Th e main argument in this and the following two chapters is that rules and principles of international law concerning protection of the environment exist and can be identi-fi ed.1 In many cases the evidence for this assertion is strong and is considered in more detail in later chapters; in others the need for further clarifi cation is apparent. It must be remembered, as we saw in Chapter 1, that international environmental law is not a separate or self-contained fi eld of law. In some respects it is simply the application of well-established rules, principles and processes of general international law to the resolution of international environmental problems and disputes. Th us the subject
1 See generally Bodansky, Brunnée, Hey (eds), Oxford Handbook of International Environmental Law (Oxford, 2007); Louka, International Environmental Law (Cambridge, 2006); Atapattu, Emerging Principles of International Environmental Law (Ardsley, 2006); Kiss and Shelton, International Environmental Law (3rd edn, New York, 2005); Sands, Principles of International Environmental Law (2nd edn, Cambridge, 2003); de Sadeleer, Environmental Principles (OUP, 2002); Dupuy, 101 RGDIP (1997) 873; Dunoff , 19 Harv ELR (1995) 241; Freestone, 6 JEL (1994) 193; Fitzmaurice, 25 NYIL (1994) 181; Brown Weiss, Environmental Change and International Law (Tokyo, 1992); Handl, 1 YbIEL (1990) 3.
cannot be understood without a good understanding of international law as a whole.
Many otherwise novel environmental questions can be answered without the need for creating new law, or even for developing old law. A good example is the defence of necessity in the law of state responsibility. Once it is appreciated that states also have environmental as well as other interests to protect within the terms of the existing rule, the application of this defence in such cases is neither problematic nor innova-tive.2 Similarly, it is possible to rely on violation of territorial sovereignty to encompass transboundary pollution,3 but this immediately begs obvious questions about when such pollution becomes unlawful. Is all transboundary pollution an interference with sovereignty? Or only when it can be attributed to the actions or inactions of a state?
Any discussion of these questions tends to become indistinguishable from the rule on transboundary harm codifi ed in Principle 21 of the Stockholm Declaration and considered later.4
Modern environmental problems have also prompted the creation of new law, or development and clarifi cation of existing law. Much of this new law has emerged gradually, through a process of incremental development in the fi elds of pollution control and conservation of the natural environment, or more recently in regard to problems of global environmental concern. Th e evolution in our understanding of how international law relates to the environment has been too recent to allow for universally acceptable codifi cation.5 In some cases the rules themselves, their pre-sent legal status, or their precise implications, remain controversial or need further consolidation. Th e most widely ratifi ed treaties, such as the Conventions and related protocols on Climate Change or Ozone Depletion, constitute international regulatory regimes which have become the most important sources of law on these subjects for almost all states.6 Th ere is also much soft law, whose legal status varies, but which is not necessarily non-binding in all circumstances. A more diffi cult question is how far the rules and principles found in these treaties and soft -law instruments have been translated into customary international law. Some evidence of existing or develop-ing customary law is found in the 1982 UN Convention on the Law of the Sea (1982 UNCLOS),7 in the work of UN specialized agencies and programmes,8 and of bodies such as the International Law Commission (ILC),9 the International Law Association
2 See Gabčíkovo-Nagymaros Case, ICJ Reports (1997) 7, paras 49–58.
3 See Nuclear Tests Cases, ICJ Reports (1974) 175, 253.
4 See infra, section 4, and discussion of the Trail Smelter Arbitration.
5 But see WCED, Legal Experts Group, Draft Convention on Environmental Protection and Sustainable Development, in Munro and Lammers, Environmental Protection and Sustainable Development: Legal Principles and Recommendations (London, 1986) and IUCN, Draft International Covenant on Environment and Development (3rd edn, Gland, 2004); Robinson, 13 Pace ELR (1995) 133; Boyle and Freestone (eds), International Law and Sustainable Development (Oxford, 1999) Ch 4.
6 See infra, Ch 6. On regulatory regimes see supra Ch 2. 7 See infra, Chs 7, 8, and 13.
8 Th e most important of these is UNEP, on which see supra Ch 2.
9 See 2001 Articles on the Prevention of Transboundary Harm from Hazardous Activities, and commen-tary, infra, section 4; on environmental crimes see infra, Ch 5, section 6; on international watercourses, see infra, Ch 10, and on allocation of loss infra, Ch 5, section 4.
(ILA),10 and the Institut de Droit International (IDI).11 Th ere is, however, no single treaty or declaration comparable to the 1982 UNCLOS, the 1947 GATT or the 1948 Universal Declaration of Human Rights in systematically setting out the basic rules and principles of the subject.
