HealyIntlEnvLawSpring2012

Part One: Basic Concepts and Context Regarding International Environmental Protection Chapter One The Nature of International Environmental Issues

Ecosystem Services Internalizing the externalities of economic activity Assigning a monetary value to ecosystem benefits not displayed in the price Bushmen/Mountain People Stable ecosystem and the health of the community and family unit MDGs Ecological issues not prioritized Regulatory Approaches to Environment Problems Trend in industrialized nations Greater willingness to protect the environment if the action if less intrusive. 1. Information-Based Regulation Information Standards: Requires publication of information related to matter being regulated Less politically controversial, merely requires disclosure Market-based; consistent with capitalist system Consumers can make judgment based upon disclosed information Rational Planning Approach: Consider environmental impacts in planning actions that may/will affect the environment 2. Command and Control Regulation: Government establishes a standard to protect the environment that applies to regulated parties No significant harm principle: Nation is prohibited from industrial activities/use of natural resources that will cause significant harm beyond its borders Technology-Based Regulation: Available technologies (or potentially forced development of technology) are used to define the amount of permitted pollution Health or Environmental Effects Based Standard: Define limits on permissible polluting activity based on the effects on humans or the environment (Clean Air Act) Standard Based on Balancing of Costs & Benefits of Control: Weighs the cost of the regulation and the benefits to health & environment Difficult to determine in any specificity Information-Based Regulation Consider impact on future generations before they act EX.: Israeli commissioner appointed by Knesset that weighs the need to consider future generations when making national law and advises Knesset members Command and Control Regulation Imposition of standards Three methods for defining standards: Technology-based standards Health or environmental quality based standards Balancing of the cost and benefits of control Market-Based Regulation Refined approach to command and control regulation, which allows for the transfer or trade of polluting rights so the desired degree of environmental protection can

HealyIntlEnvLawSpring2012 be achieved at the lowest aggregate cost EX.: 3 sources of air pollution with a total limit of 150 tons/yr. between them. One source can cheaply reduce to 25 tons/yr. & another can't afford to control lower than 75 tons/yr. The source who can limit the level of pollution could sell their unused right to the heavier polluter. Problem = What should the aggregate limit be? Command-and-control issue Should the limit be based upon a technology-based standard, health/environmental std., etc. Liability-Based Regulation Principle: Because liability may be imposed after the fact, a party has an incentive to protect the environment in order to avoid liability Common-law liability for nuisance traditionally Analogous to the Hand formula and the effect of the imposition of negligence liability Liable if the cost of acting safely was less than probability/severity of harm cause EX.: Superfund statute (CERCLA)
Chapter Two The Philosophical Framework

INTERGENERATIONAL ENVIRONMENTAL ISSUES International law 2 Key Components Treaty law (Bilateral/Multilateral) Customary Law (No significant harm principle) Trail Smelter Arbitration Is a nation is bringing a claim on behalf of future generations required to show that the nation's domestic policy has protected future generations? International law should not implement stricter standards upon a liable nation than the harmed party was willing to put into effect. APPROACHES TO PROTECTING FUTURE GENERATIONS Preservationist (Don't use anything) Conservationist (View of the resources as a trust) Pure present consumption Problem: Acting in deference to future generations will create a fundamentally different future generation than the projections acted upon Are intergenerational concerns even substantive for determining international law? SUSTAINABLE DEVELOPMENT Core idea to environmental law Rio Principles Two Key Components of Sustainable Development: Environmental protection Economic development Relevance to international law State sovereignty is the foundation principle for traditional international law Rio Principle 2 defines the limit on sustainable development as the no significant harm principle: State may not use resources in a way that causes significant harm beyond its borders.

HealyIntlEnvLawSpring2012 Principles state that development is sustainable only if it results in eradication of poverty within the state's borders. Suggests an emphasis on development particularly in less-developed countries 2 Limits on Sustainable Development 1) No significant harm & 2) Eradication of poverty Rio Principle 7: Common, but differentiated, responsibilities for states regarding environmental protection. (i.e. more developed countries have a greater responsibility to protect the environment from harm) Two bases for this principle: Developed nations' economies have done more to degrade the international environment Developed nations have the technical and financial ability to provide greater protection against environmental degradation. Additional core component of sustainable development recognized by Johannesburg Summit: Social development of country is an additional factor to consider. The additional consideration makes protection of the environment less important for nations that still need economic growth to eradicate poverty. Only element of sustainable development concerned explicitly with the protection of the environment is the no significant harm principle. Only component that acts to protect the environment in less-developed nations.
Chapter Three Rational Decisionmaking and Its Constraints: Economics, Risk, and Uncertainty

RATIONAL DECISIONMAKING Tragedy of Commons applied to pollution Harm from pollution is shared, benefit from not purifying waste is gained entirely by the polluter Coercion is solution: mutual coercion mutually agreed upon by the majority of the people affected. Polluter Pays Principle is an emerging basis for international environmental law Protects the environment by forcing the polluter to internalize what would be external costs of pollution Liability options: No liability Scheme Negligence Liability (B<PL Efficiency of negligence = Liable for acts where it would be less expensive to prevent the pollution than the amount of harm) Polluter would make a cost-benefit analysis of whether it is more efficient to implement purification methods or pay damages. Strict Liability (If company was liable for everything, then the company would determine the most cost-effective solution. However, strict liability could impose liability for acts that cause little harm.) Statutory scheme is preferred to common law tort liability due to causation problems. Polluter Pays Principle Is it binding international law enforceable upon polluting nations? Principle 22 of the Stockholm Declaration No explicit mention of liability for noncompliance Encourages development of rules for imposition of liability for pollution beyond a state's

HealyIntlEnvLawSpring2012 borders Principle 13 of the Rio Declaration Calls for development of rules of liability for environmental damage Coase: Two parties will come to a mutually efficient agreement on incompatible uses of land, based upon the costs/benefits derived from them Cost of controlling pollution becomes increasingly more expensive as you get closer to 0 emissions Curve is often stepped as a single technology could provide for reducing emissions to a certain level Receptor Pays System: Recipients of pollution will pay until the cost of controlling the pollution exceeds the cost of exposure to the pollution Polluter Pays System: Polluters would pay for controls until it would become cheaper to pollute than control it Curves driven by marginal costs/benefits, not total costs Pollution curve shows that it is not reasonable to reduce down to 0 emissions Cost of control = Extremely high; Benefit derived = Extremely low Regulation that falls on either side of the curve would be inefficiently lax/ stringent Receptor's curve is harder to define; usually determined by cost-benefit analysis Driven largely by human health effects If you factor in impact on the environment or future generations, the curve would most likely move closer to 0 emissions 1. RISK ASSESSMENT PROCESS [1,2 Hazard; 3 Exposure; 4 Risk] Hazard Identification: What are substances of concern? Epidemiological tests of human health effects (not much data) Animal bioassay studies Dose-Response Assessment to define a relation between levels of exposure and health effects Typically, significant extrapolation of results; the use of models is critical Exposure Assessment: How will affected communities be exposed to the pollutant? Risk Characterization: Product of exposure multiplied by hazard Most important for lawyers/policymakers Basis for risk management decisions Critical to cost curve for receptors in the Coasean analysis

2. 3. 4.

