|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|1. Global environmental change and international law: the introductory framework|
Modern international environmental law dates to approximately 1972, when countries gathered for the United Nations Stockholm Conference on the Human Environment and the United Nations Environment Programme was established. Many important legal developments took place in the period surrounding the Conference, including negotiation of the World Heritage Convention, the Convention on International Trade in Endangered Species, the London Ocean Dumping Convention, and, shortly after the Conference, the UNEP regional seas conventions. Since then, there has been a rapid rise in international legal instruments concerned with the environment, to the point where we are concerned today with developing new means for coordinating the negotiation and implementation of related agreements, in particular their administrative, monitoring, and financial provisions.
At the turn of the century there were relatively few multilateral or bilateral international environmental agreements. International environmental law was based on the principles of unfettered national sovereignty over natural resources and absolute freedom of the seas beyond the three-mile territorial limit. Such international agreements as existed largely addressed issues concerning boundary waters, navigation, and fishing rights along shared waterways, particularly the Rhine River and other European waters. It is worth noting, however, that Article IV of the 1909 United States-United Kingdom Boundary Waters Treaty stated that water "shall not be polluted on either side to the injury of health or property on the other."12
Early in the century, a few agreements were concluded to protect commercially valuable species, such as the 1902 Convention for the Protection of Birds Useful to Agriculture and the Treaty for the Preservation and Protection of Fur Seals signed in 1911.13
The classic adjudication during the first part of the century was the Trail Smelter Arbitration between Canada and the United States, which affirmed Canada's responsibility for the damage from copper smelter fumes that transgressed the border into the state of Washington.14 The language of the Arbitral Tribunal has been widely cited as confirming the principle that a state is responsible for environmental damage to foreign countries that is caused by activities within its borders.15 The fact that the Arbitration is a rare example of international environmental adjudication in this early period has given it an unusually important place in the legal literature.
By the 1930s and 1940s, conservation and preservation had emerged as conceptual approaches to natural-resource management, which led to agreements to protect fauna and flora. These agreements included the 1933 London Convention on Preservation of Fauna and Flora in Their Natural State (focused primarily on Africa) and the 1940 Washington Convention on Nature Protection and Wild Life Preservation (focused on the Western Hemisphere). Conventions relating to whaling practices, other ocean fisheries, and birds were also negotiated during this time.
During the 1950s and early 1960s, new environmental concerns emerged. Agreements governing international liability for nuclear damage were negotiated, as was the 1954 International Convention for the Prevention of Pollution of the Sea by Oil.
In the late 1960s, there was a significant increase in the number of multilateral international environmental agreements. Several conventions were negotiated relating to interventions in case of oil-pollution casualties, to civil liability for oil-pollution damage, and to controlling oil pollution in the North Sea. The African Convention on the Conservation of Nature and Natural Resources was concluded in 1968.
Since 1970, hundreds of international environmental instruments have been concluded. If we include bilateral and multilateral instruments (binding and non-binding), there are more than 870 international legal instruments that have one or more provisions addressing environment. The relevant players on the international environmental law stage now include not only states but corporations, intergovernmental and non-governmental organizations, and individuals.
The subject-matter of international environmental agreements has expanded significantly from the focus in the first half of this century on facilitating navigation, guaranteeing fishing rights, and protecting particularly valued animal species; today there are agreements to control pollution in all media, conserve habitats, and protect global commons, such as the high-level ozone layer.
Ever since 1972, the scope of international agreements has expanded significantly: from transboundary pollution agreements to global pollution agreements; from preservation of designated species to conservation of ecosystems; from control of direct emissions into lakes to comprehensive river-basin-system regimes; from agreements that take effect only at national borders to ones that constrain activities and resource use within national borders, such as those for world heritages and wetlands. The duties have also become more comprehensive: from a focus on research and monitoring to provisions for reductions in pollutants. Most notably, there is not a single example in which the provisions of earlier conventions have been weakened; in all cases, they have been strengthened or their scope has been expanded.
There is a growing realization in the international community that the time has come not only to monitor and research environmental risks but also to reduce them. Thus we have moved from international agreements that deal largely with research, information exchange, and monitoring to agreements that require reductions in pollutant emissions and changes in control technology. The Protocol on Sulphur Dioxide to the UN ECE-Convention on Long-Range Transboundary Air Pollution calls for a 30 per cent reduction in national annual sulphur emissions or their transboundary fluxes by 1993,16 and the Montreal Protocol on Substances That Deplete the Ozone Layer, including the 1990 Adjustments and Amendments, requires that chloro-fluorocarbons and haloes be phased out (except for a few essential uses) by the year 2000.17 This focus on pollution prevention is likely to continue as we come to appreciate the limited capacity of our environment to absorb the by-products of our society.
