Environment plays a very important role in the existence of mankind and therefore the global community takes issues concerning the environment with a lot of care and precaution. The environment has a direct impact on human life and sometimes man has been hit hard by nature due to environmental negligence such as pollution and environmental degradation. Environmental laws play a very important role in ensuring that the society understands the importance of the environment and its role in sustaining human life on the planet.
Environmental laws ensure some codes and ethics have to be observed and adhered to by all members of the global community especially given that environment cuts across all borders. International environmental laws try to harmonize all environmental laws to ensure that the whole world reads from the same script with one common objective of making the world an environmentally safe place to live in.
International environmental law has a long history as the global communities began to appreciate the need to have an integrated multilateral approach to address the environmental concerns that were affecting them as a community. These initiatives were mainly pioneered by western countries and since then international environmental law has undergone milestone development as more environmental concerns rise with time. This paper discusses various aspects of international environmental law as well as development of international environmental law.
International environmental law
Environmental law, according to Kurukulasuriya and Robison, “is recognized as an effective tool for catalyzing national and international action to achieve such protection and control” (Kurukulasuriya and Robison 2). In general environmental law refers to standards and policies that are set by policy makers to protect nature and its natural resources. Environmental laws aim at addressing environmental issues such as water bodies’ pollution, ozone layer depletion, endangered species, forests and wildlife.
There are thousands of environmental laws that have been enacted with time some of which include “Clean Air Act, the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act” (GCIP 1). National laws are different from international laws in that national laws are applicable on the country that they are formulated whereas international laws cut across the national borders. International environmental laws can be adopted at the national level. International environmental laws refer to policies and regulations that have been put forward as an international agreement among various aspects of the environment.
GCIP defines international environmental law as “agreements among different nations, or between citizens or corporations of different nations; agreements or treaties among different nations are generally referred to as public international law” (GCIP 1).
Historical development of international environmental laws began way back in ad 80 with national level implementation of environmental laws some of the early pioneers of environmental laws include the roman legislation that began with implementing policies protecting their water resources. Around 14th century England passed legislation banning coal fires and hazardous waste disposal. In late 16th century Pennsylvania administration passed legislation that at least one fifth of land being cleared for settlement should be preserved. In 1900 Britain was concerned about the environmental impact of industrialization and passed policies regulating coal burning and disposal of industrial waste (Fitzmaurice 2).
Much of development of environmental laws was achieved in 19th century with the first convention protecting important species being made in 1902 and was an agreement among the European countries. This was followed by another convention in 1911 that brought together U.S, U.K, Japan and the Russian community. The convention was aimed at protecting fur seals. Convention protecting migratory birds was passed in 1916 with U.S, U.K and Mexico being partners to the convention. As time progressed more and more countries joined up to sign conventions to address the environmental concerns that were affecting them as a community.
1930 saw the signing of flora and fauna convention by countries such as Belgium, Portugal, Sudan, Egypt, U. K, and Italy. The countries agreed to preserve their natural habitats by establishing game parks and reserves. As global environmental concerns increased with time U.S was particularly aggressive in enacting natural environmental protection legislations especially laws addressing pollution of air and water bodies and this led to creation of environmental protection agency. Japan came into the limelight of environmental protection after they discovered that their food chain was mercury contaminated and this led to enactment of environmental pollution control in Japan.
Early 1970s brought together more than 30 countries that signed to the Ramsar Convention. This particular convention demanded that the partners had to have wetland protected area for preserving the ecological stability. The need for universal approach to the emerging environmental issues gave birth to the widely known Stockholm convention that was held in 1972 (UC Davis 1). The desire for a multilateral integrated approach led to the formation of United Nations Environmental Program (UNEP) that was primarily mandated to supervise the agreements, treaties and conventions. By the beginning of 1980 Germany joined the environmental conservation in full force after they discovered that their forests were being affected by acid rain. “As a group, Germany, The Netherlands, and Denmark—the so-called ‘green troika’—established themselves as leading innovators in environmental law” (Britannica 1).
The Chernobyl nuclear disaster triggered yet more concerns about protection of the environment in case of a nuclear disaster: “Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, both adopted in 1986” (Britannica 1). In 1994 nuclear safety convention was formed to ensure the safety of the environment against nuclear activities.
