CONCERNS AND CHALLENGES OF INTERNATIONAL

ENVIRONMENTAL LAW: AN ANALYTICAL STUDY

DISSERTATION SUBMITTED TO AMITY LAW SCHOOL IN PARTIAL FULFILMENT

OF THE REQUIREMENT FOR THE DEGREE OF
B.COM. LL. B (H)

Submitted By: Supervised by:

SHRESHTHA RAO Dr. ANKITA SHARMA
A50821618003 Assistant Professor
2018-2023 Amity Law School

AMITY LAW SCHOOL

AMITY UNIVERSITY HARYANA, GURUGRAM
2018-2023

i
 DECLARATION

I declare that the dissertation entitled “CONCERNS AND CHALLENGES OF

INTERNATIONAL ENVIRONMENTAL LAW: AN ANALYTICAL STUDY” is the outcome
of my own work under the supervision of Dr. ANKITA SHARMA, Amity Law School, Amity
University Haryana.

I further declare that to the best of my knowledge this dissertation does not contain any part of any
work, which has been submitted for the award of any degree either in this university or in any other
university without proper citation.

Date: Dr. ANKITA SHARMA

Assistant Professor
Place: Gurugram Amity Law School

i
 CERTIFICATE

This is to certify that the research work entitled “CONCERNS AND CHALLENGES OF
INTERNATIONAL ENVIRONMENTAL LAW: AN ANALYTICAL STUDY” has been carried
out by my supervision and guidance, by Ms. SHRESHTHA RAO, Enrollment No. A50821618003.

The techniques and methods described were undertaken by the candidate herself/himself and
observations have been periodically checked by me.

It is further certified that the candidate has also fulfilled all the prerequisites necessary for
submission of this dissertation in partial fulfilment of her B.COM. LL.B.(H)

Date:

Place: Gurugram
Dr. ANKITA SHARMA
Assistant Professor
Amity Law School
Amity University Haryana

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 ACKNOWLEDGEMENT

I take the opportunity to express my profound gratitude and deep regards to my teacher Dr.
ANKITA SHARMA for her exemplary guidance, monitoring and constant encouragement
throughout the course of this project. She has been very lenient and generous and gave me her best
time frame and mentor throughout the extent period of the achievement of this work. Therefore, it
is my courteous burden to concert to her and to intended my pleased indebtedness towards her. It’s
my claim, I owe her all of that cannot be expressed in word or beyond that.

A warm thanks to (Retd.) Maj. Gen P.K SHARMA, Professor and Director, Amity Law School,
and Dean, Faculty of Law, Amity University, Haryana and Mr. Pranshul Pathak, Coordinator,
Amity Law School, Amity University, Haryana for the help in time being or beyond in our life
and supervising at the time of need.

I am deeply indebted to my elders for their encouragement, putting their confidence in me. I have
also to acknowledge my deep gratitude to all those authors, writers, and scholars whose works I
have taken and further using in the work which I have cited without their former permission. In
the last it is my duty to acknowledge the help which have received from everyone who surrounds
me.

NAME: SHRESHTHA RAO

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 TABLE OF ABBREVIATIONS

1. AB Appellate Body of the WTO Dispute Settlement Body

2. African African Commission of Human and Peoples’ Rights
Commission
3. African Court African Court of Human and Peoples’ Rights
4. APEC Asia Pacific Economic Co-operation
5. ASMA Antarctic Specially Managed Areas
6. ASPA Antarctic Specially Protected Areas
7. ATCM Antarctic Treaty Consultative Meeting
8. CBD Convention on Biological Diversity
9. CBDR common but differentiated responsibility
10. CDM clean development mechanism
11. CESCR UN Committee on Economic, Social and Cultural Rights
12. ETIS elephant trade information system
13. FAO UN Food and Agriculture Organization
14. FTA free trade agreement
15. GA (or UNGA) United Nations General Assembly
16. GATT General Agreement on Tariffs and Trade
17. ICJ International Court of Justice
18. IPCC International Panel on Climate Change
19. ITLOS International Tribunal for the Law of the Sea
20. IUCN International Union for the Conservation of Nature
21. LMO living modified organism
22. MDG Millennium Development Goal
23. MEA(s) Multilateral Environmental Agreement(s)
24. NAFTA North American Free Trade Agreement
25. NGO non-governmental organization
26. OHCHR Office of the High Commissioner for Human Rights
27. PCA Permanent Court of Arbitration
28. UNCHE United Nations Conference on the Human Environment
29. UN United Nations
30. UNCC United Nations Compensation Commission
31. UNCCD United Nations Convention to Combat Desertification
32. UNCED United Nations Conference on Environment and Development
33. UNCITRAL United Nations Commission on International Trade Law
34. UNCTAD United Nations Commission on Trade and Development
35. UNDESA United Nations Department of Economic and Social Affairs
36. UNDP United Nations Development Programme
37. UNECE United Nations Economic Commission for Europe
38. UNEP United Nations Environment Programme
39. UNFCCC United Nations Framework Convention on Climate Change
40. UNHCR United Nations High Commissioner for Refugees
41. UNTS United Nations Treaty Series
42. VOC volatile organic compound
43. WMO World Meteorological Organization
44. WTO World Trade Organization

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 TABLE OF CASES

S. No. CASES PAGE

NO.
1 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4 22 52
2 Gabkovo-Nagymaros case 41
3 Island of Palmas Case (Netherlands v USA) (1928) 2 RIAA 829 839. 36
4 Lac Lanoux Arbitration (France v Spain) (1957) 12 RIAA 281. 36
5 Pulp Mills case 40
6 Spain v. France 4
7 Southern Bluefin Tuna Cases (New Zealand v Japan Australia v Japan) 1999 37
8 Trail Smelter Case (USA v Canada) (1938/1941) 3 RIAA 1905 1965 36
9 United States v. Canada 3
10 United States v. United Kingdom 3
11 United Kingdom v. Albania 4

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 TABLE OF CONTENT

DECLARATION i
CERTIFICATE ii
ACKNOWLEDGEMENT iii
TABLE OF ABBREVIATIONS iv
TABLE OF CASES v
TABLE OF CONTENT vi

CHAPTER 1 INTRODUCTION
1.1 Introduction 1
1.2 Precedents 3
1.3 Constant Ownership of Natural Resources 5
1.4 Literature Review 6
1.5 Statement of Problem 10
1.6 Objectives of The Study 10
1.7 Research Questions 11
1.8 Research Hypothesis 11
1.9 Research Methodology 11
1.10 Chapter Scheme 12

CHAPTER 2: NATURE, MEANING, SCOPE & HISTORICAL DEVELOPMENT IN

INTERNATIONAL ENVIRONMENTAL LAW
2.1 Introduction 14
2.2 From 1900-1972: Early Glimmers 14
2.3 From 1972-1992: Development of Basic Framework 16
2.4 After the Stockholm Conference 18

2.5 From 1992-2012: Maturation and Linkage 20

2.6 After the Rio Conference 22
2.7 Sources of International Environmental Law 31

CHAPTER 3: DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW

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3.1 Introduction 48

3.2 Development of International Environmental Law 48

3.3 The International Community 50

3.4 Environmental Law Before the Stockholm Conference 51
3.5 The Stockholm Conference 1972 55
3.6 Environemntal Treaties Following The Stockholm Conference 56

CHAPTER 4: COMMON LEGAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL

LAW
4.1 Introduction 60
4.2 Principle of State Sovereignty 60
4.3 Principle of Global Cooperation 62
4.4 Environmental Protection Philosophy 64
4.5 Principle of Notification and Information 66
4.6 Preventive Principle 67
4.7 Precautionary Principle 69
4.8 Principle of Polluter Pays 70
4.9 Public Participation Principle 72
4.10 Sustainable Development 73

CHAPTER5: INTERNATIONAL LEGAL FRAMEWORK FOR ADDRESSING SEVERAL

CHALLENGES IN INTERNATIONAL ENVIRONMENT LAW
5.1 Global Warming 75
5.1.1 Causes of Global Warming 76
5.1.1.1 Greenhouse Effect 76
5.1.1.2 Industrialization and Automobiles 77
5.1.1.3 Deforestation 77
5.1.1.4 Combustion for Cooking 78
5.1.2 Consequences of Global Warming 78
5.1.2.1 Melting and Flooding 78
5.1.2.2 Extreme Weather Events 78
5.1.2.3 Air Pollution 79
5.1.2.4 Decreasing of Oceans Capacity to Soak Greenhouse Gases 79

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5.1.3 International Negotiations 79
5.2 Climate Changes 81
5.2.1 Policy Measure of Climate Changes 82
5.2.2 CDM and Relevancy 83

CHAPTER 6: CONCLUSION AND SUGGESTIONS 85

BIBLIOGRAPHY 93

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 CHAPTER 1
INTRODUCTION

1.1 INTRODUCTION

One of the most significant developments in recent decades has been the increase in public
concern for the environment on a global scale. Society and the state of the environment are now
more connected than ever because of globalisation. Environmental issues are also becoming more
international in scope and have a significant impact on Earth's health. To shift economic
development and progress onto a path of environmental sustainability, it is now imperative that the
world adopt more effective environmental laws and legal frameworks.

The reactions, though, have been unexpectedly forward-thinking. The rise of international
environmental networks, increased cooperation between governments, non-governmental
organisations, multinational corporations, and other factors have all had a big impact on how
environmental law and regulation have evolved. International Environmental Law, a branch of
"law" with simultaneously international, national, and transnational characteristics, has emerged as
a result.

In order to safeguard the environment and manage natural resources, national, international, and
transnational environmental regulatory regimes must adhere to a set of legal concepts and practises
known as International Environmental Law. Therefore, as a body of law, International
Environmental Law is composed of several substantive ideas and procedural techniques that are
particularly significant or distinctive to global environmental governance and institutions. 2 It
contains:

(1) Public International Environmental Law, which generally refers to the collection of
conventions and guiding principles of international law governing relations between or among
states,
(2) National environmental law, which refers to the guidelines used by national governments to
control and manage how people behave inside their boundaries on a personal, organisational, and
subnational government level

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(3) The term "transnational law" refers to the body of legal rules that govern cross-border
interactions between private persons and organisations.

Environmental issue worldwide regulation is not a recent development. The nineteenth and early
twentieth centuries contain several examples of what would be considered International
Environmental Law today. The sophistication of the legal strategies created to this end, as well as
the emphasis on conserving the environment per se (basically for human purposes but not merely
as a useful resource), are what define current International Environmental Law.
This chapter's goal is to give a brief overview of the key developments that make up the core of
contemporary International Environmental Law1. We don't plan to go into great historical detail
about these events or provide a thorough examination of all the factors that contributed to them.
Instead, we'll talk about a few significant events that collectively define a general trend. The
regulation of environmental issues2 changed from either a conservation- or a resource-oriented
logic to a more comprehensive one between the late nineteenth century and the beginning of the
1970s. Environmental protection became increasingly valued for a wider range of reasons,
including resource preservation and nature conservation but also worries about pollution,
overpopulation, or environmental security. The need to safeguard the environment has evolved
during the 1970s to become one of the most urgent political concerns on the global agenda.
However, simultaneously, newly independent and other developing States have fought to prevent
environmental legislation from placing a constraint on their capacity to pursue development
policies as they see proper.

Overall, the trend analysed in this chapter can be represented graphically as a line oscillating
between economic development and environmental protection considerations. The pull of
developmental considerations has become
stronger in the last decade, particularly after the move towards actual implementation following
the 2002 Johannesburg Summit, the 2012 Rio Summit and, more recently, the adoption in 2015 of
the 2030 Agenda for Sustainable Development, with its seventeen Sustainable Development Goals
(SDGs). As we shall see, the ‘environment–development equation’ is currently in need of

1
For a more detailed introduction see L. K. Caldwell, International Environmental Policy. From the Twentieth to the
Twenty-First Century (Durham: Duke University Press, 3rd edn, 1996).
2
For two remarkable studies, one taking a long-term perspective and linking early environmentalism to colonialism
and the other focusing on the rise of the conservation movement at the international level in the aftermath of the
Second World War, see R. H. Grove, Green Imperialism. Colonial Expansion, Tropical Island Edens and the Origins
of Environmentalism, 1600–1860 (Cambridge University Press, 1996); S. Macekura, Of Limits and Growth. The Rise
of International Sustainable Development in the Twentieth Century (Cambridge University Press, 2015).
2
significant recalibration, to strike a proper balance between development/growth and
environmental protection.

1.2 PRECEDENTS

Initially, laws governing the exploitation of specific resources, transboundary damage, and the
usage of common watercourses were the main focuses of the international regulation of
environmental concerns. Three famous instances that are frequently cited as precedents for
contemporary International Environmental Law can help to clarify these concerns 3.

The first case, referred to as the Bering Sea Fur Seals Arbitration (United States v. United
Kingdom4), exemplifies the challenges brought on by rival State exploitation of a single resource.
The United States took a number of actions to acquire exclusive control over sealing operations in
the Bering Sea after acquiring Alaska in 1867. US patrols stopped British ships from sealing in the
Bering Sea. A treaty signed on February 29, 1892, decided to refer the matter to arbitration
following several years of fruitless negotiations between the US, UK, and Russia. The United
States' main contention during the arbitration hearings was that they now own the sovereign
powers once held by Russia in this area. Curiously, they also claimed that they had the
responsibility and right to defend fur seals even while they were outside of US territorial seas. The
other argument was based on the assertion made by US legal counsel that the US had been charged
with the duty of guarding against the overexploitation of fur seals, which were in danger due to
British warships' seal-hunting practises. The tribunal disagreed with the United States' arguments
and supported the United Kingdom in its ruling on August 15, 1893. It should be highlighted that
the United States' second defence did not aim to defend a species in and of itself, but rather to
maintain its economic exploitation. Thus, even though the US argument was novel, the Fur Seals
Arbitration serves as a fair example of the ethos of the day. Certain animal species protection
treaties that were signed within the same time frame were motivated by the same worry 5.

3
For a selection of early environmental cases, see C. A. R. Robb (ed.), International Environmental Law Reports, vol.
1, Early Decisions (Cambridge University Press, 1998).
4
Bering Sea Fur Seals Arbitration, Award (15 August 1893), RIAA, vol. XXVIII, pp. 263–76 (Fur Seals Arbitration).
5
See, e.g. Treaty concerning the Regulation of Salmon Fishery in the Rhine River Basin, 30 June 1885, available at:
www.ecolex.org (TRE-000072); Convention for the Protection of Birds Useful to Agriculture, 19 March 1902,
available at: www.ecolex.org (TRE-000067); Convention between the United States, Great Britain, Japan and Russia
providing for the Preservation and Protection of Fur Seals, 7 July 1911, 37 Stat. 1542; Convention for the Regulation
of Whaling, 24 September 1931, available at: www.ecolex.org (TRE-000073); International Convention for the
Regulation of Whaling, 2 December 1946, 161 UNTS 361.
3
The Trail Smelter Arbitration is yet another significant precedent (United States v. Canada 6).
This case serves as an example of how traditional environmental management was fundamentally
transboundary, which had a significant impact on how International Environmental Law
developed7. The neighbouring state of Washington was harmed by sulphur dioxide emissions from
a smelter located on Canadian soil, over which the United States complained. The issue was put to
arbitration by a treaty that was signed on April 15, 1935. The arbitral tribunal famously determined
that in accordance with the following rules of international law:

When the case is of significant concern and the harm is shown by clear and convincing evidence,
no State has the right to use or enable the use of its territory in such a way as to cause injury by
fumes in or to the territory of another or the properties or people there8.

This idea was subsequently upheld by the International Court of Justice (ICJ) in the United
Kingdom v. Albania9 case involving the Corfu Channel, and it had a significant impact on the
work of the International Law Commission (ILC) regarding liability for harmful outcomes
resulting from legal activities.

A contemporary application of this principle is now a crucial part of International Environmental

Law, as will be covered later in this chapter. The next example to be brought up is the Lake
Lanoux Arbitration (Spain v. France10), which exemplifies the utilisation of shared watercourses,
another area of traditional environmental management. The case involved actions made by France
that involved diverting water from a river that flows into Lake Lanoux. Spain claims that these
actions violated international law since they altered the water flow that Spain would have access to
(via the River Carol). The tribunal denied this claim in its decision of November 16, 1957, stating
among other things that:

The Spanish government made an effort to define the present body of good international law in a
similar manner. If the demonstration is taken at face value, several of the ideas it illustrates are
irrelevant to the issue at hand. If it is acknowledged that there is a principle prohibiting an
upstream State from changing a river's waters in a way that seriously jeopardises the downstream
6
Trail Smelter Arbitration, RIAA, vol. III, pp. 1905 (Trail Smelter Arbitration).
7
See J. E. Viñuales, ‘The Contribution of the International Court of Justice to the Development of International
Environmental Law’ (2008) 32 Fordham International Law Journal 232.
8
Trail Smelter Arbitration, supra footnote 6, p. 1965.
9
Corfu Channel case, Judgment of 9 April 1949, ICJ Reports 1949, p. 22.
10
Lake Lanoux Arbitration (Spain v. France), Award (16 November 1957), RIAA vol. XII,
pp. 281ff (Lake Lanoux Arbitration).
4
State, this would mean that the principle would not apply in the present case because the Tribunal
has acknowledged that the French scheme won't change the Carol's waters. In actuality, States are
fully aware of the significance of the competing interests raised by the industrial use of
international rivers, as well as the necessity of resolving them by mutual concessions. Only by
signing increasingly comprehensive agreements will such concessions of interests be possible11.
In that era, as in today, signing agreements on the usage of shared waterways was normal
practise12. While some of these accords were primarily concerned with this issue, others simply
had a few articles that addressed the preservation of waters from pollution13.

These three turning points demonstrate the strategies used before the 1960s for the international
regulation of issues now categorised as environmental. It is important to note that these generally
aimed to promote the commercial use of particular species or resources. This notion persisted
throughout the early 1960s, as will be covered further on.

1.3 CONSTANT OWNERSHIP OF NATURAL RESOURCES

The idea of State sovereignty has long been intertwined with the preservation of certain resources
or geographic regions. Up to the second half of the 20th century, international law hardly applied
to regions outside the jurisdiction of States or their colonial or military rule, with the exception of
the high seas. In order to achieve not only political but also economic independence, newly
independent States paid close attention to their entitlements over their natural resources as the
decolonization process got underway. As a well-known commentator put it: "By explicitly
applying the principle of sovereignty, used here in its political sense, to use and freely dispose of
natural resources, [it was] intended [to] highlight the permanent and intangible link between
sovereignty and elf determination, the former serving not only as a legal shield for the political
realisation of the latter, i.e. independence14, but also as a permanent guarantee of its being
exercised in the economic field."
11
Ibid., para. 13.
12
See, e.g. Treaty between the United States of America and Mexico Concerning the Equitable Distribution of the
Waters of the Rio Grande, 21 May 1906, 34 Stat. 2953; Treaty between the United States of America and Mexico
Relating to the Utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande, 3 February 1944,
3 UNTS 314; Convention Concerning the Regime of Navigation on the Danube, 18 August 1948, available at:
www.ecolex.org (TRE-000555); Convention Concerning the Regulation of Lake Lugano and its Additional Protocol,
17 September 1955, 291 UNTS 218.
13
See e.g. Protocol to Establish a Tripartite Standing Commission on Polluted Waters, 8 April 1950, available at:
www.ecolex.org (TRE-000493); Agreement on the Protection of Lake Constance against Pollution, 27 October 1960,
available at: www.ecolex.org (TRE- 000464); Agreement between France and Switzerland on the Protection of Lake
Geneva, 16 November 1962, 1974 UNTS 54; Agreement Concerning the International Commission for the Protection
of the Rhine against Pollution, 29 April 1963, available at: www.ecolex.org (TRE-000484).
14
G. Abi-Saab, ‘La souveraineté permanente sur les ressources naturelles’, in M. Bedjaoui (ed.), Droit international:
bilan et perspectives (Paris: Pedone, 1989), pp. 638–61, at 639–40 (our translation).
5
The idea of permanent sovereignty over natural resources serves as a fundamental tenet of
contemporary environmental management in numerous ways, some of which may seem
counterintuitive. This idea was only meant to conserve resources up until the 1970s because newly
independent States were exploiting them economically. As stated in Chapter 3, this principle was
eventually to be connected to the no-harm principle during the ensuing decades and subsequently
generalised as the foundation of the prevention principle.

For our purposes, the historical ups and downs in the evolution of this principle are less significant
than the end outcome, which is the approval of Resolution 1803 (XVII) on "Permanent
Sovereignty over Natural Resources" by the UN General Assembly on December 14, 196215.

This historic resolution's first paragraph reads, in part, as a declaration of customary international
law:
The exercise of peoples' and nations' rights to perpetual sovereignty over their natural resources
and wealth must be done so in the interests of the national growth and welfare of the State in
question.
The longevity of natural resource sovereignty is its key characteristic. Indeed, sovereignty is the
norm, and any restrictions on it must be "necessarily ephemeral and limited in their scope and
time16."

The restrictions that the resolution's authors planned for were those that would result from
contracts with foreign investors over the utilisation of natural resources. However, beginning in the
late 1960s, a different category of restrictions started to appear, particularly those resulting from
the developing environmental control. This setting largely explains the mistrust that developing
nations have felt toward the first significant environmental protection initiative of industrialised
nations17. International Environmental Law has, in fact, always been marked by conflicts between
the management of resources from a developmental perspective and environmental protection 18.

15
‘Permanent Sovereignty over Natural Resources’, 14 December 1962, UN Doc. A/RES/1803/XVII, (Resolution
1803).
16
Abi-Saab, supra footnote 15, p. 645 (our translation).
17
Schrijver, supra footnote 16, at pp. 231–50.
18
For two retrospective studies that pay attention to the legal dimensions of this tension as they have evolved over
time see S. Alam, S. Atapattu, C. Gonzalez and J. Razzaque (eds.), International Environmental Law and the Global
South (Cambridge University Press, 2016); C. Brighton, ‘Unlikely Bedfellows: The Evolution of the Relationship
between Environmental Protection and Development’ (2017) 66 international and Comparative Law Quarterly 209.
6
1.4 LITERATURE REVIEW

International Environmental Law plays a crucial role in addressing global environmental

challenges and promoting sustainable development. This literature review explores the
development of International Environmental Law, focusing on key themes, trends, and challenges
encountered in this field. By analysing relevant scholarly works and research articles, this review
aims to provide an overview of the evolving nature of International Environmental Law and
identify areas that require further exploration.

Brown Weiss, Edith (1984): In her influential article, Edith Brown Weiss explores the concept of
intergenerational equity in the context of International Environmental Law. Published in the Yale
Journal of International Law in 1984, the article addresses the moral imperative of safeguarding
the environment for the benefit of present and future generations.
Brown Weiss argues that future generations have a legitimate interest in the Earth's resources and
a right to a healthy and sustainable environment. She emphasizes the importance of adopting a
long-term perspective in International Environmental Law to ensure the equitable distribution of
resources and the protection of the global commons.
Overall, Brown Weiss's article has been widely cited and recognized for its significant contribution
to the development of International Environmental Law. It emphasizes the moral and legal
imperative of considering the interests of future generations, and it calls for the adoption of
effective mechanisms to ensure intergenerational equity in the management of natural resources
and the protection of the environment.19.

Sands, Philippe Cambridge University Press, 2012: A comprehensive and influential textbook
that provides an in-depth analysis of the fundamental principles and concepts in the field of
International Environmental Law. Published by Cambridge University Press in 2012, the book
serves as a valuable resource for students, scholars, and practitioners seeking a thorough
understanding of this area of law.
Sands explores the foundational principles that underpin International Environmental Law,
including sustainable development, the precautionary principle, the polluter pays principle, and
common but differentiated responsibilities. He elucidates the origins, evolution, and significance

19
Brown Weiss, Edith. "In Fairness to Future Generations: International Law, Common Patrimony, and
Intergenerational Equity." Yale Journal of International Law 10, no. 1 (1984): 171-241.