Since 1992, environmental disputes have formed a signifi cant proportion of the caseload of the International Court of Justice (ICJ),12 the Dispute Settlement Body of the World Trade Organisation (WTO),13 the International Tribunal on the Law of the Sea (ITLOS),14 and arbitration tribunals.15 Some of these decisions provide evidence for the evolution of customary international law concerning the environment, but they remain at present too few in number and too limited in scope to off er a comprehensive statement of the law. It has been aptly noted by one arbitral tribunal that ‘Th ere is con-siderable debate as to what, within the fi eld of environmental law, constitutes ‘rules’
or ‘principles’; what is ‘soft law’; and which environmental treaty law or principles have contributed to the development of customary international law’.16 What is clear, however, and what needs to be remembered when reading this chapter, is that inter-national law dealing with the environment is still in a state of dynamic development.
Propositions about what is or is not customary law are liable to change, in some cases quite quickly, and it cannot be assumed without further enquiry either that recent developments are not law, or that older judicial precedents continue to state existing law. As we saw in Chapter 1, views diff er on the relative importance of state practice and declaratory principles adopted by consensus in crystallizing the formation of new law. In some disputes the parties have been happy to rely on unratifi ed treaties, the work of the International Law Commission, or soft -law instruments as evidence of
10 For the ILA’s early work see Rept of 55th Conference (1972) 468–500; 57th Conference (1976) 564–87; 58th Conference (1978) 383–422. For the Montreal Rules on Transfrontier Pollution see 60th Conference (1982) 1;
transboundary air pollution: 65th Conference (1992); water pollution: 67th Conference (1996) 401–15; marine pollution: 69th Conference (2000) 443–512; sustainable development: 69th Conference (2000) 655–710; water resources: 71st Conference (2004) 334–65; transnational enforcement: 72nd Conference (2006) 655–91. See generally Boyle and Freestone, International Law and Sustainable Development, Ch 4.
11 IDI, Rept of the Athens Session (1979) I, 193–380 and II, 197 (pollution of rivers and lakes); id, Rept of the Cairo Session (1987) I, 159–294 and II, 296 (transboundary air pollution); IDI, 1997 Resolutions on (i) Environment, (ii) Procedure for the Adoption and Implementation of Rules in the Field of Environment, and (iii) Responsibility and Liability for Environmental Damage, on which see Sands, 30 RBDI (1997) 512.
He rightly condemns the Institute’s 1997 resolutions as ‘rubble rather than architecture’.
12 See infra, section 4(1).
13 WTO cases include United State—Import Prohibition of Certain Shrimp and Shrimp Products [‘Shrimp-Turtle Case’] WTO Appellate Body (1998) WT/DS58/AB/R and Art 21.5 Report (2001) WT/DS58/AB/RW;
EC-Measures Concerning Meat And Meat Products [‘Beef Hormones Case’] WTO Appellate Body (1997) WT/DS26/AB/R; EC-Measures Aff ecting Asbestos, etc [‘Asbestos Case’] WTO Appellate Body (2001) WT/
DS135/AB/R. See infra, Ch 14.
14 At least three can be regarded as environmental: Southern Bluefi n Tuna Cases (Provisional Measures) ITLOS Nos 3 & 4 (1999); MOX Plant Case (Provisional Measures) ITLOS No 10 (2001); Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Provisional Measures) ITLOS No 12 (2003) [‘Land Reclamation Case’].
15 MOX Plant Arbitration, PCA (2003); OSPAR Convention Arbitration, PCA (2003); Land Reclamation Arbitration, PCA (2005); Iron Rhine Arbitration, PCA (2005).
16 Iron Rhine Arbitration, para 58.
international law. In others they have taken a more sceptical stance and pointed to the absence of state practice or opinio juris. Th ere are also disputes where the parties have not pressed their strict legal rights to the full but have preferred to negotiate equitable solutions,17 while in others they have been content to interpret older treaties in an evolutionary manner, so that contemporary standards of environmental law can be incorporated.18 How far what follows can be regarded as lex lata thus depends partly on the methodology used to identify international law.
Moreover, even when applicable treaties or customary law are identifi ed, how diff er-ent rules aff ecting the same issue interact is not always clear. Confl icts between treaties are in theory resolved in accordance with Articles 30 and 41 of the Vienna Convention on Treaties, and depend to a large extent on the intention of the parties and the lex spe-cialis rule.19 As the Gabčíkovo-Nagymaros and Shrimp-Turtle cases show, a treaty also has to be interpreted and applied in the light of other rules of international law, includ-ing new norms of environmental law.20 An understanding of customary international law and general principles is thus essential even when the applicable law is treaty-based. Th e application of norms of international law dealing specifi cally with environ-mental problems may also have to take into account other bodies of law dealing inter alia with sustainable development, human rights, international watercourses, law of the sea, armed confl ict or free trade. How courts resolve the potential for confl ict between simultaneously applicable norms in these situations is essentially a matter of judicial technique, but the case law of the International Court and of other inter-national tribunals suggests that where possible they prefer an integrated conception of international law to a fragmented one.21 Apart from highlighting the formative role of international courts in determining the applicable law, this conclusion points again to the danger of viewing any part of international law in isolation from the whole. Not only are the rules dynamic, but potentially so is their interaction. What cannot be sup-posed is that environmental rules have any inherent priority over others save in the exceptional case of ius cogens norms. Th e principle characteristic of a ius cogens rule is that ‘it may not be trumped by another rule that is not itself ius cogens’.22 No such
