International Environmental Law and Issues: A Report

Shrestha, Joeti L. MAIR

_________________________________________________________________________________

Submitted to Claro M. Recto Academy of Advanced Studies as a requirement in partial fulfillment for the degree of Masters in International Relations dated March 7, 2008 at the Graduate Reading Room, Lyceum of the Philippines University, Intramuros, Manila.

Table of Contents

I. Introduction1 II. Foundations of International Environmental Law2 III. Sources of International Environmental Law...5 a) International Agreements....5 b) Customary International Law..6 c) Judicial Decisions.6 IV. Organizing Principles..6 V. Supranational Organizations.....7 VI. Environmental Issues.8 a) Biodiversity8 b) Global Warming and Climate Change..9 c) Water Scarcity....11 VII. Conclusion.12

I. Introduction
The world is currently grappling with boundless questions regarding environment and the harm we have done to the earths fragile ecosystem. Is global warming really happening? Are low laying countries going to be under water forever? Are we going to face disastrous natural phenomenon often? Are we going to face global crisis in terms of food and safe drinking water? Are animal and plant species going to go extinct? Will humans die in millions? Are we really the culprits? These are the few questions which are frequently raised. To all these questions, there is only one answer- Yes. No matter we like it or not, we have already seen some of the consequences of environmental problem, such as Hurricanes, La Nia, Flooding all around the world, atypical climate change to name a few. Environmental problems demonstrate how vulnerable we are to developments in distant places and how we need to cooperate across national boundaries to deal with them. This issue reminds us that the earth is a single biosphere, and that problems in one country are other countries problems as well. Hence understanding the malignant effect; scholars and politicians, leaders of international organizations and non- governmental organizations and ordinary citizens worldwide are linking environmental security to human security and to the traditional concerns about national security.1 The international community have already come together to address the issue by which, measures are taken to protect the environment. To ensure that the world stays on track, the international environment law was proclaimed. Modern international law has emerged from the ruins of two world wars.2 The system itself has gone through considerable change from The League of Nations to The United Nations. 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 and order, other
Richard J. Payne, Global Issues, Pearson Education Inc., New York, 2007. p. 253 Elli Louka, International Environmental Law: Fairness, Effectiveness and World Order, Cambridge University Press, New York, 2006, p. 5
2 1

matters including economic development, trade, intellectual property rights and the environment are handled.3 A number of organizations have been developed to deal with such matters; including the World Trade Organisation (WTO) with regard to matters that affect trade and the United Nations Environment Program (UNEP) with regard that affect the environment. To this regard, the reporter saw the need for awareness regarding the environmental issues hence the report was conceived. This report is an overview on the international environment law, environmental issues and bodies concerning the improvement of the deteriorating environment.

II. Foundations of International Environmental Law

Law has been defined as an institution of status quo preservation but also as a means for social change. International environmental law was initially conceived as an institution that would establish rules for the management of environmental problems that started to become all too obvious in the late 1970s. 4 International environmental law is the body of international law that concerns the protection of the global environment. Originally associated with the principle that states must not permit the use of their territory in such a way as to injure the territory of other states, international environmental law has since been expanded by a plethora of legally-binding international agreements. These encompass a wide variety of issue-areas, from terrestrial, marine and atmospheric pollution through to wildlife and biodiversity protection.5 The key constitutional moments in the development of international environmental law are: the 1972 United Nations Convention on the Human Environment (UNCHE), held in Stockholm, Sweden;