Precautionary Principle: Regulatory action needs to be taken in response to evidence of risk of harm, as opposed to taking action only after harm has occurred. Look at issues like climate change debate Risk Assessment: Process of determining risks of substances/activities to health & environment Relevance to Coasean analysis Determining the cost-benefit analysis of potential regulation to curtail risk NOTE: Polluter's cost curve is too narrowly defined by only including the cost of control technology Should include the benefit derived from the manufacturing of that product (jobs, economy, utility of product)

HealyIntlEnvLawSpring2012 Risk Management: Follows after the assessment and characterization of the risk Public Policy Question: What should the environmental policy be? Legal Question Content of legal rules determines public policy Application/administration of legal rules Precautionary Principle Relation to risk assessment Less potential for hazard might be required in characterizing the risk by an adherent of the precautionary principle Relation to risk management Content: Preventative regulations which prohibit exposing public to potential harm vs. Rely on liability after the fact Applic.: EX gov't may bring abatement action when D's activity causes imminent & substantial endangerment ; Gov't requires less scientific basis v. more data
Chapter Four The International Legal System and Environmental Protection

Principal Sources of International Law

as specified by Article 38(c) of the Statute of the International Court of Justice

Customary Law International Agreements Treaties/Conventions Bilateral/Multilateral General Principles of Law International Administrative Law Soft Law EX: Rio Declaration Characteristics of International Law May be written/unwritten (customary law = unwritten) Different types of obligations Reciprocal/Bilateral Regional Erga Omnes (run to all states) Usually, obligations are consent-based In rare cases, obligations may arise as jus cogens (independent of consent) Normally, all jus cogens operates erga omnes (not vice-versa) Distinction is made between hard & soft law Hard law = Binding; Soft law = Aspirational Customary Law: Develops over time to reflect the conduct of nations Two Requirements: Consistent state practices that defines an ordinary/usual course of conduct (objective) There must be evidence that states have acted in the usual way b/c they viewed

HealyIntlEnvLawSpring2012 themselves as legally obligated to act in that way (opinio juris) Difficult to prove b/c it is an issue of the state's motivation for acting, rather than how it acted (subjective) Sources: Content of verified treaties Participation in treaty negotiations National legislation/court decisions Failure of the state to act in certain circumstances Customary Law Necessary showing to establish such law State practice Evidence may be found in: Conduct of states Content of treaties/treaty negotiations Opinio juris: Showing that state practice was motivated by state's view that it was legally obligated to act as it did Acting to promote comity is not sufficient Persistent Objector Rule: a rule of customary law may be defined notwithstanding the objection of a small number of nations. In the case of persistent objectors, the rule of customary law would not apply to them. Failure to object to customary rule demonstrates the acceptance of the rule Examples of customary law: Diplomatic immunity; nation's adherence to treaty reqts. Paquete Habana May the court undo customary law by treaty/statute? Court indicates that it could be superseded, contrary to traditional international law Dissent: Not a consistent showing of state practice Federalism argument: Court shouldn't be permitted to establish limitations on the executive branch's functions Customary law isn't permitted to supersede the Constitution (Supreme US Law) Treaties: Principal source of international requirements relating to the environment Documents often referred to as conventions in the multiparty context Consent is critical on the part of each party To define binding requirements, a treaty must be intended to define rights and obligations Legal Force of Treaties: Internationally Provisions in treaty define when it comes into force (is effective) Addresses signatory nations' concerns about free riders Domestically Self-executing treaty: Effective upon signature/ratification & coming into force Non-self-executing treaty: Requires action by legislature or executive to implement treaty Foster & Elam v. Neilson

HealyIntlEnvLawSpring2012 Ratification required before treaty has effect as binding US law; Non-self-executing Role of International Governmental Organizations (IGOs) IGOs: Organizations established by treaties, delegated with authority to administer the agreement Sources of International Law Customary Law Treaties Role of International Organizations (IGOs) Work to implement treaty and develop its requirements General Principles of Law Typically, gap-filling principles, such as the expectation that states will act in good faith Principles must be broadly recognized by civilized nations (states which have an organized legal system) More often procedural concepts, rather than substantive International Administrative Law Law that governs the conduct of IGOs Usually provided in treaties Decisions by IGOs Usually not binding on states (with the important exception of the UN Security Council) Soft Law Terms/provisions contained in bilateral/multilateral agreements, but are either aspirational or not intended to be binding Prominently featured in international environment law Relevant to shaping agreements but do not impose any sort of binding obligation Often argued as evolving into customary law, based upon treaties/decisions that have adhered to soft law principles Legal Decisions/Judgments Provides evidence of what the law is, but does not have binding legal effect, except on the parties to the decided dispute No stare decisis effect; analogous to persuasive authority decisions Courts are less important source of law in the international arena Methods for Encouraging Agreement to Treaty Nature of Substantial Obligations in Treaty Differential Norms: Different states are subject to different substantive requirements EX: Kyoto Protocol Only industrialized nations subject to emission limits Contextual Norms: Imposes the same requirement for all parties, but the requirement itself accounts for circumstances and context EX: All parties agree to adhere to principles of sustainable development Impact of that norm is vastly different depending upon the nation's economic status Absolute Norms: All parties to the treaty are subject to the same absolute requirement Tend to be included in regional treaties of comparable nations, are general, watered-down standards, or involve reporting requirements

HealyIntlEnvLawSpring2012 Availability of Reservations Allows a party to exempt itself or to decline to agree to particular parts of a treaty Reservation may not be inconsistent with treaty's purpose If it was inconsistent, it would foreclose state as a party to the agreement May also limit the obligations of a party who objects to the reservation Use of Understandings Explains party's understanding of the treaty's terms and how the party will conform to them Rules for Withdrawal (in the event that a party wants to leave a treaty) TREATY NOTES Law of making and implementing treaties is customary law to a great extent, but has been codified in the 1969 Vienna Convention on Law of Treaties International law Fundamentally based upon state consent Relation between International Law & Domestic Law Two Approaches: Monistic International law being superior in case of conflict Dualistic Domestic law defines the hierarchy of law US is dualist; under the Constitution, the Constitution is superior to international law, which is on the same level as federal law Treaty v. Statute: In general, the later law governs in the case of conflict Settlement of International Disputes Customary law dictates that settlement must be peaceful and negotiation must be in good faith Choice of settlement method is for the state, although a treaty may define the method Available Methods (beginning with the least formal) Consultation & Exchange of Views Most informal; no general duty to consult (?) Not necessarily inconsistent with the duty to negotiate in good faith, as negotiations have not begun Duty to listen in good faith if consultations begin Involves only the parties to dispute Negotiation Implicit is a willingness to change views No assurance of a resolution & length is open-ended Enquiry (or fact-finding) Parties agree to inquire into facts Good offices & Mediation Good offices: 3rd party encourages negotiation Mediation: 3rd party plays a greater role and may offer proposals to end dispute negotiation Conciliation 3rd party issues a non-binding report Arbitration

Oy ate t n pri s o l d pt / ofi t i u c nlc s e ae no e r i vl d v

HealyIntlEnvLawSpring2012 3rd party issues a binding decision to resolve the dispute Arbitration may be required by terms of treaty or parties may agree to arbitrate a particular dispute through a compromis Procedures are subject to parties' agreement No publication of decision w/o parties' agreement International Courts (especially the International Court of Justice) Less preferred resolution method because the parties exercise less control Compared to domestic courts: Parties must agree to court's jurisdiction Parties are normally represented on the judicial panel Court often accounts for the parties' preferences as to scheduling and process Other IGOs Role may be defined in treaties Compliance with International Law ---WHY?-- Promotes environmental quality Reason for making/complying with international environmental agreements Reinforces importance and expectation of treaty compliance Limits the problem/concern about free riders Sanctions in International Law Unilateral sanctions Discouraged in general; likeliest in the case of a claimed violation of a bilateral agreement Collective sanctions Difficult to impose, partly because of state concern about the use of such sanctions Publicity Shaming by publicizing violations of agreements is an important way to encourage state compliance Role in publicity may be played by IGOs or NGOs Key Actors in International Law States/Nations Most critical actors whose agreements and conduct define international law International Institutions (especially UN) Includes IGOs NGOs Increased importance in monitoring compliance and publicizing violations Private Parties Very limited role in international law What makes a problem (i.e. a case of environmental degradation) a matter of international law? Typically, when a harm to the commons occurs

HealyIntlEnvLawSpring2012 What about issues arising purely within a state's borders? EX: Harming an endangered species Is this a matter of international law?
Part Two: Pollution Control: General and Specific Norms Chapter Six General Norms of Prevention (After this Chapter go to Chapter 15 and then back to Chapter 10)

