International Environmental Law, Volume I

Paula M. Pevato

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781138712836
• eBook ISBN: 9781351775328
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

This title was first published in 2003. Viewed as a prelude to a broader spectrum of perspectives and approaches captured within international protection of the environment, these volumes offer an invitation to further exploration. Covering a broad array of topics, the essays chosen convey pivotal breakthroughs in international environmental law.

Introduction

Great indeed are the things which in this brief treatise I propose tor observation and consideration by all students of nature. I say great, because of the excellence of the subject itself, the entirely unexpected and novel character of these things, and finally because of the instrument by means of which they have been revealed to our senses.

The Starry Messenger (Galileo Galilei, 1610)

The evolving framework of international environmental law and the development of national law provide a sound basis for addressing the major environmental threats of the day. It must be underpinned by a more coherent and coordinated approach among international environmental instruments.

Malmö Ministerial Declaration (UNEP, 2000)

International Law and Environmental Protection: Casual Musings

The natural environment when viewed as a resource is a finite one. That might be a paradoxical reality difficult to reconcile with popular attitudes represented within many economically developed societies where a 'disposable mentality' prevails. In other words, if something is broken, replace it! This is a maxim that is not so easily applied to the protection and preservation of the environment: thus there are no spare unpenetrated ozone layers, no back-up uncontaminated oceans, no surplus of 'closed canopy' ecosystems to be purchased at local shopping malls. If exploitation of the earth's fragile ecosystems and the resources they accommodate continues along unsustainable depletion patterns fully taking into account what has happened to the natural environment during the past two centuries without the intervention, development and implementation of new environmental protection norms and standards in international law and policy (along with regional and municipal environmental management plans or other legal and policy initiatives expressing those standards), grave consequences are predicted. The global environment is irreplaceable. Following decades of prolonged, substantial, and often irreversible, environmental harm, it became a matter of grave urgency that the restoration, preservation and protection of the environment was necessary - especially for damaged fragile ecosystems, over-exploited non-renewable resources, and over-harvested renewable natural resources - once the global community accepted that pervasive harm to the natural world had to be redressed by legal and other means. Numerous technological achievements marked significant turning points in history. Those achievements were attained via developments within specific scientific and engineering disciplines which, at the same time, also contributed to ecological degradation in many cases (for example, the automobile). Consequently, new paradigms and innovative fields needed to be developed within traditional disciplines, particularly law and environmental sciences, to respond to the adverse effects of persistent environmental abuse. In reaction to many pressing issues facing the international community in relation to global environmental degradation, international law evolved to provide an assortment of legal and policy frameworks offering solutions to those environmental challenges. Thus, when ecological changes were classified as physical limits to the global environment's non-renewable natural resources within singular and interdependent ecosystems, some international lawyers concluded that global environmental degradation had reached a 'precrisis stage' by the 1990s (Timoshenko, 1990, 127ff, quoted in Chapter 1, p, 3, Volume I). Others such as Handl determined that the global environment was experiencing an 'unavoidable global environmental change that threatens possibly catastrophic economic, social and political consequences': in short, the protection and preservation of the environment became a matter of 'global security' (see further Chapter 1, p. 3, Volume I).

Contemporary ecological concerns may be succinctly characterised as environmental issues. According to Caldwell, an 'environmental issue' is an issue formulated as 'a result of an emergent change in the environment, caused or influenced by human activity, with consequences arousing social concern or creating problems leading to political action'. Furthermore, he suggests that environmental issues 'interact with and interrelate with other seemingly mutually exclusive developments ... air quality issues interlink with health, energy, and economic problems; and endangered species issues entail questions of habitat, land use, recreation, commerce, and ethics' (Caldwell, 1990, p. 11). This view is reminiscent of renowned British astrophysicist Sir Arthur Eddington's rather dire predictions in relation to the natural world, given that he observed an earlier period farther back in time when the earth was less disorganised or, as Sir Arthur put it, 'less shuffled'. Certainly, an incontrovertible amount of unnatural disorder' now exists within a more advanced, or 'shuffled', world today. Eddington further observed that entropy,¹ as time's arrow, points forward only: thus the world was in a constant state of evolution, so had to be less disorderly, less shuffled in the past. He also surmised that the amount of energy for use in the universe was finite (Eddington, 1928). As such, just as there is a finite component to energy, so too is there a calculable component to the natural environment.

