The International Context of Canadian Environmental Law

• Author: Jamie Benidickson
• Pages: 70-100

70

CHA PTER 4

THE INTERNATIONAL

CONTEXT OF

CANADIAN

ENVIRONMENTAL LAW

A. INTER NATIONAL ENVIRONMENTAL L AW

AND ORG A NIZ ATIONS

Nations around the world have had long-standing concerns about the

impact on their domestic environments of t ransboundary air and water

pollution, as well as about offshore tanker spills inf‌licting economic

and ecological damage on their coastal regions and resources. In addi-

tion, indications of environmental deterioration in areas of common

interest outside national boundar ies such as the oceans, the Antarctic,

and the atmosphere sheltering the planet have encouraged efforts to

identify effective international responses, including legal measures. To

some degree, pressure in this direction is even increased by awareness

that environmental deter ioration constitutes a t hreat to both peace and

se cu rity.1

The United Nations Conference on the Human Environment

(Stockholm, 1972), the report of the World Commission on Environ-

ment and Development, Our Common Future (1987), the UN Confer-

ence on Environment and Development in Rio de Janeiro (1992) and

the Johannesburg Declaration following the World Summit on Sustain-

1 A Daniel, “Envi ronmental Threats to Inter national Peace and Secur ity: Com-

batting Common S ecurity Threats Through P romotion of Compliance with

Internation al Environmental Agr eements” (1994) Canad ian Council for Inter-

national L aw 134–46.

The Internation al Context of Canadian Env ironmental Law 71

able Development (2002) have been landmarks in the development of

principles of international environmental law.2 Principle 21 from the

Stockholm Convention is a particula rly prominent example of attempts

to formulate environmental norms:

States have, in accordance with the Char ter of the United Nations

and the principles of international law, the sovereign r ight to exploit

their own resources pursuant to their own environmental p olicies,

and the responsibility to ensure th at the activities w ithin their juris-

diction or control do not cause dam age to the environment of other

states or of areas beyond the limits of nationa l jurisdiction.

The evolution of international law affecting the environment is on-

going (see table 4.1). As explained by the international legal scholar

Alexandre Kiss, evolution of “environmental governance” involves the

interrelated emergence of legal norms and management institutions:

The two sides of governance inter act: different forms of internation al

co-operat ion, conference s or permane nt institut ions create inter-

national legal norm s the implementation of which needs new forms

of international organisms. The co-operation is to be undertaken at

a world-wide level as well as in reg ional fr ameworks. Such forms can

be considered as the world Const itution governing environ mental

matters.3

The latest global deliberations, the United Nations Conference on

Sustainable Development (Rio+20) took place in 2012. Political out-

comes offering guidance for continuing implementation of sustainabil-

ity were captured in a conference statement — The Future We Want, a

document that identif‌ies gaps and opportunities for action at the local,

regional, and international levels.4

Public international law, that is, the principles governing relations

between and among nations, derives from several sources — agree-

ment, customary international law, and general principles of law. All

are independent sources of international obligat ions. For example, over

seventy years ago, in connection with an arbitration between Canada

and the United States concerning liability for damage from air pollu-

tion from smelting facilities i n Trail, Briti sh Columbia, an intern ational

2 Johannesburg Declaration o n Sustainable Development, o nline: w ww.un.org /esa/

sustdev/documents/ Johannesburg%20Decl aration.doc.

3 A Kiss, “The Legal O rdering of Environmenta l Protection” in R MacDonald &

D Johnston, eds, Towards World Constituti onalism: Issues in the Legal Ordering of

the World Community (Boston: Mar tinus Nijhoff, 2005) 567.

4 Online: w ww.uncsd 2012.org/t hefuturewewant.html.