GENERAL NORMS OF PREVENTION --- Substantive Norm of International Environmental Law: No Significant Harm Principle --Trail Smelter Arbitration (1941) Swiss Case: State cannot complain about the harm caused by a neighboring state's activity if it would be permissible to do the same activity (w/ the same controls) within its own state Does the source of the rule matter, in terms, of safety controls to decide if out-of-state impacts are permissible? US Supreme Court Cases Missouri v. Illinois: Similar practice was followed in Missouri = No recovery New York v. New Jersey: Standard = Clear & convincing RULE: State is prohibited from causing environmental injury to another state, when the injury is serious and proved by clear & convincing evidence Rule of Customary Law? State Practice Opinio juris Conclusory reasoning Reciprocal aspect of autonomy: Right to use own resources and engage in activities on own land to extent that you do not harm another state's right to do the same Serious injury? Harm is not serious if a state permits impacts within its own borders Earlier impacts were found to be serious, giving rise to monetary damages Panel also required controls on future emissions from the plant (based on avail. Techs) US may recover damages if serious harm occurs, even with the use of emission controls Trail Smelter Decision Giving Shape to Application of the No Significant Harm Limit Imposition of liability for harm after the fact Requirement of the use of available controls (technology-based requirement) Harm may also be based on harm to health or environment, despite the use of controls Corfu Channel Case (1949) RULE: A state has an obligation to make timely warning about hazards that are posed to another state, if the state knows/has to have known about the hazard British ships were engaging in lawful conduct and were owed a duty to be warned Application to environmental law A state has an obligation to warn of risks, even if the state did not create them, provided the state is aware of the risks

HealyIntlEnvLawSpring2012 Substantive Limits on Environmental Harms Identified by International Law Trail Smelter Arbitration (1941) State is prohibited from causing injury to another state, when injury is serious and proved by clear and convincing evidence Corfu Channel Case (ICJ 1949) State must warn another state of risks posed to that state by hazards of which the source state is aware, even if source is not responsible for the hazard Problem (page 280) State A = Developing country; chemical company, operating under agreement with A, is dumping toxic waste into the Brown River, which flows into State B Is state A liable for harm caused to state B under the Trail Smelter Arbitration? Does private status of company matter? No; State is held liable for actions of private actor Agreement with government? No; Would strengthen case, but is not requirement Nature of dumping intentional? YES (Liable) Negligent? YES Purely accidental/Not negligent? NO (Not liable) Is the harm serious? Proven by clear & convincing evidence? Is state A liable for harm caused to state B under Corfu Channel? Nature of government's awareness? Does the agreement matter? Actual knowledge vs. formal control Impact of the failure to warn? Does it matter what level of harm occurs in B due to omission? Reason for hazard intentional/negligent/purely accidental? State A would be liable for all hazards (no matter how they arose) but only to extent of the harm that could have been prevented by the state taking action Stockholm Principle 21 (1972) States have sovereign right to exploit their resources, but also have a responsibility to ensure that the activities do not cause damage to the environment of other states/areas beyond their national jurisdiction Comparison to Trail Smelter: Not limited to serious harm No requirement of clear and convincing evidence Applies to harm caused to the commons as well bordering states Opinio juris? State practice in response to principle has been limited Example: No state sought compensation from USSR for Chernobyl disaster Generally understood that it does not apply to pure accidents Rio Principle 2 (1992) Quite similar to Principle 21, but accounts for nation's state of development in defining right to develop natural resources Stockholm Principle 6 Does not specify where the discharge occurs; does not require halting discharge of substances that cause international harm

HealyIntlEnvLawSpring2012 Rio Principle 13 Only speaks about national laws for liability Legality of Use of Nuclear Weapons (1996 ICJ) Harm to environment must be accounted for in relation to principles of necessity and proportionality that define rules of war More Recent Statements of No Significant Harm Principle Show the development of a principle of preventative action, rather than the rule of after-thefact liability Risk of causing significant transboundary harm: 1) High probability of significant harm OR 2) Low probability of disastrous harm Substantive Principles of International Environment Law Trail Smelter Arbitration (and Evolution) No Significant Harm Principle ICJ Advisory Opinion: Under international law, harms to the environment are matters to be considered when making substantive decisions of what is lawful (i.e. under the law of war) ILC Prevention of Transboundary Harm (2001) Defines principles of preventive action (principle of prevention) Article 6 State is required to adopt permit programs for polluting activities Pushes the decision of Trail Smelter further ALI, Restatement 601 Appears to accept preventive action principle Preventive Action Principle = Regulatory Approach No Significant Harm Principle = Liability Regime Preventive Action Less of an argument it's customary law than NSH Principle Suggests there is no violation of no significant harm principle for purely accidental harms ILA Rules Article 3 Restates preventive action principle Distinguishes between prevention required for new sources (mandated reasonable controls) and aspirational for existing sources (reasonable controls as soon as practicable) Reasonable controls = Technology-based or Environmental quality-based limits? Article 4 Prohibits the transboundary discharge of highly dangerous substances UNCLOS Provision Art. 194(2) Accepts Principle of Preventive Action The Precautionary Principle Rio Principle 15 Only applies to threats of serious/irreversible damage, and the states only have to take cost-effective measures to the extent of their capabilities. Lack of full scientific certainty What is unacceptable? More than 50%?

HealyIntlEnvLawSpring2012 INSC May require action to control inputs before a causal link has been established by absolutely clear scientific evidence (Still not strong admonition) Precautionary Principle More aimed at the Environmental Protection base of Sustainable Development balancing test than the Economic Development issue SUSTAINABLE DEVELOPMENT | Env. Protection Economic Dev.
{Precautionary Principle}

Procedural Norms PRIOR NOTIFICATION & CONSULTATION Lake Lanoux Arbitration (France v. Spain)(1957): Dammed water Potential for future harm Notice & Consultation Requirement: When a state plans for the use of shared int'l waters, a state should (must?) consult with affected states about the planned activities. REQUIREMENTS: Notice of planned activities Good faith negotiations NOT Agreement If affected state ends negotiations (w/o agreement), planning state must still reasonably account for the affected state's interests Note: Procedural norms Sometimes more controversial than substantive requirements PROCEDURAL NORMS Stockholm Principle 20 (Proposed) Doesn't address negotiation International Law Commission, Draft Articles on Preventing Transboundary Harm (2001) Expounds upon Rio Principle 19 Greater specificity regarding procedures Article 9.3: Restates rule from Lake Lanoux (Accounting for interests of affected state) Article 14: New exception for information about activities implicating national security and trade secrets International Law Commission, Rules for Transfrontier Pollution (1982)

HealyIntlEnvLawSpring2012 Requires early notice of significant risk of transfrontier harm Allows affected states to assess probable effects of planned activities Aspirational (i.e. states should...) regarding assessment of activities creating a significant risk of transfrontier harm Reasoning Is notice to neighboring states a more basic requirement than conducting environmental assessments of the planned activity? UN Convention on Non-Navigational Uses International Watercourses (1997) Requires notice and consultation with significant details defined Article 12: Planning state must provide technical information and data, including results of EIA if one has been completed, to allow evaluation of possible effects Planning state must in good faith pay reasonable regard to other state's interests 2. Environmental Impact Assessment (EIA) Rio Principle 17 Requires EIA for proposed activities that: (1) are likely to have a significant adverse effect on the environment and (2) are subject to the decision of a national authority No transboundary effect requirement As states develop more national regulation to protect the environment, more activities likely to have adverse effects on the environment become subject to a decision of a national authority US 2 Levels of Assessments: Environmental Assessment Environmental Impact Statement US Courts Federal NEPA statute interpreted as having a may modifier (not likely) Any chance of harm requires EIS

Plainly International Substantive Procedural No Significant Harm Notice/Consultation About Significant Harms

More National Focus Principle of Preventive Action Environmental Impact Assessments

ESPOO Convention (adopted 1991, entered into force 1997): Environmental assessment required when a state decides to authorize or undertake an action of type listed in treaty Appendix that is likely to cause significant transboundary effect (Article 2.3) Allows for public involvement of citizens of affected state to the same degree as the planning state's citizens' participation Requires notice to potentially affected state(s) (Article 2.4) Panel will consider disputes about whether significant environmental harm is likely (Article 3.7) Article 6.1 provides that the planning state is to take due account of the assessment in deciding what action to take Appears to make ESPOO more substantive than NEPA

