3. Method
3.1 Rationale for Data Selection
As noted in Chapter 1, I analyse documents from eight environmental regimes that contribute to the regulation of four different environmental areas: Natural resources, climate change, ozone depletion and sustainable development.42 The decision to analyse such
breadth of documents is informed by criticisms that environmental lawyers focus on one environmental area leading to clustering of scholarship in certain areas and themes.43 This
research attempts to respond to this criticism by drawing out interrelationships and commonalities that may exist in international environmental law.44 The full details of the
documents analysed in this thesis are displayed in Appendix 2 of this thesis. In the following discussion I explain why these eight regimes were selected.
I selected four main areas of climate change, natural resources, ozone depletion, and sustainable development because they encompass the broad range of environmental issues that states seek to regulate in the international sphere. As noted in the literature review, climate change is one of the most problematic areas of international environmental law. The 1992 UNFCCC and the 1994 Desertification Convention each address two different aspects of climate change. These two regimes are very interesting because they were negotiated and adopted just before and just after the 1992 Rio Conference. They also reflect very different approaches towards the creation and development of international environmental law, which makes them interesting to compare in this research project.
For example, the UNFCCC is a framework convention whose objective is to stabilise greenhouse gas emissions at a level that prevents dangerous ‘anthropogenic interference
42 Above, Chapter 1, 22-26.
43 Fisher and others, 'Maturity and Methodology', 230. 44 Ibid, 241.
115
with the climate system.’45 It includes general principles to guide the parties’ efforts in
achieving stabilisation of the climate, including the precautionary approach, inter- generational equity, and common but differentiated responsibilities, among others.46 The
principles included in the UNFCCC reflect a more ‘top-down’ institutional approach towards achieving the objective of the convention. The subsequent negotiations of the 1997 Kyoto Protocol and the softer COP Decisions similarly reflect a consolidation of a ‘top- down’ regime in which states set internationally-defined, legally-binding emission reduction targets, in line with the guiding principles of the UNFCCC.47 This top-down approach has
been subject to criticisms in terms of effectiveness and also in terms of the differentiation between developed and developing countries within the regime.48
The negotiations and content of the Desertification Convention reflect a very different approach. It was negotiated with the participation of communities directly affected by desertification and thus demonstrated a more ‘bottom-up’ approach towards developing the text. It seeks to respond to desertification in a holistic, bottom-up approach to prevent desertification at the local, regional, and national levels. It bases many of its objectives on attaining sustainable development, while also incorporating differing obligations for affected developing country parties and developed country parties.49 Therefore, it takes into account
the social and economic contexts in which the international community, and local communities seek to respond to environmental problems. Furthermore, the convention may arguably be considered as one of the regimes that the international community has forgot, even though it has a number of intersections with the biodiversity and climate change regimes. At the time of negotiation, desertification was seen as a problem primarily for the global south, which may not now be the case.
Furthermore, as noted in Chapters 1 and 2, climate change has been increasingly referred to as a security concern. Concerns over desertification as a threat to food and water security have been discussed in the United Nations Security Council (UNSC) and in the UNGA, as well as in the academy and civil society. Therefore, including these two regimes means I can examine the differences in the creation of international law, the principles guiding states’
45 UNFCCC 1992, art 2. 46 Ibid, art .3
47 William Hare and others, ‘The Architecture of the Global Climate Regime: A Top-Down Perspective’ (2010)
10(6) Climate Policy 600, 601-602; Daniel Bodansky, 'A Tale of Two Architectures: The Once and Future U.N. Climate Change Regime ' (Sandra Day O'Connor College of Law, Arizona State University 7 March 2011) <http://ssrn.com/abstract=1773865> accessed 12 November 2015, 2; Daniel Bodansky and Lavanya Rajamani, ‘The Evolution and Governance Architecture of the Climate Change Regime’ in Detlef Sprinz and Urs
Luterbacher (eds), International Relations and Global Climate Change: New Perspectives (Forthcoming, 2nd edn, MIT Press 2016).
48 See Rayner S, ‘How to Eat an Elephant: A Bottom-Up Approach to Climate Policy’ (2010) 10(6) Climate Policy
615
116
responses to climate change and the tensions in balancing interests such as security, development, and economic well-being.
Similarly, natural resources are one of the primary sources of economic development for many countries in the international community. Many people consider biodiversity (which encompasses all natural resources) as the foundation of life on Earth, and as a result, the biodiversity regime has many intersections with other areas of environmental law. These intersections offer the opportunity to examine the justifications used to protect natural resources and the extent to which these justifications alter the perception of the environment itself. The 1992 Biodiversity Convention and its two protocols, the 2000 Cartagena Protocol and the 2010 Nagoya Protocol also created a framework approach towards biodiversity. The framework convention contains very few obligations but defines three key objectives of the future biodiversity regime. It also includes principles of sustainable use, and provisions relating to technology and financial transfers. 50
This regime is interesting in the context of this project for a number of reasons. First, because it has negotiated three legally binding environmental documents during the time- period under analysis. Second, it seeks to regulate and protect all types of biodiversity, while taking into account the needs of developing countries. Third, it explicitly refers to the interests of traditionally marginalised and excluded communities such as indigenous peoples and women within the context of the regime. For these reasons it offers the opportunity to analyse the development of a regime over time and how the interests of marginalised communities may have been taken into account in the context of biodiversity conservation.
The 1995 UN Fish Stocks Agreement has been included in this research project because it seeks to conserve and protect marine resources that straddle the high seas and areas under the national jurisdiction of a state. This is a novel approach because it applies to areas beyond the national jurisdiction of states and has introduced the precautionary principle into the management and conservation of such stocks.51 Furthermore, it was negotiated and
adopted after the Rio Conference, during which the international community noted the concerns of unregulated fishing, excessive fleet sizes, lack of cooperation between states, and unreliable databases over the state of the world fisheries.52 Therefore, it includes guiding
principles that reflect the concept of sustainable development. This approach to natural resource regulation may reveal interesting responses to development, the participation by NSAs, and the perception of the environment itself.
