International environmental law in 1992 - A whistIe-stop tour
by Katrien DEBEUCKELAERE
International environmental law, and in fact environmental law as a whole, is a relatively recent development. It has gained a lot in importance over the last two decades. Two milestones mark the development of international environmental law in this period. The first was the Stockholm Declaration of 1972 (The Declaration on the Human Environment adopted by the UN Conference on the Human Environment, Stockholm, 16 June 1972). This marked the recognition of the fundamental principles of environmental law. As a result the United Nations Environment Programme (UNEP) was created and it has, in turn influenced the environmental policy of the European Community. The second milestone will be the United Nations Conference on Environment and Development or the Earth Summit (UNCED) which will take place in June of this year in Rio de Janeiro. Not only will this mark the 20th anniversary of the Stockholm Declaration, but it will also manifest the greatly increased importance attached to protection of the environment and development by political leaders, non-governmental organisations and scientific and academic groups.
Nature, influences and evolution
Environmental law is, to a significant extent, international in character because of the transboundary nature of many environmental problems. This is particularly the case with marine, river and air pollution, as well as any other source of pollution situated close to borders. Of their very nature, the problems caused by such pollution require an international approach.
There have been several major influences on the development of international environmental law. One such influence has been the public reaction to serious environmental accidents causing acute pollution (for example, Amoco Cadiz, Torrey Canyon, Piper Alpha, Exxon Valdez, Bhopal, Seveso, Sandoz).
Another influence has been the concern about the effects of long term or chronic pollution (for example, trees suffering from acid rain, sites contaminated by leaking drums containing dangerous waste, water contaminated by long term over-use of pesticides or fertilisers). A third influence is of a political kind. It started with the Stockholm Declaration. This declaration was followed by the publication of 'Our Common Future' in 1987 (the report presented to the United Nations by the World Commission on Environment and Development) or 'The Brundtland Report' as it is generally referred to after the chairperson of the Commission which prepared the report. Due to the Brundtland Report the link between Environment and Development, which was already recognised in the Stockholm Declaration, became much stronger. As a result of the Report a lot of thought has since been devoted to ways of realising the notion of sustainable development. Sustainable development has, therefore, only very recently begun to be put into practice and it still needs wider recognition.
When looking at a chronological table of this century of international environmental action taken, it is obvious that the subjects covered by international environmental law are now more diverse than at the beginning of the century. Initially environmental concern was limited to protection of fauna and flora. The first international action taken to limit 'pollution' es such was that of the United Nations Economic Commission for Europe on noise and air pollution caused by motor vehicles. This dates from 1958. Increasingly, the problem has been recognised as an environmental one that requires intervention, (the effectiveness of legislation to deal with such pollution was even then apparent in the success of the United Kingdom Clean Air Act which cleared up London's infamous smogs). There is a clear trend in the subjects covered by international environmental law; initially protection was confined to fauna and flora, sectoral problems then began to be covered, but in a fragmentary way and now, increasingly, the global issues of environmental protection are being considered. The discussions on the international convention on climate change, tropical forests, the ozone layer and the Antarctic are clear examples of this new global approach to protection of the environment. In fact, the first example of such a global approach was the United Nations Convention on the Law of the Sea (UNCLOS) which was signed in Montego Bay on 10 December 1982.
The aim of international environmental law, in the first place, is the same as that of classical international law, namely the regulation of relations between States. More specifically, its object is to protect and to preserve the biosphere -in other words, the planet Earth with its oceans and subsoil down to where it is explorable and the layer of air which can be studied as influencing our immediate surrounding environment.
The enforceability of environmental law depends on the legal instruments used. International conventions can more easily be enforced than mere guidelines although it is always more difficult to ' enforce a convention between sovereign l states than national legislation between individuals. Three important positive aspects of environmental conventions ' can be noted. First, the existence of a convention in itself signifies that the contracting parties have agreed that a particular problem is of such importance that it requires a discussion and accord at multilateral or bilateral level. Second, a convention represents a specific legal text to regulate the problem addressed. Third, most conventions include an arbitration clause in the event of a dispute about its provisions and the International Court of Justice in the Hague can also sometimes be asked to settle a dispute.
In the framework of international law, the EC is something of a special case. While it was sovereign states that signed the treaties establishing and amending the European Communities, these treaties confer powers which are much more far-reaching than is usually the case. Article 100a and Articles 130r to 130t of the Treaty establishing the European Economic Community provide the legal basis for Community environmental legislation. The legal basis for enforcement of Community environmental law lies in the Treaty and more particularly in Articles 169 to 171. It means that the Commission, as guardian of the Community system, can bring an action before the European Court of Justice if it considers that a Member State has failed to fulfil its legal obligations.
International environmental law can be categorised largely by reference to the type of pollution or aspect of the environment with which one is dealing. The division into types of pollution is more obvious than, for example, a geographical approach and is self-explanatory.
Fauna and flora. As has already been mentioned, protection of fauna and flora has been the subject of international action since the beginning of this century. Several conventions dealing with protection of the marine environment or rivers also include protection of the fauna living in such environments.
Noise. It should be noted that noise pollution is not generally recognised as environmental pollution. At international level there has been relatively little action in this area, with the exception of measures taken under the auspices of the International Civil Aviation Organisation on the limiting of aircraft noise. The EC has been more active on the noise pollution side, but even so it is clear that it is not recognised as being as important as other types of pollution.
