International Environmental Law

A Case Study Analysis

Gerry Nagtzaam, Evan van Hook, Douglas Guilfoyle

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351367967
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book seeks to better understand how International Environmental Law regimes evolve. The authors address throughout the major environmental, economic, and political tensions that have both shaped and constrained the evolution of international environmental policy within regimes, and its expression in international legal rule and norm development.

Readers will gain an increased understanding of the growing role played by non-state actors in global environmental governance, including environmental non-government organisations, scientists, the United Nations, and corporations. The authors also look ahead to the future of International Environmental Law, evaluating key challenges and decisions that the discipline will face.

The text is clear, concise, and accessible. It is ideally suited to students and professionals interested in International Environmental Law, and individuals who are intrigued by this dynamic area of law.

Chapter 1

Introduction

Up until the twentieth century, humans tended to merely exploit resources secure in the knowledge that, while their actions might have local consequences, their actions could not impact the environment at the global level. However, as humanity’s scientific knowledge grew, humans have come to be aware of the detrimental impact their species is having on the global environment. Scientists began to posit that the planet was no longer in the Holocene era, but rather had entered into what they coined the ‘Anthropocene era’ whereby the entire planet was being impacted by humanity and its needs. Particularly in the second half of the twentieth century, we can observe a growth in the number of differing types of ecological problems global society is attempting to resolve. Scientists have observed increasing rates of global biodiversity loss; soil erosion; a fresh water deficiency; increasing global chemical consumption and releases; anthropogenic changes to the global climate; a deterioration of the ozone layer; increased desertification and loss of arable land; rising sea levels; and ever-increasing rates of human population and consumption of resources while crowding out other species and their habitats.¹

Such environmental problems tend to be unintended; unwanted; inherently complex to resolve (often dependent on scientists to observe and explain the phenomena); non-reducible in terms of causal factors; variable, in that they do not all follow the same format and sequence of events; unpredictable and their negative effects often uncertain, e.g. the failure to detect the thinning of the ozone layer due to the proliferation of chlorofluorocarbons; their impact tends to be collective, though such effects may differ between different regions and classes and is spontaneous, in that ecosystems may have little or no ability to adapt to the problem in a sufficient timeframe to ensure survival.² The difference between local and global environmental problems is often just a question of degree. At the local level deforestation affects farmers and peasants but aggregated together in the thousands such activities pose a global-level problem exacerbating deforestation, climate change and other global environmental problems.³

These complex environmental problems are sometimes referred to as ‘wicked problems’ in that they are multi-faceted challenges with no straightforward legal or political solutions. These problems are often ubiquitous and persistent, unintended, transboundary in nature and can operate over long timescales including millennia. Any proffered solutions are highly contested by a plethora of differing actors requiring often arduous negotiations as to what is the appropriate cooperative action to take, leading to lengthy delays with consequent negative impacts on the global environment.⁴

Many of these environmental risks are a by-product of our technological societies and their ever-increasing need to exploit resources. As Ulrich Beck has trenchantly observed, “they are ‘piggy-back products’ which are inhaled or ingested with other things. They are the stowaways of normal consumption.”⁵ Other environmental problems are brought about by poverty where people are forced to despoil the planet to meet subsistence needs, for example, cutting down trees for firewood. Compounding the search for solutions is that environmental problems innately combine scientific uncertainty, citizen and corporate activism, and political, social and economic dimensions that make outcomes uncertain and difficult to implement and good environmental results tenuous at best to achieve.⁶

The complexity and consequences of global environmental problems pose key legal and political challenges for global society.⁷ Given the transboundary nature of the bulk of environmental problems, national environmental policy and proscriptions are not capable of resolving these global issues individually.⁸ While humanity has wrought global environmental damage, it also has the capacity to create and implement solutions.⁹