HealyIntlEnvLawSpring2012 Seems similar to Lake Lanoux requirement that France account for Spain's views even if agreement cannot be reached COOPERATION Rio Principle 17 Requires cooperation Contextualized to account for common but differentiated responsibilities Looks at state's current affect on the environment not past harm Rio Principle 11 Requires states to enact effective domestic legislation to protect the environment Still accounts for differentiated responsibility due to the relative development of the nation Seems to undercut the preventive action principle UN Convention of Nonnavigational Uses of International Watercourses (1997) Substantive Question? Does equitable use of the shared waters trump causing harm to other watercourse states? Arguably weakens No Significant Harm principle Procedural Requirements Article 8: General obligation to cooperate regarding shared resources Article 9: Requires regular exchange of readily available information related to the resource Article 11: Requires information and consultation about planned activities related to the shared resource Article 12: Provides that, if a planned activity may have a significant adverse effect on another watercourse state, the planning state must provide timely notice and information, including an EIA, if one was prepared By negative inference, no requirement for preparing an EIA Articles that follow Article 12 provide detailed procedures about replies, disagreements, failures to reply, and maintenance of the status quo. Article 19: Provides exception to notice procedures if there is an urgent need to implement planned activity Consultation and negotiation still required Article 28: Requires notification to affected states of emergency situations Procedural terms are more rigid when compared to ambiguity of equitable utilization substantive requirements Still not ratified by sufficient number to be in force Could still be evidence of customary law (equitable utilization principle) ILC, Berlin Rules (2006) Substantive Principles No Significant Harm Rule: State may not use shared waters in a way that causes significant harm to another state without the consent of the affected state (Article 10(2)) Article 16 provides that a state is to refrain from causing significant harm to another state, having due regard to the right of equitable use Article 12 imposes an equitable use requirement on a state's use of shared waters

HealyIntlEnvLawSpring2012 Article 13 presents the factors that determine whether use is equitable. Factors are nearly identical to UN Convention. Regarding preferred uses, Article 14 gives preference to satisfying vital human needs Require adoption of environmental protection measures E.g. Article 27 Article 17 provides for individual right to access to water Procedural Requirements Article 10(1) establishes the right of states to participate in the management of shared waters in an equitable and sustainable manner Article 11 requires good faith cooperation in the use of shared waters Article 18 requires public participation in the management of shared waters, which includes the required disclosure of information to the public Article 29 requires the preparation of EIAs for activities that may have a significant effect on the aquatic environment or the sustainable development of the waters. Commentary: EIAs have become a rule of customary international law with regards to transboundary effects But no mention of polluter pays principle Not viewed as customary law ICJ Gabcikovo-Nagymaros Project, 1997: Emergency circumstances under which state compliance with treaty obligations is excused Necessity defense Ecological impacts may excuse state's obligation to comply, but only if the necessity standard has been met. Necessity is present if: (1) there is a grave and imminent peril & (2) the state employs the least restrictive measures in deviating from its treaty obligations ICJ Peril = Insufficient b/c Hungary had sought additional study; Court viewed impacts as too uncertain Also, measures taken were too great; Hungary could have continued negotiations Defense is only available when state relying on it has not caused the emergency. Hungary, in this instance, was partly responsible for the conditions that created the purported necessity. Of key importance... Adverse environmental effects may give rise to the necessity defense. Note: Required cooperation of states with regard to shared resources = Procedural norm Slovakia still had to take into account of Hungary's interest in the river even after Hungary walked away from the treaty Variant C = Unjustified as countermeasure Effects must be commensurate to the injury suffered, taking account of right in question Decision reinforces requirement that state may make only equitable use of shared water resource States must account for interests of affected state when it pursues plans involving shared waters
Chapter Ten Controlling Ozone Depletion

Vienna Convention for the Protection of the Ozone Layer (1985) Agreed to on March 1985; Entered into force on Sept. 12, 1988.

HealyIntlEnvLawSpring2012 Currently 197 parties (Most recent is South Sudan in 1/2012) No substantive obligations Art. 2(1) requires members to take appropriate measures to protect ozone. Art. 2(2) requires study and exchange of information based on means and capabilities of parties Art. 4 requires scientific cooperation Administrative structure is defined and regular meetings of parties required Art. 9 defines process for amendment; 2/3 majority vote of parties present necessary Art. 17: Entry into force after 20th ratification Begins with modest requirements, usually based on information-based regulation. Institutional structure that is established permits development of more significant requirements, often based on information that is generated. Montreal Protocol on Substances that Deplete the Ozone Layer (1987) Agreed to on Sept. 16, 1987. Entered into force on Jan. 1, 1989, following ratification by 29 countries and the EEC, accounting for 82% of global consumption of ozone-depleting substances. Now, there are more than 190 parties. Substantive Requirements Art. 2 required parties to ensure 1999 consumption of five principal CFCs was no greater than 50% of 1986 levels. Art. 2(4) Consumption = (Production + Imports) Exports but only when the nation receiving exported substances is a party Treaty required that interim limits be met in years prior Adjustments Art. 2(9): For substances subject to regulation, the parties may adjust either the ozone-depleting potential or required percent reductions Adjustments are binding on all parties when 2/3 of the parties voting (and representing at least 50% of total consumption) approve the adjustment Note the legislative character of the provision a party may be bound despite lack of consent to the adjustment In tension with the consent-based theory of international law Trade Controls Art. 4: Within one year of entry into force, each party must ban the import of controlled substances from any non-party state Parties may not export to a non-party state after Jan. 1, 1993 Reinforces rule on determination of consumption, which subtracts exports to states that are parties to the protocol Limits also imposed on trade to non-parties of products that contain regulated substances Special Requirements for Developing Countries Art. 5: Developing countries have a 10year delay in implementation of limits, with an overall limit of 0.3 kg per capita consumption Noncompliance Provisions Art. 8: Requires parties to develop procedures for determining and treating noncompliance. Only significant penalty is a bar on trade (State will be treated as a non-party) Assessment and Review of Control Requirements Art. 6: Review of control measures is required at least every 4 years Review is supposed to be based on scientific study that is to be completed one year prior Regular Meeting of the Parties Required Art. 11: Parties will consider adjustments and

HealyIntlEnvLawSpring2012 the need to control new substances, based on developing information Secretariat Established Art. 12 Relation to Framework Vienna Convention Art. 14: Framework convention applies, except as otherwise provided. This means that the framework convention rule on amendments applies (i.e. Amendment is needed to regulate new substances) Ozone Depletion Treaty Mechanisms for Responding to New Scientific Information Required regular meetings of the parties Expert panels are required to report on scientific developments prior to the parties' meeting Adjustment mechanism, with its legislative characteristics, makes adjustments easier to implement Ozone Depleting Substances (ODSs) Regulated by Convention and Protocols
SUBSTANCE CFCs INITIAL REGULATORY LIMITS ADJUSTMENTS TO LIMITS (Amendment Required) (No Amendment Needed) 1987 Montreal Protocol London 1990; Copenhagen 1992; Montreal 1997; Beijing 1999 London 1990; Copenhagen 1992; Beijing 1999 Copenhagen 1992; Beijing 1999 Copenhagen 1992 Vienna 1995; Montreal 2007 CURRENT STATUS No production for any nation after 1/1/2010 '' '' No production after 1/1/1996 No production after 1/1/2040 50% reduction required in interim period No production after 1/1/2015

Halons (includes bromine) Other Fully Halogenated CFCs Carbon Tetrachloride Hydrochlorofluorocarbons (HCFCs) substitute for CFCs; Very efficient greenhouse gas

'' London 1990 '' Copenhagen 1992

Methyl Bromide

''

