Special Issue in Public International Law – Atty.

RVP | Arturo
International Environmental Law i. Treaty-based obligations are tied
I. Introduction to periodically updates lists in
Development protocols or annexes
• Was primarily focused on protecting the ii. World Heritage List of cultural and
environment as an economic resource natural sites
• Has now seen a shift to protecting the iii. Occasional differentiation in the
environment as such substantial obligations of the
parties
Definition of International Environmental Law
• An area of international law where states have 2. Customary International Law
decided to cooperate with each other in order a. No-harm principle
to fulfill certain goals of common interest b. Obligation to consult and notify in the
• Belongs to international law of cooperation event of possible transboundary harm
c. Conduct of EIA
Definition of Environment
• Nuclear Weapons Advisory Opinion: the living 3. Decisional Law
space, the quality of life, and the very health of a. Trail Smelter Case
human beings, including generations unborn b. Gabcikovo-Nagymaros Project
• A range of: i. Would have been a fundamental
a. Physical components change of circumstance if not for
b. Biological components the specific provisions in the
c. Various cultural components agreement making it a foreseeable
change
Laws c. Pulp Mills
1. 1972 Stockholm Conference
a. Declaration on the Human Environment TN: 1972 Stockholm and 1992 Rio Conference are
b. 26 Principles non-binding soft-law instruments (may assist in the
c. Action plan for the Human Environment formation of CIL)
d. UN Environmental Programme (UNEP)
III. Basic Principles
2. 1992 Rio Conference A. Principles that seek to prevent environmental
a. Earth Summit damage
b. Emerging concept of “sustainable 1. No Harm Principle and the Duty of Due Diligence
development” Rio Declaration – Article 2
c. Rio Declaration on Environment and States have, in accordance with the Charter of the
United Nations and the principles of international
Development
law, the sovereign right to exploit their own
resources pursuant to their own environmental
3. 2002 Rio Conference/2nd Rio Summit and developmental policies, and the responsibility
a. Millennium Development Goals (MDGs) to ensure that activities within their jurisdiction or
b. Renewed commitments for sustainable control do not cause damage to the environment of
development other States or of areas beyond the limits of
national jurisdiction.
II. Sources of Law
1. Treaties 1972 Stockholm Declaration – Principle 2
a. Framework Conventions/Conference of (Principle of Prevention)
The natural resources of the earth, including the
Parties
air, water, land, flora and fauna and especially
i. Not to exhaustively regulate a topic
representative samples of natural ecosystems,
but to establish an organizational must be safeguarded for the benefit of present and
entity with the mandate to adopt future.
the substantive regulation
ii. Binding amendments and
frameworks Trail Smelter Case
“No State has the right to use or permit the use of
b. List Technique its territory in such a manner as to cause injury by
fumes in or to the territory of another or the
properties or persons therein, when the case is of
Special Issue in Public International Law – Atty. RVP | Arturo
serious consequence and the injury is established
by clear and convincing evidence.”
Nuclear Weapons Advisory Opinion
“The existence of the general obligations of States
to ensure that activities within their jurisdiction
and control respect the environment of other
States or of areas beyond national control is now
part of the corpus of international law relating to
the environment.”
a. Each state has permanent sovereignty
over natural resources found in their
territory; however, whatever you do in your
territory must not affect the territory of
another state
b. Trail Smelter – applies only to a risk of
significant or serious harm
c. Nuclear Weapons – overarching principle
of prevention and a corresponding duty
not to cause damage beyond the territorial
confines of states
d. Pulp Mills – the customary principle of
prevention originates in notions of DUE
DILIGENCE – a state’s obligation to use all
the means at its disposal in order to avoid
activities which take place in its territory, or
in any area under its jurisdiction, causing
significant damage to the environment of
another State
e. Due Diligence – not an obligation of result
but of conduct – so long as a State has
taken reasonable measures to mitigate the
harm, the State has complied with the duty
of due diligence
2. Environmental Impact Assessment
Rio Declaration – Principle 17
Environmental impact assessment, as a national
instrument, shall be undertaken for proposed
activities that are likely to have a significant
adverse impact on the environment and are
subject to a decision of a competent national
authority.
a. Done BEFORE it initiates an activity if
there is a risk of significant adverse impact
in a transboundary context
b. Dual requirements:
i. Notification; and
ii. Consultation
c. If activity poses a risk, must notify
potentially affected states and consult on
remedies to prevent significant harm
3. Precautionary Approach
Rio Declaration – Principle 15
In order to protect the environment, the
precautionary approach shall be widely applied by
States according to their capabilities. Where there
are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to
prevent environmental degradation.
a. Lack of scientific certainty about the
negative effects of an activity must not
prevent states from taking preventive
measures
b. There must be an earnest effort on the
implementor to conduct studies
c. Tatar vs Romania – not CIL
d. See: Assigned cases
TN: No Harm, Due Diligence, and EIA are CIL;
Precautionary Approach is not CIL
B. Principles that seek to ensure a balanced
approach to environment protection
1. Polluter-Pays Principle
Rio Declaration – Principle 16
National authorities should endeavour to promote
the internalization of environmental costs and the
use of economic instruments, taking into account
the approach that the polluter should, in principle,
bear the cost of pollution, with due regard to the
public interest and without distorting
international trade and investment
a. It is the actor responsible for pollution that
bears both the more immediate and the
longer-term costs thereof
b. Whoever causes damage must indemnify
the victim for the wrong done
c. Not CIL
2. Common But Differentiated Responsibilities
(CBDR)
Rio Declaration – Principle 7
States shall co-operate in a spirit of global
partnership to conserve, protect and restore the
health and integrity of the Earth's ecosystem. In
view of the different contributions to global
environmental degradation, States have common
but differentiated responsibilities. The developed
countries acknowledge the responsibility that they
bear in the international pursuit of sustainable
development in view of the pressures their
societies place on the global environment and of
the technologies and financial resources they
command.
a. Derived from equity
b. Developed states generally hold greater
responsibility for existing environmental
damage and are better equipped to deal
with the consequences that developing
state
Special Issue in Public International Law – Atty. RVP | Arturo
c. Two elements:
i. Contribution or responsibility
ii. Abilitiy to offer a remedy
d. Here, the burden is primarily laid on the
developed countries
e. Hence, responsibility must be specifically
tailored to the capacity of each state

3. Inter-Generational Equity
Rio Declaration – Article 3
The right to development must be fulfilled so as to
equitably meet developmental and environmental
needs of present and future generations.
a. There must be a sensible balance between
the needs of the present and future
generations
b. Closely tied with “sustainable
development”

4. Principle of Participation
Rio Declaration – Article 10
Environmental issues are best handled with the
participation of all concerned citizens, at the
relevant level. At the national level, each
individual shall have appropriate access to
information concerning the environment that is
held by public authorities, including information
on hazardous materials and activities in their
communities, and the opportunity to participate in
decision-making processes. States shall facilitate
and encourage public awareness and participation
by making information widely available. Effective
access to judicial and administrative proceedings,
including redress and remedy, shall be provided.
a. Duty to ensure that various groups and
individuals affected by environmental
matters are hear and are able to participate
in important environmental projects and
processes
b. Encompasses prior-informed consent – to
consult and seek the informed consent of
indigenous people before the
displacement or relocation of these people

IV. Principle of Sustainable Development

Elements:
a. Inter-generational equity
b. Sustainable exploitation of natural resources –
that may entail setting limits on exploitation
c. Sustainable use of resources – where states
take account of the needs of other states
d. Integration of environmental considerations

TN: exploitation vs use