7
of these principles, providing critical insights into their application in addressing global
environmental challenges.20

Sands, Philippe, and Jacqueline Peel Cambridge University Press, 2018: A comprehensive and
authoritative textbook that provides a thorough analysis of the principles and concepts in the field
of International Environmental Law. Published by Cambridge University Press in 2018, the book
offers a contemporary perspective on the subject, incorporating recent developments and emerging
issues.
The authors delve into the foundational principles that underpin International Environmental Law,
such as sustainable development, the precautionary principle, the polluter pays principle, and
common but differentiated responsibilities. They explore the origins, evolution, and practical
application of these principles, offering insights into their interpretation and implementation in
addressing global environmental challenges.
The book covers a wide range of topics, including biodiversity conservation, climate change,
marine pollution, transboundary environmental harm, and the protection of natural resources.
Sands and Peel analyze key international treaties, case law, and state practice to illustrate the legal
frameworks and mechanisms in place for addressing environmental issues at the global level. 21

Fitzmaurice, Malgosia European Journal of International Law 10, (1999): A scholarly article
that examines the treaty-making process in the context of International Environmental Law.
Published in the European Journal of International Law in 1999, the article provides a
comprehensive analysis of the legal and procedural aspects of treaty-making in this field.
Fitzmaurice explores the various stages of the treaty-making process, including the initiation,
negotiation, adoption, signature, ratification, and entry into force of International Environmental
Treaties. She examines the roles and interactions of different actors involved, such as states,
international organizations, non-governmental organizations, and indigenous peoples, highlighting
their contributions and influence in shaping environmental treaties.
The article discusses the legal requirements and formalities for the creation and validity of
international environmental treaties. Fitzmaurice examines the customary international law
principles and treaty law provisions that govern the treaty-making process, including consent,

20
Sands, Philippe. Principles of International Environmental Law. Cambridge: Cambridge University Press, 2012.
21
Sands, Philippe, and Jacqueline Peel. Principles of International Environmental Law. Cambridge: Cambridge
University Press, 2018.
8
good faith, and the principle of pacta sunt servanda. She also analyses the role of reservations,
declarations, and interpretative statements in the treaty-making process. 22

Benedek, Wolfgang (2011): An article published in the Review of European, Comparative &
International Environmental Law in 2011. The article focuses on the role and contribution of the
United Nations Economic Commission for Europe (UNECE) in the development of International
Environmental Law.
Benedek examines the history, mandate, and activities of the UNECE in promoting environmental
protection and sustainable development within its member states, particularly in the European
region. He discusses the UNECE's engagement in environmental cooperation, policy development,
and norm-setting through various legal instruments and initiatives.
The article also addresses the challenges faced by the UNECE in promoting and implementing
international environmental law, including issues of compliance, enforcement, and coordination
with other regional and global environmental initiatives.23

Pallemaerts Marc Oxford University Press, 2018: A book published by Oxford University Press
in 2018. The book focuses on the critical issue of compliance and enforcement in the field of
environmental law and explores strategies for enhancing the effectiveness of implementation.
Pallemaerts delves into the challenges associated with ensuring compliance with environmental
regulations and the enforcement of environmental laws. He examines the legal frameworks,
policies, and mechanisms in place to promote compliance and enforcement at the national,
regional, and international levels.
The book discusses the various actors involved in compliance and enforcement, including
government agencies, judicial bodies, and non-state actors such as NGOs and affected
communities. Pallemaerts analyzes the roles, powers, and responsibilities of these actors and
explores the interplay between regulatory approaches, monitoring, inspection, and enforcement
measures.
The book provides case studies and examples from different jurisdictions and regions, highlighting
best practices, challenges, and lessons learned in the field of environmental compliance and

22
Fitzmaurice, Malgosia. "The Treaty-Making Process in International Environmental Law: An Analysis." European
Journal of International Law 10, no. 4 (1999): 763-793.
23
Benedek, Wolfgang. "The Contribution of the UNECE to the Development of International Environmental Law."
Review of European, Comparative & International Environmental Law 20, no. 3 (2011): 285-294.
9
enforcement. It addresses issues such as environmental crimes, illegal trade in wildlife, pollution
control, and the enforcement of international environmental agreements.24

Verschuuren, Jonathan (2006): "Closing the Gap between International Environmental Law and
Practice: A Plea for a Pragmatic Approach" by Jonathan Verschuuren is an article published in the
Review of European, Comparative & International Environmental Law in 2006. The article
explores the need for a pragmatic approach to bridge the gap between international environmental
law and its practical implementation.
Verschuuren highlights the existing challenges in translating and applying international
environmental law at the national and local levels. He argues that despite the existence of robust
legal frameworks, there is often a significant disparity between the intentions and goals of
international environmental treaties and their actual implementation on the ground.
The article emphasizes the importance of considering practical realities, including political,
economic, and social factors, when designing and implementing international environmental law.
Verschuuren calls for a pragmatic approach that takes into account the feasibility, effectiveness,
and acceptability of legal measures in diverse contexts.25

This literature review provides a comprehensive overview of the development of international

environmental law, drawing on the works of prominent authors in the field. It highlights the
evolution of the principles and norms guiding this field, and the challenges encountered in
implementation and compliance. By identifying research gaps and emerging issues, this review
serves as a foundation for further exploration and contributes to the ongoing discourse on global
environmental governance.

1.5 STATEMENT OF PROBLEM

The International Environmental Law faces a critical problem of a significant gap between the
legal principles and obligations set forth in International Agreements and their practical

24
Pallemaerts, Marc. Compliance and Enforcement in Environmental Law: Toward More Effective Implementation.
Oxford: Oxford University Press, 2018.
25
Verschuuren, Jonathan. "Closing the Gap between International Environmental Law and Practice: A Plea for a
Pragmatic Approach." Review of European, Comparative & International Environmental Law 15, no. 1 (2006): 9-20.
10
implementation at the national and local levels. This gap hinders effective Environmental
Protection, Sustainable Development, and the achievement of Global Environmental Goals.
Thereby, resulting in environmental challenges such as: Global Warming, Climate Change and
Deforestation.

1.6 OBJECTIVES OF THE STUDY

 To study the origin, evolution, and expansion of International Environmental Law.

 To identify and analyze the sources and principles of International Environmental Law.
 To study various treaties and conventions in respect of International Environmental Law.
 To analyze the challenges faced by the International Environmental Law.

1.7 RESEARCH QUESTIONS

1. How has the International Environmental Law originated, evolved, and expanded with
changing times?
2. What are the sources and principles of International Environmental Law?
3. How did the Treaties and Conventions impact the International Environmental Law?
4. What are the challenges faced by the International Environmental Law and the Legal
Framework to address the same?

1.8 RESEARCH HYPOTHESIS

The challenges and concerns surrounding International Environmental Law are multifaceted and
require comprehensive examination to identify effective solutions. This research aims to explore
the following hypothesis: The Implementation and Enforcement of International Environmental
Law face significant challenges like: Climate Change, Global Warming etc. Despite, the lack of
centralized enforcement mechanism, it appears perplexing to see that most International
Agreements are followed. Studies about compliance with international law have seen longstanding
debate between theorists from International Relations and International Law discourses.

1.9 RESEARCH METHODOLOGY

The present study utilizes a doctrinal methodology of research. The researcher has conducted
a thorough analysis of both primary and secondary materials as part of the doctrinal
11
investigation. Researcher cited a variety of primary study resources, such as enacted laws and
judicial precedents. Decisions of the courts of law have also been referenced. The secondary
materials include texts written by numerous notable writers, legal journals, news publications,
etc. Researcher focused the research on textbooks, Act provisions, legal periodicals, as well
as web sources, legal databases, etc.

1.10 CHAPTER SCHEME

CHAPTER 1: INTRODUCTION

The introduction sets the stage for the dissertation on the of International Environmental Law. It
provides a background and context for the study, outlining the importance and relevance of the
topic. This section highlights the current environmental challenges faced at the Global Level, such
as Climate Change, Biodiversity Loss, Pollution, and the Depletion of Natural Resources. It
emphasizes the need for effective legal frameworks and International Cooperation to address these
pressing Environmental Issues.

CHAPTER 2: EVOLUTION OF INTERNATIONAL ENVIRONMENTAL LAW

This chapter deals with the historical perspective on how the of International Environment Law as
we know in the modern world was originated. It briefly discusses with the history, nature, sources,
and concept of International Environmental Laws.

CHAPTER 3: CONVENTIONS AND TRETIES ON INTERNATIONAL

ENVIRONMENTAL LAW

This chapter is an in-depth analysis of conventions and treaties on International Environmental

Laws, which plays an important part in the whole research. One of the main purposes of
International Environmental Law is that it aims to protect non-human parts of the natural world, as
well as humans: plants, animals, water, atmosphere, and systems that contain several or all these
elements. It also includes the natural world as it has been altered by human activities, such as
landscapes.

12
CHAPTER 4: COMMON LEGAL PRINCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW

This chapter deals with the common legal principles and philosophies like: State Sovereignty,
Philosophy on Protection of Environment. The analysis of the principles and concepts of
International Environmental Law is an important step in the study of its substantive aspects, which
is discussed in this chapter.

CHAPTER 5: INTERNATIONAL LEGAL FRAMEWORK FOR ADDRESSING

SEVERAL CHALLENGES IN INTERNATIONAL ENVIRONMENT LAW

This chapter highlights several advances in international law related to climate change and global
warming.

CHAPTER 6: CONCLUSION AND SUGGESTIONS

Conclusions which are to be drawn from the above-mentioned chapters will be stated and
constructive suggestions will be put forth.

13
 CHAPTER 2
EVOLUTION OF INTERNATIONAL ENVIRONMENTAL LAW

2.1 INTRODUCTION

International environmental law has rapidly changed over the past 40 years as
environmental threats have become more obvious and their assessment and management have
grown more complex. Fewer than a dozen global agreements existed in 1972, and the majority
of nations lacked environmental legislation. In 2011, there are countless bilateral and
international environmental accords, and every nation has at least one environmental law or set
of laws. In addition to States, a variety of other parties influence the creation, application, and
observance of international environmental law. In addition, the environment is becoming more
closely related to national security, trade, human rights, and economic growth. Understanding
the potential and constraints of law in resolving environmental issues on a global, regional, or
local scale comes from examining the development of international environmental law.
The development of international environmental law can be divided into three main periods:
1900–1972, 1972–1992, and 1992–2012. These essentially correlate to the time of the earliest
indications of international environmental law, the formation of the fundamental framework,
and the maturation and integration with other fields of international law. Two international
conferences—the 1992 Rio de Janeiro Conference on Environment and Development and the
1972 United Nations Stockholm Conference on the Human Environment—mark the beginning
and end of the respective time periods (Rio Conference). The Rio+20 Conference will take
place once more in Rio de Janeiro in June 2012. The previous conferences in Stockholm and
Rio both set new trends. Their efforts and the circumstances that surrounded them helped pave
the way for important developments in the creation and application of international
environmental law.

2.2 FROM 1900-1972: EARLY GLIMMERS

Concern for the environment is ancient and embedded in the major religious traditions. In
the Judeo-Christian tradition, for example, God gave the earth to his people and their offspring
as an everlasting possession to be passed down to each generations and exhorted people not to
cut down fruit bearing trees cluring war- fare. 26 Other religions similarly show respect for

26
Genesis 1: 1-31, 17: 7-8, and Deuteronomy 20: 19.
14
 nature.27 For centuries, countries have developed rules for the use of shared watercourses and
rights to water. However, before 1900 few international agreements were concerned with
international environmental issues. The prevailing rule of international law was that of national
sovereignty over natural resources within a country’s territory or jurisdiction. The few
international agreements focused primarily on boundary waters, navigation, and fishing rights.
With few exceptions, they did not address pollution issues.28
At least four agreements were reached at the beginning of the 20th century to conserve
commercially valuable species, including as migrating birds, agriculturally important birds, fur
seals, and wild animals, birds, and fish in Africa. Several agreements were reached between
nations in the 1930s and 1940s to safeguard the fauna and flora of the Western Hemisphere and
Africa, specifically. They also completed the historic International Convention for the
Regulation of Whaling and negotiated accords pertaining to marine fisheries. States focused
their negotiations between 1950 and 1970 on two environmental issues: damage from nuclear
energy use in the civilian sector and maritime contamination from oil. Environmental concerns
had expanded by the late 1960s. States signed the Ramsar Convention on Wetlands in 1971 and
the African Convention for the Conservation of Nature and Natural Resources in 1968,
respectively. Even yet, prior to 1972, there were not many international environmental
agreements reached.
International environmental regulations and concepts did not emerge significantly during these
formative years of the field. There were two well-known arbitrations: the Lac Lanoux Arbitration
between France and Spain and the Trail Smelter Arbitration between Canada and the United
States. The former covered the duty to prevent transboundary harm, whereas the latter covered the
procedural duties of advance notification, consultation, and negotiation. The fact that there aren't
many other decisions from this era that are pertinent has contributed to the frequent citation of
these cases in later literature on International Environmental Law.
2.3 FROM 1972-1992: DEVELOPMENT OF BASIC FRAMEWORK

27
The nontheistic tradition of Shinto stresses respect for nature, a view for which there is resonance in Buddhism,
Hinduism and Jainisin. Japan has a reverence for nature that is displayed in symbolic representations, such as flying
cranes on wedding kimonos. For recent discussion, see Bruce Rich, To Uphold the World. A Call for a New ‹Slobal
Ethic From Ancient India (2010), pp. 168-169. Islamic law regards each generation as having inherited “all the
resources of life and nature” and having certain duties to God in using them. See Akou Bakr Ahmed Ba Kadar et al.,
Islamic Principles for the Conservation of the Natural Environment (2nd ed., 1983), pp. 13-14.
28
A notable exception is the 1909 United States-United Kingdom Boundary Waters Treaty, which provided in
Article IV that water “shall not be polluted on either side to the injury of health or property on the other.”
Washington Treaty Relating to Boundary Waters between the United States and Canada, January 11, 1909,
Charles Bevans, Treaties and Other International Agreements of the United States ofAmerica 1776-1' d9, Vol. 12,
p. 319 (Treaty Series No. 548).

15
 This time frame spans the events leading up to the 1992 United Nations Conference on
Environment and Development, starting with the 1972 United Nations Conference on the
Human Environment.29

1. 1972: The United Nations Stockholm Conference on the Human Environment

1972 was a significant year because it marked the first time that nations from all around the
world collaborated to identify and address environmental issues. The first worldwide
intergovernmental conference to concentrate on environmental issues was the United Nations
Conference on the Human Environment30, held in Stockholm in 1972. International
environmental law has been affected in a lasting way by the Conference's planning, the
Conference itself, and the immediate aftermath.
The need to resolve the possible conflict between economic development and
environmental conservation emerged as perhaps the most important topic during the planning
for the Stockholm Conference. Particularly worried were developing nations that their own
growth would be harmed by an international effort to protect the environment. A group of
specialists from governments, academia, and non-governmental groups gathered in Founex,
Switzerland, just before the Conference to talk about the tensions and create a conceptual
framework for balancing environmental preservation and economic development. The Founex
report acknowledged that environmental preservation and economic growth should go hand in
hand.31 It laid a foundation for later acceptance of the concept of sustainable development,
which governments confirmed as an overarching policy twenty years later at the Rio
Conference on Environment and Development.
The United Nations Stockholm Declaration on the Human Environment was also adopted
by governments as a result of the Stockholm Conference. The foundation for the ongoing
development of international environmental law's guiding principles was laid forth in this paper.
'2 Principle 21 in particular, which states that "States have the sovereign right to exploit their
own resources in accordance with their own environmental policies, and the responsibility to
ensure that activities within their jurisdiction or control do not cause damage to the environment

29
Trail Smelter Case (United States v. Canada), Ad Hoc International Arbitral Tribunal, March 11, 1941, United
Nations Reports of International Arbitral Awards, Vol. 3 (1949), p. 1938.
30
Labe Lanoux Case (France -v. Spain), Ad Hoc International Arbitral Tribunal, November 16, 1957, United
Nattons Reports of International Arbitral Awards, Vol. 12 (1963), p. 281.
31
Founex Report on Development and Environment (1971). The report is reprinted in Miguel Ozorio de Almeida
ct al., Environment and Development; the Founex Repon on Development and Environtnent, with Commentaries
1972).
16
 of other States or of areas beyond the limits of national jurisdiction," sets forth a fundamental
obligation, which the International Court of Justice subsequently recognised as pa "As a result
of the Stockholm Conference, nations formed the United Nations Environment Programme
(UNEP) in Nairobi, Kenya, which is the first transnational intergovernmental body devoted to
environmental preservation. However, because it was not created as a specialised agency of the
United Nations, the organisation does not have the same standing as agencies like the United
Nations Food and Agricultural Organization (FAO) or the United Nations Educational,
Scientific, and Cultural Organization (UNESCO) 32. One of the major concerns in the planning
for the Rio+ 20 conference in June 2012 is institutional governance. Due to the fact that all of
the specialised United Nations agencies were situated in industrialised nations, the choice to
locate UNEP in Kenya was particularly significant. The location of UNEP suggested that
environmental issues were widespread throughout the world33.
The Stockholm Conference also marked the beginning of the involvement of
nongovernmental groups and, to a lesser extent, other segments of the business sector in the
debate over global environmental challenges and the creation of international environmental
legislation. At the time, it was significant because the UN granted accreditation to 250
nongovernmental organisations for the Stockholm Conference. The 1972 Convention for the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter, the 1972 Convention
for the Protection of World Cultural and Natural Heritage, and the 1973 Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES) 34 are three
significant multilateral agreements connected to the Stockholm Conference. 6 These pacts
served as the first foundational pieces of international environmental law. The majority of
nations have ratified CITES, the World Heritage Convention, and several of the conventions
regulating dumping that pollutes the oceans.
One may identify key moments in the development of every area of international law. The

32
All member countries belong to the governing body of the specialized agencies, while UNEP's Governing Council
includes only some of the member countries. The specialized agencies are established by international agreement and
by Articles 57 and 63 of the United Nations Charter, and are linked to the U.N. Economic and Social Council. UNEP
was established by U.N. General Assembly Resolution 2997 (XXVII) of December 15, 1972, and reaffirmed by U.N.
General Assembly Resolution, U.N. Doc. A/RES/31/112, December 16, 1976. UNEP is linked to the United Nations
General Assembly.
33
Michele M. Betsill and Elisabeth Corell, eds., NGODiplomacy: The lnfluence of Nongovernmental Organizations in
International Environmental Negotiations (2008), p. viii.
34
International Maritime Organization Convention for the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, December 29, 1972, United Nations Treaty Series, Vol. 1046, p. 120 (No. 15749) and London Protocol,
November 7, 1996, IMO LC/SM1/6 (1996), reprinted in International legal Materials, Vol. 36 (1997), p. 1; UNESCO
Convention for the Protection of World Cultural and Natural Heritage, November 16, 1972, United Nations Treaty
Series, Vol. 1037, p. 151 (15511); and Washington Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), March 3, 1973, United Nations Treaty Series, Vol. 993, p. 243 (No. 14537), amended in
Bonn on June 22, 1979.
17
 events mentioned above, along with the UN Conference itself, prepared the ground for the
international environmental law's explosive growth over the following two decades.

2.4 AFTER THE STOCKHOLM CONFERENCE

International environmental agreements grew in number over the two decades that followed
the Stockholm Conference. By the end of the time frame, there were more than 1100
International Law documents that either dealt exclusively with environmental issues or included
significant environmental elements. This total consists of both legally binding and non-binding
documents, such as the Stockholm Declaration on the Human Environment 35 of the United
Nations.
"During this time, nations honed their skills in quick, frequently shorter than two-year,
negotiations of new agreements. Even the U.N. Framework Convention on Climate Change
intergovernmental discussions only took 16 months to arrive to an agreement 36 In general, the
negotiations took longer than the agreements' implementation.
International environmental accords often consisted of various agreements addressing
distinct issues, each with a separate secretariat, monitoring and reporting system, and finance
facility to help countries implement the agreement. By 1993, it had been noted that the system
needed to be made more effective37 due to "treaty congestion."
During this time, the idea of a framework agreement that is augmented by one or more
protocols to deal with particular issues also began to take shape. States reached agreements
under UNEP shortly after its creation to safeguard particular regional oceans 38. The agreements
were in the form of a framework agreement with general clauses and one or more protocols that
addressed particular areas of safeguarding the regional sea. A State required to ratify one or
more of the protocols in order to join the framework agreement and become a party to it. This
process was put in place to make sure that the agreements would be effective in defending the
local marine. The negotiation of numerous other international agreements, including those for

35
Stockholm Declaration of the United Nations Conference on the Human Environment,June 16, 1972, supra note 12.
36
United Nations Framework Convention Climate Change (UNFCC), May 21, 1992, United Nations Treaty Series,
Vol. 1771, p. 107 (No. 30822).
37
Edith Brown Weiss, "International Environmental Law: Contemporary Issues and the Emergence of a New World
Order," Georgetown Law Journal, Vol. 81, No. 3 (1993), pp. 675-710.
38
E.g., Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, February 16, 1976,
United Nations Treaty Series, Vol.1102, p. 27 (No 16908).
18
 the regulation of Tobacco39 use and long-range transboundary Air Pollution40, Ozone41, and
Climate42, followed the model of a framework agreement with distinct protocols. However, the
condition that a State must ratify a protocol before joining the framework agreement was
dropped.
International environmental agreements saw changes in the themes and areas of attention
between 1972 and 1992, as is described in more detail elsewhere. The focus shifted from
protecting specific species of wildlife to conserving ecosystems, from regulating trade across
borders to regulating activities within national borders that threatened the environment, such as
by protecting world heritage sites, wetlands, and biologically diverse areas. The scope of these
agreements also widened from ones that controlled transboundary pollution to ones that
addressed global pollution problems, such as the ozone layer depletion. Under comparison to
earlier agreements, the duties in the new ones were often more extensive and intrusive on state
sovereignty. There has never been a situation when a clause in an existing agreement has been
weakened. Instead, they have been improved and fortified to increase their efficiency.
Other aspects of International Environmental Law saw significant development as well. The
Law of the Sea Convention of 1982 comes first, which declares unequivocally in Article 192
that states are to safeguard and preserve the marine environment and then specifies in
succeeding articles the specific steps to be taken to accomplish so. The Convention on the
Prohibition of Military or Other Hostile Use of Environmental Modification Techniques, which
forbids the use of those techniques "having widespread, long-lasting or severe effects as the
39
World Health Organization Framework Convention on Tobacco Control, June 16, 2003, United Nations Treaty
Series, Vol. 2302, p. 166 (No. 41032).
40
Economic Commission for Europe Convention on Long-Range Transboundary Air Pollution (LRTAP), November
13, 1979, E/ECE/1010 (1979), United Nations Treaty Series, Vol. 1302, p. 217 (No. 21623); Helsinki Protocol to the
1979 Convention on Long-Range Transboundary Air Pollution on the Reduction of Sulphur Emissions or their
Transboundary Fluxes by at Least 30 Percent, July 8, 1985, United Nations Treaty Series, Vol. 1480, p. 215 (No.
25247); Sofia Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control
of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, October 31, 1988, United Nations Treaty Series,
Vol. 1593, p. 287 (No. 27874); Geneva Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution
Concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes, November 18,
1991, United Nations Treaty Series, Vol. 2001, p. 187 (No. 34322); Oslo Protocol to the 1979 Convention on Long-
Range Transboundary Air Pollution on Further Reduction of Sulfur Emissions, June 14, 1994, U.N. Doc.
ECE/EB.AIR/40 (1994), United Nations Treaty Series, Vol. 2030, p. 122 (No. 21623); Aarhus Protocol to the 1979
Convention on Long-Range Transboundary Air Pollution on Heavy Metals, June 24, 1998, United Nations Treaty
Series, Vol. 2237, p. 4 (No. 21623); Aarhus Protocol to the 1979 Convention on Long-Range Transboundary Air
Pollution on Persistent Organic Chemicals, June 24, 1998, United Nations Treaty Series, Vol. 2230, p. 79 (No.
21623).
41
Vienna Convention for the Protection of the Ozone Layer, March 22, 1985, United Nations Treaty Series, Vol.
1513, p. 293 (No. 26164); The Montreal Protocol on Substances that Deplete the Ozone Layer (adjusted and/or
amended in London 1990, Copenhagen 1992, Vienna 1995, Montreal 1997, Beijing 1999), United Nations Treaty
Series, Vol. 1522, p. 3 (No. 26369).
42
United Nations Framework Convention Climate Change, supra note 18; The Kyoto Protocol to the United Nations
Framework Convention on Climate Change, December 10, 1997, United Nations Treaty Series, Vol. 2303, p. 162 (No.
30822).
19
 means of destruction, damage, or injury to any other State Party 43," is an example of how
Environmental Protection has become a significant topic of international law. International
Environmental Law is always subject to scientific uncertainty regarding the natural system, our
interactions with it, and the impact of our goods on it. Our understanding of science is always
evolving. Early International Agreements, in general, did not include provisions for adapting to
advancements in our understanding of Environmental Challenges. These clauses were
increasingly included in those signed after 1970. This sometimes manifested as the need for
regular technical assessments by experts, streamlined processes for phase-outs of harmful
chemicals more quickly than initially anticipated, the inclusion of annexes and streamlined
processes for adding to annexes, and routine meetings of the parties to discuss advancements in
scientific knowledge. Identifying, evaluating, and managing threats to the environment and to
human health is a significant task. As a result, some international accords have included
provisions for monitoring, danger early warning systems, and risk prioritising.
Similar to the previous point, some of the agreements made during this time focused on
protecting ecosystems rather than just a few specific pollutants or sources of pollution. For
instance, the 1978 Great Lakes44 Water Quality Agreement expanded the 1972 Agreement's
focus from specific types of contamination to the preservation of Great Lakes basin-wide
ecosystems. 2 As a result, a Protocol was added in 1987 to address issues that were crucial to
safeguarding the ecosystem of the Great Lakes region, including ground water pollution and
pollutants transported by the atmosphere.

