International environmental law

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 715-760

715

CHAPTER 11

INTERNATIONAL ENVIRONMENTAL LAW

A. INTRODUCT ION

International environmental law comprises substantive, procedural, and institutional

rules of international law that have the primary objective of protecting of the environ-

ment.1 That said, “the legal underpinnings of the protection of the environment continue

to be institutions of general international law,” such as the principles of state responsibil-

ity (which we examine in Chapter 12).2 Environmental issues touch directly or indirectly

upon almost every aspect of legal regulation, and the breadth of international environ-

mental law is correspondingly wide. Consider how environmental concerns have already

been implicated in previous chapters, such as in our discussions of the law of the sea and

the legal regime of Antarctica.

There is no single international legal def‌inition of the “environment,” but it is generally

agreed that the concept is broader than natural habitats or ecosystems and includes artif‌i-

cial and human environments. Some treaties that use the term “environment” simply do

not def‌ine it.3 Others have adopted varying def‌initions. For example, the 1979 Convention

on Long-range Transboundary Air Pollution def‌ines “environment” as including “ag-

riculture, forestry, materials, aquatic and other natural ecosystems and visibility.”4 The

more recent 1991 Convention on Environmental Impact Assessment in a Transboundary

Context def‌ines “environment” to include “human health and safety, f‌lora, fauna, soil, air,

water, climate, landscape and historical monuments or other physical structures or the

interaction among these factors.”5 The International Court of Justice (ICJ) has observed

1 Philippe Sands & Jacqueline Peel, P rinciples of Interna tional Environmental Law, 3d ed (Ne w York: Cam-

bridge University Press, 2012) at 13.

2 James Crawford, Bro wnlie’s Principles of Public Int ernational Law, 8th ed (Oxf ord: Oxford University

Press, 2012) at 353 [Brownlie’s Principles].

3 See, for example, Unite d Nations Convention on the Law of the Sea, 10 Decembe r 1982, 1833 UNTS 3,

(1982) 21 ILM 1261, in force 16 November 1994 [UNCLOS], which does not d ef‌ine the term “marine envi-

ronment” used in art icles 194(3)(d) and (4). See also the 2013 Minamata Convention on Mercury in Report

of the Intergo vernmental Negotiat ing Committee to Prepa re a Global Legally Binding In strument on Mercur y

on the Work of its Fif th Session, UN Doc UNEP (DTIE)/Hg/INC.5/7 (14 March 2013), which does not def‌ine

“environment” but uses the wo rd throughout (for example, in arts 1–3, 5 –14, 17–19, and 22–24).

4 Convention on Long-range Transboundar y Air Pollution, 13 November 1979, 1302 UNTS 217, Can TS

1983 No 34, (1979) 18 ILM 1442, in force 16 March 1983, art 7(d) [Long-range Transboundary Air Pollu-

tion Convention].

5 Convention on Environmental Impac t Assessment in a Transboundary Context (Espoo Convention), 25

February 1991, 1989 UNTS 309, Can TS 1998 No 11, (1991) 30 ILM 800, in force 10 Septemb er 1997, art

1(vii) [Espoo Convention]. See furthe r, Neil Craik, The International La w of Environmental Impac t Assess-

ment: Process , Substance and Inte gration (New York: Cambridge University Press, 2 008).

716 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

that “the environment is not an abstraction but represents the living space, the quality of

life and the very health of human beings, including generations unborn.”6

The development of international environmental law is of ten regarded as falling into

three periods.7 In the f‌irst period, environmental issues were viewed as bilateral “side”

issues relating to the larger issue of economic development. The 1941 Trail Smelter8 arbi -

tral award excerpted below falls into this phase. The second period was characterized by

signif‌icantly increased focus on the environmental impact of pollution and its effect on

wildlife and habitat. In this phase, a large number of multilateral treaties were adopted,

often in response to specif‌ic incidents of environmental degradation. For example, the

1986 Vienna Convention on Early Notif‌ication of a Nuclear Accident was adopted follow-

ing the Chernobyl nuclear disaster.9 Thus, this period was largely reactive. The current pe-

riod is characterized by an understanding that environmental degradation is a worldwide

issue that concerns not just individual states, but humankind as a whole. Treaties such as

the 1992 United Nations Framework Convention on Climate Change10 and its 1997 Kyoto

Protocol11 are illustrative of legal developments during this phase. This chapter begins by

examining international environmental law’s general legal principles, and then turns to

those that may be emerging or evolving. It next explores international legal protec tions

relating to specif‌ic environmental concerns: protection of the atmosphere against trans-

boundary air pollution, ozone depletion, and global climate change; activities involving

nuclear, toxic, and hazardous substances; marine pollution; and the protection of biodi-

versity and conservation of living resources.

B. GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW

The late international law professor Antonio Cassese noted that there are four general

legal principles that underpin international environmental law: f‌irst, states must not allow

their territory to be used in such a manner as to damage the environment of other states;

second, states must cooperate to protect the environment; third, states must immedi-

ately notify other states of a risk to the environment; and fourth, states must refrain from

massive pollution of the atmosphere or the seas.12

6 Legalit y of the Threat or Use of Nuclear Wea pons, Advisory Opinion, [1996] ICJ Rep 226 at par a 29 [Nucle-

ar Weapons Advisory Opinion].

7 See, for exampl e, Catherine Redgwell, “Internatio nal Environmental Law” in Malcolm D Evans, ed, In-

ternational Law, 3d ed (New York: Oxford University Press, 2010) at 687.

8 Trail Smelter Arbitration (United Stat es v Canada), (19 31–1941) 3 RIA A 19 05.

9 Vienna Convention on Ear ly Notif‌ication of a Nuclear Accident, 26 Septemb er 1986, 1439 UNTS 276,

Can TS 1990 No 21, (1986) 25 ILM 1370, in force 27 October 1986.

10 9 May 1992, 1771 UNTS 107, Can TS 1994 No 7, (1992) 31 ILM 849, in force 21 March 1994 [Climate

Change Convention].

11 Kyoto Protocol to the United Nations Framework Conve ntion on Climate Change, 11 December 1997,

2303 UNTS 214, (1998) 37 ILM 22, in force 16 February 2005 (entr y into force for Canada 17 December

2002, withdrawal e ffective 15 December 2012) [Kyoto Protocol].

12 A ntonio Cassese, International Law, 2d ed (New York: Oxford Universit y Press, 2005) at 487.

Ch ap te r 11: International Environmental Law 7 17

1) States Must Not Allow Their Territory to Be Used in a Manner that Damages the

Environment of Other States

The ICJ, in its 1996 advisory opinion on the Legality of the T hreat or Use of Nuclear Weap-

ons, observed: “The existence of the general obligation of States to ensure that activities

within their jurisdiction and control respect the environment of other States or of areas

beyond national control is now part of the corpus of international law relating to the

environment.”13 One of the earliest applications of this general principle was in the well-

known 1941 Trail Smelter arbitration.

Trail Smelter Arbitration (United States v Canada), (1931–19 41) 3 RIA A 1905

[Beginning in 1896, a sme lter was operated at Trail , British Columbia. A s of 1906, th is

smelter was owned and operated by t he Consolidated Mining and Smelting Company of

Canada. The United States c laimed that the sulphur dioxide emissions from the smelter

had caused environmenta l damage, at least during t he period 1925 to 1937, including to

land used for cattle gra zing and growin g of crops, and to trees that were crucial to the

logging indust ry. Canada and the United States asked the International Joint Commis-

sion to resolve this issue. When that attempt failed, Canada and the United States agreed

to arbitration of the following issues:

1) Whether dama ge caused by the Trail Smelter in the State of Washington has occurred

since the f‌irst day of January 1932, and, if so, what indemnity should be paid therefor?

2) In t he event of the answer to the f‌irst par t of the preceding question b eing in the

aff‌irmative, whether the Trail Smelter should be required to refrain from cau sing

damage in the State of Washington in t he future and, if so, to what extent?

3) In the light of the answer to the preceding question, what measures or regime, if any,

should be adopted or maintained by t he Trail Smelter?

4) What indemnity or compensation, if a ny, should be pa id on account of any decision

or decisions rendered by the Tribunal pursu ant to the f‌irst two questions?

In its interim decision of 1938, the Tribunal found that the Trail Smelter had caused dam-

age in t he United States from 1 Januar y 1932 to 1 October 1937 and t hat Canada should

pay $78,0 00 plus interest in compensation. In its 1941 f‌inal decision, t he Tribunal ad-

dressed the issue of how states must govern the use of t heir territory:]

The second question under Art icle III of the Convention is as follows:

In the event of the answer to the f‌irst part of the preceding question being in the aff‌ir-

mative, whether the Trail Smelter should be required to refrain from causing dama ge

in the State of Washington in the f uture and, if so, to what extent?

Damage has occurred since January 1, 1932, as f ully set fort h in the previous deci-

sion. To that ex tent, the f‌irst pa rt of the precedi ng question has thus been answered in

the af f‌irmative.

13 Nuclear Weapons Advisory Opinion, above note 6 .