbrella of G-77 – both in appearances and in substance. Frequently, however, although appearances remain, the substance crumbles under the reality of different interests. An example in the environmental field involves the climate change negotiations.
During these negotiations, small island-states fought for a strong normative treaty as a means to protect their islands from the real danger of flooding. By contrast, other developing states (including those perceived to be regional powers, such as China and India) pursued the usual path in international environment negotiations, reiterating their right to development and putting the blame on industrialized countries.
The gap between developed and developing states continues to be wide. Although citizens of a minority of states are quite affluent, the citizens of the majority of states live under conditions of abject poverty. Citizens of the majority of states, for instance, have an income of less than $1 per day. Although some states have been able to break through the barrier between them and developed states, such is not the case for all states, especially certain states located in vulnerable regions including sub-Saharan
Africa.
Despite the absence of a global war, states frequently engage regional conflicts that involve violations of human rights. Furthermore, even developed democratic states – which could be considered founders of human rights instruments – often engage inhuman rights violations.26 States that are more powerful mingle in the affairs of – and even invade – less powerful states under the real threat or the pretext of a threat to their national security or by simply pursuing the appropriation of other states’ resources. Many states are ravaged by a number of diseases, including AIDS and malaria. Under these global circumstances, the question that emerges is what the role of international law is, and, more specifically, what the role of international environmental law is.
Cooperation
States are not equal in their power and authority. Whereas in decisions affecting war and peace, the hegemonic power of some states is obvious, in the everyday affairs of state interaction hegemonic tendencies tend to be subtler. Because war is not an option for most societies under normal conditions, states have tried to cooperate to achieve desirable outcomes. Even hegemonic states find it costly to affirm their position constantly through the use of force. Often, therefore, they engage in some sort of cooperative behavior with other states.
In game theory parlance, states find themselves captured in repeated games in which the number of players is limited. Such players usually possess quite substantial information about the past performance of other players. The international community is comprised of a small number of states; this community becomes even smaller if one only counts states actively participating in most international matters.
States are avid collectors of information about the performance and general circumstances of other states, especially that of states that affect their interests. Thus, one could conceive state interaction as one in which cooperation is the expected norm rather than the exception. The reluctance to use force, the absence of a centralized enforcement authority, reciprocity, and cooperative patterns of behavior make the international arena look like alternating from hierarchy to coarchy and vice versa.
A result of cooperation is the establishment of networks or clubs among certain states. The General Agreement on Tariffs and Trade (GATT) was, in effect, a trade club among industrialized states. Various security regimes connect allies that happen to possess similar ideological outlook and development orientation, for instance, the North Atlantic Treaty Organization (NATO). Such organizations often lack transparency, but the lack of open and transparent procedures is viewed as the key to organizational effectiveness. This lack of transparency gives freedom to officials involved in these organizations to put together package deals without being constantly scrutinized by the media and the public.
The club model of international cooperation has been challenged by the excluded states. Developing countries have engaged in efforts to participate in the clubs of developed states so as to obtain advantages previously not available to them. India and China engaged in substantial lobbying to enter the World Trade Organization (WTO) club. Eastern European countries have engaged in efforts to participate in the NATO and the European Community (EC) clubs.
Environmental problems have, as a general rule, transboundary effects. Therefore, states realized early that cooperation, common rules, and standards are better than unilateral action. The outcome of cooperation in the environmental field can be seen in the number and quality of treaties and other instruments that have been put in place for the protection of environment. Not all these treaties are well monitored and enforced. Nevertheless, treaties affirm the will of states to cooperate for the achievement of desirable outcomes. In the environmental field, developed states have been willing to compensate developing states for their participation in cooperative arrangements that are to have global beneficial environmental effects but that may, at the same time, slow the pace of growth.
International Organizations
The United Nations System
The Security Council
The Security Council of the United Nations is comprised of the victor states of WorldWar II (France, the United Kingdom, the United States, Russia, and China) as permanent members, and ten nonpermanent members selected by the General Assembly. The permanent members of the Security Council have the power to veto any decision of the Security Council, reflecting the importance of authoritative power in the making of the international order.
The Security Council is the primary organ of the United Nations, which deals with matters of war and peace. The Security Council is not generally involved in environmental matters. However, in exceptional cases, for instance, with regard to Iraq’s invasion of Kuwait, it held Iraq liable for various damages inflicted on Kuwait including the damage to the environment. The decisions of the Security Council are binding and the powers of the Council are very extensive. The General Assembly If the Security Council reflects some of the power elite of the world community, the General Assembly is the democratic institution comprised of all members of the United Nations. In the General Assembly, each member state has one vote. The General Assembly issues resolutions and recommendations that are not binding but are frequently influential in the shaping of international relations and, when adopted unanimously, could be considered sources of customary international law.