The marine environment. UNCLOS, and more particularly Part XII of the Convention on the Protection and Presentation of the Marine Environment, concerns protection of the oceans and seas on a global level. Part Xll was included in UNCLOS because the oil pollution caused by the Amoco Cadiz accident made the world aware of the need for a global approach to protection of the marine environment. The 1958 Convention on the High Seas and the Convention on the Continental Shelf only very briefly touched upon protection of the marine environment. Article 197 of UNCLOS calls for cooperation on a global and regional basis, and in the latter context quite a lot has already happened. Under the auspices of the Regional Seas Programme of UNEP, several action plans have been adopted for regional seas, such as the Mediterranean, the Caribbean, the West and Central African Region, the Eastern African Region, the Arabian Gulf, the South Pacific and the Southeast Pacific. Other areas covered by international conventions are the North Sea and the Baltic. Most of the regional seas actions have an umbrella convention setting out the general rules for which the contracting parties need to elaborate protocols. Among the matters covered by specific protocols are: dumping from ships and aircraft, specially protected areas, pollution from land-based sources and co-operation in emergencies. Regulation of offshore exploration and exploitation of mineral resources is needed in the areas where such activities are being carried out.
Oil pollution at sea is also regulated by international conventions on a more or less global level. Conventions not only provide for a reduction in oil pollution, they also provide for compensation for damage and for co-operation in emergencies. In the framework of combating oil pollution and the call for damages, the main conventions are MARPOL or the International Convention for the Prevention of Pollution from Ships and its Protocols, the International Convention on Civil Liability for Oil Pollution damage, the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, and the International Convention on Oil Pollution Preparedness, Response and Cooperation, signed in 1990. The last-mentioned was put together in a very short space of time as a result of the Exxon Valdez disaster. These conventions were developed under the auspices of the international Maritime Organisation.
Rivers. Transboundary rivers and large rivers receive international attention with a view to reducing pollution. Here again one can see the importance of dealing with the problem on an international basis. Water is one of the easiest carriers of pollution with, for example, damage caused at the source of a river capable of being carried downstream to the estuary. Rivers are, in some ways, even more important than the sea because of their use as sources of drinking water (sea water is only used in extreme circumstances for drinking water because of the difficulties and extremely high costs involved in desalination). International action has been undertaken to protect, infer alia, the Chad basin and the Zambezi, Rhine, Mosel, Danube and Senegal rivers.
Air. Air is also an easy carrier of pollution across borders. The Convention on Long-Range Trans-Boundary Air Pollution and its Protocols, as well as the Vienna Convention for the Protection of the Ozone Layer, are the prime examples of international action to protect the air. In comparison with water pollution, it can sometimes appear that less attention has been paid to contamination in the air but one of the explanations might be that much of the knowledge of the effects of air pollution is more recent and in any event it is not so visible as, for example, an oil slick. Another factor to be taken into account is that there has been more action in this area at national (and EC) level. A number of measures have been taken by states and by the Community to combat air pollution caused by motor vehicles. factories, power stations etc.
Nuclear. The nuclear sector forms its own sector in international law as well as within the European Community system. The International Atomic Energy Agency, within the UN framework, is the body concerned with all aspects of atomic energy and the commercial and scientific uses of radio isotopes. The Euratom Treaty (the Treaty establishing the European Atomic Energy Community) is the basis for EC legislation in nuclear matters. In this sector, international action covers such topics as accidents, ships, waste, weapons, energy, material and explosions in which there is a nuclear component. After the accident at Chernobyl in April 1986, the urgent need for a Convention on early notification of a nuclear accident was recognised and one was signed in September of the same year in Vienna.
Waste. A type of pollution which has existed for centuries, but which has not been recognised as an environmental problem until very recently, is waste. At European Community level, action to intervene in this area began initially with the 1975 framework directive on waste (75/442/EEC). On a global scale, other l than in the field of nuclear waste, action has come rather late in the day. MARPOL includes some provisions on waste. International rules on the dumping of waste at sea date back to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. There are also other provisions covering dumping or incineration of waste at sea but it was only in 1989 that wider rules were adopted. In the summer of 1988, the scandal caused by the Zanoobia, the ship which travelled from Italy to ports across the world in a fruitless effort to offload its cargo of toxic waste, ensured that the problem of waste trafficking could no longer be ignored. After this incident, a number of other waste scandals came to light, demonstrating that the Zanoobia incident was far from being an isolated one. The response to the problem was the conclusion of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which deals with the problem of waste trafficking and disposal.
Worker protection. International action on worker protection can be included in environmental law but since it refers to a specific environment, namely the working environment, and it is closely linked with labour law, it will not be discussed here.
Global. As already mentioned, global problems have only attracted attention more recently. The earliest action in this field was the Antarctic Treaty of 1959 which regulated activity in that frozen continent. More recent action has been seen in the field of Climate Change, Biodiversity and Tropical Forests, whilst the discussions on the Antarctic have become more lively again, particularly with the Wellington Convention on the Regulation of Antarctic Mineral Resource Activities in 1988, which has given added urgency to the discussion on the possible declaration of the area as a world natural reserve.
International environmental law has evolved quickly and it appears that its progress will be even more rapid in the future, owing to new scientific discoveries, growing political awareness and the wish to do something on a large scale to protect the environment.
However, it must always be recognised that international environmental law (with the exception of EC law) suffers from a major disadvantage. In comparison with national law, it is very difficult to ensure implementation and enforcement, and this is something which will have to be addressed if we are serious about tackling the environmental challenge on a global basis. K.D.
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