Montreal 1997; Beijing 1999

Issues related to Methyl Bromide Regulation: Use: Important agricultural pesticide Recognized essential use exemption for the substance. Exemption applies only when: Substance is necessary for health, safety, or is critical for the functioning of society No available alternatives exist given the technology, cost, or environmental impact Emissions must be minimized Substance is not available from existing stocks National government decides on essential use and the request goes to a technical panel which can make the recommendation to the parties. The parties decide whether to grant exemption at the annual meeting. Benefits of Treaties Regulating ODSs Impact on Reduced Emissions of ODSs Without the treaties, atmospheric concentrations of ODSs would be 10 times greater

HealyIntlEnvLawSpring2012 Impact on Surface Ultraviolet Radiation No significant increase in UV radiation Significant Climate Change Value of Regulation of ODSs As of 2010, the reduction in emissions of ODSs because of the Montreal Protocol has resulted in a reduction of GHG emissions five times greater than the reductions required by the first commitment period (2008-2012) of Kyoto Protocol. Note this is reductions required, not reductions achieved. Relation Between Climate Change and Ozone Depletion Mutual effects Climate change has reduced temperatures in stratosphere (outside of polar regions). Reduced temperatures have slowed ozone depletion in the areas affected. No effect on the Antarctic ozone hole, which still exists. The ozone hole has increased surface temperatures over Antarctic Peninsula and cooled temperatures over the high plateau. Regulation of CFC Substitutes Under the Montreal Protocol Regulation of HCFCs First generation of substitutes for CFCs Much reduced potential for ozone depletion; very efficient GHGs By-product of HCFC-22 is HFC-23, which does not affect ozone but is 14,000 times more potent as a GHG than CO2 Emissions of HCFCs had been increased (as a consequence of the phase-down of CFCs) Emissions are now expected to decrease, because of new limits agreed to in the 2007 protocol. Regulation of HFCs (Hydrofluorocarbons) Second-generation of substitutes Emissions (and presence in atmosphere) increasing by 8% per year HFCs are very efficient GHGs Without limits, HFCs would have a similar global warming effect as CFCs at their peak Limits are proposed by North American nations of 15% reduction from baseline by 2033 Future Direction: Regulation of N2O (Nitrous Oxide) N2O changes into NO, which reacts with O3 to deplete it Also, N2O is 298 times more efficient a GHG than CO2 N2O is currently most significant ODS being emitted Not regulated yet by the Ozone Depletion Conventions Most emissions result from the production of fertilizers Ozone Depleting Substances (ODSs) By end of 2006, parties had phased out 95% of production of ODSs from the 1987 level of 1.8 million tons to 83,000 tons in 2005 Without the treaty, consumption/production would have increased to 3 million tons in 2010 and 8 million tons in 2050
Chapter Eleven Global Climate Change

HealyIntlEnvLawSpring2012 Basic Science: GHGs constitute <1% of the atmosphere; differ as to their radiative capacity (ability to trap heat; expressed as Global Warming Potential [GWP] CO2 has a GWP of 1 = Reference Point) and atmospheric concentration CO2 GWP = 1; Concentration = 395 ppm Current State: Has increased by more than 35% from the start of the Industrial Revolution Increases on average by almost 2 ppm/year. Before the Industrial Revolution, concentration had ranged from 180 to 300 ppm over the 650,000 year period (the period for which measures are available) CO2 Sources Combustion of fossil fuels Emissions globally are 30 billion tons/year, with 3% annual growth through 2030 National Sources: China (21.5%); US (20.2%); Europe (13.8%) US is among the highest per capita users CH4 (Methane) GWP = 25; Concentration = 1774 ppb Current concentration is more than twice the pre-Industrial Revolution level IPCC concludes with 90% certainty that human activities caused the increase N2O (Nitrous Oxide) GWP = 298 (after 100 years); Concentration = 314 ppb Concentration has increased by 16% from the pre-Industrial Revolution level Bathtub Effect: IPCC Past and future CO2 (GHGs) emissions will contribute to global warming for more than a millennium because of slow removal by carbon sinks. Target CO2 Levels? US (Obama Administration) 450 ppm limit, based on theory that this will result in an average temperature rise 2 C (or 3.6 F) Copenhagen Policymakers in 2010 550 ppm limit, based upon expectation that it would result in an average of 3 C temperature increase (or 5.4 F) Scientists 350 ppm, safe limit for preventing irreversible damage to environment/humanity Framework Convention on Climate Change (1992) Negotiated for the 1992 Rio Earth Summit; Entered into force on March 21, 1993. Ratified by 189 nations, including the U.S. (March 21, 1994) General Objectives & Principles Accepts principle of common but differentiated responsibility, the precautionary principle, and sustainable development Problem: No way to separate GHG emission reductions from economic development Article 2: Balances protection of climate system with need for sustainable economies Defines an objective of stabilizing concentrations at a level that will avoid dangerous effects Framework Convention Requirements

HealyIntlEnvLawSpring2012 Information-Based Requirements Nature of requirement differs based on the nation's economic capacity Industrialized Nations: Reporting required within 6 months Lesser-Developed Nations: No absolute deadline Command & Control No required reductions for any nation: Aim of reducing to 1990 levels Basis for established baseline limit? Probably technology-based (technologically feasible reductions) Comprehensive Approach Relevant Pollutants: Treaty addresses 6 GHGs, rather than only CO2 Treaty considers effect of both sources of GHGs and GHG sinks (See Summary of Climate Change Convention and Kyoto Protocol) Market-Based Mechanisms in Kyoto Protocol Note that these mechanisms provide more flexible means of implementing reduction requirements that are defined independently Basis for defining required reductions: Technological Feasibility: Costs of control Health or Environmental Quality-Based Reductions: Benefits of control Balancing of costs & benefits Most likely 1. Joint Implementation (JI) by Annex I (Industrialized) Nations: Where there is a JI agreement, reductions in one country count toward reductions required for another country. The Annex I country may not rely entirely on JI to accomplish the required reductions. 2. Trading of Emission Reduction Credits Among Annex I Nations: Analogous to the sulfur dioxide credit regime under the CAA. 3. Bubbling of Required Reductions for Multiple Annex I Nations: Allowed for larger groups, such as EU 4. Clean Development Mechanism (CDM) Between Annex I & Developing Nations Recent Emissions Data Emissions of CO2 rose by 5.9% in 2010. Largest absolute increase (0.5 billion tons) since Industrial Revolution and largest % increase since 2003. Emissions had decreased by 1.4% in 2009 because of worldwide recession. Rate increase into future is expected to be 3%, more than 1% increase per year in the 1990's. Coal combustion accounts for more than half of the increased emissions. 57% of CO2 emissions in 2010 were from developing countries. Effect is that industrialized countries are exporting emissions to LDCs. 2009 Copenhagen Meeting Strong disagreement about a workable/liveable level of CO2 350 450ppm, with the latter associated with 2 C increase in average temperatures UN Analysis of pledged reductions and conclusion that expected emissions would result in 550ppm CO2 concentration and 3 C increase in average temperature. General view is that

HealyIntlEnvLawSpring2012 temperature has increased by 0.8 C as a consequence of GHG emissions. No agreement was reached General consensus 20% to 40% reductions from 1990 baseline are needed by 2020 to limit temperature increase to 2 C. 2010 Cancun Meeting Specific agreement of LDCs to report GHG emissions and verify reduction programs Agreement to have a goal (Aspirational) of reducing emissions by 25% to 40% from 1990 levels by 2020. No details related to the implementation of the goal. Green Fund of $100B/yr. by 2020 to fund mitigation and adaptation projects. Some believed that Cancun restored the legitimacy of UN efforts. Focus on plans related to Reducing Emissions from Deforestation and Degradation (REDD) Delayed decision on whether carbon capture and sequestration qualifies as emissions reduction.
Chapter Thirteen Hazardous Substances: Wastes, Toxic Chemicals, Heavy Metals

