International Environmental Law
| Author | John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld |
| Pages | 689-723 |
CHAPTER 11
International Environmental Law
A. INTRODU CTION
International environmental law comprises substantive, procedural, and institutional rules
of international law that have the primary objective of protecting the environment. 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 responsibility (which we examine
in Chapter ). Environmental issues touch directly or indirectly on almost every aspect of
legal regulation, and the breadth of international environmental 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.
There is no single international legal denition of the “environment,” but it is generally
agreed that the concept is broader than natural habitats or ecosystems and includes arti-
cial and human environments. Some treaties that use the term “environment” simply do
not dene it. Others have adopted varying denitions. For example, the Convention on
Long-range Transboundary Air Pollution denes “environment” as including “agriculture, for-
estry, materials, aquatic and other natural ecosystems and visibility.” The Convention
on Environmental Impact Assessment in a Transboundary Context denes “environment” to
include “human health and safety, ora, fauna, soil, air, water, climate, landscape and histor-
ical monuments or other physical structures or the interaction among these factors.” The
International Court of Justice (ICJ) has observed that “the environment is not an abstraction
Philippe Sands & Jacqueline Peel, Principles of International Environmental Law, th ed (New York:
Cambridge University Press, ) at [Sands & Peel].
James Crawford, Brownlie’s Principles of Public International Law, th ed (Oxford: Oxford University
Press, ) at [Brownlie’s Principles].
See, for example, United Nations Convention on the Law of the Sea, December , UNTS , ()
ILM , in force November [UNCLOS], which does not dene the term “marine environment”
used in Articles ()(d) and (). See also the Minamata Convention on Mercury, October , ()
ILM , in force August , which does not dene “environment” but uses the word throughout
(for example, in arts –, –, –, and –).
Convention on Long-range Transboundary Air Pollution, November , UNTS , Can TS
No , () ILM , in force March , art (d) [Long-range Transboundary Air Pollution
Convention].
Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention),
February , UNTS , Can TS No , () ILM , in force September , art
(vii) [Espoo Convention]. See further Neil Craik, The International Law of Environmental Impact Assess-
ment: Process, Substance and Integration (New York: Cambridge University Press, ).
INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
but represents the living space, the quality of life and the very health of human beings, includ-
ing generations unborn.”
The development of international environmental law is often regarded as falling into
distinct periods. In the earliest period, environmental issues were viewed as bilateral “side”
issues relating to the larger issue of economic development, such as within bilateral sheries
treaties. The Trail Smelter arbitral award excerpted below falls into this phase. The next
period was characterized by signicantly increased focus on the environmental impact of pol-
lution and its eect on wildlife and habitat. In this phase, a large number of multilateral treat-
ies were adopted, often in response to specic incidents of environmental degradation. For
example, the Vienna Convention on Early Notication of a Nuclear Accident was adopted
following the Chernobyl nuclear disaster. Thus, this period was largely reactive. The current
period 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
United Nations Framework Convention on Climate Change, its Kyoto Protocol, and
its Paris Agreement are illustrative of legal developments during this phase.
This chapter begins by examining international environmental law’s key general legal
principles. It next explores international legal protections relating to specic environmental
concerns: the protection of the atmosphere against transboundary air pollution and ozone
depletion, climate change, and the protection of biodiversity and conservation of living
resources.
B. GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
There are a number of key legal principles that underpin international environmental law.
One of the earliest principles to be recognized is that states must not allow their territory
to be used in such a manner as to damage the environment of other states. More recently,
international environmental law has recognized the principles of prevention, precaution, and
cooperation. Other fundamental concepts reected in environmental treaties or soft law
include the principle of sustainable development, the polluter pays principle, and the princi-
ple of common but dierentiated responsibilities.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [] ICJ Rep at para
[Nuclear Weapons Advisory Opinion].
Commentators refer to either three or four stages: see, for example, Catherine Redgwell, “Inter-
national Environmental Law” in Malcolm D Evans, ed, International Law, th ed (New York: Oxford
University Press, ) at [Redgwell]; Sands & Peel, above note at .
Trail Smelter Arbitration (United States v Canada), (–) RIAA .
Vienna Convention on Early Notication of a Nuclear Accident, September , UNTS , Can
TS No , () ILM , in force October .
May , UNTS , Can TS No , () ILM , in force March [UNFCCC].
Kyoto Protocol to the United Nations Framework Convention on Climate Change, December ,
UNTS , () ILM , in force February (entry into force for Canada December ,
withdrawal eective December ) [Kyoto Protocol].
Paris Agreement to the United Nations Framework Convention on Climate Change, December ,
() ILM , Can TS No , in force November [Paris Agreement].
Sands & Peel, above note at .
Cha pter : International Environmental Law
) Controlling Activities on One’s Territory to Avoid Damaging the Environment of
OtherStates
The ICJ, in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons,
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.”
One of the earliest applications of this general principle was in the well-known Trail
Smelter arbitration:
Trail Smelter Arbitration (United States v Canada), (1931–1941) 3 RIAA 1905
[Beginning in , a smelter was operated at Trail, British Columbia. As of , this
smelter was owned and operated by the Consolidated Mining and Smelting Company of
Canada. The United States claimed that the sulphur dioxide emissions from the smelter
had caused environmental damage, at least during the period to , including to
land used for cattle grazing and growing of crops, and to trees that were crucial to the
logging industry. Canada and the United States asked the International Joint Commission
to resolve this issue. When that attempt failed, Canada and the United States agreed to
arbitration of the following issues:
) Whether damage caused by the Trail Smelter in the State of Washington has occurred
since the rst day of January , and, if so, what indemnity should be paid therefor?
) In the event of the answer to the rst part of the preceding question being in the
armative, whether the Trail Smelter should be required to refrain from causing dam-
age in the State of Washington in the future and, if so, to what extent?
) In the light of the answer to the preceding question, what measures or regime, if any,
should be adopted or maintained by the Trail Smelter?
) What indemnity or compensation, if any, should be paid on account of any decision or
decisions rendered by the Tribunal pursuant to the rst two questions?
In its interim decision of , the Tribunal found that the Trail Smelter had caused damage
in the United States from January to October and that Canada should pay
, plus interest in compensation. In its nal decision, the Tribunal addressed
the issue of how states must govern the use of their territory.]
The second question under Article III of the Convention is as follows:
In the event of the answer to the rst part of the preceding question being in the armative,
whether the Trail Smelter should be required to refrain from causing damage in the State
of Washington in the future and, if so, to what extent?
Damage has occurred since January , , as fully set forth in the previous deci-
sion. To that extent, the rst part of the preceding question has thus been answered in
the armative.
As has been said above, the report of the International Joint Commission . . . con-
tained a denition of the word “damage” excluding “occasional damage that may be
caused by SO fumes being carried across the international boundary in air pockets or
by reason of unusual atmospheric conditions,” as far, at least, as the duty of the Smelter
to reduce the presence of that gas in the air was concerned. . . .
Nuclear Weapons Advisory Opinion, above note .
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