Author: Nivedita Saxena, Research Associate
Importance of International Law
International law is important for environmental protection majorly in the following ways:
- Problems that are Trans-boundary and global in nature, require international solutions, implying that international legal regulations in some form are desirable or necessary.
- International agreements generate standards which can then be incorporated by the national laws
Nature of International Instruments
A fundamental principle under the Vienna convention on the law of the Treaties 1969 is that the states may only be bound with their consent, which is only fully given once the convention has been ratified. Thus, Conventions do not create general obligations. The various terms, ‘treaties’ , ‘conventions’ and ‘agreements’ all mean the same thing and are included in ‘hard law’. A ‘Protocol’ also has the same legal force, although it is a sub-agreement to a treaty, generally used to flesh out or amend the treaty. For example the 1997 Kyoto Protocol contains the carbon emission reductions that states committed themselves to agreeing to in the 1992 Framework Conventions on Climatic Change.
‘Declarations’, ‘Principles’ , ‘Recommendations’ and ‘standards’ are non binding in form, generally non- enforceable in nature and are included in ‘soft law’. The 1992 Rio Declaration on Environment and Development and its Stockholm predecessors of 1972 remain two of the most important environmental law instruments in international context.
The United Nations Conference on the Human Environment (Stockholm, 1972) was the first occasion at which the international community of states united to discuss international environmental issues. Although no treaty was signed, the conference adopted an Actions Pal of 109 recommendations and a Declaration of 26 Principles. It also adopted a resolution on institutional and financial arrangements that led, amongst other things, to the establishment of the United Nations Environment Programme (UNEP).
The Stockholm Declaration is the foundation of modern international environmental law. Its principles are largely aspirational rather than being mandatory, and imposes few duties on the states.Most importantly, the Stockholm Conference marked the beginning of a rapid increase in the number of international environmental agreements concluded.
The Montreal Protocol on Substances that Deplete the Ozone Layer (a Protocol to the Vienna Convention for the Protection of the Ozone Layer) in an international treaty designed to protect the ozone layer by phasing out the production of numerous substances believed to be responsible for ozone depletion.
The Montreal Protocol controls the production and consumption of specific chemicals, none of which occur naturally: CFCs, halons, fully Halogenated CFCs (HCFCs), methyl bromide, and similar chemicals. It sets specific targets for reduction and a timetable for doing so. The Protocol originally required parties other than developing countries to freeze consumption and production of CFCs at 1986 levels (the base year), to reduce them by 20 per cent and then an additional 30 per cent by 1999, and to freeze consumption of halons at 1986 levels. The formula of targets and timetables has been subsequently employed in other international agreements controlling air pollutants and in the Kyoto Protocol to the UN Framework Convention on Climate Change ((Introduction to ‘Vienna Convention for the Protection of the Ozone Layer, Vienna, 22 March 1985 & Montreal Protocol on Substances that Deplete the Ozone Layer, Montreal, 16 September 1987” by Edith Brown Weiss, Francis Cabell Brown Professor of International Law, Georgetown University Law Center. Available at [http://untreaty.un.org/cod/avl/ha/vcpol/vcpol.html], Last visited on 28 Aug 2013)).Globally there has been a significant progress, a complete phase-out (including within developing countries) of ODS’s is expected to occur by 2040 ((Report by Environmental and Energy Study Institute, Washington; Authors: David Sher and Amy Sauer. Available at [http://www.eesi.org/files/100609_montreal_brief.pdf], Last visited on 28 Aug 2013)).
The Hague Declaration on the environment was brought about at Hague on March 11, 1989 and it was signed by representatives of twenty-four ((Australia, Brazil, Canada, Cote d’Ivoire, Egypt, France, Federal Republic of Germany, Hungary, India, Indonesia, Italy, Japan, Jordan, Kenya, Malta, Norway, New Zealand, the Netherlands, Senegal, Spain, Sweden, Tunisia, Venezuela, and Zimbabwe))states.
The signatories acknowledgedpromoting the following principles ((Available at Resources on Ministry of Water Resource website. [http://wrmin.nic.in/index3.asp?subsublinkid=292&langid=1&sslid=375] Last visited on 29 Aug. 13)):
- The principle of developing, within the framework of the United Nations, new institutional authority, either by strengthening existing institutions or by creating a new institution which, in the context of the preservation of the earth’s atmosphere, shall be responsible for combating any further global warming of the atmosphere and shall involve such decision making procedures as may be effective even if, on occasion, unanimous agreement has not been achieved.