Hazardous Waste Regulation International transport was shifting risks from industrialized nations to LDCs Basel Convention on Transboundary Movement of Hazardous Wastes (1989) Entered into force: May 5, 1992. US Signed but not ratified the treaty Wastes: Substances subject to disposal Hazardous Defined in Annexes or by any of the parties to the treaty Article 8: Duty to Reimport Article 20: Dispute Resolution Information-based: Must identify substance as hazardous, notify importing state, and wait for consent to notification before shipment Command-and-control? Disposal must be in environmentally sound manner But what is environmentally sound manner? Real command-and-control would specify the method of disposal Equality of Treatment Regarding Causing Transnational Harms or Risks of Harm (Among relevant states, that is the states on the causing and receiving sides) Trail Smelter: No Significant Harm State cannot claim that it is harmed or subjected to unreasonable risk of harm when it accepts the same risks or harms within its own borders Hazardous Wastes State is not permitted to export waste, unless it provides for hazardous waste disposal within its own borders Hazardous waste Definition in treaty: Waste defined as hazardous by treaty or by the exporting state Hazardous Substances/Products

HealyIntlEnvLawSpring2012 State may not export products that it is not willing to permit to be used within its own borders. Basel: Deals with international trade of waste; importing state exposed to harm by waste of exporting state Hazardous substances Limit exposure through production and international trade (similar to ozone-depleting substances; especially Stockholm Convention) Rotterdam Convention Trigger for International Concern = Domestic Regulatory Control: If a party to the convention takes domestic action to ban or restrict the use of chemical product to protect human health or environment (prohibiting virtually all the uses for the chemical), the treaty comes into effect. State imposing such regulation must notify the Secretariat and share information that led to the regulation. Exporting state also must notify importing state about the planned export and about its regulation of the chemical. Exporting state must ensure that the importing state receives the information about the substance. Express consent by the importing state to product is not required. Contrasts with Basel Express consent is required in that convention. If 2 states from 2 regions take qualifying (ban/restrict) regulatory action on the substance, parties to the convention must consider whether to add the substance to Annex III (list of substances regulated by the convention). Listing substance on Annex III is decided by a consensus (Agreement of all parties?) Listing substance on Annex III is by consensus of parties Decision Guidance Document (DGD) is circulated. The DGD provides information about the hazards resulting in the listing. Each party decides whether to permit imports of the substances, including conditioned imports. Equal treatment requirement for states that limit or prohibit imports. Ensures compliance with international trade laws Labeling requirements are imposed

Stockholm Convention Controls Listing decision made by parties based upon risk assessment Actual limits on domestic production and use of listed chemicals No international trade of listed chemicals is permitted, except for disposal and allowed uses Changes to Annex listings are treated as treaty amendments Like new regulated ozone depleting substances, not like adjustments under that treaty Rotterdam Annex III Chemicals:

HealyIntlEnvLawSpring2012 43 chemicals listed in the Annex 32 pesticides 11 industrial chemicals Many are also regulated by Stockholm POP Convention

Regulatory Approach Adopted by Each Convention Hazardous Waste (Basel): Information-based (w/ soft Command-and-Control) Hazardous Products: Rotterdam Similar to Basel (although consent can be implied) => Relies on disclosure of information about risks (Notification of export/labeling requirements), with states granted authority to allow importation or decline Stockholm Similar to Convention on Ozone-Depleting Substances => Employs command-and-control to limit the production and use of identified chemicals Only limited to particular allowed uses; Standard of regulation based on a balancing of costs and benefits of the products Policy based on risks of exposure Stockholm chemicals = Greater danger Universal commandand-control Information-based nature of Rotterdam allows for states to make decisions on their own to exclude waste
Chapter Nine Regional Transboundary Pollution

Transboundary Air Pollution: Convention on LRTAP (1979) Entered into force in 1983. Parties to treaty are industrialized nations (including US). Focus is on European nations. The initial convention did not impose substantive requirements, but included aspirational statements about the control of pollution in Articles 2 & 6. Contextualized goals: As far as possible, gradually reduce and prevent air pollution; develop the bet policies and strategies and control measures compatible with balanced development; Best available technology which is economically feasible Treaty did require parties to monitor pollution and provide information to the Secretariat about emissions (Articles 3 & 8). Provisions included for regular meetings as well. 1985 Protocol Related to Sulphur Emissions Required 30% reductions from 1980 baseline of emissions. Later agreements varied the required reductions from nation to nation. Not based upon any health or environmental quality standard Perhaps based upon available technology or weighing of the risks of harm and cost of regulation 1988 Sofia Protocol Controlling Emissions of Nitrogen Oxides Two-step regulatory regime: Step 1: Emissions must be limited to 1987 emissions (or an earlier year with conditions imposed if an earlier year is used)

HealyIntlEnvLawSpring2012 Also, the best available technology is required for new major sources (within two years of entry into force) & reasonable controls are required on major existing sources. Follows the US approach to more stringent regulation of new sources when compared to existing sources. Step 2: Additional limits may be imposed when needed to ensure that critical loads are not exceeded. Critical loads = Highest pollutant concentration without adverse health or environmental impacts. 1991 Geneva Protocol on Emissions of Volatile Organic Compounds (VOCs) VOCs are precursors to tropospheric ozone. VOCs combine with Nitrogen Oxides to form ozone, often called smog. Protocol gave the parties 3 options for the control of VOCs: 1) Reduce emissions 30% below the 1988 levels 2) General stabilization with 30% reduction in TOMAs (tropospheric ozone management areas), regions of important movement of pollution 3) Small polluters may limit emissions to 1988 levels 1999 Gothenburg Protocol Establishes emissions limits for sulphur, NOx, VOCs, and Ammonia Limits are defined and vary from nation to nation based on an assessment of the costs of control and pollution effects For NOx, reductions vary from 0% for Greece to 61% reduction for Czech Republic For Ammonia, reductions vary from 0% for Armenia to 43% for the Netherlands and Denmark Also, limits are defined for emissions from certain new and existing sources of pollution 2008 Study of Effects of LRTAP & Protocols 60 to 80% reduction in sulphur deposition in Europe Also, reductions of nitrogen deposition, but to much less of an extent Reasons for Relative Success of Treaty Regime Treaty participants are basically industrialized nations; greater homogeneity increased likelihood of agreements Treaty requirements reflected controls that the parties were imposing under domestic law LRTAP had the effect of imposing uniform baseline requirement Lessons from the LRTAP Treaty Treaty is more likely to succeed when the states involved are relatively homogeneous & the requirements duplicate national requirements Illustrates common evolution of treaty requirements: Aspirational goals Information-based regulation Technology-based regulation (may involve balancing) Health/Environmental Quality-based regulation (regulation based on critical loads)
Chapter Sixteen Biological Diversity

BIOLOGICAL DIVERSITY

HealyIntlEnvLawSpring2012 Reasons for the Protection of Biodiversity Utilitarian Rationales 1) Biodiversity helps to ensure the availability of actual/potential resources 2) Biodiversity supports the functioning of the earth's ecosystems, which are important to humans and other lifeforms Biodiversity is also esthetically and ethically right for non-utilitarian reasons Species Affected by International Environmental Law: Move internationally by migration Inverse of Trail Smelter? State deprived of benefit that crosses border by neighbor state Traded internationally (but do not move internationally) More developed body of law on issue of biodiversity Species in the commons CITES The treaty does not ban trade with states that are not parties. It only requires documentation. This is much weaker than Basel, which included an outright ban on trading in hazardous wastes with non-parties. CITES Treatment of the African Elephant 1977 African elephant listed on Appendix II Total population: Approximately 1.3 million 1985 Japan bars import of ivory 1988 US enacts African Elephant Conservation Act, barred all raw & worked ivory imports 1989 EU enacted similar ban on ivory imports Kenya & Tanzania support move of species to Appendix I Southern African Nations (South Africa, Zimbabwe, Botswana) opposed change Total population: 600,000 1990 Seventh COP moved he African Elephant to Appendix I Significant reduction in poaching: 3,500 Kenyan elephants killed each year in the 1980s. Reduced to 50/yr. in 1993. Move to Appendix I is referred to as the Ivory Ban Elephant population in Kenya grew by 13,300 in the decade that followed the ban. Positive effect was greatest in southern Africa. In the mid-to-late 1990s, the southern African nations (Zimbabwe, Namibia, & Botswana) lobbied to move the elephant to Appendix II Scientific conclusion that elephant in southern Africa did not meet Appendix I standards 1997 COP passed resolution to place southern African elephants on Article II COP also voted to sell stockpiled ivory to Japan after 18 months. Proceeds of sale used to benefit elephant conservation. Any further sales had to be approved by 2/3 vote. February 1999 Conditions needed for sale were met. Sale takes place in April 1999. Increase in poaching in Kenya: Prices before sale were $22/unit and increased to $300 afterwards.

