The International Context of Canadian Environmental Law

• Author: Jamie Benidickson
• Pages: 74-105

74

CHA PTER 4

THE INTERNATIONAL

CONTEXT OF CANADIAN

ENVIRONMENTAL LAW

A. INTER NATIONAL ENVIRONMENTAL L AW

AND ORGANIZATIONS

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 environmenta l deterioration in areas of common

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

and the atmosphere have encouraged efforts to identif y effective inter-

national response s, including legal measures. To some degree, pressure

in this direction is even increased by awarenes s that environmental

deterioration constitutes a threat to both peace and security.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-

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

1 On the general developm ent of international envi ronmental policy, see PW

Birnie, AE Boy le, & C Redgwell, Internat ional Law and the Environment, 3d ed

(Oxford: Oxford Universit y Press, 2009) at 48–58.

The Internation al Context of Canadian Env ironmental Law 75

principles of internat ional envi ronmental law.2 Principle 21 from the

Stockholm Convention is a particula rly prominent example of attempts

to formulat e environmental norms:

States have, in accord ance with the Char ter of the United Nations

and the principles of i nternational law, the sovereign r ight to exploit

their own res ources pursuant to thei r own environmental p olicies,

and the respons ibility to ensure th at the activities w ithin their jur is-

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

states or of areas b eyond the limits of nation al jurisdiction.

The evolution of international law affecting the env ironment is

ongoing. Currently, for example, deliberations are underway concern-

ing a proposed “Global Pact for the Environment,” intended to reinforce

the coherence of global environmental governance and en hance inter-

national cooperation while strengthening environmental protection.3

As explained by t he international legal scholar Alexandre Kiss, evo-

lution of “environmental governance” involves the interrelated emer-

gence of legal norms and management instit utions:

The two sides of governance interact: different forms of international co-

operation, conferences or permanent institutions create international

legal norms the implementation of which needs new forms of inter-

national organisms. The co-operation is to be undertaken at a world- wide

level as well as in regional frameworks. Such forms can be considered as

the world Constitution governing environmental matters.4

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 sustaina-

bility were captured in a conference statement, The Future We Want, a

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

regional, and intern ational levels.5

For purposes of practical di rection at the international level, many of

the themes and objectives of susta inable development have been incor-

porated into a set of global goals for the period extendi ng from 2016 to

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

sustdev/documents/Johannesburg%20Declaration.doc.

3 Towards a Global Pact for the Environment, GA Res A /RES/72/277, 72d Sess

(A/72/ L.51 2018).

4 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.

5 Online: www.un.org/ga/search/view_doc.asp?symbol=A /RES/66/28 8&Lang=E.

ENVIRONMENTAL L AW76

2030. Several of these Sustainable Development Goals (SDG) foc us s pe-

cif‌ically on environmental challenges, notably SDG 14 Life Below Water

and SDG 15 Life on Land. The former promotes action to conserve and

sustainably use t he oceans, seas, and marine resources for sustain able

development, while the latter seeks to protect, restore, and promote

sustainable use of ter restrial ecosystems, sustainably man age forests,

combat desertif‌ication, and h alt land degradation and biodiversity loss.6

Canada’s Commissioner of Environment and Sustain able Development

has recently called upon federal govern ment agencies to examine ways

to enhance their contribution to achieving the UN SDGs.7

Public international law, that is, the pr inciples governing relations

between and among nations, derives f rom several sources — agreement,

customary inter national law, and general principles of law. All are

independent sources of international obligations. For example, nearly

eight decades 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

tribunal stated that “no State has the right to use or permit the use of

its territory in such a manner as to cause injury by fumes in or to the

territory of another or the per sons or property therein, when the case is

of serious consequence and the injury i s established by clear and con-

vincing e vidence.”8 Here one can dis cern some indication of the origins

of Stockholm Principle 21 quoted above.9

Today, however, treaties or conventions as they are also known

are increasingly us ed to embody the text of environmental ag ree-

ments between states. Such agreements may be reached on a bilateral

basis — between neighbouring countries, for example — or they may

involve many signatories. Formal agreements of this nature deal ing

with such subjects as the law of the sea, the protection of endangered

species, transboundary movement of hazardous wastes, prevention of

pollution from ships, and so on are the primar y forms of international

environmental law. These agreements will often directly inf‌luence the

shape of domestic environmental regimes. Indeed, some commentators

6 For an introduction and overv iew of the SDGs, see online: w ww.undp.org/

content/undp /en/home/sus tainable-develop ment-goals.html.

7 Off‌ice of the Auditor Gener al, Commissioner of Envi ronment and Sustainable

Development, Report 2: Canadian Prepared ness to Implement the United Nation s’

Sustainable Development Goals (Spring 2018), online: www.oag-bv g.gc.ca/i nternet /

English/parl_ cesd_201804_02_e_42993.html.

8 Trail Sm elter Arb itration (1941), 3 UN Rep Int Arb Awards 1908 at 1965.

9 See RM Bratspies & R A Miller, Transboun dary Harm in Internat ional Law: Lessons

from the Trail Smelter Arbitration (New York: Cambridge Univer sity Press, 2006).