Updated: Oct 8
Written By: Professor Keith Porter with Mary Jane Porter and Laurence Smith, (2014)
Book Review By Anushita Dubey(Public Member, Legit)
“International Environmental Law” is a module that explains the rules and principles related to international law which primarily focuses upon the Environmental Laws. Also, to provide a general overview related to a very wide and dynamic field of international environmental law, it addresses the key contemporary issues of our planet such as climate change and overexploitation of natural resources, their causes, sometimes catastrophic effects, and potential legal solutions. Environmental Laws need a multi-lateral approach to deal with it. The need for institutions, laws, and agreements that can appropriately and fairly guide the trade-offs that may be needed between economic activity and environmental protection is a recurrent theme and issue in the module.
The units of this book provide an outline for the international legal process through which international environmental issues are addressed. The principle of sustainable development and various techniques for implementing the environmental principles and rules are also explained. It helps in understanding how the international legal instruments and processes under consideration achieve their respective objectives and how they can be improved further for the welfare of society. Along with all the above mentioned institutional-based issues, some of the contemporary issues of our planet Earth-like climate change, overexploitation of natural resources, its cause and effects, and effective legal solutions are also covered in the given modules. This module is aimed at environmental management practitioners from private businesses, government departments, international development agencies, and nongovernmental organizations (NGOs). These organizations work in the formulation, delivery, and management of environmental policies, programs, and projects. The emphasis given in the book does not mean that simply by reading this module one cannot become an International Environmental law Expert but this module can surely aim to provide a solid initial basis for the appreciation of legal principles and practice and to make you an effective member of professional teams.
Here, in this book Unit 1 deals with background development and sources of International Environmental Law. Sub-section 1 of Unit 1, deals with the scope of International Environment Law. In this section, the definition of International Environment Law, its nature, and its significance is explained. Further in sub-section 2, the development of International Environment Law is explained. The period of development includes- Pre-1945 period, 1945–1972, the period 1972–1992 19 and the road from Rio: post-1992 and the WSSD. In sub-section 3, sources of International Environment Law are given in which the following points are followed- International Conventions expressly recognized, International custom accepted as law, general principles of law recognized by civilized nations, and teachings of most qualified publicists. Accordingly, unit 1 ends with sub-section 4, global actors with importance for international environmental law. The topics covered under sub-section 4 of unit 1 include -The 'governance' of multilateral agreements, The United Nations (UN), The United Nations Environment Programme (UNEP), The World Bank, Global Environment Facility, and the contribution of NGOs to international environmental law.
Thus, in a simplified manner, we can say that Unit 1 discusses the multiple organizations that provide how international environmental law is negotiated, adopted, implemented, managed, and monitored.
SCOPE OF INTERNATIONAL ENVIRONMENTAL LAW
This section explains the following points - The boundaries of International Environmental Law are indefinite and hence, one can find ambiguity in its definition. There are various definitions given in the module out of which the following definition is one such to understand the term International Environmental Law. Sands and Peel (2012), define international environmental law to comprise 'those substantive, procedural, and institutional rules of International Law which have as their primary objective the projection of the environment'. In the context of international law, international environmental law is of Multidisciplinary nature. International environmental treaties typically establish legal obligations based on scientific evidence with varying degrees of uncertainty.
Serious environmental challenges facing individuals, communities, private companies, and governments throughout the world are numerous and complex. Environmental problems falling within different categories may represent risks at the global level or regional levels. Understandably, the priority of economic development can trump environmental protection. Such a reality frequently places economic interests in apparent opposition to environmental goals. Reconciling these conflicting forces is a fundamental challenge facing international environmental law.
DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW
This section explains the following points - The youthfulness of international environmental law is clearly shown by the scarcity of relevant legal instruments before the Second World War. Only following the Second World War did the disparate bilateral and regional treaties on international environmental issues start to grow into a more coherent body of international law. The first period has its origin in the bilateral treaties on fishing of the 19th century and ended in 1945 with the creation of the United Nations. The French Republic proclaimed the principle of free navigation in 1792. By the beginning of the 20th century, international environmental agreements largely concerned three areas: boundary waters, freshwater fisheries, and the conservation of natural resources. a further agreement between the two countries captured by the Treaty for the Settlement of the Fishery Question on the Atlantic Coast of North America in 1888. Also in Europe, in 1869, the Berne Convention established regulations overfishing in the Rhine between Constance and Basel followed by other agreements. Rumania and Serbia adopted the Bucharest Convention in 1908 concerning fishing in the Danube. From the beginning of the 20th century, there was increasing interest in protecting other natural resources. A landmark convention was the 1911 Fur Seals Convention. The United States versus Canada is one of the foundational cases in the development of international environmental law. It laid down the formation of international environment Tribunals. It established a fundamental principle of liability for transboundary harm: A state must prevent polluting activities that cause evident injury in a neighbouring state.