HealyIntlEnvLawSpring2012 2002 Total population: 400,000 } Both less than 2006 460,000 } 1989 population Other methods for protecting biodiversity: Habitat protection Property rights in protected animals Convention on Biological Diversity (1992) Opened for signature at Rio Earth conference. Entered into force on 29 Dec 1993. There are now 190 or so parties. US has signed but not ratified the treaty. OBJECTIVES/APPROACH Art. 1 states two objectives: (1) conservation of biodiversity & sustainable use; (2) equitable sharing of benefits of biodiversity Art. 3 restates principle of sovereign control over state resources, with a no significant harm limit (without significant qualification) Article 6 requires parties to develop plans for conservation and sustainable use. Article 7 states that parties must identify important components of biodiversity, monitor those components, and identify threats to those components. States must compile information relevant to biodiversity components, but are not required to share that information. There is a broad information sharing requirement in Art. 17. Article 8 provides for in situ conservation in protected and adjacent areas Essentially, habitat protection Requirement is quite contextual and dependent upon national legislation Art. 9 provides for appropriate use of ex situ conservation measures. Art. 10 requires contextually that states will account for sustainable use of biological diversity in national policies. Environmental Impact Analysis Art. 14 imposes a contextual requirement that states prepare environmental assessments when proposed projects are likely to have significant adverse effects on biological diversity with a view to avoiding/minimizing those effects, and providing in the assessment if possible for public participation Requires notification to other affected states in the event of grave or imminent danger to biodiversity outside of the state. Regulation of Access to Genetic Resources Art. 15 provides that the nation that is the source of genetic resources determines access to them. Access to resources is available only with prior informed consent (PIC) of the source state. Art. 15(5). Sharing in a fair and equitable manner is required of the results & benefits of research into genetic resources. Art. 15(7). Convention on Biological Diversity Intellectual Property Rights States agree to develop IP law in ways that promote the treaty's objectives Biotechnology

HealyIntlEnvLawSpring2012 Art. 19 provides for involvement of the source country in development of biotechnology Art. 19(3) looks toward development of PIC procedure for biotechnology Art. 19(4) provides for information disclosure regarding the risks of biotechnology This is only actual biotechnology requirement Relation to Other Treaties Art. 22 says that the Convention does not modify provisions of other treaties, except when implementation of other treaties would result serious damage/threat to biodiversity Dispute Resolution Art. 27 provides for negotiation, good offices, or mediation to resolve disputes Cartagena Protocol to the Convention on Biological Diversity (1999) Protocol was agreed to in 1999. Entered into force in Sept. 2003. US is neither signatory, nor a party to this treaty. Treaty address biotechnology and GMOs. Art. 2 defines biotechnology as any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use. A Living Modified Organism (LMO) is defined as any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology Scope of Application Two regulatory regimes are defined: (1) Requirements for transboundary shipment of LMOs to be used as agricultural products (2) Other requirements for transboundary movement of LMOs to be used for animal feed or human consumption Three limits on treaty's application: (1) No application to LMOs in pharmaceuticals that are subject to other international regimes. Art. 5; (2) Procedures do not apply to LMOs in transit. Art. 6(1); (3) Procedures do not apply to transboundary movement of LMOs for contained use in accord with importing state's standards. Art. 6(2). Procedures for LMOs to be Introduced into the Environment Articles 8-10, 12 define advanced informed agreement (AIA) procedure prior to the first intended transboundary agreement. Protocol provides details that CBD Art. 19 had anticipated. (1) Notice of intended export to the importing nation. (2) Notice must be acknowledged by the import state. (3) Import state decides whether to consent, and the state must provide an explanation if unconditional consent is not given. Basis for Decision About Consent to Import Risk assessment must be the basis for the consent decision. Risk assessment must be scientifically sound. Consent may be withheld notwithstanding a lack of scientific certainty. Art. 10(6). Does the right of import state to base lack of consent upon an explanation without scientific certainty = Blank check? Equality of Treatment Reqt. International restriction of substance must equal domestic limits If denial of consent is used to discriminate between trade partners of LMOs Violation of

HealyIntlEnvLawSpring2012 international trade laws; expectation of good faith observance of protocol Protocol's preamble is ambiguous regarding its relation to other treaties; states that protocol should not be understood to change rights under existing international agreements. Another clause states that the treaty is not subordinate. LMOs to be used directly for food or feed or processing Importing state may limit imports based on domestic law that is consistent with protocol objectives. Key objective: To protect biodiversity Limit based upon some risk assessment involving scientific data States must communicate import decisions to the clearing house, an IGO Any imported products regulated by this regime must clearly identify that they may contain LMOs and are not intended for intentional introduction into the environment, as well as a contact for additional information
Chapter Seven Environmental Disasters

ENVIRONMENTAL DISASTERS Prevention/Before: Principle of Preventive Action State must take reasonable measures to minimize risks of harm/disaster Consultation + Consideration of Potentially Affected States (Lake Lanoux) Minimization/During: Corfu Channel Requirement of Notice Provision of material information Cause of disaster is irrelevant to the notice requirement Compensation/After: Polluter Pays? Poorly developed concept under international law Victims should not expect compensation for liability of state of disaster Rules of Customary Law No Significant Harm Principle Amount of harm Is it significant? Cause of Accident Intentional, Negligent, Inadvertent unavoidable accident (Not generally applicable) Obligation to Notify About Harms 1982 Seveso Directive European Community directive following the Seveso, Italy industrial accident Revised in 1987, 1991, & 2003

HealyIntlEnvLawSpring2012 Management/Before Articles 3 & 4 mandate broad prevention that is necessary to ensure that, in case of any industrial activity specified in Article 1, the manufacturer is obligated to take all measures necessary to prevent major accidents and to limit their consequences for man and the environment. [Command & Control] Article 5 requires state to disclose to the EC information about industrial sites that pose a significant risk to the public. [Information-Based Regulation] Minimization/During Article 10 requires notification about the accident, risks posed, and emergency actions taken to national authority. Article 11 requires that states notify EC about accidents that involve a dangerous substance posing risks across borders. Notification requirements have become more elaborate. Compensation/After Nothing mandated 1986 IAEA Conventions Regarding Nuclear Accidents Adopted after the Chernobyl accident Management/Before Art 1(1) limits treaty application to emergency response, rather than preparation No required contingency planning Minimization/During Art. 2 requires prompt notification of any state which is or may be affected by a transboundary release that could be of radiological significance Requirement is to provide information about the accident, its time, nature, and location State must also provide affected state with information that will allow abatement, and information about actions that the source state has taken to abate. Art. 5 requires state providing notice (source state) to promptly provide additional information needed to minimize effects. Compensation/After No relevant provisions
Chapter Eighteen Environment and Trade

ENVIRONMENT AND INTERNATIONAL TRADE Core Requirements/Provisions of WTO/GATT 1. Article I Most-Favored Nation Treatment: Like products originating in or destined for another country are to receive the same benefits and immunities that a party grants to like products originating in or destined for all other countries. Two Accepted General Exceptions: (1) free trade agreements under which all tariffs are abandoned (as to particular nations) are permitted; (2) generalized system of preferences, which allow reduced tariffs for developing nations 2. Article III National Treatment for Imported Products: Imported products are to receive no