In 1985 Vienna convention for the protection of ozone layer was made with purpose of ensuring member participation in minimizing ozone layer depletion by harmful gases. Earth summit was held in 1992 to address the upcoming issue of global warming and approximately 200 countries became signatories to the convention. Kyoto protocol was enacted in 1995 and its primary role was to check emissions by a method of carbon trading. Throughout the history development of international environmental laws has been stepwise starting from state level legislations, interstate legislations to international environmental laws that we have today (UNEP 1).
Development of international law
International laws in general take a lot of efforts, planning and stepwise approach from the time of identification of the need for such laws up to the time of implementation. Environmental laws have to go through various steps before they become globally accepted (Bodansky 29).
The first step is the identification of the particular environmental concern through different NGOs and other scientific avenues. Perhaps this is the longest steps since the environmental issues must be supported by concrete evidence and should also have strong support base. After the problem or the concern has gained enough evidence and support it enters the second step which is the drafting stage whereby the bill is translated into different languages in preparation for negotiations with the international community.
After drafting the treaty enters the third and arguably the most significant stage of negotiations. It is in this stage that different representatives of all the stakeholders undergo meetings, workshops, seminars and conferences as they deliberate on the issue proposed terms are negotiated at this stage (Cullet 1).
The fourth stage is the adoption and authentication stage whereby the participating parties agree to the treaty terms after confirming that the documents presented for authentications are the ones that were negotiated. It is claimed that at this stage:
The states indicate their intention to undertake measures to express their consent to be bound by the treaty. Signing the treaty usually achieves this purpose, and a state that signs a treaty is a signatory to the treaty. Signature also authenticates the text and is a voluntary act. (Kurukulasuriya and Robison 20)
The agreement then enters the fifth stage where representative states ratify the treaty by officially committing themselves to participate as per the provisions. Article 12 of Vienna Convention on the laws of treaties states that:
The consent of a state to be bound by a treaty is expressed by the signature of its representative when:
- the treaty provides that the signature shall have that effect;
- it is otherwise established that the negotiating States were agreed that signature should have that effect, or
- the intention of the state to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. (Kurukulasuriya and Robison 21)
In the sixth stage flexibility of different countries is put into place. Countries which may prefer adopting or rejecting part of the treaty are considered as long as the same is within the stipulated objectives of the accord:
A reservation modifies or excludes the application of a treaty. A state may use this option for joining a treaty even though it is concerned about certain provisions. A reservation must be lodged at the time of signature, or ratification, or acceptance, or approval, or accession. (Kurukulasuriya and Robison 21)
Legal sanctions may be imposed on states going against the treaty (UC Davis 1).
Finally the accord enters the last stage whereby the treaty enters into force which depends on the ratification progress
Technicalities of international environmental law
International court of justice (ICJ) is the supreme judicial body of the United Nations and its jurisdiction is as indicated in article 36 (1) of its statute. Some of the mandate include “besides decisions, the ICJ is authorized to render advisory opinions on any legal question, when requested by the general assembly or Security Council” (Kurukulasuriya and Robison 17). There are mainly four determinant sources that ICJ use to weigh the cases passed on to its consideration and these include international conventions, international customs, and general recognizable principles of law from civilized countries. Subject to stipulation of article 59 the ICJ also recognizes decisions of internationally recognized publicists from different countries (Aust 304).
Treaty according to Kurukulasuriya and Robison is:
Encompasses, among others, the terms convention, agreement, pact, protocol, charter, statue, covenant, engagement, accord, exchange of notes, Modus Vivendi, and memorandum of understanding. As long as an instrument falls under the above definition, it would be considered to be a treaty and, therefore, binding under international law. (Kurukulasuriya and Robison 18)
These are non-legally binding agreements the parties involved only express their desire to observe the stipulated obligations though no legal measures may be taken against them if they don’t. some environmental law declarations include “1992 Rio Declaration on environment and development, the 2000 United Nations Millennium Declaration and the 2002 Johannesburg Declaration on sustainable development” ( Kurukulasuriya and Robison 18).