The General Assembly can consider a variety of matters, such as economic, social, educational, cultural, health-related, or human rights–centered issues. Given the broad scope of powers accorded to it, the General Assembly has been involved in various environmental issues. The General Assembly convened the 1972 UN Conference on the Human Environment (Stockholm Conference), the 1992 UN Conference on Environment and Development (UNCED, Rio Conference) and the 2002 World Summit on Sustainable Development (WSSD, Johannesburg Conference). All of these conferences are considered landmarks in the development of international environmental law.
The General Assembly has created two organs of the United Nations that have played an essential role in international environmental developments, namely, the United Nations Environment Program (UNEP) and the United Nations Development Program (UNDP). The Commission on Sustainable Development, a product of the UNCED Conference, functions under the auspices of the General Assembly. The General Assembly has taken bold steps in asking the International Court of Justice (ICJ) to give its opinion on the legality of nuclear weapons.
International Court of Justice
The International Court of Justice (ICJ) or World Court is the principal judicial organ of the United Nations. All member states of the UN become ipso facto parties to the Statute of the International Court of Justice. Only a state party to the Court’s Statute may be party to a contentious case. The jurisdiction of the Court in contentious cases is based on the consent of states.
Consent may be given:
• Ad hoc under article 36(1); States can submit a dispute to the Court by virtue of an agreement usually called compromise;
• By prior agreement in a treaty under article 36(1);
• By accepting the compulsory jurisdiction of the Court through a declaration under article 36(2).
Compulsory jurisdiction is conferred to the Court by a declaration of a concerned country.Declarations are usually not retroactive and include reservations. Declarations may include the possibility of dispute settlement by other means and may provide that the ICJ does not have jurisdiction in matters falling under domestic jurisdiction (“self-judging” clause).Several declarations exclude disputes arising under multilateral treaties unless all parties to the treaty affected by the decision are also parties to the case before the Court. A few declarations exclude disputes arising out of hostilities in which the declarant state is entangled or disputes that have to do with national security issues. An increasing number of states have included clauses in their declarations designed to avoid surprise lawsuits by states that accept the Court’s jurisdiction and, immediately after that, bring a case against another state. Some states have excluded from the jurisdiction of the Court any dispute that was brought by a state less than twelve months after that state had accepted the jurisdiction of the Court. In order to further protect themselves, many states have reserved the right to modify or terminate a declaration peremptorily by means of notification to the Secretary General of the UN with effect from the moment of notification.
A few treaties give the Court appellate jurisdiction. The 1944 Convention on International Civil Aviation, for example, provides for appeal to the Court of decisions of the Council of the International Civil Aviation Organization.
The International Court of Justice is comprised of a body of fifteen independent judges elected, regardless of their nationality, although no two of these judges can be nationals of the same state. Judges are persons of high moral character who possess qualifications for appointment in the highest judicial offices of their respective countries. Members of the Court are elected by the Security Council and the General Assembly, each body voting separately. Nominations are made by national groups in the Permanent Court of Arbitration. An informal agreement among members of the United Nations generally governs the distribution of seats among the various regions of the world. Judges serve for nine years, with five judges rotating every three years. Judges may be reelected and this is often the case. If a party in a case does not have a judge of its nationality sitting at the bench, it may designate an ad hoc such judge. The Court generally has decided cases by full bench. It may, however, form chambers composed of three or more judges to deal with a particular case or a category of cases. The ICJ has established a chamber devoted to environmental matters.
The principle of stare decisis does not apply to the decisions of the ICJ. As mentioned in article 59 of the Statute of the International Court of Justice: “The decision of the Court has no binding force except between the parties and in respect of that particular case.” However, the Court frequently refers to its own decisions and to those of other tribunals. In addition to its function as a dispute settlement mechanism, the Court provides advisory opinions on any legal question at the request “of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such request.” The General Assembly has the authority to ask the ICJ to give an advisory opinion on any legal matter. Other organs of the UN and specialized agencies may request advisory opinions of the Court on “legal questions arising within the scope of their activities.” Based on this provision, the Court has been able to answer the General Assembly’s request regarding the legality of nuclear weapons considering, inter alia, environmental matters. The ICJ declared that it had no jurisdiction to give advisory opinion on the legality of nuclear weapons to the World Health Organization (WHO) because the legality of nuclear weapons did not arise within the scope of activities of WHO.
Other Organizations
International institutions play multiple roles in the development of international environmental law. They provide the coordinating fora under which most environmental issues are discussed and decided. International organizations have some lawmaking function because they issue recommendations, resolutions, and other so-called soft law instruments that, although not binding on states, exert varying levels of influence on the development of international environmental law.