It is only since the 1960s that states have banded together to attempt to resolve these issues.¹⁰ The preferred method utilised by the international community is through intergovernmental cooperation, usually through the mechanism of lengthy and diplomatically arduous multilateral negotiations. Thus, cooperation between states becomes essential for minimising or preventing “both the global environmental impacts of local human activity and the local impacts of global environmental degradation.”¹¹ At the same time International Environmental Law (IEL) began to develop as a subset of international law to attempt to grapple with these complex, interdependent and potentially world-ending problems with decidedly mixed results given the scale and scope of the ongoing environmental problems.¹²

Since then it can be observed that IEL has developed remarkably in a relatively short period of time to become a discrete and critical part of the law. Particularly since the 1992 Rio Conference on the Environment the area has flourished. According to the IEA (International Environmental Agreements) Projects database there are over 1,300 multilateral environmental agreements, and approximately 3,000 bilateral environmental agreements currently operating.¹³

International environmental law operates at a number of levels: transboundary, global, domestic or an amalgam of the three. Firstly, there are transboundary problems such as air and water pollution or the protection of migratory species which are no respecters of artificial state boundaries. These issues, particularly initially, tended to be dealt with by regional instruments and organisations. However, some environmental problems, by their global nature, ubiquity, and their ability to impact all parts of the globe require all interested and/or willing states and international organisations to act. The various climate change convention and protocols, the Montreal Protocol on Substances that Deplete the Ozone Layer and the Convention of Biological Diversity are all examples of the global community rallying to attempt to deal with pressing global environmental problems that need, at the very least, a majority of states and other organisations willing to address them.¹⁴

International environmental law also seeps down into the domestic sphere. International instruments set standards that must be incorporated into national law to meet the obligations agreed to by individual states. As it can thus be seen, while we use the nomenclature ‘international environmental law’ mostly for traditional reasons, it is better understood as a global phenomenon, given the differing levels it operates at (global, transboundary, regional and domestic) and the plethora of diverse actors (states, international organisations, domestic organisations, transboundary and domestic corporations, NGOs and ENGOs) operating in this sphere.¹⁵

Over the decades, modern international environmental law has further developed its own unique principles and concepts such as the polluter pays principle (PPP),¹⁶ the precautionary principle,¹⁷ the ideas of a common but differentiated responsibility,¹⁸ intragenerational and intergenerational equity,¹⁹ and a common concern of mankind,²⁰ and has further broadened our understanding and application of key precepts of international law such as the no harm principle,²¹ and the common heritage of mankind.²²

However, despite the creation of thousands of environmental instruments, its own legal principles and concepts, there is still a perception in global society that the current international governance system tasked with dealing with these complex issues is incapable of addressing the problems in a timely and cogent manner. States often appear unwilling to cede their sovereignty to other global institutions fearing a loss of power. It is clear however, that the downward trends in global degradation of natural assets in most cases will continue unless global institutions are strengthened, states acknowledge their limitations in this field and non-state actors are permitted to become part of the global environmental governance infrastructure.²³

As Hunter et al. warn:

[T]he study of international environmental law requires an understanding of the problems of environmental degradation and their causes, of the legal processes for addressing these problems, including the processes of law-making, compliance monitoring and dispute resolution, of the players who cause the problems and those who make the law to address the problems, and of the legal principles that form the foundation for the treaty law that now dominates the field.²⁴

AIM OF THE BOOK

This book is dedicated to better understanding how IEL regimes²⁵ develop and in some cases, evolve to provide better environmental protection. At the same time, there is much that can be learned from examining failing IEL regimes where en...

Table of contents

• Cover Page
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Forewords
• Acknowledgements
• List of Abbreviations
• 1 Introduction
• 2 Stakeholders in International Environmental Regimes
• 3 Antarctic Regime and Mineral Exploitation
• 4 Tropical Timber
• 5 Atmospheric Ozone
• 6 Climate Change I
• 7 Climate Change II
• 8 Biological Diversity
• 9 The Oceans
• 10 Whaling
• 11 Atlantic Tuna
• 12 External Actors: The Sea Shepherd Conservation Society
• 13 The Future of International Environmental Law
• Index