Ibid. at p.5. Ibid. at p.65 5 Charlotte Ku & P.F. Diehl, International Law: Classic and Contemporary Readings. Lynne Rienner Pub., Colorado, 2004. p. 385
4

the 1987 Brundtland Report, Our Common Future, which coined the phrase 'sustainable development';

the 1992 United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro, Brazil

The 1972 United Nations Conference on the Human Environment focused on the 'human' environment. The conference issued the Declaration on the Human Environment, a statement containing 26 principles and 109 recommendations (now referred to as the Stockholm Declaration). The creation of an environmental agency was also approved, now known as United Nations Environmental Program (UNEP). In addition, there was the adoption of a Stockholm Action Program. There were no legally binding outcomes resulting from the Stockholm Conference. Principle 21 of the Declaration was a restatement of law already in existence since Roman times, namely that of 'good neighbourliness'. The 1992 Rio conference (also known as the Earth Summit) led to the adoption of several important legally binding environmental treaties, namely the 1992 United Nations Framework Convention on Climate Change and the 1992 Convention on Biological Diversity. In addition, the parties adopted a soft law Declaration on Environment and Development which reaffirmed the Stockholm Declaration and provided 27 principles guiding environment and development (now referred to as the Rio Declaration). Another influential soft law document that the parties adopted was Agenda 21, a guide to implementation of the treaties agreed to at the Summit and a guide as to the principles of sustainable development. Agenda 21 also established the United Nations Commission on Sustainable Development (CSD) and the Global Environment Facility (GEF). Finally, the non-legal, non-binding Forest Principles were formed at the Earth Summit. A further meeting was held in 2002, known as the World Summit on Sustainable Development (WSSD), held in Johannesburg, South Africa. It attained only limited progress towards stricter global regulation of human impacts on the natural environment.

Nonetheless, the WSSD brought a renewed emphasis on the synergies between combating poverty and improving the environment.6 Even though states recognize the need to cooperate, political and economic considerations often weaken the effectiveness of environmental agreements. These include, 1. The lack of centralized authority in a world of sovereign states; 2. The gap between agreements and actual practice; 3. Disagreements between rich and poor countries about the economic implications of environmental agreements; 4. Efforts by economic interests and governments to avoid compliance; and 5. A general perception that it is better to have an agreement, largely to satisfy demands for action.7 Major International Environmental Agreements Year
1900 1909 1911 1913 1940 1946 1954 1958 1959 1963 1968 1972 1972 1973 1975 1979 1985 1987 1989

Agreement
Convention for the Preservation of Animals, Birds and Fish in Africa International Congress for the Protection of Nature The North Pacific Fur Seal Treaty Consultative Commission of the International Protection of Nature Convention on Nature Protection and Wildlife Conservation in the Western Hemisphere International Convention for the Regulating of Whaling International Convention for the Prevention of Pollution of the Sea by Oil Convention on the High seas (provisions on maritime pollution) Antarctic Treaty (banning weapons tests and dumping nuclear waste in the Antartic) Partial Test Ban Treaty Biosphere Conference London Dumping Convention (ocean pollution) The UN Conference on the Human Environment (The Stockholm Conference) International Convention for the Prevention of Pollution From Ships Convention on International Trade in Endangered Species and Wild Fauna and Flora Geneva Convention on Long- Range Tran boundary Air Pollution Vienna Convention for the Protection of the Ozone Layer Montreal Protocol on Substances That Deplete the Ozone Layer Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and their Disposal

1991

Convention on Biological Diversity

6 7

Wikipedia http://en.wikipedia.org/wiki/International_environmental_law (February 26, 2008) Richard J. Payne, Global Issues, Pearson Education Inc., New York, 2007. p. 256

1992 1992 1997 2001 2002

UN Conference on Environment and Development (Rio Summit or Earth Summit) UN Framework Convention on Climate Change Kyoto Protocol to the UN Framework Convention on Climate change Stockholm Convention on Persistent Organic Pollutants World Summit on Sustainable Development (Johannesburg Action Plan)

-Excerpt from Richard J. Payne, Global Issues, Pearson Education Inc., New York, 2007. p. 257