UNEP has provided the forum for the discussion of many international treaties, such as the Basel Convention on the control of waste movements and the Biodiversity Convention. UNEP has taken a leadership role in the regional seas programs. The International Maritime Organization (IMO) has been instrumental in the production of the regulatory framework for the control of pollution from ships. The International Atomic Energy Agency (IAEA) has generated a number of guidelines on the protection of public health from nuclear materials, and also has been instrumental in the implementation of the Nuclear Non-Proliferation Treaty, generating rules for the disposal of radioactive waste. The World Meteorological Organization (WMO) has played a role in the climate change discussions. The World Health Organization (WHO) has been involved in a number of environmental issues including the control of pesticides and the trade in chemicals. The Food and Agriculture Organization (FAO) is primarily involved in fisheries, agricultural and forestry development and agro biodiversity issues. The International Agricultural Research Centers (IARCs) have been involved in gene bank development. The World Trade Organization (WTO) is involved in trade matters, but its broad jurisdiction over trade regulation intersects often with environmental matters. The UN Economic and Social Council (ECOSOC) and the UNDP have been taking into consideration environmental concerns as they affect socioeconomic decisions. Various other permanent and ad hoc institutions (e.g., various working groups, committees) have assisted in the growth of international environmental law.
Environmental considerations have had an impact on the agenda of many international organizations. Environmental considerations affect various areas of the economy including all sorts of development projects, agriculture and forestry. The World Bank (International Bank for Reconstruction and Development [IBRD]), for instance, in its pursuit of development (that may involve construction of dams, roads, or the development of protected areas) has found itself entangled in environmental and human rights matters. Similarly, the Global Environment Facility (GEF) finances many development projects in which environmental considerations are paramount.
Other organizations that have been involved in the development of international environmental law include the International Tropical Timber Organization (ITTO), which has been proactive in the sustainable management of tropical forests. Regional organizations – such as the European Bank for Reconstruction and Development (EBRD), the Organization for Economic Co-operation and Development (OECD), the Organization of African Union (OAU), the Organization of American States (OAS), the Association of South East Asian Nations (ASEAN), the Asian Development Bank and the South Asian Association for Regional Co-operation (SAARC) – have played an influential role in the development of international environment law.
Some institutions have monitoring character, such as the EMEP system (Cooperative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe), which was developed under the UN/ECE regime regarding transboundary pollution in Europe. The Conference of the Parties (COP) – an institution provided for in most international environmental law treaties – has acquired increasing monitoring and enforcement powers in recent environmental conventions. State parties to a convention have to report to the COP of that convention on measures they have taken to implement that convention. Failure to report – depending on the will of other state parties – may trigger sanctions. Some conventions establish dispute settlement mechanisms that may be optional or obligatory.
The ICJ is the primary judiciary organ, but other international tribunals have been established, such as the ITLOS (International Tribunal of the Law of the Sea) and the Appellate Body of the WTO.
A plethora of international institutions with overlapping capacities and responsibilities has generated demands to rationalize the international system and, more specifically, the international system for the protection of environment. Such rationalization may be needed depending on advantages/disadvantages of redundancy in the administration of international law. Given that some institutions are more competent or resilient than others allowing for some form of institutional competition by tolerating some redundancy in the international system may not be ill-advised. Completely streamlined institutional systems could be susceptible to failure in case of a challenge. Allowing for some jurisdictional overlap among institutions that are not strictly identical yields more diversity and more flexibility in responses.
One could claim, for instance, that the International Whaling Commission is a redundant organization and its responsibilities should fall under the CITES secretariat. A total bureaucratic streamlining would mandate to do away with the Commission and devote its resources to the CITES Secretariat. To many environmentalists, such an outcome would not be the most effective outcome for the protection of whales. It is questionable whether the CITES Secretariat would have the will to defend the ban on whale hunting as forcefully as the Whaling Commission has done.
Another example involves the jurisdictional overlap between the FAO and the Conference of the Parties (COP) of the Biodiversity Convention. The institutions have separate yet also overlapping jurisdiction, as the FAO is responsible for agro biodiversity, whereas the COP is concerned with the general protection of biodiversity.
In practice, the separation of jurisdictional reach has not worked well and there has been friction in the cooperation between the two institutions. One could conclude, however, that the jurisdictional overlap has had some positive outcomes. The FAO has been able to broker a multilateral treaty on the dissemination of agricultural resources that is a first step in creating some predictability with regard to property rights over such resources. The Treaty on Plant Genetic Resources for Food and Agriculture is now contributing in the development of the equitable sharing of benefits derived from the manipulation of food and agricultural resources.