HealyIntlEnvLawSpring2012 less favorable treatment than like products produced domestically. 3. Article XI Prohibition Against Quotas: Duties and taxes/tariffs are only permitted restrictions on trade. Quantity limits (quotas) are prohibited. 4. Article XX(b),(g) Exceptions Related to the Protection of Environment and Natural Resources: A party may act to protect human, animal, or plant life/health. The party may also act to conserve exhaustible natural resources. That action may not, however, be taken in a way that improperly discriminates against international trade. 5. Article XXI Retention of State's Right to Protect National Security Interests: No violation of WTO when a state acts in accordance with its obligations under the UN Charter for the maintenance of international peace and security. Also, the agreement provides that the WTO does not bar state from taking action to prevent to protect essential security interests in a time of war or other international emergency. This provision permits embargoes and trade sanctions without notice/approval. Thai Cigarette Case Non-tariff barrier to trade: Protectionist agenda behind licensing Beef Hormones Case Any scientific evidence = Rational basis for prohibition on trade of product Reformulated Gasoline Case Venezuela: Article III:4 =>Like products treated less favorably US: Art XX(b),(g) => Necessity to protect health, exhaustible resource (clean air) Panel: XX(b) => US needed to show that there were no reasonably available alternatives that were more/less consistent with GATT rules; XX(g) => CAA measures must be primarily aimed at conservation; better alternatives could have been implemented PPM => Product-related (Gas); Non-product related (Tuna-Dolphin) Tuna-Dolphin Case Order of Analysis of Trade Restriction 1) Determine whether the state's actions violate a requirement of GATT/WTO If so... 2) Determine whether the state's actions come within an exception defined in Article XX Type of Regulatory Requirement Tuna/Dolphin Command & Control: Could not exceed U.S. mortality rate Performancebased Shrimp/Turtle Command & Control: Technology-based (Design-based) Doesn't allow for more effective alternatives Shrimp-Turtle Case After 2) a) Determine whether any exception applies to the state measure b) If exception does apply, determine whether the state measure conforms to the chapeau Order of Analysis of Trade Restriction 1) Determine whether the state's actions violate a requirement of GATT/WTO

HealyIntlEnvLawSpring2012 If so... 2) Determine whether the state's actions come within an exception defined in Article XX a) Determine whether any exception applies to the state measure b) If exception does apply, determine whether the state measure conforms to the chapeau Three limits defined by chapeau: 1. Provision's application must result in a discrimination that is different than the discrimination that gave rise to the GATT violation. 2. Discrimination must not be unjustifiable or arbitrary. 3. Discrimination must occur between countries where some conditions prevail. Basically, restatement of 2nd limit Shrimp-Turtle Appellate Body Analysis: ~ Article XX(g) ~ Resources may be living Threatened and endangered species are exhaustible resources Migration through the nation or territorial waters is sufficient nexus. Appellate body does not decide whether a state may act to protect wholly foreign species. Must be a direct relation between the means employed and the ends of government action. Measure must be even-handed in its application to domestic producers. Three Requirements of the Chapeau: No arbitrary discrimination where the same prevail among the nations No unjustifiable... No disguised restriction on international trade Good faith negotiation to resolve dispute under GATT => Sufficient to remedy violation Reconciliation of Apparently Inconsistent International Agreements: Specific treaty controls over the general treaty (le specialis) Later in time treaty trumps the earlier treaty (lex posterior) Both canons of construction in U.S. Law

SPS Agreement => Supplement to the GATT/WTO Agreement Defines reqts. for the sanitary & phytosanitary measures (SPS measures) a state may take SPS measures: Measures taken to protect human, animal, or plant life/health within the member's territory from risks presented by imported products/substances. Proof of risks = Key issue often in taking SPS measures SPS Agreement defines circumstances under which SPS measures are permitted Article 2(2): SPS measures can only be applied to the extent needed to ensure protection, must be based on scientific principles, and cannot be maintained without sufficient scientific evidence. Article 2(3): Limits are analogous to the requirements of the GATT Article XX Chapeau Article 2(4): Compliance with SPS Agreement = Presumptive compliance with GATT

HealyIntlEnvLawSpring2012 Specifically, Article XX(b) Environmental Labeling Information-based approach that is based on the view that if consumers are informed about environmental impacts/effects of products they will act to protect the environment Types of Labels: Content/Ingredients in Product: Examples would be risks posed by cigarettes or harmful ingredients in other consumer products Process Labels: Examples are dolphin-free tuna or carbon footprint label (Counterexample: Fiji Water) Labeling requirements are seen as more desirable alternatives under GATT than trade restrictions (Tuna-Dolphin Dispute) The labels must conform to the Agreement on Technical Barriers to Trade (TBT) Japan Importation of Apples Disease at Issue: Fire blight (Bacterial disease that affects apples and other fruits) Native to N.America (First reported in NY in 1793); has now spread to much of the world Japan has been free of fire blight Blight is spread by insects, birds, wind, and rain from infected plants and from residue that may be left behind in containers Regulation of imports by Japan: Nine regulatory requirements for importation of US apples (p. 7 of handout) Requirements related to permissible orchards & health/safety procedures Measures treated as a single uniform regulation Consistency of Japan's Regulations with SPS Agreement Article 2.2: Article 2.2: SPS measures must not [be] maintained without sufficient scientific evidence Evidence = Import of mature, symptomless apples pose a negligible risk SPS measure is required to have a rational/objective relationship to relevant scientific evidence Party challenging measure has the burden to make a prima facie showing of inconsistency with the SPS Agreement (in this case, w/ Article 2.2) If showing is made, Japan had the burden to refute the prima facie case US made a prima facie showing that mature, symptomless apples do not pose a risk of transmitting fire blight Japan thus had to show that apples other than mature, symptomless apples were being exported to Japan from the US Small/debatable risks resulting from human errors in handling or illegal conduct was insufficient to warrant the limitations on the US exports No proof that apples other than mature, symptomless apples had been imported into Japan Japan was required to show a proportional (rational/objective) relation between the SPS measure and scientific evidence Not likely that apple fruit would serve as the pathway for fire blight in Japan Measures employed by Japan were clearly disproportionate to the risk

HealyIntlEnvLawSpring2012 Disproportionate = No rational relation between the SPS measure & scientific evidence NOTE: Panel may rely on scientific experts in finding facts. Panel receives deference from the Appellate Body as to fact findings. A member state's evaluation of science & risk does not receive deference. SPS measure was maintained by Japan without sufficient scientific evidence and thus violated Article 2.2.

Consistency with SPS Agreement Article 5.7 Provisional Measures Provision: Article 2.2 provides an exception to the sufficient scientific evidence requirement for a measure that complies with Article 5.7 requirements for provisional measures Article 5.7: Allows member where relevant scientific evidence is insufficient to adopt provisional SPS measures on the basis of available information Appellate Body: In order for Japan to be able to act under 5.7 4 independent requirements 1. Relevant scientific evidence must be insufficient 2. Provisional measure must be adopted based on the available, pertinent information 3. Member must seek additional information to allow for a more objective assessment 4. Member must review the provisional measure within a reasonable time frame. Scientific evidence is insufficient when it does not allow for an adequate assessment of risk, as required by Article 5.1 Evidence of the risk of entry, establishment, or spread of fire blight in Japan from the import of US apples was not insufficient Appellate Body Focus is on the sufficiency/insufficiency of scientific evidence Focus is not on whether there is scientific uncertainty (exact nature or degree of risk) Evidence is sufficient = Measure cannot be justified as provisional Adequacy of Risk Assessment under Article 5.1: Three requirements for an adequate risk assessment (RA) under Article 5.1: RA must -1. Identify risks it is intended to address 2. Evaluate the likelihood of entry, establishment, or spread of the matter of concern 3. Evaluate that likelihood according to SPS measures that might be applied Japan 's RA failed the second requirement because it was not sufficiently specific in evaluating the risk of fire blight posed by apple fruit as opposed to all possible sources of contamination RA was also inadequate because it did not consider alternative SPS measures and assess their sufficiency Japan did not consider using some but not all of the package of uniform measures RA was done in a way that no regulatory regime other than the one adopted was considered Fails third requirement Reinforces the idea of the least restrictive alternative approach towards employing regulatory measures, which have the effect of limiting international trade Least restrictive alternative approach to employing regimes which limit international trade

HealyIntlEnvLawSpring2012 Human rights limitations on international law Strong element of natural law Source of inalienable rights: Natural law, not positive law Source of contingent rights: Positive law (enacted law)