III. Sources of International Environmental Law

International environmental law derives its content from four main sources: International agreements (also called treaties, conventions, international legal instruments, pacts, protocols, covenants) Customary international law General principles of law Other/ new sources (e.g., court decisions (case-law), resolutions,

declarations, doctrine, recommendations given by world organizations etc.)8

a) International Agreements
International environmental agreements can be bilateral, regional or multilateral in nature. The multilateral environmental agreements (MEA) have become far more common in recent decades. Treaty law is known as a traditional source of law. The majority of the conventions relating to international environmental law are specific; that means that they deal directly with environmental issues. There are some general treaties with one or two clauses referring to environmental issues but these are rarer. There are about 1000 environmental law treaties in existence today; no other area of law has generated such a large body of conventions on a specific topic.9 Another type of agreement is protocol. Protocols are like mini-agreements that "hang off" the main treaty. They exist in many areas of international law but are especially useful in the environment field, where they can be used to update scientific knowledge. They also

8 9

Ibid. at 6 Ibid. at 6

permit countries to reach agreement on a framework agreement that would otherwise be contentious, by allowing the details to be left to a later date for determination. Protocols are generally much easier to generate than a treaty and they can enter into force very quickly. The most widely-known protocol in international environmental law is the Kyoto Protocol.10

b) Customary International Law

Customary international law is important in international environmental law. These are the norms and rules that states follow as a matter of custom and they are so prevalent that they bind all states in the world. Examples of customary international law relevant to the environment include: the duty to warn other states promptly about emergencies of an environmental nature and environmental damages to which another state or states may be exposed Principle 21 of the Stockholm Declaration ('good neighbourliness' or sic utere)11

c) Judicial Decisions
International environmental law also includes the opinions of international courts and tribunals. While there are few and they have limited authority, the decisions carry much weight with legal commentators and are quite influential on the development of international environmental law. The courts include: the International Court of Justice (ICJ); the Law of the Sea Court; the European Court of Justice; regional treaty tribunals. 12

IV. Organizing Principles

International environmental law is heavily influenced by a collection of organizing principles. As with international law, the chief guiding principle is that of sovereignty, which means that a state has full power in its own territory to do as it pleases (subject to

10 11

Wikipedia http://en.wikipedia.org/wiki/International_environmental_law (February 26, 2008) Ibid. at 9 12 Ibid. at 9

international laws it has agreed to). All other international environmental law principles evolved with this principle in the background and to varying degrees have either supported it or modified it to some extent.13 Some of the organizing principles of international environmental law include: the precautionary principle the polluter pays principle the principle of sustainable development (Brundtland Report, WSSD) - integration of environmental protection and economic development environmental procedural rights common but differentiated responsibilities intergenerational and intra-generational equity common concern of humankind common heritage partnership (WSSD) requirement to conduct a comprehensive environmental impact assessment

V. Supranational Organizations
Numerous supranational organizations have taken up initiative to save the environment, which are as follows:14

13

Asia Foundation Environment and Security European Commission > Environment European Environment Agency (EEA) European Union Environment Policy Intergovernmental Panel on Climate Change (IPCC)

Martin Griffiths and Terry OCallaghan, Key Concepts of International Relations, Routledge Foundation, London, 2004. p. 304 14 HG Worldwide Legal Directories http://www.hg.org/environ.html (March 1,2008)

International Environment House (IEH) Economic and Social Commission for Asia and the Pacific (ESCAP) The Commission for Environmental Cooperation (CEC) North American Agreement on Environmental Cooperation (NAAEC) United Nations - Oceans and the Law of the Sea

VI. Environmental Issues a) Biodiversity

Biodiversity is the fundamental preoccupation of environmentalists and NGOs. This is such an important issue because the destruction of some species could upset the balance of the ecosystem. There is a general understanding that species are becoming extinct and that biodiversity is diminishing at an alarming rate primarily because of global well as disappearance of many other habitats.15 The Amazon rainforest is estimated to be disappearing at the rate of 3 million acres a year. The Congo Basin, which had the second largest tropical forests in the world, is loosing about 8.9 million acres a year to deforestation.16 Forests are essential in biodiversity and to preserve the quality of life and life itself, for human beings. Protecting forests will help in the reduction of global warming and climate change as forests soak up to 20 percent of carbon dioxide released by industrial smokestacks and automobiles.17 Not only that, it will also help in protecting the habitat of many endangered wild animals, birds, insects and plants. Because of the reported species loss and habitat destruction, measures have been taken, both in national and international arenas, to protect biodiversity. International Instruments Convention on Biodiversity, 1991 deforestation as