17 See infra, section 4(5). 18 See e.g. the Iron Rhine Arbitration, para 60.
19 Th e precedents are reviewed in Boyle and Chinkin, Th e Making of International Law (Oxford, 2007) 250–3.
20 1969 Vienna Convention on the Law of Treaties, Article 31(3). See Gabčíkovo-Nagymaros Case, ICJ Reports (1997) 7, paras 112 and 140; Shrimp-Turtle Case, supra n 13. See also Nuclear Weapons Advisory Opinion (UNGA) ICJ Reports (1996) 226, where the Court took into account the law on use of force when interpreting environmental treaties, and Beef Hormones Case, WT/DS26/AB/R (1997) paras 120–
25. See McLachlan, 54 ICLQ (2005) 279; Boyle and Chinkin, Th e Making of International Law (Oxford, 2007) Ch 5.
21 A conclusion confi rmed by Stephens, 25 AYIL (2004) 226, 270. See Gabčíkovo-Nagymaros Case, ICJ Reports (1997) 7, paras 112, 140; Nuclear Weapons AO, ICJ Reports (1996) 226; Oil Platforms Case, ICJ Reports (2003) 161, paras 31–45; Shrimp-Turtle Case (1998) WT/DS58/AB/R, paras 131–3; Iron Rhine Arbitration, PCA (2005), and the discussion of human rights and sustainable development in Ch 5.
22 Seiderman, Hierarchy in International Law (Antwerp, 2001) 35–6.
norms of international environmental law have yet been convincingly identifi ed,23 nor is there an obvious case for treating them in this way.24
To say that rules and principles of international environmental law must be inte-grated with the rest of international law does not mean that the law is always the same for all states regardless of their capabilities or diff ering circumstances. In the devel-opment of international environmental law the diff erent priorities of mainly south-ern hemisphere less-developed countries have been given ‘special consideration’. For many of these countries poverty and the need for economic development are perceived as the main ‘environmental’ problem. Th eir concerns have been a central feature of environmental diplomacy since the Stockholm Conference. Various ways of recon-ciling the competing priorities of north and south have been employed. Th e concept of sustainable development,25 economic assistance and capacity-building through the Global Environment Facility and other trust funds,26 alterations in the lending policies of the World Bank and other capital providers,27 and the negotiation of dif-ferent28—usually lower—standards of environmental regulation and resource con-servation are all part of a strategy for engaging developing states in the process of regulating the international environment. With regard to global environmental prob-lems the concept of ‘common but diff erentiated responsibility’ has helped to mediate North– South disagreements by recognizing their diff erent contribution to generating environmental problems and their diff erent capacities for resolving them.29 Th e UN General Assembly has also been careful to formulate the ‘right to development’ in terms requiring respect for international law on friendly relations and cooperation, as well as sustainable development.30 Moreover, the emphasis placed on sovereignty over natural resources and freedom to pursue policies of economic growth must be seen in its proper context. UN resolutions, the Stockholm and Rio Declarations, and other international instruments have consistently recognized that although states have per-manent sovereignty over their natural resources and the right to determine their own environmental and developmental policies, they are not free to disregard protection of the environment of common spaces or of other states.31 Nevertheless, developmental priorities remain a major obstacle to stronger environmental regulation for develop-ing and developed economies alike.
Some of the precedents on which this chapter is based are regional or bilateral in scope or refl ect environmental concerns appropriate mainly to northern hemisphere industrialized states. Th ere are obvious dangers in assuming that such precedents
23 In Gabčíkovo-Nagymaros, para 97, the Court impliedly accepted Slovakia’s argument that none of the norms of environmental law on which Hungary relied was ius cogens.
24 Orkhelashvili, Peremptory Norms in International Law (Oxford, 2006) 65, suggests otherwise, but while certain norms considered in this chapter may apply erga omnes, it does not follow that they are there-fore also ius cogens. On the contrary, there is no necessary connection between these two categories. See generally Seiderman, op cit, 123–9.
25 Supra Ch 2, section 2(5) and infra, section 2. 26 Supra Ch 2, section 4(4). 27 Ibid.
28 1992 Rio Declaration on Environment and Development, Principles 7 and 11; 1972 Stockholm Declaration on the Human Environment, Principles 8–12, and 23, and infra, section 3(3).