2.5 FROM 1992-2012: MATURATION AND LINKAGE

43
Article 1, Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques
(ENMOD Convention), May 18, 1977, United Nations Treaty Series, Vol. 1108, p. 151 (No. 17119). The Convention
covers techniques that change "through the deliberate manipulation of natural processes, the dynamics, composition or
structure of the Earth." Article 35.3, Protocol Additional to the Geneva Conventions of 1949 (Protocol I), June 8,
1977, United Nations Treaty Series, Vol. 1125, p. 3 (No. 17512) also bans the use of techniques that have
"widespread, long-lasting and severe damage to the natural environment," but in contrast to the ENMOD Convention,
uses the connecting word "and" rather than "or." More recently, the International Committee of the Red Cross
compiled relevant international environmental law in the Guidelines for Military Manuals and Instructions on the
Protection oftheEnvironment in Times ofArmed Conflict, International Review of the Red Cross, No. 311 (April 30,
1996), available at http://www.icrc.org/eng/resources/documents/misc/57jn38.htm>, (accessed June 14, 2011). The
U.N. General Assembly recommended the Guidelines to all States for due consideration. See, United Nations General
Assembly Resolution 49/50, 49th Sess., Agenda Item 136, Article 11, U.N. Doc. A/RES/49/50 (1995). See also,
Richard G. Tarasofsky, "International Law and the Protection of the Environment During International Armed
Conflict," in Netherlands Yearbook of International Law, Vol. 24 (1993), pp. 17-79.
44
Canada-United States: Great Lakes Water Quality Agreement, 1978, as amended by the 1983 and 1987 Protocols,
Ottawa, November 22, 1978, United States Treaties and Other International Agreements, Vol. 30, p. 1383. This
agreement was amended again in 1993. An up-dated version is available at
<http://www.epa.gov/glnpo/glwqa/1978/articles.html#AGREEMENTo20BETWEEN%20CANADA>, accessed June
14, 2011.
20
 The United Nations Conference on Environment and Development serves as the starting
point for this time period, and events during the nearly twenty years that followed the
Conference are then examined.

1. The United Nations Conference on Environment and Development took place in Rio in 1992.

In June 1992, nations gathered in Rio de Janeiro, Brazil, to mark the 20th anniversary of the
Stockholm Conference on the Human Environment, which took place in 1972. Brazil's hosting
of the summit was a significant signal that environmental and development issues affected all
nations, regardless of their level of economic development. An major turning point in the
evolution of international environmental law and policy was the Rio Conference. The United
Nations General Assembly established the World Commission on Environment and
Development (also known as the Brundtland Commission), which wrote the report Our
Common Future for the Rio Conference and made the idea of sustainable development the
guiding principle of global environmental policy. States officially recognized the process of
balancing environment and development that had been started twenty years earlier in Founex,
Switzerland, when they confirmed that sustainable development was the guiding paradigm.
Sustainable development was described as "development that satisfies the demands of the
present without compromising the ability of future generations to meet their own needs 45" by the
Brundtland Commission.
Although the idea is widely acknowledged, there is no standardized definition of sustainable
development. Even if there are qualities that are generally acknowledged, the concept is flexible
and gives plenty of room for interpretation.46
The Rio Conference resulted in the production of four key documents for international
environmental law: the Rio Declaration on Environment and Development 47, which provided the
framework for the quick creation of new international environmental law principles and
regulations; the Convention on Biodiversity48; the U.N. Framework Convention on Climate
Change; and the extremely detailed Agenda 21 49 that outlined a comprehensive list of steps that

45
See e.g., Robert Kates, Thomas Parris, and Anthony Leiserowitz, "What is Sustainable Development? Goals,
Indicators, Values and Practice," Environment: Science and Policy for Sustainable Development, Vol. 47, No. 3
(2005), pp. 8-21.
46
Rio Declaration on Environment and Development, Report ofthe United Nations Conference on Environment and
Development, U.N. Doc. A/CONF.151/26/Rev.1 (1992).
47
UNFCC, supra note 18.
48
Convention on Biological Diversity, June 5, 1992, United Nations Treaty Series, Vol. 1760, p. 79 (No. 30619).
49
United Nations Conference on Environment and Development, Agenda 21, U.N. Doc. A/CONF.151/26/Rev.1
(1992).
21
 States were to take. The Conference also resulted in the adoption of a "Non-legally Binding
Authoritative Statement of Principles for a Global Consensus on the Management,
Conservation, and Sustainable Development of All Types of Forests" 50 and the ensuing
Convention on Desertification51 negotiations." It led to the creation of a brand-new organization
within the UN, the Commission on Sustainable Development, to evaluate the implementation of
Agenda 21.
The Rio Conference is particularly remarkable for the involvement that non-governmental
organizations (NGOs) and the corporate sector played, despite the fact that governments were
the main actors in gaining agreement on these policies. These organizations hosted a concurrent
forum in Rio, and the NGOs distributed a daily newsletter to all attendees informing them of the
previous day's activities. NGOs actively engaged delegations from the government. Small island
states had been represented by an NGO during the UN Framework Convention on Climate
Change discussions.
Stephan Schmidheiny, a Swiss businessman, established the World Business Council 52 for
Sustainable Development in the private sector "which paved the way for other business
organizations to take the lead in creating environmental standards, rules, and practices on a
global scale. (The concern of business with Sustainable Development in turn contributed to the
focus on public-private partnerships to address environmental and development issues ten years
later at the Johannesburg World Summit on Sustainable Development.)

2.6 AFTER THE RIO CONFERENCE

Major changes in worldwide environmental law and policy have occurred since Rio. The
field has grown stronger and more thorough. Participants have increased in importance,
including international intergovernmental organizations, civic society, industrial associations,
and other organizations. International Environmental Law and Trade, Human Rights, and
National Security have grown to be closely related. New ideas and regulations have developed
and emerged. The emphasis has switched from being almost entirely on creating new legal
instruments to being on putting international accords into effect and adhering to them.
The following developments can be categorized as a result:

50
Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of All Types of Forests, U.N.Doc. A/CONF.151/26 (Vol. III) (1992).
51
United Nations Convention to Combat Desertification in those Countries Experiencing Drought and/or
Desertification, Particularly in Africa, June 17, 1994, United Nations Treaty Series, Vol. 1954 , p. 3 (No. 33480).
52
World Business Council on Sustainable Development, see website, available at <http://www.wbcsd.org>, accessed
July 21, 2011.
22
 1) the integration of International Environmental Law with other legal systems, such as
International Economic Law, Human Rights Law, and National Security Law;
2) the emergence of actors other than States in the development of International
Environmental Law, such as multilateral development banks through their policies and
procedures, the private sector through voluntary codes of conduct and green standards, public-
private partnerships,
3) New worries about Institutional and Environmental Governance challenges have also
surfaced.53"

(1) Linkages
a) Investment and Trade in Economic Law
The General Agreement on Tariffs and Trade (GATT) Council of Representatives agreed to
establish a Group on Environmental Measures and International Trade in 1971, but it did not
meet until 1991. When the WTO was negotiated in 1994, it continued to recognize
environmental concerns in its Article XX(b) and (g) exceptions, even though the language does
not contain the word "environment.54" "The WTO has a Committee on Trade and the
Environment, which is researching various things like how multilateral environmental
agreements and the WTO55 are related. On this and other problems, it has not come to a
consensus.
The relationship between commerce and the environment is illustrated by the North
American Free Trade Agreement (NAFTA) between Canada, Mexico, and the United States.
The three multilateral environmental agreements that the countries have listed are those that deal
with trade in endangered species, hazardous wastes, and substances that deplete the ozone layer.
The agreement contains a historic provision in Article 104 that if there is a conflict between
trade provisions in certain environmental agreements and NAFTA, the latter can take
precedence56.
In order to address countries' concerns about environmental protection and ensure that
national environmental protection would not be in a race to the bottom, a North American

53
See e.g., Norichika Kanie and Peter Haas, eds., Emerging Forces in Environmental Governance (2004).
54
The General Agreement on Tariffs and Trade, United Nations Treaty Series, October 30, 1947, Vol. 55, p. 187 (No.
814).
55
Marrakesh Agreement establishing the World Trade Organization, with Annexes, Final Act and Protocol, April 15,
1994, United Nations Treaty Series, Vol. 1867, p. 154 (No. 31874).
56
For information on the Committee on Trade and the Environment see, <http://www.wto.org/english/tratop-e/envir
e/wrk committeee.htm>, accessed June 28, 2011. See also the Committee's current report, Report of the Committee on
Trade and Environment in Special Session to the Trade Negotiations Committee, TN/TE/20 (April 2011), available at
<http://www.wto.org/english/tratop-e/dda-e/chair-texts1 e/chair-texts11_e.htm>, accessed June 28, 2011.
23
 Agreement on Environmental Cooperation between Canada, Mexico, and the United States was
negotiated at roughly the same time as NAFTA. • Under the Agreement, a resident of any of the
three countries can complain to the Secretariat that a count by a two-thirds decision, the
Commission must authorize the Secretariat's ability to create a factual record of the complaint
before it can be made public. In accordance with the Agreement 57, countries may also choose to
establish a dispute resolution procedure by a two-thirds vote if one country is thought to have a
pattern of consistently failing to enforce its environmental laws. As of July 2011, the
Commission had received more than 75 complaints and had created 16 factual records. In the
end, this might result in trade sanctions. There were no claims pending under the latter process
as of July 2011.
The Rio Declaration on Environment and Development tackles trade-related environmental
concerns in Principle 12. The language uses "should," rather than "shall," which was a nod to the
importance of environmental concerns in order to provide a little flexibility in addressing them.
It states, among other things, that unilateral actions to deal with environmental challenges
outside the jurisdiction of the importing country should be avoided." Specific measures
addressing trade issues are included in several agreements reached in 1992 or later. For instance,
Article 3(5) of the United Nations Framework Convention on Climate Change states that
[m]leasures made to combat climate change, including unilateral ones, should not represent a
means of arbitrary or unjustified discrimination or a disguised limitation on international trade 58.
States addressed the relationship between environment and trade under the auspices of the
Organization for Economic Cooperation and Development (OECD) by creating formats for both
an environmental and a trade review of trade agreements 59. Government delegations included
individuals with both trade and environmental expertise.
The first bilateral free trade agreement between the United States and another country to
include environmental concerns was the one with Jordan. This pattern has been followed in
other bilateral free trade agreements between the United States, but not necessarily in those
between other countries. There have also been attempts to incorporate environmental concerns
into Investment Agreements."
There is currently a sizable and expanding body of literature on trade and environmental (or
environment and trade) issues The relationship between the two has grown significantly in

57
North American Agreement on Environmental Cooperation, September 13,1993, International Legal Materials, Vol.
32 (1993), p. 1480.
58
United Nations Framework Convention Climate Change, supra note 18.
59
Organization for Economic Co-operation and Development, Methodologies for Environmental and Trade Reviews,
OECD/GD(94)103 (1994).
24
 importance in discussions about national actions to slow or stop climate change "In the
upcoming years, it is likely that the debate over trade and environmental issues will intensify.

b) The environment and human rights

Some scholars support a distinct human right to a clean, decent, or healthy environment,
while others contend that current international human rights law encompasses environment,
much like the right to life. Over the past 20 years, environmental law has become more closely
related to human rights60. At the national level, an increasing number of constitutions recognize
such a right, though the specific model varies among nations.
Principle 1 of the 1992 Rio Declaration on Environment and Development states that [m]an
has the fundamental right to freedom, equality, and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being (...]" The 1972 Stockholm
Declaration on the Human Environment serves as a foundation for connecting human rights to
the quality of the environment.
A draught Declaration of Principles on Human Rights and the Environment was created at
the United Nations more than 15 years ago, however it was never ratified.

The literature on a human right to the environment has significantly grown over the past 20
years, and some national tribunals have recognised a right to the environment as immutable.
Recently, the United Nations Human Rights Council adopted two resolutions relating to climate
change and human rights, and in 2010, a resolution on a right to water and sanitation."

c) Security at home and the environment

As previously mentioned, agreements regulating the military or hostile use of environmental
modification techniques were reached prior to 1992. Since then, there has been a growing
understanding that a stable environment is necessary for national security. As a result,
environmental protection is increasingly being considered a component of national security
"Water is increasingly seen through the lens of national security due to projected climate change
and anticipated shortages of fresh water resources in regions like the Middle East, northern and
eastern Africa, and South Asia, among others.
The International Court of Justice's 1996 Advisory Opinion on the Legality of the Thfeat or
Use by a State of Nuclear Weapons noted that the issue was not whether the treaties applied
60
Philip Alston, "Conjuring up New Human Rights: A Proposal for Quality Control,"American Journal of
International Law, Vol. 78 (1984), pp. 607-621; Louis B. Sohn, "The New International Law: Protection of the Rights
of Individuals rather than States," American University Law Review, Vol. 32 (1982), pp. 59-63.
25
 during armed conflict. World Heritage sites, for example, were threatened or destroyed during
the conflict in the Balkans. One aspect of the relationship between environment and security
relates to the conditions by which Environmental Agreements must be respected during armed
conflict "This remains the question. During times of peace, there is yet another connection
between the environment and national security. This emphasizes the significance of
incorporating environmental concerns into the design and implementation of these laws and
policies. Some of the policies adopted by governments during peace time to enhance national
security may be harmful to the environment. These include ones relating to nuclear energy,
disposal and storage of wastes related to weapons, etc.
For the purposes of examining the Development of International Law, it is sufficient to note
that there has long been a relationship between the environment and armed conflict, that this
relationship is still relevant today and is only getting stronger, that this relationship persists even
in times of peace, and that the environment, particularly water resources, has come to be viewed
through the lens of national security by some, if not all, States.

(2) Actors' Roles Beyond States

The multilateral development banks and the private sector, which includes both the
commercial sector and nongovernmental organisations, have seen some of the most significant
advancements in International Environmental Law over the past 20 years. Even though the
environmental measures do not now exist as negotiated agreements between States, they are
nonetheless a component of the larger body of International Environmental Law. Every area of
International Environmental Law has been profoundly influenced by these players.

a) Banks for Multilateral Development

The World Bank employed an environmental advisor and started rules and practices that
addressed specific environmental implications of projects it was financing in the 1970s. After
1992, when the World Bank adopted a wide range of policies and practices meant to safeguard
the environment and ensure that economic development is sustainable, these efforts significantly
grew. These new guidelines for project selection and design as well as national regulations 61

61
World Bank safeguard policies include Environmental Assessment, Operational Policy 4.01 (1999), available at
<http://go.worldbank.org/K7F3DCUDDO>; Natural Habitat, Operational Policy 4.04 (2001), available at
<http://go.worldbank.org/PS1EF2UHYO>; Forests, OperationalP olicy 4.36(2002), availablea t
<http://go.worldbank.org/T22VSH6ZEO>; Pest Management, Operational Policy 4.09 (1998), available at
<http://go.worldbank.org/B7525J6000>; Safety of Dams, Operational Policy 4.37 (2001), available at
<http://go.worldbank.org/6G6AB69P30>; IndigenousP eoples, OperationalPolicy4 .10 (2005), available at
<http://go.worldbank.org/IBZABS9UU0>; Physical Cultural Resources, Operational Policy 4.11 (2006), available at
<http://go.worldbank.org/UBUBZD7NAO>; and Involuntary Resettlement, Operational Policy 4.12 (2001), available
26
 were developed in addition to the specific environmental effects of Bank-financed projects.
Policies on environmental assessment, forests, natural habitat, pesticides, dams, indigenous
peoples, cultural properties, and resettlement were all part of the so-called "safeguard" measures
"Other regional development banks and the International Finance Corporation have adopted
their own versions of some of these policies, some of which have been revised at least once
during this period62. These policies and procedures provide a common template of requirements
that apply across countries. Some scholars have identified an emergence more broadly of
"Global Administrative Law.

b) the Commercial Sector

Private codes of environmental practice include the International Organization for
Standardization (ISO) environmental management standards, the standards for sustainable
tropical timber trade and sustainable fisheries, and the International Chamber of Commerce.
Since 1992, the private sector has launched significant efforts to develop its own transnational
environmental standards and practices "and numerous private code projects, especially in
Europe. Under the United Nations, there have also been a number of significant global efforts.
auspices, such as the 1999 Global Compact, 5 that are directed at the business sector, the 2006
Principles for Responsible Investment," and the United Nations Environment Programme
Finance Initiative to promote links between sustainability and financial performance." In 2002,
the World Summit on Sustainable Development63 in Johannesburg called for public-private
partnerships64 to promote Sustainable Development. These partnerships have since become
central to the mission "As shown by these initiatives, the private sector has emerged as a crucial
player in the implementation of Sustainable Development in the twenty years since the Rio
Conference.

at <http://go.worldbank.orgZDIJXP7TQO>, all accessed June 29, 2011.

62
The International Finance Corporation adopted Environmental and Social Safeguard Policies and a Disclosure
Policy in 1998. In 2006, it adopted a new Policy on Social and Environmental Sustainability, which strengthens and
expands upon the old policy. The IFC applies the 2006 policy to all investment projects. For comprehensive
information on the IFC policies and standards see
<http://www.ifc.org/ifcext/sustainability.nsf/Content/EnvSocStandards>, accessedJuly 21, 2011. The Asian
Development Bank's new Safeguard Policy Statement (SPS) was approved in 2009. The 2009 SPS creates a unified
policy framework for environment, involuntary resettlement and indigenous peoples. Asian Development Bank,
Safeguard Policy Statement (2009) available at <http://www.adb.org/Documents/Policies/Safeguards/Safeguard-
Policy-Statement-June2009.pdf>, accessed June 29, 2011. The Inter-American Development Bank, the African
Development Bank and the European Bank for Reconstruction and Development have also developed somewhat
similar policies.
63
International Chamber of Conunerce/World Business Organization (ICC), Business Charter for Sustainable
Development: Principles for Environmental Management (1991), available at
<http://www.iccwbo.org/policy/environment/idl309/index.html>, accessed June 29, 2011.
64
International Council of Chemical Associations, Responsible Care Initiative (1985), available at <http://www.icca-
chem.org/en/Home/Responsible-care/>, accessed June 29, 2011.
27
 c) Civil Society and Nongovernmental Organizations (NGOs)
Nongovernmental organisations have grown significantly in importance in the development
and implementation of International Environmental Agreements, even while States still play a
key role globally, nationally, and locally in preserving the environment and promoting
Sustainable Development. In almost every country, the number of active NGOs has drastically
expanded throughout this time. 3,200 NGOs were authorised to attend the Johannesburg Summit
in 2002 "NGOs65 have taken part in parties' meetings for many International Environmental
Agreements, assisted nations in formulating positions by offering data, analysis, and even
draught treaty text, informed secretariats 66 of violations of the agreements, and filed complaints
with bodies established under some agreements to monitor and ensure compliance with the
agreement's provisions.
With improvements in information technology that allow for informal, ad hoc groups can
emerge around specific problems relatively immediately and break up as soon as individuals are
likely to soon have a more prominent role in raising awareness of environmental issues, using
the legislation to remedy those issues, and ensuring that International Environmental
Agreements are being followed (or potentially in avoiding compliance).

(3) Principles and obligations in international environmental law have advanced.

Some of these developments are described below. The 1992 Rio Declaration on
Environment and Development served as a foundation for the future development of principles
and duties in International Environmental Law.
The Rio Declaration's Principle 7 stated that in view of the different contributions to global
environmental degradation, States have common but differentiated responsibilities," a phrase
that, while novel at the time, has since become a common phrase in international legal jargon
and is the foundation of the climate change negotiations.
Intergenerational equity, the precautionary principle or approach, the polluter pays principle,
and, according to some scholars, Sustainable Development are other principles that have become
common in international legal discourse over the past 20 years. Recently, a principle of
solidarity was also put forth."

65
The Global Responsibilities Index (GRI), started in 1997, and is now the publisher of the Sustainability Reporting
Guidelines. See GRI's 2006 version of the Guidelines, available at
<http://www.globalreporting.org/NR/rdonlyres/ED9E9B36-AB54-4DE1-BFF2-5F735235CA44/0/
G3_GuidelinesENU.pdf>, accessed June 29, 2011.
66
Marc Levy and Marina Chernyak, "Sustainable Development Partnerships," Environment: Science and Policy for
Sustainable Development, Vol. 48 (2006), pp. 3-4.
28
 The International Court of Justice's recognition of the essence of Principle 21 of the 1972
Stockholm Declaration on the Human Environment as a component of International Law 67 is one
of the most important developments since 1992. In essence, a State's responsibility now includes
an obligation to protect the environment.
In the years after the Rio Declaration, there are other procedural requirements that have
evolved into, or are in the process of developing into, requirements under International Law.
These include notification, consultation, environmental impact assessment, access to
information, public participation, effective access to judicial and administrative redress and
remedy, and prior informed consent for certain activities. * In 2010, the International Court of
Justice stated that there is now an obligation under general international law for States "to
undertake an environmental impact assessment where there is a risk that the proposed industrial
activi- The Rio Declaration on Environment and Development, published in 1992,
acknowledged that little progress had been made since 1972 in developing international law
regarding liability and compensation for "adverse effects of environmental damage," and urged
States to "cooperate in an expeditious and more detailed manner." However, the Court noted that
general international law did not "specify the scope and content of an environmental impact
assessment." With a few notable exceptions, such as the Basel Protocol on Liability and
Compensation, International Environmental Law related to liability has, however, continued to
stagnate "The Protocol on Civil Liability and Compensation for Damage Caused by the
Transboundary Effects of Industrial Accidents on Transboundary Waters (to the Convention on
the Protection and Use of Transboundary Watercourses and International Lakes and the
Convention on the Transboundary Effects of Industrial Accidents)9' and the International Law
The protocols had taken effect.

To date, there is no consensus on what constitutes good governance, but some core aspects
may be identified. While the term "accountability" appears increasingly in legal literature and is
a goal in many international agreements, there is not a consensus on its origin.

67
Legality of the Threat or the Use of Nuclear Weapons, supra note 13, pp. 241-242, para.29. The Court stated that
"the general obligation 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." The Court reaffirmed this in Gabdikovo-Nagymaros Project, supra note 13, p. 41, para. 53. The Court's
language differs slightly from the Stockholm and Rio Declarations language. It uses the term "respect the environment
of other States or of areas beyond national control," while Stockholm Principle 21 (and Rio Principle 2) refer to "the
responsibility to ensure that activities with their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction." For related analysis, see Djamchild Momtaz, "Le
recours A l'arme nucl6aire et la protection de l'environnement," in Laurence Boisson de Chazournes and Philippe
Sands, eds., InternationalLaw, the International Court of Justice and Nuclear Weapons (1999), pp. 355-374, and Edith
Brown Weiss, "Opening the Door to the Environment and to Future Generations," ibid., pp. 338-353.
29
 This reflects a broader trend in some areas of international law. The Arctic Council, for
instance, was established by a non-legally binding instrument: the Declaration of the
Establishment of the Arctic Council, 1996. Soft law instruments (or non-legally binding
instruments) related wholly or in part to environmental concerns have also increased
significantly in number over the past 20 years "• The Arctic has yet to be the subject of a treaty.
There are numerous justifications for using "soft law," including situations where events
develop so swiftly that it is preferable to agree on a non-binding document than to go through
the drawn-out process of formulating a binding one. Soft law might also serve as a foundation
for a later, legally enforceable agreement. It is typically simpler to come to an agreement when
the clauses are non-binding and do not require parliamentary approval.

(4) Putting Legal Instruments' Implementation and Compliance First

Up until 1992, states generally concentrated on negotiating new legal agreements. Several
international agreements had been signed by 1993, as was previously indicated. These
agreements often had distinct reporting systems, secretariats, and financial sources, with the
significant exceptions being the UN Framework Convention on Climate Change and the
Convention on Biodiversity. The Convention on Biological Diversity's provision addressing 68
this issue serves as evidence that there was also worry about overlap and discrepancies between
rules in various agreements. By hosting numerous meetings with the secretariats of various
international environmental agreements, housing some of the secre- tariats in one building in
Geneva, and taking other steps, UNEP attempted to address these concerns. There are still some
of the same problems as nations get closer to Rio+20, and "treaty congestion" is once more
being discussed.
A new focus on strengthening implementation and compliance with existing agreements and
on providing ways to do so with future agreements emerged in the scholarly literature and within
the United Nations Environment Programme, in part as a result of the negotiation of numerous
new agreements during the previous decade before the Rio Conference. * The United Nations
Environment Programme adopted Guidelines on Compliance with and Enforcement of
Multilateral Environmental Agreements "The establishment of implementation and compliance
committees by parties to multilateral environmental agreements is becoming more common.

68
See, e.g., Abram Chayes and Antonia Chayes, The New Sovereignty: Compliance with Treaties in International
Regulatory Regimes (1995); Edith Brown Weiss and Harold K. Jacobson, eds., Engaging Countries: Strengthening
Compliance with International Environmental Accords (1998), see especially for Japan, James Feinerman and
Koichiro Fujikura, "Japan: Consensus-Based Compliance," ibid., pp. 253-290.
30
 These committees typically allow parties to address specific cases in a flexible manner in order
to address the underlying causes of noncompliance and bring the party into compliance.
The use of market mechanisms has been another innovative strategy to strengthen the
implementation of multilateral environmental agreements; this is particularly evident in the tools
available to implement the Kyoto Protocol to the UN Framework Convention 69 on Climate
Change, including joint implementation, the clean development mechanism, and emissions
trading "The underlying premise is that countries may be able to implement and adhere to the
agreement's obligations more effectively and at lower cost by using market mechanisms. Other
than the United States, nations were hesitant to utilise such market processes twenty years ago.
Even while market mechanisms70 are now a crucial component of international environmental
agreements' implementation strategies, there is ongoing debate regarding their efficacy in
actually reducing the targeted pollution and if the cost of doing so is distributed fairly.

2.7 SOURCES OF INTERNATIONAL ENVIRONMENTAL LAW

The interactional account makes it easier to make a detailed evaluation of the function and
relative significance of the Article 38 "sources" as well as the emergence of new international
legal systems. An examination of the changing array of legal procedures can be conducted on
fertile ground provided by international environmental law..