- The principle that this institutional authority undertake or commission the necessary studies, be logical information – including facilitation of access to the technology needed – develop instruments and define standards to enhance or guarantee the protection of the atmosphere and monitor compliance herewith
- The principle of appropriate measures to promote the effective implementation of and compliance with the decisions of the new institutional authority, decisions which will be subject to control by the International Court of Justice
- The principle that countries to which decisions taken to protect the atmosphere shall prove to be an abnormal or special burden, in view, inter-alia of the level of their development and actual responsibility for the deterioration of the atmosphere, shall receive fair and equitable assistance to compensate them for bearing such burden. To this end mechanisms will have to be developed
- The negotiation of the necessary legal instruments to provide an effective and coherent foundation, institutionally and financially, for the aforementioned principles.
The Rio Conference
The UN Conference on Environment and Development (Rio, 1992) provided a platform for putting flesh on the bones of sustainable development in International Law and to address the concern, noted in the Brundtland Report ((Our Common Future, 1987: the ‘Brundtland Report’ by the World Commission on Environment and Development. Available at [http://www.un-documents.net/wced-ocf.htm] Last visited on 29 Aug. 13)), of the ‘sectoral’ and ‘piecemeal’ nature of of international environmental Law. The legal texts to emerge were:
(a) The Rio Declaration ((Available at [http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163] Last visited on 29 Aug. 13)).
(b) The Convention on Biological diversity ((Available at [http://www.cbd.int/doc/legal/cbd-en.pdf] Last visited on 29 Aug. 13)).
(c) The Framework Convention on Climatic Change ((Available at [http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf] Last visited on 29 Aug. 13)).
(d) Agenda 21 (an 800 Page global action plan on development and environment)
The Rio Declaration consisted of 27 principles ((The 27 Principles available on [http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163], Last visited on 29 Aug. 13))intended to guide future sustainable development around the worlds ((‘Rio Declaration on Environment and Development’ at Wikipedia. Available at [http://en.wikipedia.org/wiki/Rio_Declaration_on_Environment_and_Development] Last visited on 29 Aug. 13)).
It adopted an agenda for environment and development in the 21st Century. ‘Agenda 21’, signed at the 1992 Rio ‘Earth submit’, is essentially a lengthy blueprint for realising sustainable development. Agenda 21: A Programme of Action for Sustainable Development contains the Rio Declaration on Environment and Development, which recognizes each nation’s right to pursue social and economic progress and assigned to States the responsibility of adopting a model of sustainable development; and, the Statement of Forest Principles ((History of Sustainable Development in the United Nations, Rio +20 United Nations Conference on Sustainable Development. Available at [http://www.uncsd2012.org/history.html])).
In International Law, sustainable development as a legal concept has tended to be found mostly in ‘soft law’ documents i.e. documents that are not directly binding and which have policy implications rather. The most important here is ‘Agenda 21’, signed at the 1992 Rio ‘Earth submit’. However, beyond agreement on basic procedural requirements, of the kind referred to in the Rio Declaration, there is little sign yet of anything in the nature of an international consensus on what sustainable development might mean substantively ((Ball & Bell on ‘Environmental Law: The Law and Policy Relating to the Protection of the Environment’ Fifth Edition, Oxford University Press. Chapter on Environmental values and environmental law, Pg 40)).
Like Sustainable development, precaution or precautionary principle has found only limited support at the international level, despite many commentators arguing that it has reached the status of a principle of customary international law. Nevertheless, a measure of international consensus on the principle was reached in the Rio Declaration, Principle 15 of which provides- “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation ((Ball & Bell on ‘Environmental Law: The Law and Policy Relating to the Protection of the Environment’ Fifth Edition, Oxford University Press. Chapter on Environmental values and environmental law Pg 51)).”
The Kyoto Protocol ((Available at [http://unfccc.int/resource/docs/convkp/kpeng.pdf] Last visited on 29 Aug. 13))is an international agreement linked to the United Nations Framework Convention on Climate Change, which commits its parties by setting internationally binding emission reduction targets. It contains the carbon emission reductions that states committed themselves to agreeing to in the 1992 Convention. It was adopted in Kyoto, Japan on 11 December 1997 and entered into force on 16 February 2005. The detailed rules for the implementation of the Protocol were adopted at COP 7 in Marrakesh, Morocco, in 2001, and are referred to as the “Marrakesh Accords”. Its first commitment period started in 2008 and ended in 2012.
Development up to and beyond Rio suggest a maturing of international environmental law, although numerous problems remain. As regards treaty law, many issues continue to be dealt with sectorally.