In 1949, the UN held the United Nations Conference on the Conservation and Utilization of Resources (UNCCUR) to foster international action to ensure balanced management and conservation of natural resources. However, the outcome was limited due to a lack of international political will to meet this ambitious objective at that time. A modest step towards dealing with pollution in marine waters was also taken in the 1950s. The UK Government convened an International Conference on Pollution of the Sea by Oil in London from 26 April to 12 May 1954, The aim was ‘to take action by common agreement to prevent pollution of the sea by oil discharged from ships, and considering that this end may best be achieved by the conclusion of a Convention’. The Nuclear Arms race in this period greatly heightened public anxieties and focused attention on the threats to life on earth. In 1959, a newly agreed Antarctic Treaty prohibited any nuclear activity on that continent. African nations also achieved a ground-breaking agreement in 1968 by concluding the African Convention on the Conservation of Nature and Natural Resources (OAU, 1968). Also of crucial importance is the Ramsar Convention on Wetlands of International Importance. Adopted in the Iranian city of Ramsar in 1971, its mission is conservation and ‘wise use’ of wetlands. In the post-war period, there were two important cases for international environmental law. In 1946, the tension between the British government and Albania over the passage of ships in the Corfu Channel culminated in two British warships being seriously damaged by mines in the Channel. The second case concerned a dispute between Spain and France over the latter diverting waters that Spain considered damaging to its downstream use of those waters (UN, 1957). In April 1968, an international group established the Club of Rome. Four years later, the Club of Rome published the highly influential 'The Limits to Growth' (Meadows et al, 1972). In 1969, the US Senator Gaylord Nelson was moved to propose a 'national teach-in on the environment'. As a result 'Earth Day' was born on 22 April 1970. In this same period, Sweden increasingly objected to acid rain. In 1968, the Swedish ambassador to the UN placed on the agenda of the UN Economic and Social Council (ECOSOC) the topic 'the Human Environment'. This led to the UN-convened Conference on the Human Environment (UNCHE). Major outcomes of UNCHE were the Stockholm Declaration and Action Plan.
Following UNCHE, increasing awareness and concerns for environmental issues led to a proliferation of international non-governmental organizations as well as international and regional treaties on the environment. The two-week United Nations Conference on Environment and Development (UNCED) was held in Rio de Janeiro, Brazil from 3–14 June 1992. Following the Rio Conference, there were increased environmental activities. The UN General Assembly adopted resolutions on drought and desertification, sustainable development of small island states, follow-up on the Forest Principles, Straddling and Highly Migratory Fish Stocks, and the implementation of all commitments made at the Rio Conference. Thus the 21st century began with an apparent international commitment to an environmental agenda with a duty to ensure environmental sustainability. However, this commitment looked less secure as preparations proceeded for the 10th year review of the implementation of Rio commitments, in Johannesburg in 2002.
SOURCES OF INTERNATIONAL ENVIRONMENTAL LAW
This section describes the sources of international law. The authoritative basis for the sources is Article 38 of the International Court of Justice. Article 38 assumes that the primary actors of international law are sovereign states. However, as modern international environmental law evolves as a component of international law, it increasingly recognizes non-state actors as having a legal personality. It is important to note that the four categories of sources of law are not set up as a hierarchy. Nor are they entirely exclusive. The wording is identical with the earlier Article 38 except it adds the clause: 'whose function is to decide by international law such disputes as are submitted to it'. This emphasizes the Court will apply international law in its proceedings. However, paragraph 2 was also an addition to the earlier article. Ex aequo et Bono means in equity and good conscience. In other words, the Court has reserved authority to decide a case in accord with equity and fairness rather than according to the strict letter of the law. International soft law refers to norms of international law that are not binding per se, but which play an important interpretive role in the construction and interpretation of principles and rules of formal international environmental law.
GLOBAL ACTORS WITH IMPORTANCE FOR INTERNATIONAL ENVIRONMENTAL LAW
This section introduces some of the leading non-state actors, including especially the United Nations and its various bodies that play an important role in different aspects of international environmental law. It is possible to distinguish two levels of governance, intra-MEA, and inter-MEA governance. On 24 October 1945, 51 countries established the United Nations. Those original countries, and those that become new members, accept the obligations agreed in the UN Charter. The UN functions through six primary bodies, five of which are based in the UN Headquarters in New York City: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council (Operations currently suspended), and the Secretariat. The sixth body, the International Court of Justice, is located in The Hague in the Netherlands. In 1945, the experience of a horrendous war greatly conditioned the drafting of the Charter. Peace, friendly co-operative relations, and security were the dominant goals, reflecting its origins during the Second World War. In 1990, France and Germany suggested that the Global Environment Facility be set up under the auspices of the World Bank. Important factors also in international environmental management are nongovernmental organizations or NGOs.
One of the good features of this module is it not only focusses upon the introduction of the international environmental laws but also explain various contemporary issues arising in the world. The principles and practices of international environment laws are explained along with some case laws. Whatever is explained through the module is from a global perspective of International Environment Laws, having general acceptance. It explains the working of international environment laws from historical as well as the current perspective. This module critically examines methods which have developed to facilitate global participation in international environmental agreements and to address the relationship between environmental and developmental objectives.
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Legit Originals, Volume 1, Issue 2 (October 2020)
Happy to announce that, Legit by Internationalism, The Magazine on Legal Theory by Internationalism, is featured in the Top 100 Legal Blogs of India and hold the rank 57, by Feedspot.
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