1. Treaties

Treaties can help pre-existing common understandings become more defined and crystallised. A
treaty will frequently be a crucial stage in interactional law-making, given the practical
difficulty of collecting and communicating shared understandings in international situations.
Since there are many players in the international arena and little possibilities for direct
connection, "snap shots" showing the common ground are frequently required to progress the
legislative process. Treaties also make it easier for non-state actors to participate in this process,
such as NGOs or representatives of important expert communities. While states continue to be

69
The Guidelines have two parts: 1) Guidelines on Enhancing Compliance in Multilateral Environmental Agreements
(MEAs) and 2) Guidelines for National Enforcement and International Cooperation in Combating Violations of Laws
Implementing Multilateral Environmental Agreements (MEAs). United Nations Environment Programme Guidelines
on Compliance with and Enforcement of Multilateral Environmental Agreements, adopted by UNEP decision
SS.VII/4; United Nations Environment Programme, Manual on Compliance with Enforcement ofMultilateral
Environmental Agreements (2006).
70
Articles 6, 12 and 17 of The Kyoto Protocol to the United Nations Framework Convention on Climate Change,
supra note 23.
31
 the formal legislators, non-state actors participating in a particular regime have a lot of power to
inform and even shape the legislative process. The Vienna Convention on the Law of Treaties,
which sets forth the fundamental principles of treaty making and application, is a framework for
the robust legality that treaties can also provide 71. These widely accepted guidelines and
practises very closely mirror the above-mentioned legality standards, which is not by chance.
Treaty law offers a variety of techniques through these regulations to make sure that a certain
treaty complies with legality standards72. In general, treaties offer not only ways to create laws
but also 'places' where enforceable laws can be located73.

Despite the high legality characteristics of treaty law as a whole, it is nonetheless feasible that
specific treaty standards do not result in interactional law. For instance, in some situations,
provisions that are not based on common understandings will be incorporated into treaties in the
hopes that the norm will serve as a point of convergence for future legislation. Such phrases are
not law merely because they have been "posited," but they may become such over time if they
satisfy the requirements of legality and encourage a practise of legality that ends up influencing
how parties behave. Treaty-making can also be a way for parties to permit the development of
largely procedural forms of legality inside a system. Such agreements may merely offer a stable
environment for states and other players to interact in relation to a particular issue, or they may
give room for meaningful understandings to develop over time.

There are many instances of similar processes in action in international environmental law.
Common characteristics of multilateral or global environmental concerns include the
involvement of numerous, interconnected issues, the need for legal adjustments to reflect
changes in the nature of the issue, knowledge, or technical and financial capability, and the need
for coordinated action by parties with wildly different priorities. Multilateral environmental
agreements (MEAs) thus create long-term environmental regimes that are characterised by the
institutionalisation of expert networks and decision-making, the enactment of a variety of
iterative legal and normative frameworks, and the creation of transparency and accountability
mechanisms based on treaties74.

According to accepted wisdom in international environmental law, the framework-protocol

71
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, 1155 UNTS 331).
72
See Brunnée and Toope, Legitimacy and Legality, pp. 49–50.
73
Besson, ‘Theorizing’, p. 170. And see Cohen, ‘Rethinking’, p. 113.
74
See Jutta Brunnée, ‘Environment, Multilateral Agreements’, in Wolfrum, Max Planck Encyclopedia (2011), para.
10.
32
 approach of environmental regime development is especially helpful for encouraging
cooperation and gradually establishing increasingly ambitious norms75.

The initial framework agreement is constitutive rather than regulatory in nature, with a focus on
the formulation of overall aims and principles as well as the development of rules and
procedures for decision-making. The framework's provisions are made to establish ground
principles that allow for the development of more detailed normative structures as well as
shared understandings.

Although this strategy has been successfully used in environmental agreements, 76 normative
progress is sometimes sluggish and the trajectory is by no means inevitable. For instance, it took
23 years for the UN Framework Convention on Climate Change (UNFCCC), which was
established in 1992, to achieve its stated goal of preventing dangerous climate change 77. This
goal states that global temperature increases must be kept to well below 2° Celsius above pre-
industrial levels78. Similarly, although the principle of common but differentiated
responsibilities and capabilities was articulated in the convention 79, Its significance has been
challenged in important ways that are just now being resolved. The development of these two
clauses through time supports my prior assertion that, while enshrining a purpose or principle in
a treaty is an important first step, it is insufficient to create a standard in and of itself. It might
be argued that the inability of the climate regime to produce a comprehensive, long-term
emission reduction plan was caused by the lack of agreement on these fundamental factual and
normative characteristics.80 Nonetheless, states and other actors have continued to interact under
the auspices of the UNFCCC and its procedural rules and relatively robust legality practices,
although by no means without difficulties, have proven remarkably resilient.81

Treaties remain the dominant ‘source’ of international environmental law. Formal treaty making

75
Brunnée, ‘Environment’, paras. 24–46.
76
Consider the 1985 Convention for the Protection of the Ozone Layer (Vienna Convention) (Vienna, 22 March
1985, 1513 UNTS 324) with its 1987 Protocol on Substances that Deplete the Ozone Layer (Montreal, 16
September 1987, 1522 UNTS 3).
77
See United Nations Framework Convention on Climate Change (UNFCCC) (Rio de Janeiro, 9 May 1992, 1771
UNTS 107), Art. 2.
78
See Paris Agreement, UN Doc FCCC/CP/2015/L.9 (12 December 2015), Art. 2.1(a). See also Brunnée and
Toope, Legitimacy and Legality, pp. 146–51, 208–9 (on the evolution of shared understandings concerning the
regime objective).
79
See UNFCCC, preamble and Art. 3.1.
80
Brunnée and Toope, Legitimacy and Legality, p. 218.
81
Brunnée and Toope, Legitimacy and Legality, pp. 216–9.
33
 activity in the field has not so much slowed from previously high levels, as may be the case in
other areas of international law, 82 as returned to its prior pace after reaching a high point in the
period between 1990 and 1992 – the years leading up to the Rio Earth Summit. 83 These patterns
must be considered in light of the fact that, by the 1990s, treaty regimes had been devoted to
most international environmental concerns. Hence, the gradual slowing of environmental treaty
activity since the 1990s has gone hand-in-hand with a shift from the adoption of new treaties or
protocols to the adoption of amendments to existing treaties.84

A finely calibrated range of relatively more or less formal decision making processes has
emerged to facilitate the iterative norm development and standard-setting that is characteristic
of MEAs.85 At one end of the range, new substantive obligations (such as emission reduction
commitments) and modifications to the fundamental structure of the underlying treaty (such as
decision-making rules or entry-into-force provisions) typically require explicit assent by a
predetermined majority of parties. MEAs typically state that parties' consent is presumed unless
they expressly opt out within a certain time period for other changes, such as updates of a
technical or administrative nature to current commitments (e.g., tightening the phase-out
schedule for, or adjusting the ozone depleting potential of, an already regulated substance). At
the informal end of the spectrum, MEA plenary bodies consistently pass consensus-based
decisions that are formally non-binding. Despite being legally non-binding, parties frequently
followed the comprehensive, required regulatory or procedural standards contained in these
rulings. It is true to state that the emergence of various forms of informal standard-setting under
the aegis of MEAs86, a trend that I investigate in section III.5 below, has been a key trend in the
development of international environmental law.

82
Pauwelyn et al., ‘Stagnation and Dynamics’.
83
1992 was the high-water mark in environmental treaty activity around the world. Between 1990 and 1992, 106
multilateral environmental agreements (MEAs) were concluded. By comparison, between 1970 and 1972, 33 MEAs
were concluded, and between 1980 and 1982, 45 MEAs were concluded. In turn, between 2000 and 2002, 88 MEAs
were concluded and between 2010 and 2012, 57 MEAs were concluded. See Ronald B. Mitchell, International
Environmental Agreements Database Project (Version 2014.3) (2002–2015), accessed 29
October 2015,
<http://iea.uoregon.edu/page.php?query=summarize_by_year&yearstart=1950&yearend=2012&inclusion=MEA>
(using the notion of MEA to encompass new treaties, protocols to existing treaties, and amendments to existing
treaties).
84
Consider these numbers, compiled on the basis of the database maintained by Mitchell: 1970–1972: 33 MEAs (21
new, 3 protocols, 9 amendments); 1980–1982: 45 MEAs (19 new, 9 protocols, 17 amendments); 1990–1992: 106
MEAs (50 new, 21 protocols, 44 amendments); 2000–2002: 88 MEAs (37 new, 15 protocols, 47 amendments); and
2010–2012: 57 MEAs (11 new, 10 protocols, 36 amendments).
85
See Jutta Brunnée, ‘COPing with Consent: Law-making under Multilateral Environmental Agreements’, Leiden
Journal of International Law 15 (2002), 1–52.
86
See Pauwelyn et al., ‘Stagnation and Dynamics’, p. 740.
34
 2. Customary Law

Although the changes are not as significant as one might anticipate, the elements of the
interactional explanation are engaged in customary law-making slightly differently than they are
in treaty law. For instance, one would think that customary law cannot develop without
generally accepted and practised understandings, yet it is feasible to generate formal treaty
standards that are not based on shared understandings. However, given that there are usually
just a few states that are interested in a particular practise, some states may actually have only a
minimal understanding of it, while other states' inaction is regarded as consent 87. Conversely,
the rules controlling the creation of customary law are less precisely structured by the
requirements of legality than the rules governing the creation of treaty law, and there is still
disagreement over the precise criteria for creating custom 88. Nevertheless, legality is stipulated
in customary law. After all, it is insufficient for states' actions to merely conform to a
predetermined norm. According to interactional law, that norm won't become established law
unless it is backed up by strong legality practises 89. Opinio juris, a more sophisticated form of
practise, has historically been used to describe it. The interactional framework is open about the
fact that practise alone grounds obligation, but it also offers clear criteria for assessing that
activity (whether physical or verbal) by considering if it is based on legality standards. As a
result, the interactional law theory aids in resolving the conundrum of opinio juris in the
development of customary law. It provides a more objective explanation of how a general
practise can be regarded as "as accepted as law" 90 while upholding the separation of social
norms from legal standards91.

When establishing this distinction, the interactional account also emphasises some of the
advantages and disadvantages of developing customary laws. In contrast to treaty making,
which places a higher focus on written terms and complex criteria for entry-into-force, it is

87
See e.g. Jonathan Charney, ‘Universal International Law’, American Journal of International Law 87 (1993), 529–
51, 538.
88
On the efforts of the International Law Commission (ILC) to set out rules on the identification of customary law,
see Sir Michael Wood (Special Rapporteur), Third Report on Identification of Customary International Law, UN
Doc A/CN.4/682 (27 March 2015).
89
See Brunnée and Toope, Legitimacy and Legality, pp. 47–8.
90
Statute of the International Court of Justice, Art. 38(1)(b).
91
The ILC’s report on customary international law acknowledges the difficulties of separating practice and
manifestations of
opinio juris, while affirming the importance of both. See Wood, Third Report, at paras. 13–8.

35
 more challenging to define the exact moment at which a law is created in customary law. The
diffuse, fluid nature of the traditional legal system does not, however, hinder dissemination and
clarity. Unexpectedly, customary law will serve other legal needs just as well as or even better
than treaty law. For instance, by definition, the generality and congruence principles are
consistent with customary law. Additionally, it is less likely to set unreasonable expectations
and is more likely to meet the criteria for consistency, non-contradiction, and non-retroactivity.

The creation of customary law is a deft blending of unilateral acts—the above-described

practises of legality—and collective action—the requirement that practise be widely accepted in
order to serve as the basis for custom. Therefore, although while customary law is by nature
dynamic, it is also far more stable than one might initially think. States' customs and legal
opinions frequently uphold preexisting laws, and it can be challenging to persuade enough states
to change their customs and legal opinions in order to create a new customary norm.
Additionally, because of these characteristics of the legislative process, customary rules
frequently serve as broadly textured norms of interaction.

A noteworthy example is the function and development of customary norms in international

environmental law. The stock of customary international environmental standards, which centre
on the duty to prevent transboundary harm and states' associated procedural requirements, has
remained virtually constant over many decades 92. The idea that "[t]erritorial sovereignty]..
includes as corollary a duty: the need to protect within the territory the rights of other States, in
particular their right to integrity and inviolability," is one such principle that has its roots in
fundamental notions of international law 93. and the principle that "any State" must not
knowingly permit the use of its territory for acts that violate the rights of other States 94. As a
result, "as a general rule, the principle of prevention has its beginnings in the due care that is
required of a State in its territory. 95" The harm prevention rule in international environmental
law first emerged during efforts to settle inter-state disputes about transboundary harm 96, was
affirmed and expanded upon through countless MEAs and other international instruments 97, and
92
But see Bodansky, Art and Craft, pp. 197–203 (questioning the customary law status of the harm prevention rule,
considering it to be a ‘general principle’).
93
Island of Palmas Case (Netherlands v USA) (1928) 2 RIAA 829, 839.
94
Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22
95
Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14, para. 101.
96
Trail Smelter Case (USA v Canada), (1938/1941) 3 RIAA 1905, 1965; Lac Lanoux Arbitration (France v Spain),
(1957) 12 RIAA 281.
97
See e.g. Declaration of the United Nations Conference on the Human Environment, UN Doc A/Conf.48/14/Rev. 1
(1973); Convention on Long-Range Transboundary Air Pollution (Geneva, 13 November 1979, 1302 UNTS 217),
36
 was ultimately upheld by the ICJ as a "general obligation of States... [and] part of the corpus of
international law relating to the environment98."

While many environmental issues are becoming more regional or global in scope, customary law
has had trouble keeping up. Certain notions have undoubtedly developed to address these
problems. The no damage principle itself developed to encompass a responsibility to safeguard
"areas beyond national control" in addition to the environments of other states 99. The notion that
some environmental issues are a "common concern" for humanity and that all states have "shared
but distinct duties" to work together to find solutions has also gained popularity 100. In order to
address the expanding complexity and intergenerational dimensions of environmental
deterioration, additional concepts such as the precautionary principle, sustainable development,
and intergenerational equity have arisen 101. In the framework of treaty regimes, each of these
ideas has evolved and, to varied degrees, been filled out. But, with the exception of the expanded
harm prevention rule102, it would be difficult to show that they are supported by sufficient shared
understandings and practices of legality to give them general effect as customary law. For
instance, states and commentators continue to disagree about the precise details and application
of the precautionary principle. While recognising the necessity of precautionary measures to
environmental protection, international courts and tribunals 103 have refrained from making rulings
regarding their legality104. In a similar vein, it appears that outside of specific accords, the idea of

preamble; Vienna Convention, preamble; Declaration on Environment and Development, UN Doc A/CONF.151/26
(1992), Vol. I, 3; UNFCCC, preamble.
98
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para. 29; Gabčíkovo-
Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, para. 53; Pulp Mills, para. 101.
99
Nuclear Weapons.
100
See Jutta Brunnée, ‘Common Areas, Common Heritage and Common Concern’, in The Oxford Handbook of
International Environmental Law, edited by Daniel Bodansky, Jutta Brunnée and Ellen Hey (Oxford: Oxford
University Press, 2007), pp. 550– 573.
101
See e.g. Ole W. Pedersen, ‘From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of
Custom’, Transnational Environmental Law 3 (2014), 323–339; Vaughn Lowe, ‘Sustainable Development and
Unsustainable Arguments’, in International Law and Sustainable Development, edited by Alan Boyle and David
Freestone (Oxford: Oxford University Press, 2000), pp. 19–37.
102
See e.g. Ole W. Pedersen, ‘From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of
Custom’, Transnational Environmental Law 3 (2014), 323–339; Vaughn Lowe, ‘Sustainable Development and
Unsustainable Arguments’, in International Law and Sustainable Development, edited by Alan Boyle and David
Freestone (Oxford: Oxford University Press, 2000), pp. 19–37.
103
See Gabčíkovo-Nagymaros, para. 140; Pulp Mills, paras. 164, 185. And see Southern Bluefin Tuna Cases (New
Zealand v Japan; Australia v Japan) (Order of 27 August 1999) ITLOS Reports 1999, 262, para. 77.
104
See World Trade Organization (WTO), European Communities – Measures Concerning Meat and Meat Products
(Hormones)
– Report of the Appellate Body (16 January 1998) WT/DS48/AB/R, para. 123; European Communities – Measures
Affecting the Approval and Marketing of Biotech Products – Reports of the Panel (29 September 2006) WT/DS291/R,
para. 7.89.
37
 common concern has not gained much traction 105. The emergence of these relatively more recent
conceptions may be constrained by their connection to international law's ongoing conflict with
community interests and erga omnes rules, whereas the damage prevention rule is bolstered by its
resonance with key principles of international law.

In any case, the no damage principle and the corresponding procedural obligations to inform,
consult, and warn, as well as to collaborate with potentially affected states, have shown to be
incredibly resilient.

According to the interactional account, these rules' tenacity is due to their generality, conformity
with accepted fundamental principles of international law, and the justifiable restrictions they
place on state sovereignty.

This judgement is supported by what seems to be a revival of the no harm principle in the
behaviour of neighboring governments. Three recent disputes, for instance, revolved around the
harm prevention rule, its relationship to procedural obligations, and the content of the due
diligence standard. The three disputes concerned the construction of pulp mills on the river
separating Argentina from Uruguay, the aerial herbicide spraying by Colombia near its border
with Ecuador, and various activities near the river separating Costa Rica from Nicaragua.

Regarding the effects on common places and potential long-term effects, the due diligence
obligation has also been important. The International Tribunal on the Law of the Sea (ITLOS)
Bottom Disputes Chamber recently addressed the issue of states' responsibility to take adequate
action to ensure that private enterprises operating in the deep seabed do not disrupt that
"commons" area.106 According to the Chamber, the required level of vigilance "may fluctuate
over time... [and] in response to the risks involved. According to the Chamber's logic,
exercising due diligence creates a conceptual link between the obligation to prevent harm and
the idea that in some situations, states must also take precautions. As "an important aspect of the
105
See, e.g., ILC (Drafting Committee on the Protection of the Atmosphere), ‘Statement of the Chairman’ (2 June
2015), 10
<http://legal.un.org/docs/?path=../ilc/documentation/english/statements/
2015_dc_chairman_statement_atmosphere.pdf&lang=E> (noting that the committee opted to describe the
protection of the atmosphere as a ‘pressing concern of the international community as a whole,’ rather than a
‘common concern of humankind’).

106
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area
(Advisory Opinion, 1 February 2011) ITLOS Reports 2011, 10.
38
 general responsibility of due diligence," the Chamber highlighted the precautionary approach.
appropriate "in cases where there are plausible indications of potential risks but where there is
insufficient scientific data concerning the scope and potential adverse effects of the activity in
question."107 In fact, if a state ignored the hazards, it "would not meet its requirement of due
diligence."108 It is to be seen whether international legality standards would accept this flexible
concept of preventive and precautionary duties. It is significant, however, that the Chamber
opted to use the generally accepted no harm rule as the foundation for its argument rather than
arguing for the precautionary principle's own position as customary law109.

In conclusion, while treaty law predominates in addressing global environmental issues, custom
has persisted. International actors continue to reference and build international law, particularly
the damage prevention rule and its underlying principles. Similar to treaty law, nations and
maybe international bodies continue to be the main actors in this situation 110. However, the
process of customary law is also more flimsy than it might initially seem. Non-state actors'
behaviours do matter, at least when it comes to influencing or limiting the prominent behaviours
of states. In fact, customary law has been cited by both governments and non-state actors to
support legal contentions made in a variety of situations, such as the context of climate
change111.

3. General Principles

States and other international actors generally support treaty and customary law processes, and
both have a strong sense of legality. The significance of "general principles" as one of the
"sources" of international law specified in Article 38, however, is undermined by

107
Responsibilities in the Area, para. 131.
108
Responsibilities in the Area, para 131
109
See Responsibilities in the Area, para. 135 (observing only that there was a ‘trend towards making [the
precautionary principle] customary law’).
110
See Wood, Third Report, paras. 68–79.
111
See e.g. Inuit Circumpolar Conference, Petition to the Inter American Commission on Human Rights Seeking
Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (7
December 2005), 99–100
<http://inuitcircumpolar.indelta.ca/index.php?ID=316&Lang=En>.
82
See Giorgio Gaja, ‘General Principles’, in Wolfrum, Max Planck Encyclopedia (2013).
83
See e.g. Judge Cançado Trinidade (separate opinion), Pulp Mills on the River Uruguay, [2010] ICJ Rep 135, paras.
17, 39, 191– 3.
84
See Thirlway, Sources, pp. 94–6.
85
See Thirlway, Sources, pp. 93, 98–102.

39
 inconsistencies. Notably, although the authors of Article 38 made an effort to reach a consensus,
disputes still exist on what, in the first place, qualifies as a broad principle. Some commentators
use natural law to underpin universal ideas. Others believe the phrase refers to domestic law
concepts that are present in all significant legal systems, making them 'universal principles'
under international law. Others assert that in order for a principle to become a part of
international law that is regarded as customary, there must be proof that it has received direct
endorsement in international law. For its part, the International Court of Justice has carefully
avoided drawing general conclusions from an analysis of domestic legal systems, preferring to
establish evidence of official assent.
From the perspective of interactional law, a thorough examination of whether a certain concept
is shared by the main legal systems may really produce solid proof of a broadly accepted
normative interpretation.112
The development of cogent standards for the identification of universal principles, however, has
been hampered by the consent focus of the traditional sources concept, as shown in state
practise and much debate. The formation of a specific principle as interactional law, that is, a
shared normative understanding that satisfies the requirements of legality and is supported by
practises of legality, is not precluded by any of this, to be sure. However, it is challenging to
identify the shared understandings and adherence to the requirements of legality that would
support the conclusion that the category of "general principle" as such constitutes a strong
indicator of international legality given the lack of clarity surrounding the indicators for the
existence of a "general principle" combined with the resulting limited and inconsistent
practice113. In short, the interactional law approach contributes to the understanding of why the
idea of general principles, even in international environmental law, has a limited role as a
"source" of international law.114

Judge Cançado Trinidade recently presented what is arguably the most ardent and
comprehensive defence of general principles in international environmental law in his lengthy

112
See Awalou Ouedraogo, ‘Éléments d’une philosophie du droit International en Afrique’, African Yearbook of
International Law 18 (2010), 41–80 (on general principles as basis for a new type of cosmopolitanism, reflecting the
values of diversity and dialogue).
113
See Hugh Thirlway, ‘The Sources of International Law’, in International Law, 3 rd ed., edited by Malcolm D. Evans
(Oxford:
Oxford University Press, 2010), pp. 95–121, 109.

114
See also d’Aspremont, Formalism, p. 171 (‘the ascertainment of general principles of law is devoid of any formal
character’); Thirlway, ‘The Sources’, p. 109 (‘this particular source of law is of less practical importance’).

40
 separate ruling in the Pulp Mills case. The preventative and precautionary principles, as well as
the concepts of intergenerational equality and sustainable development, are all broad principles
of international environmental law in the Judge's opinion. According to Article 38(1)(c) of the
ICJ Statute, Cançado Trinidade believes that these principles are separate, "(formal) sources of
international law." 90 coming from the "ultimate material "spring" of all law," which is the
"universal juridical consciousness." The (linear) perspective of Cançado Trinidade on general
principles is that they are "an expression of an objective "concept of justice." contrasts with
Judge Weeramantry's attempt, in a different ruling in the previous Gabkovo-Nagymaros case, to
link ideas associated with sustainable development to norms upheld by legal systems around the
globe.115 In either occasion, the ICJ as a whole chose not to discuss the idea of general
principles, which is consistent with its previously indicated general caution regarding Article
38(1). (c). Some of the most prominent commentators on international environmental law
believe that general principles are a more logical "source" than custom for norms like the harm
prevention rule, and they claim that the ICJ implied as much when it referred to the rule as "part
of the corpus of international law.” 116 However, the majority of critics prefer to concentrate on
the development of a particular principle into custom 117 or on the function that principles, such
the precautionary principle or sustainable development, can play in legal reasoning regardless of
their formally binding status.

4. Judicial Decisions and Scholarship

According to the traditional paradigm, judicial rulings do not qualify as "sources" of

international law, let alone the writings of renowned publicists. 118 Nevertheless, it is believed
that they provide insightful analyses of the situation of international law. The latter statement is
aligned with and expanded by interactional law. International tribunals play a significant role in
interactional law-making by adjudicating disputes and declaring what international law is
applicable. Their judicial reasoning techniques and procedural frameworks firmly ground them
in the law. But judicial procedure and method by themselves do not ensure effective
115
Vice-President Weeramantry (separate opinion), Gabčíkovo-Nagymaros, pp. 106–7.
116
See Bodansky, Art and Craft, pp. 199–203; Bodansky, ‘Non-Treaty Norms’, p. 122. See also Beyerlin and
Marauhn, International Environmental Law, p. 285 (on the maxim of sic utere tuo ut alienum non laedas as a general
principle that subsequently evolved into the harm prevention rule).
117
See e.g. Pierre-Marie Dupuy, ‘Formation of Customary International Law and General Principles’, in Bodansky
et al., Oxford Handbook, pp. 449–66, 461 (suggesting that general principles differ from custom only in terms of
‘the generality of their formulation’).
118
See e.g. Birnie et al., International Law and Environment, pp. 28–9.
41
 participation in interactive law-making. According to interactional law, the degree to which
judicial decisions and advisory opinions accord with pertinent common understandings and the
degree to which they uphold the standards of legality in the interpretation and application of
legal principles will determine how influential they are. Undoubtedly, when a judgement or
opinion goes beyond these bounds, it might help to establish or even spur the development of a
new law or new interpretation. However, a tribunal cannot create or alter international law on its
own. The responses of states and other players in the international legal system play a
significant role in whether or not it has an impact on the development of international law. 119
Eminent publicists are a specific type of non-state actor that are included in this group,
according to Article 38, and their "teachings" are considered valuable when determining the
law. Interactional law does not have any issues with this idea. In fact, it acknowledges the
potential involvement of a far wider spectrum of non-state actors, just like it does in the cases of
treaty law and customary international law. This function, of course, extends beyond responses
to court rulings and includes the possibility of influence being exercised throughout the
legislative process..