15

Elli Louka, International Environmental Law: Fairness, Effectiveness and World Order, Cambridge University Press, New York, 2006, p. 288 16 Richard J. Payne, Global Issues, Pearson Education Inc., New York, 2007, p.262 17 Ibid. at p. 263

- Conserve biological diversity with sustainable use of components and fair and equitable sharing of benefits arising out of the utilization of genetic resources. Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), 1975 - Prohibits and regulates trade in species and encourages states to bring endangered species in their territory. World Heritage Convention, 1975 - Protection of cultural areas and natural habitats.

b) Global Warming and Climate Change The Rapidly increasing use of fossil fuels has resulted in unexpected and dangerous consequences; resulting products such as carbon dioxide, methane and nitrous oxide are known to trap heat and create green house effect.18 Due to this, global warming has triggered off resulting to devastating hurricanes such as Katrina of 2005 and other unusual weather phenomenon all around the world. The main impact of global warming would be to alter the regional emphasis of the worlds climate and consequently the agriculture- with unknown social and political consequences. Global warming is also gradually raising the level of the seas and influence ocean currents and marine life.19 The effect is of such dire proportion that no force would be able to counter it. Scientists have said that by the year 2020 the sea level would have risen so high that the Pacific Islands of Tuvalu would be completely submerged under water. Tuvalu would be the first nation to take the toll of global warming. It is quite evident that it has already started to happen as show on

18 19

R.G. Feltham, Diplomatic Handbook, Pearson Education Ltd., Harlow,1998, p.185 Ibid at p. 185

British Broadcasting Corporation (BBC) network.20 Many of the island nations around the world would also be affected by this phenomenon which would lead to partial or complete submerge under water by 2050. Recent analysis conducted by Climatic Research Unit (CRU) of the Bay area of Metro Manila suggests that a 100cm rise in sea-level - to be reached by about 2080 under A2-high scenario would lead to over 5,000 hectares of the Bay area being regularly inundated, affecting over 2.5 million people. Even a further 30cm rise in sea-level - anticipated by about 2045 under B2-mid and A1-mid scenarios - would threaten over 2,000 hectares and about 0.5 million people. 21

Effects of Global Warming Effects

Floods

Implications

Areas Most Affected

Rising sea levels and heavy Coastal U.S., Australia, Pacific rains could displace millions Islands, Holland, Philippines, Bangladesh, China, of people and leave many Mozambique, Nigeria, Maldives. areas under water. More refugees. Heat Wave Southern Europe, U.S., China, Increase in deaths from heatstroke, forest fires, skin Brazil, Indonesia, Russia, Mexico. cancer. Diseases Warmer, wetter weather U.S., Central and South could increase insecttransmitted and water borne America, Africa and Asia. illnesses. Coral Bleaching Depleting fisheries Caribbean, Australia, Coastal flooding Philippines, India. Decline of tourism More respiratory problems, Pollution US, Mexico, India, China, cancer, lung and heart Egypt, Russia. diseases Crop failure US, Mexico, Brazil, China, Drought Malnutrition India, Africa, Middle East Forest fires Water related conflicts -Source: U.S. News and World Report; National Center for Atmospheric Research, World Meteorological Organization, and the National Climatic Data Center. (February 5, 2001)

20

British Broadcasting Corporation (BBC) http://news.bbc.co.uk/2/hi/programmes/from_our_own_correspondent/4864748.stm (March 5, 2008) 21 Climatic Research Unit (CRU) Climate Change Scenarios for the Philippines http://www.cru.uea.ac.uk/~mikeh/research/philippines.pdf (March 5, 2008)