29 See infra, section 3(3). 30 See infra, section 2(3). 31 See infra, section 4.
necessarily have global force. Th is does not mean that international environmental law represents only a regional system, or systems, of law, nor does it imply that its rules have no relevance to the problems of the Th ird World, but it does imply that we need evidence of Th ird World practice to complement the richer material avail-able from the developed world. Securing Th ird World participation in treaty regimes of global signifi cance, such as the 1985 Ozone Convention, the 1982 UNCLOS, the 1992 Conventions on Climate Change and Biological Diversity, or the 2001 POPS Convention, is even more important. Th e particular signifi cance of UNCED Agenda 21 and the Rio Declaration is that they are not simply expressions of the views of devel-oped northern-hemisphere countries, but also refl ect the concerns of a broad coalition of developing states.32 Th is is clear if we look at the evidence of international litigation or regional treaties.33
In contrast to developing states, the reluctance of the United States to be bound by more recent environmental agreements casts some doubt on the extent to which it is subject to contemporary international environmental law.34 Th e United States will normally participate in environmental negotiations and advance its own pos-ition strongly, but the rarity with which it then ratifi es or supports the outcome is noticeable. Its most consistent objective is to protect free trade and its own autonomy.
In deference to its industrialists, the United States is not a party to the Biodiversity Convention, the Kyoto Protocol, the POPS Convention, the Basel Convention, the PIC Convention, or the UN Convention on the Law of the Sea, although in practice it treats the latter agreement as largely customary law and it has been an active promoter of the UN Fish Stocks Agreement and of marine conservation in general. Th e only UNECE treaty to which it is a party is the Convention on Long-range Transboundary Air Pollution, but only two of its protocols.35 It does not participate in any environmental liability treaties, although it has ratifi ed the Vienna Convention on Supplementary Compensation for Nuclear Damage. Its failure to ratify the Caribbean Protocol on Land-based Sources of Marine Pollutuion has prevented that instrument from com-ing force. Th e United States supported the Rio Declaration with extensive reservations, and it remains particularly doubtful how far it accepts the precautionary approach. It is not subject to the compulsory jurisdiction of the ICJ or the International Criminal Court, and is not a party to the Inter-American Convention on Human Rights. Th e only forums in which it can usefully be sued in environmental disputes are the WTO and NAFTA arbitral tribunals.36 Th e Trail Smelter Arbitration, the 1972 Stockholm Conference and the Ozone Convention remain as testimony to American dynamism in an earlier era of progressive environmentalism, but they are only faintly echoed in contemporary US policy.
32 See supra Ch 2.
33 See e.g. the Pulp Mills Case, ICJ Reports (2006), human rights cases (Ch 5) and regional agreements on the marine environment (Ch 7), international watercourses (Ch 10) and fi sheries (Ch 13).
34 See Brunnée, 15 EJIL (2004) 617–649. 35 Heavy metals and NOx.
36 See e.g. Shrimp/Turtle Case, WTO Appellate Body (1998) WT/DS58/AB/R; Methanex Corporation v United States of America, UNCITRAL Final Award (2005).
() the rio declaration on environment and development
Th e Rio Declaration on Environment and Development,37 adopted by consensus at the UN Conference on Environment and Development in 1992, constitutes at present the most signifi cant universally endorsed statement of general rights and obligations of states aff ecting the environment. Th e Declaration is in part a restatement of existing customary law on transboundary matters, partly an endorsement of new or develop-ing principles of law concerned with protection of the global environment, and partly a statement of policies and ideals set out more fully in Agenda 21, the programme of action for tackling environmental problems also adopted by the Conference, and whose implementation may lead to further lawmaking. Th is does not mean that the Declaration itself is binding law. Its value, like certain other soft -law declarations, is evidential: it tells us what states believe the law to be in certain cases, or in others what they would like it to become or how they want it to develop. Th e Declaration’s legal signifi cance can therefore only be properly appreciated in conjunction with an examination of the pre-existing customary law, and the development of state practice, further treaties, protocols, regulations, and judicial decisions, in the period since Rio.
As we shall see in the following sections, the Declaration has had signifi cant impact in all of these areas of lawmaking; several of the principles have been referred to by the ILC in support of its codifi cation of the law relating to transboundary harm,38 and it appears to be one of the ‘great number of instruments’ setting out norms of inter-national environmental law to which the Interinter-national Court of Justice referred in the Gabčíkovo-Nagymaros Case, and on which the Court also relied explicitly in its Nuclear Weapons Advisory Opinion.39
Th ree factors give the Rio Declaration signifi cant authority and infl uence in the articulation and development of contemporary international law relating to the
Th ree factors give the Rio Declaration signifi cant authority and infl uence in the articulation and development of contemporary international law relating to the