Through this lens, it is clear that arbitral and judicial rulings have influenced the growth of
international environmental law. Despite the relatively limited number of cases, courts and
tribunals made a substantial contribution to the development and codification of customary
international environmental law, particularly in the early years of the subject. 120 In fact, it is
noteworthy that, even in cases where the underlying issue involved a treaty between the parties
to the dispute at hand, judicial or arbitral decisions have continued to be of utmost importance in
connection to customary environmental law. For instance, the Pulp Mills case gave the ICJ the
chance to elaborate on the idea of due diligence, on the relationship between substantive and
procedural obligations, and on the emergence of an environmental impact assessment duty at
customary law, despite the fact that it dealt with the interpretation of a treaty between Argentina
and Uruguay. Similar to how the ITLOS Chamber provided crucial explanations regarding
governments' obligations to protect the environment under the seabed regime, its decision has
been at least equally crucial in elaborating key ideas in customary law. Due to the lack of
enforceable dispute resolution provisions in MEAs103 and their greater reliance on informal
non-compliance procedures, international courts and tribunals have not had a significant impact

119
See also Boyle and Chinkin, The Making of International Law, p. 311.
120
See Tim Stephens, International Courts and Environmental Protection (Cambridge: Cambridge University Press,
2009), pp. 121–62.

42
 on the interpretation of MEAs.

Respected authorities on international environmental law, or, in the words of Article 38, "the
most highly qualified publicists," also contribute to the advancement of international law. They
were instrumental in developing the field's conceptual framework in its early stages, for instance
by assisting in the separation of its fundamental principles from the principles and rules
pertaining to sovereignty121 or by investigating the potential for conceptual expansion outside of
the sovereignty paradigm.122 The task of delineating, defining, reiterating, and improving the
theories, guidelines, and methodologies of the area is still being carried out by a sizable expert
community of authors who are becoming ever more specialised. They have an impact through
their own publications, as well as through studies produced by academic organisations like the
International Law Association (ILA)107 or by UN agencies like the International Law
Commission.123 By serving as judges, advocates, NGO advisors, or delegation members in
environmental treaty talks, to name just a few roles, they also take an active part in the creation
of international environmental law1124. This expert mobility is just one example of how borders
between state and non-state actors are permeable. The interactional account recognises this
impact, particularly how it affects the growth of shared understandings, but it also demonstrates
how it is controlled and backed by obedience to the rules of legality.

5. Other ‘Sources’ of International Law

Finally, the phenomena known as "soft law" is still a topic of discussion among international
lawyers. Some critics flatly assert that soft law is not law, 125stress that the phrase is unnecessary
because the old binary definition of law may fulfil the functions of soft law, or even think it
poses a threat to international law. 126 Others concur that standards with a variety of legal
121
See e.g. Günther Handl, ‘Territorial Sovereignty and the Problem of Transnational Pollution’, American Journal
of International Law 69 (1975), 50–76.
122
See e.g. Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and
Intergenerational Equity (Dobbs Ferry, NY: Transnational Publishers, 1989).
123
See Luis Barrionuevo Arévalo, ‘The Work of the International Law Commission in the Field of International
Environmental Law’, Boston College Environmental Affairs Law Review 32 (2005), 493–507.
124
See e.g. Dupuy, ‘General Principles’, pp. 451–2 (describing various roles assumed in relation to customary law-
making).
125
See e.g. Malcolm N. Shaw, International Law, 7th ed. (Cambridge: Cambridge University Press, 2014), 83.
126
See e.g. Prosper Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International
Law 77 (1983), 413–42; Klabbers, ‘Redundancy’, p. 387.
43
 implications fall under the pertinent, if changeable, category of "soft law.” 127 Some have
emphasised the value of analytical rigour in identifying identifiers of "softness" based on,
respectively, the legal act that formed the in issue norm and its substance due to the complexity
of "soft law."128

In fact, what is referred to as "soft law" is created in many different ways and takes many different
forms, many of which interact or overlap with one or more of the traditional "sources" of law. For
instance, some "soft" norms serve as the foundation for later development of customary law;
others are created by governments "in non-binding form in accordance with conventional ways of
law-making;" still others may be created by or aimed at non-state actors.129 However, it can be
challenging to make differences between "hard" and "soft" legislation in terms of content and
outcomes. For instance, "hard" law may occasionally be used in conjunction with "soft" conflict
resolution procedures or "soft" sanctions. On the other hand, although "soft" norms are not
considered "causes of action" in international adjudication, courts, states, and other international
actors may nonetheless consider them in their actual legal analysis.130 Furthermore, "soft"
standards may contain compulsory and minutely specified phrases, just as binding treaties may
have non-obligatory or ambiguous provisions.

International environmental law is home to a variety of "soft" norm-setting processes as well as the
use of "soft" content in otherwise "hard" instruments. All of these examples of so-called "soft law"
can be found there. Therefore, it is not unexpected that the majority of the major texts on
international environmental law give "soft law" top billing when discussing "sources."131 It will do
for the time being to highlight some of the most important aspects of "soft law's" significance in
the area, starting with the occurrence of treaty-based standard-setting.

Under the direction of MEAs, plenary bodies have made choices that have led to the development

127
Boyle, ‘Soft Law’, pp. 123–4. And see Kenneth W. Abbott and Duncan Snidal, 'Hard and Soft Law in
International Governance’, International Organization 54 (2000), 421–56 (proceeding from a rational choice
perspective and relying on obligation, precision, and delegation as indicators of a norm’s hard- or softness).
128
Jean d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’, European
Journal of International Law 19 (2008), 1075–93.
129
See Christine Chinkin, ‘Normative Development in the International Legal System’, in Commitment and
Compliance: The Role of Non-Binding Norms in the International Legal System, edited by Dinah Shelton (Oxford:
Oxford University Press, 2000), pp. 21–42, 30–1
130
Christine Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, International &
Comparative Law Quarterly 38 (1989), 850–66, 850–1.
131
See e.g. Beyerlin and Marauhn, International Environmental Law, pp. 289–97; Birnie et al., International Law and
Environment, pp. 34–7; Dupuy and Viñuales, Modern Introduction, pp. 34–7.
44
of the'soft' standard-setting process that is likely the most widespread. These decisions, which are
frequently made by consensus, are binding on all parties right away since, unlike new treaties or
revisions, they do not need to be enacted and then ratified or approved by all parties. They
essentially prevent the divergence of treaty commitments across parties that could arise from
progressive treaty revisions and permit faster, more responsive standard-setting. Some of these
requirements are written in required language, even including the word "shall"—a word that is
typically used to refer to binding law. The applicable norms may be intended for use at the
interstate level, by domestic agencies, or, in some circumstances, by non-state entities.
These treaty-based standards mirror rules or recommendations made in accordance with domestic
law in many ways. In fact, governments frequently treat them in a manner that is comparable to
how they handle legally binding international law. The decisions are negotiated with the same care
as binding international law, and they are carried out domestically with the same care. For
instance, the UNFCCC and its Kyoto Protocol approved a large portion of the regulatory detail
necessary to make the treaty operative through straightforward choices made by the plenary body.
As a result, rules on important issues like inventory and reporting requirements, trading
mechanisms for emission units or reduction credits, and non-compliance procedures were
developed over the course of protracted negotiations and eventually adopted through a series of
plenary decisions, known as the Marrakech Accords. The rulings imposed stringent conditions
that states had to satisfy in order to take part in the Kyoto Protocol and its trading mechanisms. In
fact, states faced particular repercussions for not adhering to some of these choices, such as the
inventory and reporting requirements, including losing their ability to take part in carbon trading.
Furthermore, despite the fact that they are theoretically non-binding, protocol parties recognised
the necessity of adhering to these standards as well as the legitimacy of the non-compliance
regime. Although the Kyoto Protocol's days are now numbered, its method of decision-making is
still a significant aspect of the UNFCCC's bigger standard-setting process. Therefore, the outcome
of the Paris climate talks in 2015 uses a combination of instruments (treaty and plenary decision),
hooking into a well-developed legal system while also pushing the boundaries of international
legality by relying in part on nationally determined, rather than internationally negotiated,
emission reduction commitments. This strategy's use of formal procedural obligations stipulated in
the treaty to oversee, lead, and even direct informal substantive promises made at the national level
is particularly intriguing.132

In order to express universal application principles outside of treaty contexts, a variety of formally
132
See, generally, Daniel Bodansky, ‘The Legal Character of the Paris Agreement’, in Review of European,
Comparative and International Environmental Law 25 (2016) (forthcoming).
45
non-binding mechanisms have been employed. The 1972 Stockholm Declaration on the Human
Environment and the 1992 Rio Declaration on Environment and Development are two of the most
notable examples. These treaties' guiding ideas made a number of significant contributions to the
developing field of international environmental law. For instance, Principle 2 of the Rio
Declaration and Principle 21 of the Stockholm Declaration were crucial pillars in the development
of the damage prevention norm in customary law. Other principles, such as Principle 15 on the
precautionary approach or Principle 7 of the Rio Declaration on common but differentiated
obligations, may not have acquired the status of customary law, but they have had significant
effects in directing the formation of treaties. The idea of sustainable development, which runs
throughout the Rio Declaration, is similar. For instance, the concept became a starting point for a
more environmentally conscious interpretation of trade law by dispute resolution panels and the
WTO Agreements through its inclusion in the preamble. Appeal Board.Other judicial authorities,
including the ICJ (although indirectly), have also used the precautionary principle and sustainable
development in their deliberations.133

When treaties are not possible, states and international organisations occasionally turn to non-
binding measures like codes of conduct to unify international behaviour. The FAO's 1985 adoption
of the International Code of Conduct on the Distribution and Use of Pesticides serves as a prime
illustration. 135 Concerns of developing countries regarding the safe handling of hazardous
compounds imported from developed countries led to the formulation of the code, which outlined
a prior informed consent framework. The UN Environment Program's(UNEP) London Guidelines
for the Exchange of Information on Chemicals in International Trade were added to the code in
1987. States largely implemented these non-binding protocols, laying the foundation for the 1998
adoption of the Convention on Prior Informed Consent.134
The interactional account offers a comprehensive set of legality requirements, allowing for a
thorough evaluation of the characteristics of various standard-setting processes as well as the
merits of the resulting norms and the practises they encourage.
The traditional division between "hard" and "soft" instruments is transcended by the interactional
law framework, which also explains why some "soft" norms are not "legal," while others are just
as "legal" as norms obtained from recognised "sources." In a nutshell, "soft" law-making
procedures are "sources" of law to the degree that they are based on common understandings,
satisfy legality standards, and are backed by legality-supporting activities. In fact, "soft" law-
133
See Gabčíkovo-Nagymaros, para. 140; Pulp Mills, para. 185.
134
Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade (Rotterdam, 11 September 1998, 2244 UNTS 337).
46
making procedures have advanced to the point where it is conceivable to pinpoint certain
procedures that have generated "places" where international legal standards are typically found.
142 Given the parties' prior agreement on the standard-setting process, the opportunity for all
interested parties to participate in the development and adoption of the standards, the generality of
their application to all parties, the nature of their content, and their solid foundation in legality
practises, it stands to reason that treaty-based "soft law," for example, is one such "source." It is
still important to determine if certain standards satisfy the requirements of the interactional legal
framework, as with all "sources," of course. However, this does not mean that violations of "soft"
standards should be excluded from the range of sources that make up international law simply
because they do not carry the same legal repercussions as violations of treaty or customary law.

47
 CHAPTER 3
DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW

3.1 INTRODUCTION
The first UNCHE principle stated that "Man has the fundamental right to freedom, equality, and
adequate conditions of life, in a quality environment which per- mits a life of dignity and well-
being, and bears a solemn responsibility to protect and improve the environment for present and
future generations135. If the protection, preservation, and even enhancement of the current global
environment is the goal of international society, then the formulation of rules and standards
ensuring the recognition of the essential obligations and their enforcement is the key to their
success. Scientists and technologists can learn to recognise the elements and factors that harm
the environment, as well as their causes and solutions, but there must also be a concurrent, legal
requirement to carry out monitoring and assessment, implement the proper corrections, punish
offenders, compensate victims, and make restitution when feasible.
Only an effective set of legal obligations, rights, and remedies can guarantee ongoing
environmental protection, but despite having the resources and expertise necessary to create
one, it will need a significant deal of earlier issues to be resolved before attorneys can even be
asked to do so. The final decision in a lengthy series of antecedent ones that rely on the
knowledge of other professions is the choice of legal system. In order to accomplish or
maintain growth, society must also determine whether it will set absolute standards or whether
it is willing to tolerate, and if so, to what amount, some environmental deterioration.
The international community must consider the paradox that, by avoiding the additional
costs of environmental protection in the short term to achieve the development of material
standards of living, it may, over time, erode the very amenities and resources that support these
through methods of accelerated food production and increased industrialization. Pesticides
contaminate, some fish meals used as fertiliser and fodder may be consumed by humans, and
industrial effluents harm the sea and the atmosphere.

3.2 DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW

(i) The desire of all states to develop, the sovereignty of states, including their right to pursue
their own environmental policies under Article 2(7) of the UN Charter,
(ii) the interdependence of states in relation to their shared environment and the extent to
which this override

135
Report of the UN Conference on the Human Environment, Stockholm, 1972, A/CONF. 4S/i4/Rev. 1, p4
48
 (iii) as well as the political and ideological differences between states, all of which hinder the
development of international law to address these issues.

The need for a global environmental perspective did not become apparent to international
decision-makers until the late 1960s and early 1970s, when the state of the books demanding
one started to appear136. It was also then that it became clear that there was no suitable
international machinery for developing such a perspective.The debate sparked by
environmentalist writers sparked a sense of crisis, a consciousness that humanity might be
placing an intolerable burden on the ability of its environment to sustain either its current
activities or their growth due to its growing population and industrial and technological
developments. Although a number of concerned international and non-governmental
organisations were keeping an eye on and evaluating various aspects of the environment, there
was no body with a mandate to gather all this information, to comment on its inter-actions,
much less to propose what should be done to remedy the situation if the predictions of doom
were to come true. In response to these prophets' predictions and more current catastrophes like
the "Energy" crisis and the global economic downturn, this sense of crisis has recently partly
subsided.
However, since the UNCHE, there has been a growing understanding of the larger needs of
eco-systems and their interdependence, as well as of how dependent humanity is on the planet's
limited living and non-living resources and the necessity of conservation based on the best
possible sustainable yields from the former. Thus, the Stockholm Conference changed the
traditional laissez-faire philosophy, but it is still unclear if it introduced a new legal system. It
undoubtedly brought to light the difficulties involved in creating such a system. Many of the
participating states were underdeveloped—some were among the twenty-four least developed
—and prioritised their own development. They argued, somewhat successfully, that they
shouldn't be forced to adopt strict environmental measures while still developing, such as
effluent treatment plants, restrictions on chemical fertilisers, or pesticides, with associated
economic costs, since industrialised states developed without such restraints and are frequently
wasteful in their use of resources and careless of industrial pollution. Laws enforcing uniform
worldwide standards were not a realistic option. For their part, developing states were made
aware of the necessity of taking environmental factors into account when formulating
136
Environment and World Public Order', Mississippi Law Journal, xxxxiv (1974), pp. 1085-124. 2. E.g. 'Blue
Print for Survival', special issue of The Ecologist, (ii) (1972); D. Meadows, etc., Limits to Growth (London, 1972);
ist Report of Club of Rome; G. Rattray Taylor, The Doomsday Book (London, 1972); R. Falk, This Endangered
Planet (New York, 1972); E. Schumacher, Small is Beautiful (London, 1973); Mesarovic and Pestel, Mankind at the
Turning Point, 2nd Report of the Club of Rome (London, 1975).
49
 development plans, avoiding many of the pitfalls that industrialised states had fallen into, and
that introducing preventive measures early in industrial development would be more cost-
effective in the long run.
Despite these challenges, UNCHE has influenced legal advancements at the national, regional, and
global levels. The law that already existed prior to the conference must be evaluated, and the
processes and procedures used to create international law must be identified, in order to determine
their scope.

3.3 THE INTERNATIONAL COMMUNITY

According to customary international law and United Nations Charter, Art. 2(7), "Nothing
contained in the present Charter shall authorise the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state," the international
community is made up of states, not individuals, who are all sovereign, independent, and equal
within international bodies. It is unclear whether governments or international organisations
decide whether a certain topic falls within domestic law. According to the article, some issues
are not "basically" limited to domestic jurisdiction. Environmental challenges frequently cross
national boundaries.
Identification of "inclusive" environmental issues—those that are of global concern—is the
first challenge facing international law-makers. The second is the selection of a legal
framework for these shared resources, regions, or impacts. The international commons, or the
air, sea, and seabed outside of national jurisdiction, as well as activities that have an impact
outside of a state's national territorial (including airspace) frontiers, i.e. that negatively impact
other states or international areas, are unquestionably matters outside domestic jurisdiction.
However, the development of environmental law must be based on the principle that all
resources, activities, and individuals inside state boundaries are essentially under the authority
of that state for the purposes of both enacting and upholding laws. Therefore, international
environmental obligations and standards generally only supersede these limits with the consent
and cooperation of the states concerned, meaning that while international law may develop a
framework of laws or standards, it is typically left to states to enact and enforce these laws both
within their own territories and internationally. As a result, states are largely responsible for
resource conservation, pollution prevention, etc. within these limits. In this situation,
prescribing medication is simpler than enforcing it, which can be challenging if the offender
doesn't frequently return to the home area. Additionally, it must be kept in mind that the
international commons' resources have the legal status of common property resources,
50
permitting no state to be barred from access without that state's permission. Only inasmuch as
participating governments acquiesce and cede their sovereign rights can conservation and
preservation be accomplished. However, custom and some marine treaties (if they are parties to
them) demand that governments exercise their rights while taking into account the interests of
other states, and this need leaves room for the creation of environmental legislation.
International and regional, intergovernmental and non-governmental organisations, founded
before and after UNCHE, which have international personality and independent status for
purposes relevant to their functions, are also thrusting new entrants to the international
community, ready to poke their noses over the domestic boundary fences of states, if allowed
to do so. Organizations with broad mandates to gather and disseminate information as well as
"Promote conferences and international treaties" include the WHO, FAO, IMCO, and
UNESCO. They are able to contract with states, and their standards, recommendations, and
decisions are often incorporated into national law. The worldwide community of states
increasingly entrusts them with the roles of watchdog over global environmental activities,
information gatherers and aggregators, advisors on harmful pollution levels and on the best
time to take action, including passing laws and standards. Their function is constrained by the
laws of their constituent nations and their own constitutions, but it is expanding as more
evidence comes to light. This is also true of regional organisations like the Council of Europe
and the EEC, but it has only been since the UNCHE that there has been a significant effort
made to coordinate their responsibilities on a global scale. Non-governmental organisations
(NGOs) have a more constrained role, but they are nevertheless crucial advocates for state
legislation and policy, and they have worked in the environmental sector. NGO's like the
American Sierra Club and Friends of the Earth have been very successful at focusing
governments' attention on environmental issues, although they often influence state
policymakers indirectly and are not actively involved in the creation of laws. The recent
lawsuit brought by the Natural Resources Defense Council and the National Audubon Society
against the U.S. Export—Import Bank to compel it to prepare environmental impact statements
on its financial support for an Indonesian Wetlands dredging project and the export of nuclear
power plants to Trinidad and Tobago is an interesting direct action, though.

3.4 ENVIRONMENTAL LAW BEFORE THE STOCKHOLM CONFRENCE

1. GENERAL PRINCIPLES OF LAW

51
 Inter-national adjudication of disputes using such concepts is uncommon and is only
appropriate in situations where there has been genuine, verifiable damage. The Lac Lanoux
Arbitration, the Trail Smelter Arbitration137, and the ruling of the International Court of Justice
in the Corfu Channel Case are the cases that are most frequently cited138.
The Trail Smelter Case concerns harm brought on by gases released by the Trail smelter in
Canada, which was located on American soil. In a widely cited ruling, the tribunal came to the
following conclusion: Under the principles of international law and US law, no State has the
right to use or permit the use of its territory in such a way as to harm by fumes the territory of
another, the properties therein, or the persons therein, when the case is of serious consequence
and the harm is established by clear and convincing evidence.
This is founded on the idea that you shouldn't use your property in a way that hurts other
people, which is known as the sic utere tuo ut aliemun non laedas concept. International
environmental law might expand on this generally. To do this, though, presents a number of
challenges. Only the parties were obligated by this arbitration based on the relevant facts. The
tribunal specified that the evidence must be "clear and convincing" 139 and limited the
application of the principle to proof of actual "damage" caused by "use" of "territory". It also
added the restriction that the damage must have "serious consequences" causing actual "injury"
in the other territory. 1 Applying this to stop a possibly undesired activity when there is simply
a chance of harm is practically impossible. The victim cannot take action until the harm has
been done, and even then, only if the potential perpetrator agrees to the adjudication.
In the Corfu Channel Case, the International Court of Justice held Albania liable for damage
to British warships passing through the international straits of Corfu, which are within
Albania's territorial waters, on the grounds that every state has a duty "not to permit knowingly
the use of its territory for acts contrary to the rights of other states," but what exactly are the
"rights of states" in any given situation? In this instance, the I.C.J. successfully distinguished
them as the right to innocent travel through the straits. It is more difficult, for instance, to
prevent harm to shared resources like fish or the environment or trans-border pollution like the
"acid rain" and "red dust" that are allegedly released into Scandinavia from European factory
chimneys.

137
. 12 UNRIAA, 281 (1957)
138
ICJ Rep., p. 4
139
For a detailed discussion of the application of this case in a wider context see F. L. Kirgis Jr., 'Technological
Challenge to the Shared Environment: U.S. Practice', American Journal of International Law, lxvi (1972), pp. 290-
320, at pp. 291-4; he proposes a "reasonable ness" test, potentially greater harm requiring potentially less convincing
evidence.
52
 2. CUSTOMARY LAW
International customary law is based on state custom and opinion. A subjective perception of
legal duty is known as julie. It typically takes time to determine that a practise is constant and
uniform because this is tough to prove. Apart from certain practise in relation to international
waterways, customary environmental law prior to UNCHE primarily related to inter-national
areas such as the high seas, the airspace above them, and outer space rather than "exclusive"
areas.
In an effort to formalise customary law, the 1958 Geneva Convention on the High Seas
reaffirmed four specific freedoms of the sea, including fishing based on fish's position as
common property while acknowledging the presence of other freedoms. All were, however, to
be used with due consideration for other people's rights. Apart from a general obligation to
prevent "pollution" horn dumping radioactive waste, dumping of wastes was not mentioned in
the general requirement to prevent oil pollution (undefined) of the oceans from boats, pipelines,
and seabed activities. It may be claimed that disposing of rubbish and testing new weapons are
liberties that must be used reasonably. Certain accords pertaining to latex have helped to clarify
this as well as the steps to prevent oil pollution.
There are no specific guidelines for the prevention of pollution from seabed activities in areas
outside of national authority or for the preservation of such areas' resources in the 1958
Continental Shelf Convention or the High Seas Convention. Resolutions of the General
Assembly that took the form of statements of principles have pushed for standards in such
hitherto unoccupied international spaces as outer space and the international seabed. 140 The
1967 Treaty on Outer Space subsequently included the former. 141

3. TREATY LAW
Some pre-UNCHE accords have already been characterised to as codifying or creating
customary environmental law, but they were focused on international regions that were
politically more amenable to agreement rather than the regulation of pollution within national
borders. Therefore, despite the fact that land-based sources account for 7% of marine pollution,
there is no treaty addressing them. The largest body of treaty law was that adopted by the first
UNCLOS at Geneva in 1958, supplemented by the IMCO Oil Conventions 142, which have
140
G.A. Res. 2749 (XXIV), 17 Dec. 1970; 10 1LM (197), p. 220
141
. American Journal of International Law, lxi (1969), p. 644. This treaty and the Declaration of Principles Governing
the Seabed are more fully discussed as sources of customary law in Kirgis, op. cit. pp. 304-11.
142
Convention for the Prevention of Pollution of the Seas by Oil 1954, 327 UNTS 3 (as amended 1962; 1969). 1969
amendments 9 ILM (1970), p. 1; 1969 Convention Relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties 9 ILM (1970), p. 25 ; 1969 International Convention on Civil Liability for Oil Pollution Damage 9 ILM
53
 made slow progress in achieving the ratifications necessary to bring them into force and are
largely based on enforcement by flag states; as a result, even ratifying states can circumvent
their requirements by using some flags of convenience. In order to preserve high seas fisheries,
a number of conventions established Fisheries Commissions, such as the NEAFC (North East
Atlantic Fisheries Commission). However, because the regulation was based on the freedom of
fishing and the voluntary cooperation of states parties, the commissions typically failed, for
political reasons, to set the quotas for fish catches at the levels recommended by fisheries
scientists for the maintenance of maximum or optimum yields. Therefore, despite a Geneva
Convention recognising the necessity for fisheries protection, several fish species experienced
a major drop between 1960 and 1972.
Another pre-UNCHE document that is noteworthy is the Antarctica Treaty of 1959 143. The
future of the treaty is in doubt due to the discovery of mineral resources, the exploitation of
which would present exceptional environmental risks in such an ecologically fragile area. The
treaty neutralised the Antarctic region and forbade both nuclear explosions and the disposal of
radioactive waste there.