The increase in international agreements concluded in just the last six years, from 1985 to 1992, illustrates the increasingly rapid rate at which international environmental law is being formed. During this period, countries have negotiated a surprisingly large number of global agreements. These include the Vienna Convention on the Protection of the Ozone Layer, which provides a framework for protecting the ozone layer but primarily calls for research, monitoring, and exchange of information; the Montreal Protocol on Substances That Deplete the Ozone Layer with the London Adjustments and Amendments; the Protocol on Environmental Protection (with annexes) to the Antarctic Treaty; the Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal; the London Guidelines for the Exchange of Information on Chemicals in International Trade; the two International Atomic Energy Agency conventions on Early Notification of a Nuclear Accident and on Assistance in the Case of a Nuclear Accident or Radiological Emergency; and the International Convention on Oil Pollution Preparedness, Response and Co-operation.
Negotiations for regional environmental agreements have proceeded at a similarly rapid rate. Under the auspices of the United Nations Economic Commission for Europe (ECE), countries have concluded three protocols to the UN ECE Convention on Long-Range Transboundary Air Pollution: a protocol providing for 30 per cent reductions in transborder fluxes of sulphur dioxides, a protocol freezing the emissions of nitrogen oxides, and a protocol controlling emissions of volatile organic chemicals. They have also concluded agreements on environmental-impact assessment and transboundary industrial accidents and transboundary watercourses and international lakes.
In the regional seas programme, countries have concluded the South Pacific Resource and Environmental Protection Agreement with two protocols, one on dumping and the other on emergency assistance. Under the Caribbean Regional Seas Convention, countries have negotiated a new protocol on protected areas, and are considering negotiation of a protocol on land-based sources of marine pollution.
For freshwater resources, countries have concluded an innovative, comprehensive agreement for the Zambezi River Basin. Canada and the United States agreed to a protocol to their 1978 Great Lakes Water Quality Agreement that addresses groundwater contamination affecting the Great Lakes and the airborne transport of toxics into the Great Lakes. Amazon Basin countries have issued the Declaration of Brasilia and provided under the auspices of the Amazon Pact for the establishment of two new commissions, one to conserve the fauna and flora and the other to protect indigenous peoples. In Asia, members of ASEAN have concluded the Convention on the Conservation of Nature, which provides ecosystem protection and controls on trade in endangered species.18
Within the European Community, there have been many important developments, including notably the Single European Act, which provides clear authority for the Community to act on environmental and natural-resources issues. The Community has already issued many directives and regulations designed to control pollution and protect the environment. A new European Environment Agency and European Environment Information and Observation Network are being established.
Bilateral agreements have also proliferated during this period. There are important examples within North America. The United States has signed bilateral agreements on the transport of hazardous wastes with Canada and Mexico. A recent air-pollution agreement between the United States and Mexico addresses urban air pollution problems in Mexico City. In Latin America, Brazil and Argentina concluded an agreement (contemporaneous with the two IAEA agreements) that provides for consultation in case of nuclear accidents in either country.
Many of these agreements were thought to be impossible 10 years ago; some were thought impossible as briefly as 2 years before they were concluded. The provisions in the new agreements are generally more stringent than in the previous ones; the range of subject matter is broader; and the provisions for implementation and review are more sophisticated. One encouraging observation from this experience is that the learning curve demonstrated in international environmental law is unexpectedly steep. This should give us hope that the international community may be able, with at least some success, to confront the immense challenges posed by global environmental change.
Given the astonishing developments of the past 20 years, what then awaits us in the future?
In the next decade more international agreements and other legal instruments will be concluded. The rate of negotiating these instruments shows no sign of abating. Countries have just reached agreement on a framework convention on climate change, forest principles, and an agreement on biological diversity. As this book goes to press, negotiations continue on several agreements: an agreement on the marine transport of hazardous and noxious substances, and a liability protocol to the Basel Convention on Transboundary Movements of Hazardous Wastes.
At the same time, however, a countervailing theme is emerging-one that says it is time to slow the rate of negotiating international agreements. Some countries, especially the developing ones, are becoming overtaxed by the resources needed to engage in negotiations and to implement effectively the agreements already concluded. This may mean that a "go slow" light will appear and caution against continuing the rapid pace of concluding new international agreements. In turn this may presage greater reliance on international legal instruments that are not formal conventions, or what some jurists call "soft law."
The new international conventions are likely to continue to be ever more demanding in terms of the actions they ask of countries. Frequently this may take the form of a framework convention, followed by protocols that provide for detailed obligations. This is the form of the recent Antarctic Environment Protocol (with four annexes), the Vienna Ozone Layer Convention (with the Montreal Protocol), and the regional-seas conventions.
Further, there is likely to be increased emphasis on monitoring compliance with the conventions and on providing means to facilitate implementation and compliance. The role of non-governmental organizations in the negotiation and implementation of agreements has grown and will likely continue to grow.
Finally, we will likely see new attention to the trade implications of the agreements that are negotiated and to addressing issues of consistency between environmental and trade regimes.