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International Environmental Law

There is no such thing as international law of the environment. There is no international court to rule on any such law. However, Conventions and Treaties have been developed by agreement with signatory countries or states. These countries are then bound to fulfil their part in such treaties. In order that they can do this equally and evenly, they make laws which are comparable with laws in other states. Hence states make the international laws and they break the laws.

There are two bases for international environmental law.

  1. Treaties. Solemn binding agreements between States. They can bind only those States that consent to them.
  2. Customary International Law. Defined by the treaty establishing the International Court of Justice as general practice accepted by States as law (i.e.those the States consider themselves legally obliged to follow).
International environment law functions as a result of both these. They pose three particular difficulties:
  • How does a system based on interstate relations finds regulate environmental affects that are not State to State? For example, how can we regulate harm by one State to shared global resource like the Ozone layer?
  • How can we protect eco-systems rather than human property rights - the basis of much law?
  • What do we do about the 'global commons' - e.g. Antarctica, atmosphere?

Developing International treaties

Knowledge of International treaties can provide companies with the early information to develop new products or technologies or put them into new markets. If you keep your eye on treaties in the making you may get even further in front.

After the Stockholm Conference in 1972, the UN set up the United National Environment Programme (UNEP). UNEP plays a major role in developing environmental regimes, securing political commitments using formal treaty regimes

UNEP pioneered the developments of less formal less traditional methods of developing environmental rules and standards. Its Governing body has adopted a series of non-legally binding instruments, such as:

  • Principles of Shared Natural Resources 1978
  • Guidelines on the Protection of Marine Environment against Land-based Pollution, Montreal 1985
  • Goals and Principles on Environmental Impact Assessment, Nairobi 1987.

These are NOT legal instruments, but form a framework of good practice.

Similarly, the Regional Seas Programmes bring together States around sea areas to produce an Action Plan. This may lead to a regional framework treaty such as Barcelona Convention for the Mediterranean or the Cartagena Convention for the Wider Caribbean. These provide for legal, general, obligations.

Perhaps the most significant moves came with the Conference convened in 1985 Convention for the Protection of the Ozone Layer (Vienna Convention). The format was a framework convention, with general obligations laid down by the treaty to be made more specific in the future.

Increased concern led in 1987 to a Protocol, popularly called the Montreal Protocol, to that Convention. This imposed limits on emissions of ozone depleting substances.

UNEP also set up the Intergovernmental Panel on Climate Change (IPCC). Their conclusions of Working Group 1 led to the UN setting up an Intergovernmental Negotiating Committee (INC) to negotiate a Convention on Climate Change.

Softer law Standards

There are softer law standards that are outside the formal treaty framework. They indicate what States should, rather than shall follow. The Rio Declaration and Agenda 21 are examples. These Declarations appeal because they are not formally binding. So can they be called law?. One reference quotes that they are "not legally binding, but not without legal effect".

For example, the Hague Declaration on the Protection of the North Sea 1990 (and its predecessors of bremen 1984 and London 1987), was originally opposed by the UK, in order to keep its nuclear options on dumping. They allowed it to pass because of it was not absolutely binding.

Another example follows from the call in Agenda 21 (Chap 17) for participants to take action about the degradation of seas from land based sources - between 70-80% of sea pollution. They are asked to take account of, and strengthen, the Montreal Guidelines on the Protection of the Marine Environment from Land Based Sources. This is soft law should then be hardened in to a treaty. There would then be legal obligations at national level. Is this a new third sort of law called "Declaratory law"?

Principles of International Environmental Law

The Rio Conference produced a process that has helped crystallise the principles of international environment law. The Rio Process moved some pre-existing soft laws towards treaties, in creased the recognition of the importance of international environment law and established two new principles.

1. Precautionary Principle

Principal 15 of Rio Declaration says:
"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation"

All Conventions since then have made reference to this principle. It first appeared in writing in German in bremen declaration on North Sea in 1984. It was mistranslated into English as "preventative approach", whereas it means much more than that.

The precautionary principle/approach is very significant as it changes the role of scientific data. It says that once environmental damage is threatened action should be taken to control or abate possible environmental interference - even though there may still be scientific uncertainties as to the effect of the activities. It is an important tool for decision making in a situation of scientific uncertainty. It asks organisations to move, rather than wait for scientists to agree.