4. UNILATERAL ACTIONS
Between 1945 and 1972, a few states made unilateral decisions apparently to save their coastal
habitats. The Patrimonial Sea or Economic Zone, which later expanded to include control of
scientific research and preservation of the marine environment, was established in 1952 when
Chile, Ecuador, and Peru promulgated the Declaration of Santiago144, asserting jurisdiction over
the resources of zoo miles of sea and seabed.
In its contentious Arctic Waters Protection Act145, Canada established a more circumscribed claim
in 1970, declaring a 100-mile "environmental protection zone" as a first line of defence against
damage from oil tankers travelling to Alaskan oil fields while also limiting American claims in the
region.
Without the consent of other governments, such claims cannot be regarded as having entered into
customary law. While the U.S.A. and other states recently proclaimed a zoo mile fisheries zone,
they did so on the basis of the supportive consensus obtained at UNCLOS, in the RSNT; they did
not allege a zoo mile pollution jurisdiction. The United States and others vigorously opposed both

(1970), p. 45; 1969 International Convention on the Establishment of an International Fund for Compensa tion for Oil
Pollution Damage 11 ILM (1972), p. 284; 1973 Convention for the Prevention of Pollution from Ships 12 ILM (1973),
p. 131
143
;402 UNTS p71, American Journal of International Law, liv (1960), p477
144
Declaration of Santiago, 1952 in Basic Documents in the Law of the Sea, op. cit. p. 231,
145
9 ILM (1970), p. 543.
54
assertions. By urging the coastal state to adopt stricter environmental protection requirements in
"special regions" in UNCLOS III, Canada is attempting to support her claim.

3.5 THE STOCKHOLM CONFERENCE 1972

The idea that the earth's biosphere is a single entity and that its ecosystems are interconnected and
dependent on one another was not well understood by the International Legal System prior to
1972. Instead, the law addressed emerging environmental issues pragmatically, either because they
were politically amenable to minimum regulation or because there was a legal void in a field
where governments were ready to intervene. Environmental issues and developmental issues were
not recognised as being related.

THE STOCKHOLM CONFERENCE 1972146

The ECOSOC resolution that stated "there is an urgent need for intensified action at the
national and inter-national level to limit and, where possible, eliminate the impairment of the
human environment" and that this "is necessary for sound economic and social development"
led to the creation of the UNCHE. Finally, the link between the development of environmental
controls and growth was recognised. The conference had to propose "guidelines for action, by
national governments and international organisations, on broad themes of general human
concern, not on limited technical concerns," according to the General Assembly.
Attendees from 131 states were present during the conference. The U.S.S.R. and the Eastern
Bloc abruptly withdrew since, while West Germany, a WHO member, had been invited, East
Germany, which had not been allowed to join any international organisations as of that time,
had not. The conference also adopted an action plan, whose sections 8 through 14, solely, dealt
with the unique requirements of developing nations, as well as a 26-article Declaration on the
Human Environment, to which reference has previously been made. Additionally, a United
Nations Environment Programme with a Governing Council of fifty-eight states was
established to oversee the Environment Fund, which was funded by the voluntary contributions
of UN members.
The Action Plan included 106 recommendations, including a two-part Global Assessment
Programme (Earthwatch), which consists of a GEMS (Global Environmental Monitoring
Service) and an IRS (International Referral Service) for those looking for information. This is
not a data bank, but a computer-based linking of nationally held information, and it is included

146
SEE UNCHE report, op. cit.
55
 in the Action Plan. The strategy supported supporting actions including training and research,
and it promoted natural resource management by setting goals, planning, and promoting
agreements.

3.6 ENVIRONEMNTAL TREATIES FOLLOWING THE STOCKHOLM CONFERENCE

(i) International
Additional treaties protecting natural resources have been signed, adding to the growing body
of such agreements. These include the 1973 Convention on International Trade in Endangered
Species of Wild Flora and Fauna147, an Agreement on the Conservation of Polar Bears 148, and
one for the Protection of the World Cultural and Natural Heritage 149. The 1973 Convention on
the Prevention of Pollution from Ships4, which prohibits or regulates the discharge of all types
of pollution—oil, plastics, and chemicals—and designates specific areas in which pollutants
cannot be discharged at all from vessels, is another treaty that IMCO has promoted to protect
the marine environment.

(ii) Forthcoming conventions

The United Nations Conference on the law on the seas150

This meeting, which is still in session and working to revise the Geneva Conventions to address
pressing issues brought on by new and expanded usage of the seas and bottom, has already
been mentioned. Conservation of fisheries and seabed resources in proposed zoo mile
Exclusive Economic Zones (EEZ) is also on the agenda. Other environmental concerns include
the exploitation of the "common heritage," or the seabed beyond national jurisdiction, control
of the rate of resource depletion, prevention of pollution, etc., and the extent of coastal state
jurisdiction over marine pollution from all sources in EEZ's and other zones. The conference
was mandated by the UN to "take into account ocean space as a whole" and draught only one
convention using a "package deal approach." The conference is attempting to go forward by
consensus rather than by vote.
In order to "purchase" agreement, states are expected to "sell off" their interests in certain
problems. They have organised themselves into "interest groups" 151 in order to achieve this, but
147
12 ILM (1973),p. 1085
148
13 ILM (1974), p. 13.
149
11 ILM (1972), p. 1358.
150
UNCLOS III Official Recocds, vols i-iv.
151
E. g. the Land-locked and Geographically Disadvantaged Group; the Martitime States; the Straits States; the
Aichipelagic States; Island States z/r., which cut across existing group- ings such as the EEC, the Comecon; the
Commonwealth; the OAU and OAS. The LLGDS group seek to maximize the common heritage area and
56
 none of them are especially concerned with protecting the marine environment. The Coastal
States Group somewhat pursued this, but only as part of a larger effort to gain sole control over
resources. in the EEZ. For largely the same reasons, the "shared heritage" area gained attention.
The First Committee, whose primary concern is access to resources, was given responsibility
for protecting the environment in this area by the Third Committee, which is devoted to the
preservation of the marine environment. Similarly, the Second Committee is in charge of
fisheries protection; here, the continental shelf and exclusive control of EEZ resources are the
main concerns. There is no plan for an international organisation to monitor how coastal
governments fulfil their obligations to preserve resources and safeguard the environment in
these zones, and there is little effective oversight of state operations outside of these zones.

The compromises that result will leave many open and ambiguous ends to be pursued in the
future, even if the conference succeeds despite the economic and political difficulties in
reaching an agreement on a treaty — and so far after five sessions it has only adopted a
152
contentious, non-binding (Revised) Informal Single Negotiating Text (RSNT) . Ad hoc
treaties will continue to be promoted by already-established organisations like IMCO, and new
ones may eventually be created on an international or regional level to fill any holes left by the
"package" treaty.

(iii) Development through regional organizations

A regional strategy is being emphasised more and more. The recent wave of treaties on marine
pollution shows that there is a greater likelihood of agreement when it comes to shared spaces
like international rivers or confined or semi-enclosed seas. This could be considered the
simplest way to create environmental law in the future. However, there are still many issues to
be resolved. For example, how far can these standards depart from those that are established
internationally? Can changes in standards within the region be allowed to take into account
local topographical and other advantages? What does a region mean in this context?

There are numerous regional organisations that are already operating in the environmental
field, particularly in Europe, but their membership is diverse and dispersed, depending on the
political goals of the organisation rather than an understanding of the interdependent ecology
international control and supervision of it; the other groups strive to extend the jurisdiction of coastal states into
hitherto inter- national areas. The implications for environmentally sound laws are not good without inter- national
overview, responsibility and accountability.
152
RSNT A/CONF. 6z. IP.8}Rev. i Pts. I, II and III,
57
 of any particular area. As a result, the Council of Europe has pushed reports, conferences, and
conventions; the OECD has issued multiple environmental reports 153; the NATO's CCMS has
an active environmental programme154. These organisations can only create treaties and set
standards; they have no binding authority over their member states. Nevertheless, because their
work is based on thorough study, they are influential, and many of their recommendations
become national laws.

However, the EEC, which has a comprehensive Environment Programme4, does have
supranational powers, albeit as recent developments demonstrate, it also has difficulties using
them. Even though it is currently only working to implement a small portion of its programme,
giving the marine environment priority, it has already run into opposition from members who
claim that either their sub-regional needs and special interests call for exceptions to the rule or
that the financial costs are intolerable.

Another well-known illustration of these challenges is the Community's efforts to establish

quality standards for water intended for human use in member nations. It suggested that certain
suspected pollutants be removed or decreased, and chemicals be added to the water to filter and
harden it. The Commission, which was based in Brussels and primarily focused on the need to
get rid of the red and blue dyes that stained Rhine water, was unable to foresee the effects that
banning coolants would have on sectors like the Scotch whiskey industry. The proposed
suggestions caused concern in this industry because the flavour and colour of whisky, especially
malt whisky, depend on the amount of peat in the water used, and the precise make-up of the
water is a trade secret.

The industry said that "uniformity in water composition is neither bearable nor practical,"
just like uniformity in wine, beer, or tea, and that "the massive cost of implementing the
recommendations as they stand is regarded unreasonable and impossible." As raw water quality
is influenced by geology and climate, consistency would place an unfair economic burden on
member states and have an impact on where regional companies are located. Following the
U.K.'s representation155s, changes were made to the directive and eventually transmitted to the

153
See H. Smets, ‘OECD Approach to the Solution of Trans-Frontier Pollution Problems’ in EiiuironzvenIal
L‹rw: N Jymp0iiom; British Institute of International and Comparative Law (' 1976) PP 3-4
154
pp. 3-4. 2. See NATO, CCMS Pilot Studies on e.g. Environment and Regional Planning (no. 17), Coastal Water
Pollution (no. 1).
155
COM (75) 94 (Final), Brussels, 22 July 1975 . ‘Proposal l for a Council Directive relating to the quality of Water
58
 council, exempting water such as distilled water that is not used in the final product. When the
water received a natural enrichment, allowing a peaty colour, exclusions were allowed under an
earlier directive on the quality of raw surface water extracted for drinking.
States frequently find it more politically simple to come to an understanding on broad
international norms than it is on more detailed and practical regional ones. In the aforementioned
debate, the whiskey business, for instance, said that it favoured the criteria specified by the
WHO in its International Standards for Drinking Water (1971), which merely stated that there
should be "no unpleasant taste and aroma."

for Human Consumption,’

59
 CHAPTER 4
COMMON LEGAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW

4.1 Introduction
These principles are now present in practically all international environmental documents, both
binding and non-binding. Additionally, some of these ideas are shared by environmental law and
public international law. However, some, such the precautionary principle, preventative principle,
etc., deal specifically with environmental legislation.
Finally, it is important to highlight that several concepts have developed during the compilation
and development of international environmental law, similar to other disciplines of the law, and
can be regarded as the basic pillars and fundamental principles of international law.
These principles have been crucial in the creation and development of international environmental
law, as well as in the implementation, interpretation, and settlement of disputes between States on
environmental issues.
The foundational rules of international environmental law can be broadly classified into two
groups:
General rules of international law, such as the rules of governance, collaboration, and notification,
are under the first group.
The second group consists solely of the precepts of international environmental law, such as
environmental protection, environmental impact assessment, involvement, prevention, and
precaution.
These principles are meant to obligate States to safeguard the environment on a national level and
collaborate with other States and international bodies on a global scale.

4.2 PRINCIPLE OF STATE SOVEREIGNTY

One of the fundamental tenets of international law is sovereignty. This notion existed in the
domestic legal system before it was applied to international environmental law.

This principle is really found in public international law, which is the legislation of many nations.
It does, however, have deep traditional roots. The fundamental component of governance,
sovereignty, has experienced numerous revisions, much like other legal ideas. Significant changes
to the idea of "government" occurred in the latter part of the 20th century and the early years of the
21st century, including the creation of international organisations like the United Nations, human
60
rights institutions, humanitarian intervention, and environmental protection156.
The 1941 decision in the dispute between Canada and the United States in the Trail Smelter case 157
is one of the most significant legal sources of the "principle of sovereignty" in international
environmental law. This decision highlighted the States' duty to prevent transboundary harm.
"States have the sovereign right to exploit their own resources pursuant to their own environmental
policies, and the responsibility to ensure that activities within their jurisdiction or control do not
adversely affect the environment of other States or of areas beyond the limits of national
jurisdiction,158" according to Article 21 of the Stockholm Declaration of 1972.
A state's sovereignty often has two bases. One is to respect each state's sovereign right to utilise its
natural resources, and the other is to refrain from harming territories governed by other states or
those that are outside of their jurisdiction, such the high seas. The Rio Declaration of 1992's
second principle, which reads as follows: "States have the sovereign right, in accordance with the
Charter of the United Nations and the principles of international law, to exploit their own
resources pursuant to their own environmental and development policies, other States, or of areas
beyond their national borders." This is the turning point of the principle of sovereignty.
The idea of state sovereignty in classical international law is its independence and equality with
other states, and the rule of distinguishing the State from non-state communities is the State's
absolute Sovereignty159; In the sense that the government's power is supreme, unlimited, and non-
submissive. From this point of view, Sovereignty includes both internal and external dimensions,
so the government should have absolute power, Sovereignty, and political stability.
In some instances, the States accepted some restrictions on their Sovereignty to benefit the
international order, but it is crucial to note that with the development of public international law,
State Sovereignty was reduced by the creation of international organisations. Since the 20th
century, the international community has recognised a set of international rules, such as human
rights, environmental rights, and other international regulations that limit the Sovereignty of state
In this framework, the principle of non-harm in the second phase and the "rational and reasonable
use of land" in modern international environmental law have taken the place of the unquestionable
156
C.Nouzha, Réflexion sur la contribution de la Cour Internationale de justice à la protection des ressources
naturelles, RJE, 2000, vol. 3, P.391-420. M. Perrin de Brichambaut, Les avis consultatifs de la CIJ sur la licéité des
armes nucléaires, AFDI, 1996, P.315.
157
Trail smelter case (United States, Canada), 16 April 1938 and 11 March 1941, United Nations, VOLUME III pp.
1905-1982, https://legal.un.org/riaa/cases/vol_III/1905-1982.pdf
158
Declaration of the United Nations Conference on the Human Environment, Stockholm 1972, https://documents-
dds-ny.un.org/doc/UNDOC/GEN/NL7/300/05/IMG/NL730005.pdf?OpenElement
159
Declaration of the United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June
1992, https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/
A_CONF.151_26_Vol.I_Declaration.pdf
5 J.-D. Mouton, Retour sur l’Etat souverain à l’aube du XXIe siècle, in : Etat, société et pouvoir à l’aube du XXIe
siècle, Mélanges en l’honneur de François Borella, Presses Universitaires de Nancy, 1999, P.¬319-334.
61
and absolute sovereignty of States.
Article 2 (3) of the 1971 Convention on Wetlands of International Importance, especially as
Waterfowl Habitat, Ramsar, and Article 2 of the 1985 Vienna Convention for the Protection of the
Ozone Layer are significant examples of international environmental law that recognise the
principle of sovereignty with its various concepts.
1989 Basel Convention on the Control of Transboundary Mitigation Article 4 (12)
Hazardous Waste Movements and their Disposal Clearly Show That:
Nothing in this Convention shall in any way affect a State's sovereignty over its territorial sea
established in accordance with international law, or a State's sovereign rights and jurisdiction
within a State's exclusive economic zone or within a State's continental shelf established in
accordance with international law, or the exercise by ships and aircraft of navigational rights and
freedoms by all States as provided for in international law and as reflected in relevant international
treaties160.
Article 2 (1 C) of the 1992 Helsinki Convention on the Protection and Use of Transboundary
Watercourses and International Lakes follows the development of the concept of sovereignty by
stating that: "To ensure that transboundary waters are used in a reasonable and equitable manner,
taking into particular account their transboundary character, in the case of activities which cause or
are likely to cause transboundary impact."161
Additionally, States in their separate territories must use an international watercourse in an
equitable and fair manner, according to Article 5 of the 1997 Convention on the legislation of non-
navigational uses of international watercourses.
As a result, states are bound by the law to use their territory fairly and sensibly, as well as to
refrain from harming common environments.

4.3 PRINCIPLE OF GLOBAL COOPERATION

Since environmental pollution and degradation cross international borders, the protection of the
environment and addressing environmental challenges go beyond the purview of any one or more
states and necessitate the cooperation of the international community. The principle of cooperation
is rooted in customary international obligation and is one of the fundamental tenants of current
international law.
The foundation of this principle is customary law and Erga Omnes laws, unlike public
international law, which does not rely on principles and rules based on reciprocal connections.
160
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989,
161
Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes,1992
62
Based on this principle, states must cooperate in good faith to protect the environment in all
circumstances.162 It emerged as one of the guiding principles of general international law,
particularly after the First and Second World Wars, which led States to choose international
cooperation over hostilities and rivalries.
The idea of cooperation is present in many areas, including training programmes, conferences,
financial resources, technological transfer, and information exchange.
In addition, this principle is the source of obligations in many conventions. For example, Article
197 of the 1982 Convention on the Law of the Sea emphasises that States protect the marine
environment globally and, if necessary, regionally, directly or through competent organisations. As
a result, States and in many global or regional environmental treaties include this principle as a
fundamental tenet of environmental protection.
According to the 1980 Convention on the Control of Transboundary Transfer of Harmful Wastes
and Their Disposal, the convention's signatories are required to work together to improve and
manage hazardous wastes and other wastes correctly from a biological standpoint.163
In its preamble, the 1992 United Nations Convention on Climate Change (Climate Change), which
was held in New York, reaffirmed the principle of State sovereignty in international cooperation to
combat climate change. The Convention acknowledged that because climate change is a global
issue, all States must work together in the most comprehensive way possible.

Article 7 of the International Convention on Oil Pollution Preparedness, Response and

Cooperation (OPRC), London, 1990, refers to international cooperation to deal with pollution.
Article 5 of the Convention on Biological Diversity, Rio de Janeiro, 1992, under the title of
"cooperation," each member State should cooperate to preserve and protect biodiversity.
Contracting Parties are required by this Convention to cooperate with the international community
in the areas of technology transfer, scientific research and development, collection and
dissemination of information, and financial resources in order to ensure the improvement of a
global environment for implementing the convention's provisions.
Border States are required to work together for the Caspian Sea's 164 environmental conservation
under Article 6 of the 2003 Tehran Framework Convention for the Protection of the Marine

162
S.A.Poorhashemi, B.Khoshmaneshzadeh, M.-Soltanieh & D.H.Bavand, Analyzing the individual and social rights
condition of climate refugees from the international environmental law perspective, International Journal of
Environmental Science and Technology, ISSN 1735-1472, Int. J. Environ. Sci. Technol, DOI 10.1007/s13762-011-
0017-3, January 2012, Volume 9, Issue1, P.57-67.
163
UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE.
https://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf
164
“Russian Federation : IMO Focus on Technical Cooperation.” MENA Report, Albawaba (London) Ltd., 28 Sept.
2021.
63
Environment of the Caspian Sea.
In addition, some environmental challenges cannot be resolved by using a straightforward
approach through regulations, so improving the level of cooperation between the relevant countries
is necessary. The existence of institutions and organizational arrangements may have been
established before the emergence of international environmental law, and the principle of
cooperation regarding environmental protection has been institutionalized at regional and global
levels.
Given its traits, the cooperative principle can be closely related to the majority of the fundamental
ideas and concepts in international environmental law.
However, some of them have a stronger link and alignment than others; for instance, the
cooperation principle and the principle of environmental conservation are tightly associated 165.
Although the international community has not yet been institutionalized, this society lacks the
concentration of power without hierarchy and a unique constitution. The principle of sovereignty
has evolved from the concept of "absolute Sovereignty" in the past to the "rational and reasonable
use of the land" in the present.
The commitment to international cooperation includes a wide range of cooperation, from
providing the necessary resources and technology and holding training courses to exchanging
information and consultation, helping during environmental emergencies. Because dealing with
ecological problems is beyond one or more states' power and requires international cooperation
because the environment has no boundaries and all States have a shared responsibility to protect
the global environment.

4.4 ENVIRONMENTAL PROTECTION PHILOSOPHY

States are required to refrain from harming their environment based on the principle of
environmental protection, which is taken into account in international treaties, organizations’
statutes, many statements, and international conferences. This principle not only affirms that states
have a responsibility to protect their environment, but it also explains why states have a duty to do
so.
The Ramsar Convention of 1971, which mentions the responsibility of the contracting parties for
the preservation, protection, care, and proper exploitation of migratory waterfowl in paragraph 6 of
Article 2, and the Convention for the prevention of marine pollution caused by the disposal and

165
La Résolution 2997 (XXVII) du 15 décembre 1972 sur « Dispositions institutionnelles et financières oncernant la
coopération internationale dans le domaine de l’environnement », doc. NU, A/8730, 1973, P.47. Reproduit in: L.
Boisson de Chazournes, R. Desgagné et C. Romano, Protection internationale de l’environnement, Recueil
d’instruments juridiques Paris, Pedone, 1998, P.53 et s.
64
discharge of waste materials and other materials, which was signed in London in 1972, both
mention the environmental protection principle.
The Bonn Convention on the Conservation of Migratory Animals of Wild Animals, which
stipulates to meet the aims of the convention, also mentions the preservation of migratory species
whose state is inappropriate at any time and any place that is practicable and suitable.
Contracting states are required to protect the marine environment by Article 192 of the 1982
Convention on the Law of the Sea, and nothing in the Basel 1980 Convention on the Control of
Transboundary Transfers of Hazardous Wastes and their Disposal prohibits Member States from
adopting other regulations that are consistent with the provisions of the Convention, according to
Article 4 (11).
The 1992 Convention on Biological Diversity also mandates that each member state adopt national
strategies, plans, and programmes for the protection and sustainable use of that nation's
biodiversity in light of its unique conditions and capabilities. These plans, programmes, and sector
policies must also take into account the applicable intermediate section.
The principle of environmental protection has also been mentioned in some regionally binding
documents, such as the Kuwait Convention, which was signed in 1978 and established regional
cooperation to protect the marine environment from marine pollution. 166 The Kuwait Convention
stated that Member States should protect the marine area while being aware of the value of
cooperation and coordination of actions based on regional policies in order to protect the marine
environment.
The 1972 Declaration of the Stockholm Conference, one of the Soft Law documents that
emphasised the principle of environmental protection, stated in the preamble that protecting and
improving the human environment is a crucial matter affecting people's well-being and
development. The 1992 Rio Declaration also affirmed the principle, so in order to protect the
global environment, States should use protective and preventive measures and standards based on
those principles.
Last but not least, the 2030 Agenda for Sustainable Development, which was adopted at the United
Nations Sustainable Development Summit on September 25, 2015, encouraged all member states
to create national responses to the agenda’s overall implementation. These responses can support
the switch to the SDGs and build on already-existing planning tools, like national development and
sustainable development strategies.167

166
Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution,
Kuwait, 1978. https://digitallibrary.un.org/record/93831
167
2030 Agenda for Sustainable Development, United Nations Sustainable Development Summit, 2015,
https://sdgs.un.org/2030agenda
65
4.5 PRINCIPLE OF NOTIFICATION AND INFORMATION

In the 1949 Corfu Channel case (United Kingdom and Northern Ireland v. Albania), the
International Court of Justice ruled that the Albanian government was required to notify the
captain of the British ship about the presence of mines in Albanian territorial waters. This principle
is interpreted and defined as follows: if a State becomes aware of a danger that may put other
governments in an uncomfortable situation, it shall promptly notify those governments.
In this sense, the principle of notification and information about nuclear accidents is significant on
a global scale. Following the former Soviet authorities' failure to inform about the April 26, 1986
incident at the Chornobyl Nuclear Power Plant, the importance of this principle became more
apparent. This lack of attention led to a global reaction.
This idea is stated in Principle 18 of the 1992 Rio Declaration, which stipulates that States must
notify other States as soon as possible about natural catastrophes and other events that appear to
have a negative impact on these nations' environments.
In various international treaties, the notion of notice and communication in environmental crises
and other matters relating to each environmental component has arisen as a clear and unambiguous
requirement.
Articles 4 and 5 of the 1973 Convention on International Trade in Endangered Species of Wild
Fauna and Flora make the export and import of the species covered by the Convention subject to
special regulations for exchanging information and issuing licences by the importing and exporting
parties. The 1971 Ramsar Convention168 on Wetlands of International Importance encourages the
contracting parties to research and exchange information on wetlands and the matters listed in the
convention.
A comprehensive and carefully defined system for transferring hazardous waste from one country
to another through a country or third country has been established by the 1980 Basel Convention
on the Control of Transboundary Transfers of Hazardous Wastes and their Disposal. This system is
based on the exchange of necessary declarations and permits between countries based on the
exchange of information and the issuance of permits.
The 1992 Convention on Biodiversity also requires contracting parties to exchange information
regarding biodiversity protection and sustainable use. This information should include the
outcomes of technical, scientific, and economic-social research as well as information related to

168
International Convention for the Prevention of Pollution from Ships ....
https://www.imo.org/en/About/Conventions/Pages/International-Convention-for-the-Prevention-of-Pollution-from-
Ships-(MARPOL).aspx
66
biodiversity conservation and sustainable use. The Espoo Convention on Environmental Impact
Assessment in a Transboundary Context, Espoo 1991, gives a description of the amount of
information that must be transmitted to the members in its appendix.
The contracting parties are required by Article 4 of the 1992 United Nations Framework
Convention on Climate Change to publicly release a list of the greenhouse gases that are emitted
and absorbed on their territory on a regular basis.

