The International Context of Canadian Environmental Law

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 69-99

69

CHA PTER 4

THE INTERNATIONAL

CONTEXT OF

CANADIAN

ENVIRONMENTAL LAW

A. INTER NATIONAL ENVIRONMENTAL L AW

AND ORGANIZ ATIONS

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

impact on their domestic environments of transboundary air and water

pollution, a s 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 boundaries such a s 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 the thought

that environmental deterioration constitutes a threat to both peace and

se cur i ty. 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 Sustai n-

1 A. Daniel, “Env ironmental Threats to Inte rnational Peace and Secu rity: Com-

batting Common S ecurity Threats Through P romotion of Compliance with

Internation al Environmental Agr eements” (1994) Canadia n Council for Inter-

national L aw 134–46.

ENVIRONMENTA L LAW70

able Development (2002) have been landmark s in the development of

principles of i nternational environmental law.2 Principle 21 from the

Stockholm Convention is a particularly prominent example of attempts

to formulate environmental norms:

States have, in accordance w ith the Charter of the Un ited Nations

and the principles of i nternational law, the sovereign right to ex ploit

their own resources pursuant to their own environmental policies,

and the respons ibility to ensure t hat the activities withi n their juris -

diction or cont rol do not c ause da mage to t he environment of other

states or of areas b eyond the limits of n ational juris diction.

The evolution of international law af fecting the environment is on-

going (see t able 4.1). As expla ined by the international legal scholar

Alexandre Ki ss, evolution of “environmental governance” involves the

interrelated emergence of legal norms and management institutions:

The internationa l legal ordering of env ironmental protection in-

cludes the two components: on t he one hand, legal norms intended

to govern the behaviour of states and other actors of internationa l law

and on the other hand international regulation creatin g international

bodies and determi ning their functions. The two sides of governance

interact: different forms of inter national co- operation, conferences

or p ermanent institutions create inter national legal norms the im-

plementation of wh ich needs new forms of intern ational organ isms.

The co-operation is to b e undertaken at a world-wide level a s well as

in region al fra meworks. Such forms c an be considered as the world

Constitution governi ng environmenta l matters.3

Public international law, the principles governing relations be-

tween a nd among nations, derives from several sources — agreement,

customary international law, and general principles of law. All are in-

dependent sources of international obligations. For example, over sixty

years ago, in connection with an arbitration between Canada and t he

United States concerning liability for damage from air pollution from

smelting facilitie s in Trail, British Columbia, an international t ribunal

stated t hat “no State has the right to use or permit the u se of its ter-

ritory in such a ma nner as to cause i njury by fumes in or to the terri-

tory of another or t he persons or property therein, when the case i s of

2 Johannesburg Declaration o n Sustainable Development, on line: www.un.org/esa/

sustdev/document s/Johannesburg%20De claration.doc.

3 Alexandre K iss, “The Legal Ordering of En vironmental Protection” in Ron ald

MacDonald & Dougl as Johnston, eds., Towards World Constitutionalism: Iss ues in

the Legal Ordering of the World Community (B oston: Martinus Nijhoff, 2005) 567.