International Environmental Law

Ulrich Beyerlin, Thilo Marauhn

• Publisher: Hart/Beck
• Year: 2011
• ISBN:
  9781847317681
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

International Environmental Law is a new textbook written for students, practitioners, and anyone interested in the subject. The overall aim of the book is to provide a fresh understanding of international environmental law as a whole, seen in the light of climate change, biodiversity loss, and the other serious environmental challenges facing the world. The book has also been kept deliberately manageable in size by careful selection of topics and by adopting a cross-cutting synthesis of regulatory interaction in the field. This enables the reader to place international environmental law in the broader context of public international law in general, revealing at the same time that international environmental law is experimental ground for developing new legal approaches towards global governance. To this end, the authors have combined theory and practice. Apart from discussing concepts, rule-making and compliance, the book looks at options for improved coordination, harmonisation and even integration of existing multilateral environmental agreements, analysing how conflicts between various environmental regimes can be avoided or, at least, adequately managed. The authors argue that an appropriate management of international environmental relations must address the North-South divide, which continues to be a major obstacle to global environmental cooperation. Furthermore, the authors emphasise the growing human rights dimension of international environmental law. This book is an ideal 'door opener' for the further study of international environmental law. Focusing on 'international environmental governance' in a comprehensive way, it serves to explain that each institution, each actor, and each instrument is part of a multi-dimensional process in international environmental law and relations.

Part I: Historical Development

1 From the Beginnings of International Environmental Law to the Stockholm Conference (1972)

1.1 Early Stages and the Interwar Period

Instruments of international law that focus on the protection of the environment only emerged in greater number after the end of the Second World War. Symptomatic of the deficient environmental consciousness of the founding fathers of the United Nations is the fact that the UN Charter of 1945 made neither environmental protection nor the conservation of the natural resources the explicit task of the United Nations. The great mass of international environmental protection norms that deserve this name was only generated in the last 35 years. In comparison with other fields of international law, such as the law of armed conflict, the law of diplomatic relations or the law of the sea, international environmental law is thus a rather young branch of law.

However, the first treaties relevant to environmental protection can be found much earlier. Thus, a number of—mostly bilateral—agreements concerning fisheries,[1] problems of the equitable utilisation of watercourses by riparian states[2] or the protection of wild birds[3] date from the late nineteenth century. The international agreements in the first two areas pursued mainly a utilitarian objective, ie the balancing of competing interests of neighbouring states; their benefit, if any, for the environment was hardly more than a side effect. In contrast, the above-mentioned bilateral agreements on the protection of wild birds, like some later multilateral agreements on nature conservation—eg the Convention destinée à assurer la conservation des diverses espèces animales vivant à l’état sauvage en Afrique qui sont utiles à l’homme ou inoffensives of 19 May 1900, the Convention Relative to the Preservation of Fauna and Flora in the Natural State of 8 November 1933, which primarily relates to Africa, and the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere of 12 October 1940—come closer to pursuing genuine ecological aims. However, it should be noted that the efforts of this time to protect the flora and fauna only resulted in very sporadic and selective contractual agreements with limited regulatory effect. On the other hand, the International Convention for the Regulation of Whaling of 24 September 1931 contained rudimentary regulation on the preservation of the whale population obviously for the sole purpose of enhanced utilisation of this natural resource.

Nevertheless in the early stages of international environmental law, namely on 11 March 1941, the famous international arbitral award in the Trail Smelter case[4] was rendered, which subsequently proved to be a milestone for the further development of transboundary environmental protection. This dispute between the USA and Canada dealt with the settlement of damages incurred by the agriculture and forestry in the US state of Washington by the discharge of sulphur dioxide emissions from a lead and zinc smelting plant in British Columbia, Canada. The arbitral tribunal ascertained that

under the principles of international law . . . 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 consequences and the injury is established by clear and convincing evidence.[5]

The arbitral award held Canada liable not only for the damages already incurred, but also for possible further lead and zinc smelter activities with adverse transboundary effects for the environment in the neighbouring state. The judges further declared that Canada would have to ensure that detrimental activity in its territory ceased if persistent and grave environmental damage was to be expected. However, this statement cannot be understood as obliging every state to avoid causing transboundary environmental damage of a certain gravity to its neighbouring states from the outset. Nevertheless, the arbitral award rendered in the Trail Smelter case has turned out to be an important precedent for the development of the principle of limited territorial sovereignty and integrity,[6] the eminent legal principle that determines transboundary environmental protection.

1.2 From 1945 to 1972

After the Second World War, the United Nations, in spite of the silence of the UN Charter on ecological matters, soon addressed questions of international environmental protection, in particular those concerning the conservation of natural resources which might come into conflict with resource utilisation. Special mention should be made in this respect of the UN Conference on the Conservation and Utilization of Resources of 1949, convened by the Economic and Social Council (ECOSOC), where the interrelation of the utilisation and the conservation of resources was exhaustively discussed for the first time. It is exactly this tension between the competing regulatory aims of resource utilisation and conservation that is symptomatic of the subsequent international agreements dealing with the law of the sea and the law of freshwater resources.

This holds true for the Convention on Fishing and Conservation of Living Resources of the High Seas of 29 April 1958, concluded during the first UN Conference on the Law of the Sea in Geneva, as well as for the numerous regional fisheries conventions concluded between 1949 and 1969.[7] In the 1950s, states made initial sporadic attempts to regulate by treaty certain aspects of the protection of the marine environment. Here, Articles 24 and 25 of the Convention on the High Seas of 29 April 1958 should in particular be referred to: these require the states parties to commit to taking measures to prevent pollution of the seas by the discharge of oil or radioactive waste. The International Convention for the Prevention of Pollution of the Sea by Oil had already been adopted (12 May 1954). Still further agreements on the abatement of these specific sources of pollution were adopted in the late 1960s. A comprehensive regulation of marine environmental protection, however, was only achieved with the Convention on the Law of the Sea of 10 December 1982, which had been concluded during the third UN Conference on the Law of the Sea, but did not enter into force until 1994.

The efforts by riparian states of international rivers and lakes in the 1950s and 1960s to apportion equitably between them the usage rights for these watercourses and to agree on protection measures were more successful in producing contractual solutions. The focus of the activities had been on North America before the Second World War, but now shifted to Europe and other continents. Although the states still mainly cared about the regulation of fisheries and navigation and other economic uses, they increasingly attended to the problems of freshwater protection in numerous international multilateral agreements, concerning for example the protection against pollution of the Moselle, the Rhine, Lake Geneva or Lake Constance. On the basis of these agreements, joint commissions for the protection of these watercourses were established. The commissions, however, act in a purely advisory capacity.[8]

The arbitral award in the Trail Smelter case of 1941, which resulted in the principle of limited territorial sovereignty and integrity, received early confirmation from a decision of the International Court of Justice in the Corfu Channel case of 9 April 1949.[9] In the Corfu Channel case, the judges assumed the obligation of every state ‘not to allow knowingly its territory to be used for acts contrary to the rights of other States’,[10] although in a completely different context. In the Lac Lanoux case[11] an international arbitral tribunal had to deal with a conflict of sovereignty, namely the problematic relationship between the upper and lower riparian states of a transboundary watercourse. In its decision of 16 November 1957 settling the dispute between Spain and France, the arbitral tribunal arrived at the important conclusion that the upper riparian state can only make use of its right to water utilisation insofar as no serious harm to the lower riparian state is caused by the alteration of the natu...