International Instruments Montreal Protocol, 1987 - Reduce consumption and production of substances that deplete the stratospheric ozone layer such as CFC by 2000. Kyoto Protocol to the UN Framework Convention on Climate change, 1997. - To cut emissions such as methane and nitrous oxide about 12% by 2008 and so on. Implement idea of emissions trading between industrialized countries.22

c) Water Scarcity
At the foundation of human existence and life on earth is water. The most common and abundant liquid in the world, water is at the heart of global environmental issues. Water particularly potable water, is fueling conflicts globally. Water usage has grown by 600 percent over the past seventy years. Worldwide, an estimated 54 percent of the annual available freshwater is being used. Based solely on population growth, the UN Population Fund estimated that by 2025, the world would use 70 percent of available freshwater.23 Today, 1.1 billion people do not have access to safe water and 2.4 billion people lack access to basic sanitation. An estimated five million deaths a year are caused by polluted drinking water.24 The issue of water and proper sanitation was one of the most important issues during the World Summit on Sustainable Development (WSSD), when the goal was set to halve by 2015 the number of people without access to safe drinking water and basic sanitation.25 In a study made by the international environment protection group Greenpeace, the quality of fresh water is declining in the Philippines. The worsening water quality is compounded by the problem of water scarcity which is now a very palpable threat making

22

Martin Griffiths and Terry OCallaghan, Key Concepts of International Relations, Routledge Foundation, London, 2004. p. 131 23 Richard J. Payne, Global Issues, Pearson Education Inc., New York, 2007, p.275 24 Ibid. at p.275 25 Elli Louka, International Environmental Law: Fairness, Effectiveness and World Order, Cambridge University Press, New York, 2006, p. 169

access to clean water more and more difficult. The Philippines has an abundance of fresh water resources but ranks second lowest among Southeast Asian countries with fresh water availability. Experts have also predicted that by year 2025, water availability deficit would take place in several river basins in the country.26 International Instruments UN Watercourses Convention, 1997 - Use of watercourses and principles to guide the agreements of states with regards to the use of international watercourses.

VII. Conclusion
Although environmental concerns could be dated back to early 1900s, its necessity to act promptly has been obvious just a decade ago after the discovery of the ozone layer depletion. Starting then, the world has taken some initiatives to implement rules and regulations regarding various environmental concerns through treaties, protocols,

declarations and agreements. However, international law has its own constraints; it has been very difficult to take actions against states and individuals on the grounds of sovereignty. Such that some countries are still trying to convince themselves that it is not an imminent threat. The rate at which the world is taking action against environmental problems is at a snails pace considering the fact that environmental problems are already knocking on our door steps. Hence, it is envisioned that this report would shed some light over the graveness of problems faced by mankind and the governing bodies created by him.

26

Greenpeace South East Asia http://www.greenpeace.org/seasia/en/news/greenpeace-launches-projectcleanwater (March 4, 2008)

Bibliography
Books and Journals Richard J. Payne, Global Issues, Pearson Education Inc., New York, 2007. Elli Louka, International Environmental Law: Fairness, Effectiveness and World Order, Cambridge University Press, New York, 2006. Charlotte Ku & P.F. Diehl, International Law: Classic and Contemporary Readings. Lynne Rienner Pub., Colorado, 2004. Martin Griffiths and Terry OCallaghan, Key Concepts of International Relations, Routledge Foundation, London, 2004. R.G. Feltham, Diplomatic Handbook, Pearson Education Ltd., Harlow, 1998. U.S. News and World Report; National Center for Atmospheric Research, World Meteorological Organization, and the National Climatic Data Center, February 5, 2001.

Websites Wikipedia http://en.wikipedia.org/wiki/International_environmental law (February 26, 2008)

HG Worldwide Legal Directories http://www.hg.org/environ.html (March 1, 2008)

British Broadcasting Corporation (BBC) http://news.bbc.co.uk/2/hi/programmes/from_our_own_correspondent/4864748.stm (March 5, 2008) Climatic Research Unit (CRU) Climate Change Scenarios for the Philippines http://www.cru.uea.ac.uk/~mikeh/research/philippines.pdf (March 5, 2008) Greenpeace South East Asia http://www.greenpeace.org/seasia/en/news/greenpeacelaunches-project-cleanwater (March 4, 2008)