The Rio declaration applies precautionary principle/approach to all environmental issues - it is in the Vienna Convention on Ozone, Climate Change and throughout Agenda 21. Policy makers cannot hide behind the uncertainties inherent in the conclusions of scientific research and have to take decisions on the basis of probabilities.

The Principle is still controversial. At it's strongest, it changes burden of proof to the polluter. It is found in Prior Justification Procedure in the Oslo Convention 1989 as its puts the onus of proof onto the proposed dumper to NOT dump unless they can demonstrate through PJP that materials cause no harm to the environment. The moratorium on Whaling in 1982 also used the precautionary approach by stopping all whaling until such time as the calculating of whale stocks was accurate. It is used increasingly in international maritime environmental law.

Clearly, the role of science will change. Much science is devoted to assessment of risk. For instance in health and safety at work, it has been necessary to prove that substances or equipment harmful before laws are introduced control the hazard. The history of asbestos use has been one such horrific example. The Precautionary Principle reverses that.

For more see Principles of Environmental Practice.

2. Common but Differentiated Responsibility

Principle 7 of Rio Declaration:
"States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global degradation States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and the technologies and financial resources they command:

There is reference to this is in Montreal Protocol (Article 5), with a further amendment article 5(1) and Article 4 of Climate Convention. It argues the developing countries need money to get on with environmental protection and that those countries only do so after the developed countries have committed themselves to move financial resources and transfer technology to the developing countries. While this is clearly obvious, it is quite another matter for the developed countries to carry it out without trying to exert even greater controls.

World Trade Organisation (WTO)

The WTO exists to promote free trade.

The WTO looks like a court as it receives complaints. It makes decisions as to what constitutes a barrier to free trade. It can enforce decisions by putting sanctions on countries who loose. It also has its own Appeal mechanism too. This mechanism seems to be more effective than the UN Convention route, which has no appeal or enforcement procedure.

WTO agreements impose significant constraints on environmental or resource conservation initiatives. They are likely to affect the implementation of Multilateral Environmental Agreements (MEAs), popularly called "Conventions".

The Implementation Plan agreed at the Earth Summit 2002 in Johannesburg confirmed that WTO decisions cannot override MEA requirements.

The more important multilateral environmental agreements that have adopted trade provisions to encourage compliance with, and implementation of their objectives, are:

  • The Convention on International trade in Endangered Species and Wild Fauna and Flora (CITES), uses trade measures to restrict international trade in endangered or threatened species. This convention allows only those countries with stable elephant populations to sell ivory from properly managed herds. These elaborate procedures could be challenged if a country decided to bring a complaint to the WTO about its own trade being unfairly restricted.
  • The Montreal Protocol on Substances that Deplete the Ozone Layer, (the Montreal Protocol), proscribes trade with non-parties in ozone depleting substances and products that contain substances that are harmful to the ozone. The purpose is to prevent efforts to eliminate the use of ozone damaging substances is not undercut by countries not parties to the Protocol.
  • The Basel Convention on the Control of transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention), restricts international trade in hazardous waste, because that trade itself is dangerous to the environment, and because many countries, that might otherwise be the recipients of those transboundary shipments, are ill-equipped to manage such wastes.

All three of these MEAs seek to either control or ban trade in endangered species, ozone depleting substances and hazardous waste, respectively. But such import and export restrictions are clearly incompatible with Article XI rules disallowing the use of quantitative trade controls.

Secondly, these MEAs allow a form of discrimination among WTO members that is in direct contradiction to the MFN obligations of Article I.

Thirdly they allow the application of different rules to foreign and domestic producers. CITES mandates restrictions on international trade in endangered species but doesn't seek to regulate domestic trade or consumption. The same is true of the Basel Convention. It provides more favourable treatment to domestic goods.

These trade rules ignore the great differences that exist between the environmental impacts associated with different production methods. Lumber from an of old growth forest, and lumber from a selective cut of a managed second growth forest, must be treated in precisely the same way under WTO rules. Consumers and producers find it hard to discriminate in favour of sustainable forms of production and resource management.

The key issue is with production and process methods or PPMs. Measures are intended to address the way products are made or harvested, but not necessarily their physical characteristics - regulations such as those required under CITES and the Montreal Protocol. The WTO trade panels have been determined to prevent governments from adopting regulations that might have some impact on production or harvesting methods beyond their borders.