It is within the context of the environment that this particular disorder is relevant, a category of disorder that cannot be attributed solely to an inevitable, evolutionary process. Rather, it is disorder marked, and marred, by human intervention and activities aptly categorised by Caldwell into twelve broad groupings, many of which are examined throughout the various chapters in these two volumes. The first six were deemed critical and required immediate action: genetic loss; ecosystem disruption and destruction; devegetation; desertification; contamination of the environment (air, water, soil and biota); and degradation and depletion of fresh water. The remaining six were at various stages of proceeding to critical levels (for example, 'precrisis stage'): overpopulation by humans; deterioration and erosion of topsoil; climate change and deterioration of atmospheric quality and resultant adverse effects including sea-level rise (Chapter 18, Volume II); ozone depletion and acid rain (Chapter 7, Volume I); progressive reduction in existing sources of energy and the adverse environmental effects of such use; disruption of biogeochemical cycles; and maintenance of mankind's built environment and loss of cultural heritage in arts and architecture, including large-scale public works such as dams, canals and highways (Caldwell, 1990, pp. 17-18). Furthermore, it is disorder identified by patterns of unsustainable development, irresponsible use of finite resources, neglect, abuse, greed and ignorance or lack of respect for and understanding of the earth's variegated patchwork of fragile ecosystems, inextricably linked, interdependent and indivisible. It is disorder capable of taking on assorted identities: endangered or extinct species, depleted forests, land or ship based sources of marine pollution, threats to and loss of biological diversity (Chapter 19, Volume II), nuclear testing carried out amidst highly sensitive environments (Sands, 1996), careless transfers of hazardous wastes (Chapters 21 and 22, Volume II), oil fields set afire during armed conflicts thereby creating environmental disasters (Schmitt, 1997),² industrial factories spewing toxic effluents into air and water and dispersing them beyond state borders, threats to local river ecosystems, to rain forest watersheds, to species inhabiting those environments, and adverse health and social consequences from unsustainable development, all resulting from development projects such as the construction of hydro dams that damage water quality and ecosystems,³ these are just some scenarios that would have tragic consequences for the planet, its environment and inhabitants.

Applied metaphorically to an international legal inquiry, the views of Sir Arthur Eddington - a celebrated mathematician, astronomer and physicist - would have one imagine that many centuries or even decades ago, when the entropy arrow had not yet pierced forward to the extent one sees today, global pollution was of little concern to humankind. Before the 1970s, very few international legal textbooks referred to the environment. It was perhaps discussed more in fiction than fact, for instance in Tolkien's Lord of the Rings trilogy and its prequel The Hobbit, wherein the fire-breathing dragon 'Smaug' was created as a metaphor for the author's own personal dismay over environmental pollution, starkly evident in a post-industrial revolution society.⁴ Similarly, very few global treaties expressing environmental protection regimes had been ratified, or declarations adopted, prior to 1972. Most of the early treaties concentrated on regional or bilateral concerns, such as the conservation of wildlife (birds, fisheries, seals) as expressed in the 1902 Convention for the Protection of Birds Useful to Agriculture,⁵ or the protection from pollution of jointly managed boundary waters, exemplified by the 1909 Boundary Waters Treaty⁶ between the United States (US) and the United Kingdom, on behalf of Canada (Sands, 1995, pp. 26-9). In contrast, hundreds of treaties and declarations were ratified or adopted at global, regional, sub-regional and bilateral levels by the end of the twentieth century.⁷ Scenarios described in the previous paragraph illustrate just a few of many urgent conditions triggering development of international norms and standards. In direct contravention of entropy laws, if one could peer backwards in time using Galileo's 'instrument', known today simply as a telescope, the metaphysical eye would reveal a less 'shuffled' natural environment, unlike today's natural world with its critical pollution levels.

Assembled against an elaborate backdrop scattered with images of what Aldo Leopold characterised as a 'world of wounds', (Leopold, 1978, p. 197) the collection of essays presented within Volumes I and II expands upon those images and the international legal solutions that have been formulated to resolve global environmental problems. The essays chosen convey pivotal breakthroughs in 'international environmental law', delineated by the following broad categories:

• historical developments and milestones achieved in standard-setting;
• traditional and modern sources of international law;
• a myriad of governance issues pertaining to international institutions, inter-governmental organisations (IGOs) and non-governmental organisations (NGOs);
• the progressive development of international environmental law, featuring a selection of global treaties;
• two essays comparing and contrasting approaches to controlling the hazardous wastes trade to and from developed and developing states; and
• challenges to be addressed concurrent with the progressive development of international environmental law, including tensions, cross-cutting issues, international financing dilemmas, and general deficiencies within the international normative system for environmental protection.

Despite the broad array of topics covered by these essays, this anthology does not seek to replace comprehensive texts on the subject.⁸ Nor does it attempt to cover issues of international environmental politics and poli...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Preface
• Introduction
• Name Index