The principle of notification and information is stated in numerous soft law instruments, such as
statements, declarations, and United Nations resolutions, in addition to the aforementioned
international treaties169.
Although the concept of notification and information existed in relationships between national
States prior to the creation of international environmental law, it did not cover environmental
concerns.

4.6 PREVENTIVE PRINCIPLE

The extinction of a plant or animal species, soil erosion, loss of human life, and the leakage of
persistent pollutants in the sea create a situation which cannot be restored or compensated.
Therefore, it is appropriate to mention this concept as a significant achievement that has led to the
formation and growth of the environmental movement.
Environmental damage assessment methods are also based on the principle of prevention. It can
stop the project process from moving forward or require it to abide by the pertinent standards and
restrictions. The principle of prevention in international environmental law is to prevent
environmental damages before they occur. This principle is based on evaluating ongoing activities
and controlling and monitoring the environmental situation.
Conducting scientific evaluations on new projects is regarded a sort of application of the
preventative principle, and it is crucial that society and public opinion participate in such
circumstances to express their worries or opposition to specific projects.
The main justifications for applying this principle are the impossibility of accurate assessment and
estimation of environmental damage, the measure of related compensation, and the low probability
of repairing or restoring said damages. This principle seeks to prevent damage or control and limit
its effects on the environment, and it is included in many international treaties and documents with
different legal natures.

169
H. Ruiz Fabri, Règles coutumières générales et droit international fluvial, AFDI, 1990, p.839.
67
In the regional context, the Final Act of the Conference on Security and Cooperation in Europe in
Helsinki in 1975 stipulates that the best way to prevent environmental damage is to use preventive
methods170. In 1972, the General Assembly of the United Nations recognised the significance of
having activities at the national judicial level to prevent significant damage to neighbouring areas'
environment.
Article 1 of the Convention on the Prevention of Marine Pollution by the Dumping of Wastes and
Other Matter, London 1972,171 mandates that the contracting parties must individually or
collectively effectively control and prevent all sources of marine environmental pollution. The
Convention also mandates that the Member States use all feasible practical methods for prevention
to avoid the pollution of the seas by dumping waste materials and other materials that pose a threat
to human health.
In order to prevent and implement the pollution of the marine environment brought on by the
discharge of harmful substances or compounds containing such substances that violate this
convention, contracting parties are required to abide by the provisions of the 1973 Convention for
the Prevention of Pollution from Ships and the 1978172 Protocol (MARPOL 73/78).
States shall monitor the results of any activities they permit or engage in to determine whether
these activities are likely to pollute the marine environment. According to Article 204 of the 1982
Convention on the Law of the Sea, when States have logical reasons that the activities planned
under their authoritarian regime will have an adverse impact on the marine environment.

The Framework Convention for the Protection of the Environment of the Caspian Sea, Tehran
2003, states in article 7 (1) that the contracting parties shall take all appropriate measures to
prevent, reduce, and control pollution of the Caspian Sea resulting from various sources.
Additionally, article 9 of this convention mandates that the contracting parties shall take the
necessary steps to prevent, prevent, reduce, and control pollution of the Caspian Sea resulting from
the use of certain substances.
Last but not least, preventing environmental damage is always preferable than treating it because it
is less expensive, easier to do, and riskier.
Principle 6 of the Stockholm Declaration from 1972 states that in order to prevent irreparable harm

170
Final Act of the Conference on Security and Cooperation in Europe, (Helsinki, 1 August 1975), OSCE. Documents
1973 - 1997. [CD-ROM]. [Vienna]: Organization for Security and Co-operation in Europe, [s.d.].
https://www.cvce.eu/en/obj/final_act_of_the_conference_on_security_and_cooperation_in_europe_helsinki_1_august
_1975-en-26511c7f-1063-4ae9-83e5-16859194a144.html
171
Convention for the Protection of the Marine Environment and the Coastal ....
https://wedocs.unep.org/bitstream/handle/20.500.11822/31970/bcp2019_web_eng.pdf
172
United Nations Convention on the Law of the Sea of 10 December 1982,
https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm
68
to natural processes, ecosystems, and species, discharges of toxic substances 173 or other substances
and heat must be stopped when their amount or concentration exceeds the environment's allowable
capacity. This allows for early detection of degradation or threat, prompt intervention, and easier
evaluation of conservation policies174.

4.7 PRECAUTIONARY PRINCIPLE

Principle 7 states that States must prevent the pollution of the seas with substances that may be
harmful to human health and the resources of marine or aquatic life, and has become one of the
most widely accepted concepts of international environmental law 175. However, this principle does
not have a clear legal status due to its concept's lack of a legal basis and ambiguity in its exact
meaning.
The World Charter for Nature's 19th principle states that, to the extent of their power and ability,
states should take extensive precautionary and preventive measures to protect the environment. In
situations where there is a risk of causing severe or irreparable damage to the environment, lack of
sufficient certainty and definite s
The precautionary approach to protecting the environment was outlined in Principle 15 of the 1992
Rio Declaration, which is considered to be one of the most significant initiatives of the document.
Since 1990, the "Precautionary Principle" has been applied in most international legal instruments
related to environmental protection.
When the prevention principle has not yet been applied to the specific environmental project, the
precautionary principle will be taken into consideration. The precautionary principle pertains to
being cautious and planning for probable, uncertain, or even hypothetical hazards.
The application of the precautionary principle is in the unpredictability of the consequences of
human activities on the environment and human health, or, in other words, in the case there is a
chance of environmental damage and large-scale environmental deterioration.
The 1992 Climate Change Convention, for instance, stipulates that members must take preventive
measures to forecast, prevent and minimise the causes of climate change and reduce its adverse
effects. This Article also states that where there are threats of serious or irreversible damage, a lack
of complete scientific certainty should not be used as a justification for delaying action.
173
World Charter for Nature, Adopted by the General Assembly in its Resolution 37/7 of 10 October 1982,
http://www.un-documents.net/wcn.htm
174
Annex I RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT
https://www.oas.org/usde/FIDA/documents/pdf/rioeng.pdf
175
M. Dias Varella, Différences d’interprétation sur un même sujet : le principe de précaution, la CIJ, l’OMC et la
CJCE, Revue européenne de droit de l’environnement, n° 1/2004, juin 2004, P. 23-25. H. Ruiz Fabri, La prise en
compte du principe de
69
The precautionary approach is essential for adequate protection in the safe transfer, handling, and
use of living-modified organisms resulting from modern biotechnology that may negatively affect
the conservation and sustainable use of biological diversity, according to the article in the
Cartagena Protocol on Biosafety to the Convention on Biological Diversity in 2000 176. As a result,
this protocol is based on the applicability of the precautionary approach177.
Article 1 of the 2001 Stockholm Convention on Persistent Organic Pollutants 178 explicitly
mentions the Rio Declaration's 15th principle, affirming that the precautionary principle served as
the foundation for the creation of the convention and requiring contracting parties to adhere to it in
the event of a serious threat or irreparable environmental harm.
The term "precautionary approach" in the 15th principle of the Rio Declaration, which has caused
controversy, is what is causing this issue because there are two different interpretations of
"precaution" in international regulations, which have been crystallised in the "precautionary
approach" and "precautionary principle."

4.8 PRINCIPLE OF POLLUTER PAYS

One of the fundamental tenets of international environmental law is the "polluter pays principle,"
which acknowledges that others have a right to a healthy environment. However, this
responsibility is dependent on the transboundary nature of many harmful environmental effects,
which are the source of the impact on international society.
The central idea of the "polluter pays" principle is that if you pollute a place, it is your
responsibility to clean it up. According to its general direction, the purpose of this principle is that
the perpetrator of a dangerous activity that has caused environmental damage must make up for the
effects of this action.
The original intent of this principle, which stated that the polluter should pay for "the cost of
preventive measures and the fight against pollution" and get subsidies in this area, was to promote
prevention.
The Rio Declaration's 16th principle, which emphasises the public interest and states that the
polluter of the environment must bear the expenses of its remediation, serves as a reminder of this
one.
176
Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2000,
https://wedocs.unep.org/handle/20.500.11822/27553
177
Nicolas de Sadeleer, Le statut du principe de précaution en droit international, in M.Pâques et M. Faure, La
protection de l’environnement au coeur du système juridique international et du droit interne: acteurs, valeurs et
efficacité, Bruxelles, Bruylant, 2003, P.383.
178
Stockholm Convention on Persistent Organic Pollutants , Stockholm, 22 May 2001,
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-15&chapter=27
70
This issue corresponds almost to the notion that "prevention" in international environmental law
has a broad meaning, and it can also be said that this principle is situated at the intersection of
prevention and compensation.179 It appears to be a very close relationship between the "polluter
pays" principle and the prevention principle.
The international community has obligations to implement preventative measures, inform and
assess, and develop national legislation about the liability arising from pollution. It is crucial to
remember that the polluting State is accountable for paying the costs of pollution.
From a legal perspective, putting this idea into practise advances justice and aids in the unification
of global environmental regulations.
According to the Council's recommendation from May 26, 1972, on the Guiding Principles
Concerning International Economic Aspects of Environmental Policies [C(72)128], the "Principle
to be used for allocating the costs of pollution prevention and control is the so-called Polluter-Pays
Pr" (Legal Instruments Concerning the Application of the Polluter-Pays Principle to Accidental
Pollution), 2022, based on the means that the cost of implementing the pollution prevention and
control measures put in place by public authorities in Member nations to guarantee that the
environment is in a suitable state shall be borne by the polluter. In the same Recommendation, the
Council suggested that "as a general rule, Member countries should not assist the polluters in
bearing the costs of pollution control whether through subsidies, tax advantages or other
measures"180. This recommendation means that the cost of these measures should be reflected in
the price of goods and services which cause pollution in production and/or consumption.
In accordance with Article 6 of the International Convention on Intervention on the High Seas in
Cases of Oil Pollution Casualties, Brussels, 1969, any member State that has violated the
provisions to others shall pay compensation in the damages resulting from actions that are
logically more than what is necessary to achieve the objectives mentioned in Article 1 of the
Convention181.
The Convention for the Prevention of Marine Pollution caused by the Disposal of Waste and Other
Substances, London, 1972182, laid down the principles and general provisions in this regard, and
the 1984 and 1992 protocols of the 1969 Brussels Convention, which amended the Brussels
Convention on Civil Liability for Damage caused by Hydrocarbon Pollution, refer to the "polluter

179
H.Smets, Le principe pollueur-payeur, un principe économique érige en principe de droit de l’environnement?
RGDIP, 1993, P.346.
180
OECD, Recommendation of the Council concerning the Application of the Polluter-Pays Principle to Accidental
Pollution, OECD/LEGAL/0251. https://legalinstruments.oecd.org/public/doc/38/38.en.pdf
181
International Convention relating to intervention on the high seas in cases of oil pollution casualties, Brussels,
1969, https://treaties.un.org/pages/showDetails.aspx?objid=08000002801089a9
182
UR-Lex - 62003CJ0459 - EN - EUR-Lex. https://eur-lex.europa.eu/legal-ontent/RO/TXT/?
uri=CELEX:62003CJ0459
71
pays" principle.
As a result of the disposal of waste and other materials of any kind, States or any other
environmental area have suffered damages under this Convention.
The International Maritime Organization approved the London Convention on Preparedness,
Response and Cooperation against Oil Pollution in 1990 to recognise the polluter pays principle as
one of the fundamental tenets of international environmental law.
The Convention on Civil Liability for Damage Resulting from Activities Dangerous to the
Environment, Logano, 1993, which is based on the "polluter pays" principle, is one of the most
important legally binding documents relating to civil liability for damage brought on by dangerous
environmental activities. According to Article 1, the convention's goal is to ensure adequate
payment and appropriate compensation for damages brought on by dangerous environmental
activities.
The 2015 Paris Agreement 29, which requires polluting parties to commit to reducing greenhouse
gas emissions and absorb the rising costs of pollution, may be the ideal illustration of how to put
the "polluter pays" principle into practise.
Additionally, a number of international environmental treaties have included the "polluter pays"
principle directly in its provisions, which obliges States to respect national laws relating to who is
responsible for the harms caused by pollution as well as to apply the idea.

4.9 PUBLIC PARTICIPATION PRINCIPLE

Public participation, which includes non-governmental organisations, scientists, women, and

youth, is a fundamental component of developing and implementing international environmental
law. This participation can take many different forms at the national and international levels,
including participation in the development of environmental law, participation in preserving and
protecting the environment, partaking in environmental monitoring, and partaking in
environmental education.
The Ramsar Convention, which was signed in 1971, gave non-governmental organisations a
consultative position and stated that the contracting parties are accountable for carrying out the
convention's obligations, particularly in the case of wetlands that are located on the territory of
more than one contracting party or the potential for such wetlands. Several international treaties
have recognised the importance of public participation in international environmental law.
Each member state of the convention accepts the responsibility to identify, protect, and promote
cultural heritage, according to Article 4 of the Convention Concerning the Protection of the World
72
Cultural and Natural Heritage (UNESCO) Paris, 1972. To accomplish this goal, States will take
action by using its maximum available facilities and, if necessary, by enlisting international
assistance and participation, especially financial, artistic, and technological.
In order to accomplish the goals of the convention, the contracting parties were urged to pay
attention to the collaborative process, according to Article 9 of the Convention on the Prevention
of Marine Pollution caused by the Disposal of Waste and Other Substances, London 1972. It also
stated that the contracting parties must participate with both the public and private sectors.
Article 9 (2) of the Vienna Convention for the Protection of the Ozone Layer of 1985 has
highlighted the necessity of cooperation and participation regarding the exchange of information
and public awareness of the convention, and the preamble of the convention lists international
cooperation and participation at various levels as one of the tools that accelerate the
implementation of the convention's provisions and accelerate the achievement of the convention's
goals183.
According to Article 12 of the 2015 Paris Climate Change Agreement, "Parties shall cooperate in
taking measures, as appropriate, to enhance climate change education, training, public awareness,
public participation, and public access to information, recognising the importance of these steps
with respect to enhancing actions under this Agreement."184
The groups involved should participate and consult to facilitate the compilation, establishment,
and implementation of environmental plans. In addition, some regional conventions have
recognised public participation in international environmental treaties at the regional or global
levels, which recognise the private sector and non-governmental organisations for environmental
protection.
The Convention on access to information, public participation in decision-making, and access to
justice in environmental affairs, which was adopted at Aarhus, Denmark, in 1998, is the final
major achievement in public participation.

4.10 SUSTAINABLE DEVELOPMENT

The importance of sustainable development in international environmental law is such that the
world is witnessing the transformation of this legal branch into international sustainable

183
Poorhashemi, A. (2022). Opportunities and Challenges Facing the Future Development of International
nvironmental Law. In: Gökçekuş, H., Kassem, Y. (eds) Climate Change, Natural Resources and Sustainable
Environmental Management. NRSEM 2021. Environmental Earth Sciences. Springer, Cham.
https://doi.org/10.1007/978-3-031-04375-8_5
184
Paris Agreement on Climate Change, 2015, United Nations:
https://unfccc.int/sites/default/files/english_paris_agreement.pdf
73
development law. Today, sustainable development is regarded as one of the most fundamental
issues of international environmental law.
Sustainable development has been referenced in a significant number of international agreements
concerning the environment because it is a progressive 185 notion that implies meeting present-
generation requirements without compromising the capacity of future generations to do so.186
All nations must work together to protect the climate system for present and future generations,
according to the 1992 Climate Change Convention, which also emphasised the need for all nations
to cooperate. Additionally, the 1997 Kyoto Protocol's article 2 states that in order to fulfil States'
obligations to reduce emissions and to promote sustainable development, it is necessary to put into
practise

Sustainable development is defined in Article 2 of the 1992 Convention on Biological Diversity as

"the use of biological constituents in a manner that does not reduce biodiversity in the long term to
maintain its ability to meet the needs and hopes of current and future generations." Sustainable
development is also addressed in Articles 7 and 10, which refer to measures for both protection
and sustainable use.
The notion of sustainable development evolved in the latter half of the 1980s, even though the
Stockholm Declaration of 1972 served as the foundation for establishing the connection between
environmental protection and development as the primary concept of sustainable development.
The Brundtland Commission produced the "Our Common Future" report, which was accepted by
the UN General Assembly after more than three years of work, and it defined "sustainable
development" as "filling the demands of the present without disregarding the needs of the future
generation."187

The 1992 Rio Declaration addressed the legal concept of sustainable development. The
Declaration's first principle states that humans are the primary object of all development and that
having healthy physical and mental capabilities is one of the rights of humans in harmony with
nature. The Declaration's second principle permits governments to exploit resources based on their
own environmental and development policies. The Rio Declaration's third principle states that the
right to a healthy environment must be respected by all parties.

185
D. Grimeaud, Le droit international et la participation des Organisations non
186
Daniel Freire, Abbas Poorhashemi, Edson Ricardo Saleme (2021), Environmental Infringements Disputes Solutions
in Brazil and Canada, journal Veredas do Direito: Direito Ambiental e Desenvolvimento Sustentável, Brazil
http://revista.domhelder.edu.br/index.php/veredas/article/view/1997
187
Report of World Commission on Environment and Development, Our Common Future,
74
 CHAPTER 5
INTERNATIONAL LEGAL FRAMEWORK FOR ADDRESSING SEVERAL
CHALLENGES IN INTERNATIONAL ENVIRONMENT LAW

5.1 GLOBAL WARMING

One of the biggest risks to the world's environment, society, and economy is global warming.
It is clearly clear from measurements of rising global mean sea level, widespread melting of
snow and ice, and increased global average air and ocean temperatures that the climate system
is warming.188 Although there has always been natural variation in the world's climate, the vast
majority of scientists now think that increasing levels of "green house gases" in the
atmosphere, brought on by economic and population growth over the past 200 years since the
industrial revolution, are displacing this variability and causing irreversible climate change in
the global climate system that sustains the planet's fundamental life support functions. 189

The industrial revolution in the late 19th and early 20th century ushered in global warming,
which has intensified in recent years and is bad news for both human health and the
ecosystems of the planet. Over the past century, the temperature of the earth has risen by one
degree Celsius, a seemingly insignificant change that has significant repercussions. 190 The past
24 years have been the hottest in the past 150 years, and 2006 was the hottest year on record
going back to the start of keeping records in 1856. The concentration of atmospheric
greenhouse gases might double from preindustrial levels within the next 30 years if no steps
are made to curb carbon emissions, resulting in a temperature increase of at least 2-degree C.

A rise in sea levels of between 18 and 59 cm, which will put coastal areas and small islands in
danger, as well as an increase in the frequency and severity of extreme weather events as well
as changes to the amount and pattern of precipitation are all likely to result from projected
global warming. Changes in agricultural production, glacier retreat, species extinction, and an

188
Arneet Kaur, “Threat of Global Warming : Concerns and Challenges”, Conference Papers, Fifth International
Conference on International Environmental Law, The Indian Society of International Law, 8-9 December 2007, at 636
189
Stellian Jolly and Varun Bajaj, “Clean Development Mechanism; Inter National Legal Systems Response to Global
Warming”, Conference Papers, Thirty-Sixth Annual Conference, The Indian Society of International Law, 24-25
march 2007, at 223-244, at.- 224
190
“Report of the Stern commission on Climate Change”, cited in, Martin Donohoe, “Global warming : A Public
Health Crises Demanding Immediate Action”, World Affairs, Summers 2007, Vol. 11, No. 2, 44-58, at. 45
75
 expansion of the ranges of disease vectors are some of the additional repercussions of global
warming.

The international community has undoubtedly begun developing climate policy at an

extraordinary rate given the severity of the issue. The Rio de Janeiro UN Conference on
Environment and Development saw the signing of the United Nations Framework Convention
on Climate Change (UNFCCC), which named high anthropogenic emissions as the primary
cause of climate change. However, it was more of a generic approach without any mention of
binding climate policy instruments or carbon objectives. In 1994, the UNFCCC came into
being. When COP 3 in Kyoto in 1997 agreed on a number of specific procedures to limit
emissions of greenhouse gases, resulting in the "Kyoto Protocol," further discussions were
rewarded with success.191 As a result, a carbon market is quickly emerging as a step towards
lowering and stabilising greenhouse gas concentrations in the atmosphere to prevent disastrous
global warming.

5.1.1 CAUSES OF GLOBAL WARMING

The term "global warming" describes the recent rise in the planet's ocean and near-surface air
temperatures as well as the anticipated continuance of this trend. Although research into the
precise causes of global warming is still ongoing, the scientific community agrees that human
activity is the primary driver of the increased quantities of greenhouse gases. Thus, the following
are reasons for global warming:

5.1.1.1 GREENHOUSE EFFECT

According to the Intergovernmental Panel on Climate Change (IPCC), the greenhouse effect is
very likely to be to blame for the majority of the observed rise in global average temperatures
since the middle of the 20th century. The term "greenhouse effect" describes how some gases,
such as carbon dioxide, methane, nitrous oxide, sulphur compounds, and chlorofluorocarbons,
have a tendency to trap sunlight that is reflected off the Earth. 192 The average surface temperature
of the Earth would be 18°C instead of 15°C without the greenhouse effect, making our frozen
world uninhabitable.

191
See, Kyoto protocol to the United Nations Framework Convention on Climate Change available on
http.//unfccc.int/resource/docs/conukp/ kpeng.html.,visited on 15 October, 2007
192
“Climate change 2007 : The Physical SCIENCE Basis”, Contribution of Working Group I to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change,
76
 5.1.1.2 INDUSTRILIAZATION AND AUTOMOBILES
The amount of carbon dioxide in the atmosphere has increased 31% since pre-industrial times. 193
The combustion of fossil fuels like coal, oil, and natural gas is the main reason for the rise in the
creation of greenhouse gases.Nearly equal contributions are made by transportation, electricity
production, and heating and cooling for industrial activities. Air pollution, global warming, and the
depletion of the ozone layer have been accelerated by industrialization and the growing global
demand for inefficiently powered vehicles. The biggest causes of global warming are the large
industrialised nations. Over 60% of worldwide CO2 emissions are produced by the top 10% of
countries, compared to just 2% by the bottom 10%.194

To concentrate on the automobile, 25 pounds of carbon dioxide are produced for every gallon of
petrol that is produced, distributed, and then consumed in a vehicle. There are two cars for every
person in the US, eight for every person in Mexico, and 100 for every person in China. In the next
25 to 50 years, the number of cars on the road is predicted to quadruple, and as commute times go
longer due to urban sprawl, more people will travel more miles per year.195
Without a global agreement and consensus, these powerful countries' activities in relation to air
pollution cannot be halted.

5.1.1.3 DEFORESTATION
The overcrowding, poverty, unsustainable farming methods, and greedy logging to meet the rising
demand for paper goods have all led to deforestation, which has worsened global warming,
damaged soil quality, and caused a significant amount of species loss. Plant life is the planet's
carbon dioxide sink, and deforestation kills it. By 2010, three-quarters of all tropical forests may
be vanished, with half of them already devastated. 196 Additionally, between 20 and 50 percent of
the world's wetlands have been devastated. The Amazon, Sub-Saharan Africa, the Philippines, and
most recently the Pacific Northwest and British Columbia, are the regions most impacted by
193
A Gore, “An Inconvenient Truth”, cited in Martin Donohue, “Global warming : A public Health Crises Demanding
Immediate Action”, World Affairs, Summers, 2007, Vol. 11, No. 2, at 44-58, at.-45
194
Staff, Union of Concerned Scientis (UCS), “Frequently Asked Questions (FAQS) about global warming”,
195
Martin Donohoe, “A Public Health Crises Demanding Immediate Action”, World Affairs, Summer 2007, Vol. 11,
No. 2, at. 44-58, at.46
196
M.T. Donohoe, “Causes and Health Consequences of Environmental Degradation and Social injustice”, Social
Science and Medicine, Vol. 56, No. 3, 2003
77
deforestation. Deforestation is caused by a number of factors, including the demand for additional
agricultural settlements brought on by overpopulation, poverty, and unsustainable farming
methods; urban sprawl; logging for paper and building materials; cattle ranching; and the growing
of illegal drugs in nations like Peru, Bolivia, and Columbia. The ranges and behaviours of plant
and animal species are changing as a result of deforestation and global warming. As an illustration,
consider how the spread of mosquitoes, which transmit malaria to higher altitudes, is causing the
prevalence of this terrible disease to rise.