Generally protocol includes instruments subsidiary to a treaty. Protocol treaty and conventions have more or less legal authority. Environmental protocols can take the form of supplementary treaty protocol. One of the most instrumental stakeholders when it comes to the development of international environmental law is multilateral environmental agreements (MEA) and convention of parties (CoPs). Camenzuli on his report on development of international environmental law claimed that
It is submitted that CoPs have five potential (albeit, to a certain extent, overlapping) law making powers, namely:
- the power to decide on amendments to MEAs and the adoption of protocols;
- decision making and resolution powers;
- supervisory powers;
- interpretation powers; and
- powers in respect of the creation of compliance mechanisms. ( Camenzuli 8)
Challenges in the development of international environmental law
One of the most important factors worth noting is that international environmental law is a complex multi-factorial issue. There are mountains of factors to be considered in the process of making, processing and implementing of the international environmental law. A report by Sands claimed that the development of international environmental law is “often reflected in international treaties that involve a high degree of compromise, the legislative body has presented the international judiciary with a set of rules and principles that can be rather vague” (Sands 3)
The environmental issues are by themselves complex in nature and as such arguments both in the development stages and also in the cases of disputes will generate a lot of heat in the representative courts. It is claimed that sometimes:
A court will often be called upon to adjudicate on two sharply differing views, in which mountains of scientific arguments – several thousand pages in the Gabĉikovo-Nagymaros case – may be presented in an equally compelling manner. (Sands 3)
This makes the development and even implementation processes quite difficult and sometimes the whole process might take a lot of time before everyone involved must agree. To some extent stakeholders might even enter into modus Vivendi.
Another challenging characteristic feature of international environmental law is that it draws legal tug of war from so many disciplines. Environmental law is usually raised in connection with other international legal arguments such as laws touching on international trade, economics, scientific claims just to mention a few. A report looking into challenges faced by international environmental law development argued that such cases would cut across many areas of law which may include:
trade agreements in the WTO context, human rights norms before human rights courts, and issues of general international law, such as the relationships between treaty and custom, or the law of the environment and the law of State responsibility. (Sands 4)
Another challenging feature of international environmental law that makes it hard and difficult to develop and implement is the fact that it being an international issue, chances of international communities viewing environmental issues on the same light are extremely rare. What might be a very important environmental issue to one country might not be meaningful to another country. Different views from different countries coupled with the fact that some of those views have political, scientific and economic approaches make the whole exercise extremely challenging and tricky to developers and the judges.
It is also worth noting that due to their differences judges handling environmental issues, cases and disputes are prone to disagreement since they come from different states. Sands claimed that “the current debate over genetically modified organisms indicates that a German judge may be more likely to be risk averse and “precautionary” than an American judge” (Sands 4). This indicates how complex it can be to handle environmental issues and disputes let alone the development process.
Environment plays a very major role in the existence of mankind and as such issues dealing with environment need to be taken with a lot of caution. The international environmental law comes in handy in ensuring that the global community takes a collective role in making the world an environmentally safe place to live in. timeline development of international environmental law began ages back with local internal arrangements for protection of resources and as time progressed it became evident that there was need for collective multilateral cooperation from all countries. So far there are thousands of agreements, treaties, protocols and many other forms of international agreements under the umbrella of environmental international law.
Development of international environmental law is complex but stepwise exercise that begins with identification of the particular environmental concern through different NGOs and other scientific avenues then goes to stage of negotiations. Fourth stage is the adoption and authentication stage whereby the participating parties agree to the treaty terms after confirming that the documents presented for authentications are the ones that were negotiated, fifth stage is where representative states ratify the treaty by officially committing themselves to participate as per the provisions. The sixth stage is where flexibility of different countries is put into place and finally accord enters the last stage whereby the treaty enters into force which depends on the ratification progress.
Development of international environmental law has been seen as not coming in a silver platter. The process is very challenging due to the complexity of various aspects such as differences in opinions, scientific challenges, complexity of the environment itself and the various disciplines involved however after such a struggle the fruits can be seen and we can eventually celebrate the works of those who have worked tirelessly to develop international environmental law.
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