The WTO trade and Environment Committee considers Article XX of GATT. These provisions suggest that ample scope for environmental regulation would be possible under the umbrella that Article XX. However, trade dispute panels that have been called upon to interpret the scope of these exceptions, have given them such narrow reading that it is difficult to conceive of an environmental regulation that could meet the standards these cases have established. While no trade cases have specifically considered a trade measure taken in accordance with a MEA, the interpretation given Article XX strongly suggests that it would be unlikely to survive the challenge.

There are two major areas of future concern regarding MEAs. The Convention on Biological Diversity (Biodiversity Convention) includes rules that specifically address technology transfer and the protection of intellectual property rights. The United Nations Framework Convention on Climate Change (Climate Change Convention), clearly contemplates the use energy or carbon taxes and other economic instruments for achieving its goals.

Whatever the extent of the common ground that might exist between trade and environmental policy goals, it is very evident that no such compatibility can be found in decisions of trade dispute panels that have considered the two side by side.

There are two ways to assert the priority of MEA provisions.

  1. The parties to MEAs to prepare amendments that would assert the primacy of its provisions should conflict arise with the rules of trade.
  2. The WTO should also be amended to exclude MEAs from the application of trade disciplines
The presence of environmental standards and other "technical regulations" is considered a real impediment to free trade, and an entire WTO Agreement on Technical Barriers to trade (the TBT Agreement) is devoted to making sure that no environmental regulation interferes, even indirectly, with the realisation of trade policy goals. The TBT creates substantial blocks to the introduction of environmental regulations. Then it forces the international harmonisation of environmental regulation.

The TBT creates very substantial obstacles for governments that are willing to go further than international norms. For governments to proceed in these circumstances, onerous administrative hurdles are placed. They have to
  • notify other WTO members of its initiative;
  • provide copies and supporting documentation when requested;
  • provide an opportunity for comment, and;
  • demonstrate how those comments have been taken into account.

They must then provide "a reasonable interval" so foreign producers can adapt.

This stops the development of environmental initiatives. When somebody blazes a trail, others follow. We can point to California's auto exhaust standards, Sweden's air pollution laws for waste incinerators, Ontario's pavement recycling programs or Germany's packaging laws. These all show that tougher environmental laws are possible, practical and profitable. WTO harmonisation rules stop such progress.

Environment v trade

The first decision handed down by the WTO for US Clean Air Regulations ruled that they were inconsistent with GATT rules. The regulations were developed by the US Environmental Protection Agencies for tackling the serious air quality problems, including excessively high levels of ground level ozone The regulations were to reduce pollution by going after a primary cause of air quality problems , gasoline combustion. Some foreign refiners objected to the costs of upgrading their refineries to produce cleaner gasoline. Those corporations complained and prompted their governments to file a trade complaint taking issue with the methodology established by the Clean Air Regulations for establishing baseline performance. Thus in early 1995 brazil and Venezuela filed a formal trade complaint with the WTO claiming that their gasoline products were being held to a higher standard than was being applied to US refiners.

The WTO's Appellate body concluded that US Clean Air Regulations were in violation of the national treatment provisions set out in Article III of GATT. Furthermore the US could not rely on the environmental and resource conservation exceptions set out in Article XX to sustain its regulatory approach.

According to the Panel, to qualify under the umbrella created by Article XX (b) a country seeking to defend environmental or resource conservation measures as "necessary to protect human, animal or plant life health", must pass a threefold test and establish that it had:

  • reviewed all reasonably available alternatives for accomplishing its environmental or resource policy objectives and determined that none was consistent with GATT provisions;
  • "adequately" explored the possibility of negotiating multilateral agreements with all of its trading partners that might be affected by the regulatory initiative, in order to find some consensual resolution, and that failing which; .
  • chosen the least trade restrictive measure for achieving its goals.

There is nothing in Article XX or in any other GATT provision that speaks of the need to seek international agreement, in order to establish that a bone fide environmental regulation represented a justifiable exception to GATT strictures. Neither is there any GATT language to support several of the other tests that trade panels have articulated to determine whether a measure is "primarily aimed" at conservation, or that it is the "least trade restrictive" of "reasonably available alternatives."

If an environmental or resource conservation regulation is to survive the trade dispute challenge, it must be able to negotiate its way through a shifting minefield of highly subjective criteria and tests. It is very difficult to imagine any environmental initiative surviving this challenge - and none have.

The WTO has decided that ISO14001 is not a barrier to trade.

Click here for more on WTO and their environment v trade decisions.

Check out latest International Environmental Law Globelaw from Greenpeace

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