5.1.1.4 COMBUSTION FOR COOKING AND HEATING

The burning of coal and biomass (wood, charcoal crop waste, and animal dung) by approximately
three billion people globally197 for cooking, warmth, and food preservation is another significant
factor in global warming and pollution. When such combustion occurs in enclosed settings, which
is widespread, the health effects of the emitted pollutants are exacerbated.

5.1.2 CONSEQUENCES OF GLOBAL WARMING

Global warming has a wide range of negative repercussions, both real and hypothetical. They are
as follows:

5.1.2.1 MELTING AND FLOODING

Melting glaciers and ice caps in the polar regions and rising sea levels are two negative effects of
global warming. 16 Sea levels are expected to rise between 9 to 88 cm during the next 100 years,
which will likely cause further coastline erosion, storm flooding, and possibly inundation of Male
(the capital of the Maldives) and South Pacific islands like Tuvalu and Vanuatu. Aquifers in New
Orleans and San Francisco could be obliterated, and low-lying nations like Bangladesh will be in
danger. The Greenland ice sheet is quickly melting, and large parts of the Antarctic ice shelf have
collapsed into the ocean. The Earth absorbs more heat when there is less ice to reflect sunlight,
hastening melting. Huge volumes of carbon dioxide might be released, driving global warming, if
the permafrost layer covering the Siberian tundra keeps melting.

5.1.2.2 EXTREME WEATHER EVENTS

Extreme weather patterns are exacerbated by global warming, which may have contributed to the
recent dramatic, severe hurricanes and expensive flood damage in the US. Freshwater availability

197
See, M. Ezzati and D. Kammen, “The Health impact of Exposures to Indoor Air Polluation from Solid Fuels in
Developing Countries”, Environmental Health Perspectives, 2002, Vol. 110, No. 11, cited in Martin Donohoe, “A
Public Health Crises Demanding Immediate Action”, World Affairs, Summer 2007, Vol.11, No. 2, at. 44-58, at.-48
78
and quality may be negatively impacted by changes in temperature and precipitation in many
locations. According to projections, water stress will increase for between 75 million and 250
million people in Africa by 2020 as a result of climate change. This will have a negative impact on
livelihood and exacerbate water-related issues when coupled with growing demand. Less water
availability is expected to have an impact on Central, South, East, and South-East Asia.

5.1.2.3 AIR POLLUTION

As a result of increased smog and ground-level ozone caused by rising temperatures, asthma and
chronic obstructive pulmonary disease symptoms worsen. An increase in carbon dioxide
encourages the growth of plants that produce pollen, such as ragweed, which makes allergies
worse. Additionally, the ozone layer, which shields us from the sun's harmful ultraviolet radiation,
is being depleted as a result of pollution-induced ozone destruction in the upper atmosphere (as
well as cooling of the upper atmosphere, a result of more heat being trapped in the lower
atmosphere). As a result, there has been a significant increase in cataracts, a condition caused by
damage to the eyes' lens caused by ultraviolet light, as well as an anticipated increase in the
lifetime chance of malignant melanoma, the most dangerous type of skin cancer. Lastly, although
deaths from hypothermia should decrease, increased temperatures bring about more heat waves,
which cause more hypothermia deaths.
According to estimates from World Health Organisation scientists, 160,000 people die annually as
a result of the effects of global warming, and this number may increase by twofold by the year
2020.

5.1.2.4 DECREASING OF OCEANS CAPACITY TO SOAK GREENHOUSES GASES

British scientists' research has revealed that the oceans' capacity to operate as a "Carbon Sink" and
absorb greenhouse emissions is dwindling. The amount of carbon dioxide in the North Atlantic's
waters has decreased by about half over the ten years between the mid-1990s and 2005, according
to measurements made by British scientists during that time. 20 Natural processes suggest that
when CO2 dissolves in the oceans, which cover a large portion of the earth's surface, it reduces the
amount of the gas in the atmosphere by converting them into massive "sinks" that store the carbon
safely.
However, the latest research indicates that less carbon dioxide is entering the oceans as a result of
warmer than usual worldwide weather, which has heated the water near the surface.

5.1.3 INTERNATIONAL NEGOTIATIONS

79
In the middle of the 1980s, as scientific evidence of human interaction with the climate system
grew and environmental concern among the general public increased, climate change became a
political issue. Policy makers require an unbiased source of information regarding the causes of
climate change, its potential environmental and socioeconomic effects, and potential response
options due to the complexity and difficulty of the subject.
The Intergovernmental Panel on Climate Change (IPCC) was founded in 1988 as a result of this
recognition by the World Meteorological Organisation (WMO) and the United Nations
Environment Programme (UNEP). The Panel's job is to evaluate the best available scientific,
technical, and socioeconomic data on climate change from around the world in a thorough,
impartial, open, and transparent manner. In its first report, released in 1990, the IPCC stated that
unless action was taken to reduce emissions, the increasing concentration of greenhouse gases
produced by humans in the atmosphere would "enhance the green-house effect, resulting in an
additional warming of the Earth's surface" by the end of the century.

In response, the UN general assembly began talks to create an international convention on

preserving the planet's climate, which culminated in the May 1992 adoption of the United Nations
Framework Convention on Climate Change (UNFCCC).198
At the Earth Summitt in Rio de Janeiro in June 1992, the convention was opened for signing, and
154 governments and the European Community signed it.

It becomes effective on March 21, 1994. India ratified the UNFCCC in 1993 after signing it on
June 10th, 1992. The Conference of Parties (COP) was designated as the convention's highest
authority.
The Conference of Parties (COP) was designated as the convention's highest authority. A legally
enforceable set of commitments for 38 industrialised nations and 11 countries in Central and
Eastern Europe to reduce their GHG emissions to an average of roughly 5.2% below 1990 levels
over the course of the convention was reached during the COP3 summit in Kyoto, Japan. Carbon
dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs),
perfluorocarbons (PFCs), and sulphur hexafluoride (SF6) are the six principal greenhouse gases
that the Protocol aims to reduce. The Protocol came into effect on February 16, 2005.

198
The Convention on Climate Change sets on overall framework for intergovernmental efforts to tackle the challenge
posed by climate change. It recognizes that the climate system is a shared resource whose stability can be affected by
industrial and other emissions of carbon dioxide and other greenhouse gases. The Convention enjoys near universal
membership, with 189 countries having ratified it. The Convention entered into force on 21 March 1994.
80
The Clean Development Mechanism (CDM), which is outlined in Article 12 of the Kyoto
Protocol, permits poor nations to take part in cooperative greenhouse gas (GHG) mitigation
programmes. These nations can fulfil their reduction commitments through the CDM in a flexible
and economical way. It enables public or private sector organisations in Annex I nations to finance
GHG mitigation initiatives in developing nations. The investing parties obtain credits or certified
emission reductions (CERs) in exchange, which they can utilise to reach their Kyoto Protocol
commitments.
While investors benefit from CDM projects by gaining reductions at prices lower than in their
home nations, the host parties in developing countries only stand to win financially,
technologically, and in terms of sustainable development.

At the seventh Conference of Parties (COP-7) to the UNFCCC, held in Marrakech, Morocco in
October-November 2001, the fundamental guidelines for the CDM's operation were agreed upon.
The Kyoto Protocol's only connection between developed and poor nations is the CDM,
sometimes known as the "Kyoto Surprise".199 Its viability will contribute to ensuring both the
effectiveness of the Kyoto Protocol and the desire of emerging nations to take part in a future
global emissions system. It is essential that developing countries fully participate in such a scheme
since their emissions will eventually surpass those of the Annex I countries.

5.2 CLIMATE CHANGE

One of the most significant environmental issues facing humanity today is climate change, which
has an impact on things like freshwater supplies, natural ecosystems, agricultural production, and
health care. According to the most recent scientific assessment, the earth's climate system has
changed demonstrably on both a global and regional scale since the pre-industrial era. Additional
evidence indicates that human activities are primarily responsible for the warming (0.10 C per
decade) that has been observed over the last 50 years. According to the Intergovernmental Panel
on Climate Change (IPCC), by 2100, the average global temperature may rise by 1.4 to 5.8
degrees Celsius (C).200

199
Stellina Jolly and Varun Bajaj, “Clean Development Mechanism; Inter National Legal Systems Response to Global
Warming”, Conference Papers, Thirty-Sixth Annual Conference, The Indian Society of International Law, 24-25
march 2007, pp. 223-244, p.227
200
Stellina Jolly and Amit Jain, “Clean Development Mechanism : A Tool for Sustainable Development” Conference
Papers, Fifth International Conference on International Environmental Law, The Indian Society of International Law,
8-9 December 2007, at 680
81
The global hydrological system, ecosystems, sea level, food output, and other related processes are
all predicted to be severely impacted by this unprecedented surge. The impact would be especially
severe in the tropical regions, which are primarily developed nations like India.

Despite these obstacles, the world community has accelerated the development of climate policy.
The United Nations Conference for Environment and Development in Rio de Janeiro in 1992 saw
the signing of the United Nations Framework Convention on Climate Change (UNFCCC). which
recognised significant manmade emissions as the primary driver of climate change? However, it
was more of a general movement and never specifically targeted any specific emission targets,
mandatory climate policy processes, or tools. The UNFCCC became operational in 1994.

5.2.1 POLICY MEASURES OF CLIMATE CHANGE

Due to both manmade and natural causes of global warming, the international community finds it
difficult to solve the problem. The Intergovernmental Negotiating Committee for the Framework
Convention on Climate Change was established in 1990 as a result of the United Nations General
Assembly's response. In its first report, released in 1990, the IPCC stated that unless action was
taken to restrict emissions, the increasing concentration of greenhouse gases produced by humans
in the atmosphere would "enhance the greenhouse effect, resulting in an additional warming of the
Earth's surface" by the end of the century.

The United Nations Framework Convention on Climate Change (UNFCCC) was established in
1992 at the Rio de Janeiro Earth Summit to address the effects of anthropogenic global warming.
The UNFCCC mandated that signatories compile inventories of their greenhouse gas (GHG)
emissions and that industrialised nations commit to bringing their emissions to 1990 levels by the
year 2000. This pledge was ineffective, and the UNFCCC parties instead adopted the Berlin
Mandate in 1995, pledging to reach an agreement by 1997 on concrete emission caps and
reduction targets for industrialised nations. Because wealthier countries have historically given the
most GHCs, the Mandate purposefully exempted poor countries from its legally obligatory duties.

On December 11, 1997, the Kyoto Protocol was officially adopted. The Carbon Dioxide (CO2),
Methane (CH4), Nitrous Oxide (NO2), Hydro Fluorocarbons (HFCs), Perfluorocarbons (PFCs),
and Sulphur Hexafluorion (SF6) are the six principal greenhouse gases that the Protocol aims to
reduce. The Protocol came into force on February 16, 2005.

82
The first significant action to address human contributions to global warming was taken with this.
Thirty-seven industrialised countries (Annex I parties) are subject to a cap on their GHG emissions
for the years 2008 to 2012 under the Kyoto Protocol, which also enables those countries to reach
their targets through emission trading, collaborative initiatives, and the Clean Development
Mechanism (CDM). Known as the "Kyoto surprise," CDM is the only connection between
developed and poor nations under the Kyoto Protocol. Its viability will contribute to ensuring both
the effectiveness of the Kyoto Protocol and the desire of emerging nations to take part in a future
global emissions system. It is essential that developing countries fully participate in such a scheme
since their emissions will eventually surpass those of the Annex I countries.18 Due to the different
interests of the developing nations, there is a spectrum of opinion among them about the CDM.
While everyone in the developing world agrees that its primary purpose is to promote sustainable
development.

5.2.2 CDM AND RELEVANCY

The Kyoto Protocol foresaw the emergence of new, completely unknown ground for the legal
community. The CDM is the result of hasty last-minute negotiations at the COP3 in Kyoto in
December 1997. No Party's plans resemble the CDM, according to Farhana Yamin of the
Foundation for International Environmental Law and Development. There were no papers about it
published before Kyoto. The Clean Development Mechanism (CDM) was mostly developed out of
political necessity, incorporating Brazilian suggestions for the Clean Development Fund and
different proposals for collaborative implementation.

In 1997, right before COP3 in Kyoto, Brazil presented the Clean Development Fund (CDF) as a
compliance mechanism during a meeting of the Ad Hoc Group on Berlin Mandate. According to
the CDF proposal, Parties who don't adhere to their allocated emission commitments during a
specified budget period will be penalised by having to pay into the CDF. In turn, developing
nations use the funds accumulated in the CDF to promote sustainable development. No more than
10% of the revenue would be allocated to help vulnerable nations with adaption strategies. The
CDM changed during COP3 in Kyoto, becoming a method for Annex I nations to get emissions
offsets in order to meet their QELROs.

83
The CDM's goals are to help non-Annex I parties achieve sustainable development and,
conversely, to help Annex I parties fulfil their commitments under the Kyoto Protocol in an
economical manner.
In order to achieve this, the developed country party agrees to commit resources to the developing
country party in order to support project activities that promote sustainable development growth
and greenhouse gas (GHG) reduction. In plain English, the CDM requires that a firm from an
Annex I nation invest in the construction of a highly efficient plant in a developing country as
opposed to the previously intended less efficient facility. As a result, emissions are reduced more
than they would have without the project's expenditure. The developing country and investing
corporation would decide how to divide the reductions, which are validated as credits. Through
this collaborative endeavour, the developing nation gains access to more effective technology and
financial support for the plant. The corporation from the Annex I nation purchases a portion of
CERs it can utilise to fulfil its domestic emission reduction goals.

To receive credits from a CDM project, an industrialised nation must have the agreement of the
developing nation hosting the project that it would promote sustainable development. The
applicant (in our case, the industrialised country) must then demonstrate using methods endorsed
by the CDM Executive Board (EB) that the project would not have occurred anyway
(demonstrating additiveality) and must establish a baseline estimating future emissions in the
absence of the registered project. To confirm that the project actually leads to significant,
quantifiable, and long-term emission reductions, the case is then verified by a third party
organisation, referred to as a Designated Operational Entity. Following final approval by the
Executive Board, the application is given a certain amount of Certified Emission Reductions
(CERs) depending on the difference between the baseline and the actual emissions. The validity of
the baseline, the accuracy of the additional calculation, and the soundness of the project itself all
affect the feasibility and credibility of CERs.

CHAPTER 6
CONCLUSION AND SUGGESTIONS

84
 The future of Global Environmental Governance is closely related to the future of
International Environmental Legislation. As we work to achieve "excellent" Environmental
Governance, whatever we define that, the emphasis on Environmental Governance should be on
how it can be improved. This was stated at the opening of the book.

The subject of how to strengthen Global Environmental Governance has numerous facets.
So called "Treaty Congestion" is one of the aspects we mentioned in the introduction. We pointed
out that there are very valid worries about how "Treaty Congestion" affects governments' capacity
to respond to the growing number of environmental difficulties, and that this is particularly evident
in the case of Developing Nations and Small Island States (SIDS). In her examination of the
difficulties encountered by SIDS in the context of both pollution and climate change, Powers made
this point quite clearly.

This suggests that, going forward, we should explore what will lead to the most effective
resolution of both current and new and coming environmental concerns rather than regarding new
laws resulting from Environmental Diplomacy undertaken by nation-states as the Ultimate
objective. This inevitably requires searching outside of the law for answers to Global
Environmental issues.

Of course, to suggest that future discussions should focus more on Global Environmental
Governance than strictly on International Environmental Law does not negate the importance of
International Environmental Legislation in the future, provided that law is well implemented.
Many of the Global Environmental concerns we confront can be and have been successfully
addressed through International Environmental Legislation. In Chapter 3, Susan Shearing
emphasized that, despite the numerous and varied difficulties that both industrialized and
developing nations face, it is still feasible to accomplish sound environmental governance through
several the treaty regimes that are now in place. In the case of biodiversity, she emphasized that
number of the major mechanisms described in the CBD are, to some extent, assisting the
objectives of the Convention despite the numerous and varied barriers to biodiversity conservation
and sustainable use.

85
 The fact that we may identify success examples in some but not all sectors of International
Environmental Law emphasizes the significance of "various efforts of communities at every level"
for good environmental governance, as highlighted by Rosenau.

To the greatest extent possible, all key stakeholder communities must be involved and
engaged for these "diverse initiatives" to have the greatest possible impact. The right to public
participation in decision-making, access to justice, and a number of other elements all play a vital
role in establishing "Strong Environmental Governance," as Donna Craig and Michael Jeffery
pointed out in their analysis. Environmental Governance, as they stated, is largely concerned with
"relationships and interactions among government and nongovernment institutions, procedures,
and norms, where power and responsibility are exercised in making environmental decisions." It
is very much about "how the decisions are made," "community," and other stakeholders'
participation, as their analysis stressed. At the local level, this makes sense, but when it comes to
Global Environmental Governance, things get much more complicated, especially if, as Edith
Brown Weiss has indicated, a "kaleidoscopic" international legal and political framework is
emerging. A significant challenge for the future of International Environmental Law and, beyond
it, for International Environmental Governance more broadly is how to take into account and
balance the requirements and ambitions of all stakeholders and communities.

This inevitably implies that environmental governance is ultimately a human rights issue.
In his work, Gudmundur Alfredsson demonstrated the interconnectedness of environmental
concerns and human rights. The "efficient synthesis" of environmental and development problems
that has been at the centre of international discussions on environment since at least Stockholm, if
not much earlier, is based on knowledge that has existed for some time. But in the future,
International Environmental Legislation and Effective Global Environmental Governance will also
be based on respect for human rights.
This means that discussions about bridging the north-south divide and the "efficient
synthesis" will dominate the future of International Environmental Law. As in the past, closing the
north-south gap will be crucial to determining whether International Environmental Law and
Global Environmental Governance in general succeed or fail. The failure of Copenhagen to make
any significant headway toward establishing a truly global and successful response to climate
change serves as the most striking illustration of this. Toward the end of their chapter, Michael
Gerrard and Dionysia-Theodora Avgerinopoulou made the following observation: "The
developing world will not accept measures that substantially impair its progress. The developed
86
world won't accept policies that materially reduce current standards of living. The solution to the
many urgent global environmental issues, including climate change, will lie in reconciling these
two broad perspectives that appear to be in conflict. It won't be a simple task.

A continuum of regulatory mechanisms, ranging from "hard" law at one extreme through
licencing and codes of practise to "soft" self-regulation and negotiation in order to influence
behaviour at the other, may be used to regulate emerging technologies like nanotechnology and
synthetic genomics, for instance. As a result, there is no substantive difference between local law
and International Environmental Legislation. However, a growing role for non-state players
appears to be what will change for both International Environmental Law and Global
Environmental Governance in the future. Stakeholder participation in these processes that is
meaningful will be just as crucial in this situation as it is in any other.

Shaping answers to global environmental concerns in some areas, such as ocean

governance, for instance, may also entail questioning ingrained notions of what international law is
or ought to be. The exhaustibility of marine biodiversity in regions outside of state jurisdiction
undermines the conventional orthodoxy in international law that the seas should be open to all
uses, as Rosemary Rayfuse's analysis in Chapter 9 has demonstrated. When it comes to
determining how to respond to environmental problems in the oceans, nothing less than a
paradigm shift appears to be necessary. Nation-states won't necessarily accept such a paradigm
shift overnight, as Timo Koivurova and Sébastien Duyck noted in their chapter. Instead of an
overnight revolution, there must be a long-term evolution.
Therefore, it is inevitable that the future response of International Environmental Law (and,
more broadly, of International Environmental Governance) to current and future environmental
challenges will be a multifaceted and multidimensional evolutionary process, drawing on already-
existing mechanisms in some cases and improving them or creating entirely new mechanisms with
new actors and new tools in others.
Like the global environment it strives to safeguard for future generations, International
Environmental Law will continue to evolve and be a dynamic force in global environmental
governance. To keep up with the quick rate of change will be the main challenge for states as well
as all other stakeholders and players.

International Environmental Law is intricate and getting more so, gradually embracing a
comprehensive strategy for solving environmental, social, and economic issues. A rising number

87
of concepts, beliefs, and standards have emerged as a result of its growth during the past three
decades. Simultaneously, more technical terms and regulations have been used repeatedly in many
treaties or non-binding agreements. The relevance of frequently referencing the Rio Declaration's
tenets about public involvement, environmental impact assessment, transboundary relationships,
environmental emergencies, prevention, precaution, and the polluter pays principle in international
legal instruments is clear. The development of environmental legislation has also been
significantly influenced by norms put out by UNEP, FAO, and OECD. The development of an
international framework for environmental law has greatly benefited from and will continue to
benefit from the repetition of norms and other state practise.

Numerous treaties include concepts, principles, and regulations that are substantially based on how
they were generally formulated in international documents of vital importance but without legal
force, such the Declarations of the 1972 Stockholm and 1992 Rio Conferences. The rising use of
international non-binding instruments is another defining feature of current international
environmental law. In light of contemporary issues where scientific knowledge and public
awareness may be the primary forces driving for international action, such agreements are
frequently simpler to negotiate and change. Non-binding principles in texts aid in the emergence of
new legal norms and the development of international environmental law.

The prior analysis of the plethora of rules reveals several broad tendencies and new problems in
the industry. Treaties and other writings that increasingly frequently include in-depth definitions of
concepts and assertions of responsibilities are giving many principles and norms of international
environmental law more legal content and increasing their homogeneity. The horizontal spread of
these concepts, or their inclusion in other legal instruments, can be seen of as a form of
international environmental law harmonisation. Cross references across international instruments
are becoming more common, as seen in the UNCLOS reference to MARPOL standards. The
growth and interconnectedness of legal norms at all governmental levels, from the global to the
municipal, are additional characteristics of international environmental law. Every level of
government has laws and policies that affect the others, and activities started at one level of
government frequently result in the adoption of comparable strategies by other legal systems.

Coordination of multiple or even competing requirements becomes an issue when environmental

instruments multiply. Adherence to international and regional instruments may result in issues
with choice and rationalisation during implementation. One example is the responsibility of
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regional seas with regard to specially protected areas and their coordination with the Convention
on Biological Diversity. Although it is unclear whether the responsibilities are the same, according
to UNEP, the latter provides additional specificity to the former's basic standards. As more
instruments are created, the issue of overlaying treaties is spreading.

In order to combat the threat of climate change, global action is undoubtedly necessary and long
overdue. However, significant equity concerns involving various parts of the globe justify a focus
on some of the most vulnerable communities and nations that are most likely to experience the
worst effects of climate change.

In fact, some of these areas are already under significant stress from climate change due to the
increasing water scarcity, detrimental effects on agriculture, and the ever-present threat of sea level
rise, which is of great concern to small island states and other low-lying coastal regions around the
world. The conference this year concentrated on fostering international understanding and
collaboration on issues of equity and morality.

In conclusion, this law dissertation has critically examined the concerns and challenges of
international environmental law, highlighting the complex issues that impede its effective
implementation and enforcement. The study has shed light on the tensions between state
sovereignty and global environmental objectives, the barriers to compliance with international
environmental agreements, the need to reconcile economic development with environmental
protection, and the limitations of existing legal mechanisms. Additionally, the dissertation has
explored the challenges of transboundary cooperation, the principle of common but differentiated
responsibilities, the integration of intergenerational equity, and the importance of access to
information and public participation.

SUGGESTIONS

Through this analysis, it becomes evident that International Environmental Law faces significant
hurdles in effectively addressing Global Environmental issues. However, despite these challenges,
there are opportunities for improvement and solutions. Based on the research findings, the
following suggestions are put forward:

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 1. Strengthening International Cooperation: Enhance mechanisms for International
Cooperation, information sharing, and coordination to effectively address transboundary
environmental challenges. Encourage the formation of collaborative platforms and
partnerships among states, organizations, and stakeholders.

2. Enhanced Compliance and Enforcement: Develop stronger compliance mechanisms and

enforcement measures within International Environmental Agreements. This includes
establishing robust monitoring and reporting systems, implementing effective penalties for
non-compliance, and providing incentives for compliance.

3. Integration of Environmental Considerations: Foster greater integration of

environmental concerns into other legal frameworks, such as trade, investment, and human
rights, to ensure coherence and consistency in decision-making processes.

4. Capacity Building and Technology Transfer: Support capacity building efforts in

developing countries to enhance their ability to implement and comply with International
Environmental obligations. Facilitate technology transfer to enable Sustainable
Development and promote environmentally friendly practices.

5. Strengthening Access to Information and Public Participation: Promote transparency

in decision-making processes, facilitate public access to environmental information, and
ensure meaningful public participation in environmental decision-making. Strengthen the
role of civil society organizations and the public in holding governments and corporations
accountable for environmental actions.

6. Continuous Research and Innovation: Encourage ongoing research and innovation to

address emerging issues and challenges in International Environmental Law. Foster
interdisciplinary collaboration to develop new legal approaches and policy solutions.

By implementing these suggestions, International Environmental Law can overcome its challenges
and better fulfill its mandate of protecting the environment and promoting Sustainable
Development. It is crucial to foster global cooperation, strengthen legal mechanisms, and engage
diverse stakeholders to address the concerns and challenges effectively.

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Overall, this law dissertation has contributed to a deeper understanding of the concerns and
challenges facing International Environmental Law, providing valuable insights for policymakers,
practitioners, and scholars in the field. It is hoped that this study will contribute to ongoing efforts
to strengthen International Environmental Governance and advance the global environmental
agenda.

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