50 Biodiversity Convention 1992, preamble ¶5, ¶16 and ¶20 art 1, art 16 51 UN Fish Stocks Agreement 1995, art 6.
117
The 1983, 1994, and 2006 ITTAs53 are included in this research because they offer a very
different perspective on the regulation of natural resources. These three agreements were developed to prove an effective framework for international cooperation, policy development, and consultation among members concerning all ‘relevant aspects of the world timber economy.’54 In this way, the ITTAs can be seen as an international trade
agreement that focuses on the regulation of a natural resource primarily concentrated in developing countries.55 However, with the scientific and political concern over deforestation
and environmental degradation, some NSAs sought to include more environmentally- minded principles into the renegotiated agreement.56 Therefore, the agreements offer an
opportunity to analyse the way in which trade, environment, and development are balanced, particularly in light of mounting evidence of the link between climate change and deforestation. As the agreements were developed over the time-period under analysis, it is possible to examine the way in which these interests were balanced at different points in time over the period analysed in this research.
The 1997 UN Watercourses Convention has been included in this research because it developed through a very different style of law-making. As noted in the introduction, the UNGA requested the International Law Commission to examine the issue of non- navigational watercourses with a view to its codification.57 The ILC adopted a set of draft
articles on the law of non-navigational uses of international watercourses in 1994 which were then submitted to the UNGA who adopted the framework convention in 1997.
This convention is relevant to this research as it emerges through the work of the International Law Commission and is an example of a legally binding outcome text developed through the evolution of customary international law. This is because very few states have the patience to wait for custom to develop. Therefore, this convention may the only one to occur, and as such is an interesting and potentially unique example of IEL. In addition, it is the only treaty governing freshwater resources shared between states, 58 and is
53 Tropical Timber Agreement 1983; Tropical Timber Agreement 1994; Tropical Timber Agreement 2006. 54 Tropical Timber Agreement 2006, art 1(a).
55 Pamela S. Chasek, Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy (United Nations
University Press 2001), 95-96; Duncan Poore, Changing Landscapes: The Development of the International
Tropical Timber Organization and its Influence on Tropical Forest Management (Earthscan Publications 2003),
27; Gerry J Nagtzaam, 'The International Tropical Timber Organization and Conservationist Forestry Norms: A Bridge too Far' (ExpressO, Monash University) <https://works.bepress.com/gerry_nagtzaam/1/> accessed 6 May 2016, 23; Anja Eikermann, Forests in International Law: Is There Really a Need for an International Forest
Convention? (Springer 2015), 72.
56 Eikermann, Forests in International Law, 74. 57 UNGA Res 2669 (XXV) (1970).
58 Stephen C McCaffrey, ‘Convention on the Law of the Non-Navigational Uses of International Watercourses’
(United Nations Audiovisual Library of International Law, 2008)
118
a framework convention that provides states with a framework of rules and principles that may be adjusted to suit particular watercourses.59
The ozone layer regime has been included in this project because its negotiations commenced at the start of the time-period and continued during the final stages of the Cold War. Therefore, it offers an opportunity to compare the way in which different interests such as trade, development, economy, and security were addressed within the negotiations and adopted outcome text. Furthermore, the 1985 Ozone Layer Convention and the later 1987 Montreal Protocol has been labelled as one of the most effective and sophisticated models of international regulation and supervision of an environmental concern.60
Finally, the law relating to sustainable development has been included as it has shaped the international response to environmental problems since the mid-20th century. As noted
in Chapter 2, sustainable development can be seen as a ‘bridging’ concept that brings together the promise of community development and people-centred development.61
Therefore, it has influenced and informed the development of IEL, particularly in the post- Cold War era.
Sustainable development has given states and NSAs a means to respond to the interrelated concerns of development, environmental degradation, peace and security, as well as a solution for a collective response to the destruction of the global commons that recognises the legitimate needs of developing countries to develop.62 Such is the strength of
this concept that it has been considered a ‘principle with normative value’63 and is an
integral element in state and NSAs’ responses to environmental concerns while also helping to shape the foreign and security policy of many countries.64
The principles that inform the concept of sustainable development have helped shape recent international responses to environmental degradation, involve local communities, and support the participation by NSAs in the creation and development of environmental law. Therefore, to exclude sustainable development would limit the ability of this research to understand the context in which states create IEL. This is because sustainable development is intractably linked with IEL, development, and more recently, security, and thus offers the opportunity to examine the tensions concerning securitisation of the environment on the evolution of IEL, and the perception of the environment itself.
59 Ibid, 1.
60 Birnie and Boyle, International law and the environment, 523.
61 Above, Chapter 2, 47- 48; and Duffield, Global Governance and the New Wars, 114-115.
62 Rio Declaration 1992, Principle 3; see also International Law Association, International Law on Sustainable
Development (2012), 14 and 16.
63 Gabčikovo-Nagymaros Project, (Separate Opinion of Vice President Judge Weeramantry), 90.
64 Gotev, ‘Mimica: 'There cannot be a sustainable foreign and security policy without a clear development
119
Overall, each of these environmental regimes has some connection to the different themes that I examine in this thesis. The breadth of these regimes means that they encompass a broad range of participatory practices in the creation and subsequent content of the adopted outcome texts. Each of the regimes seeks to balance the different interests and needs of states in relation to a global environmental problem. Some of these regimes seek to regulate elements of the environment which have been increasingly securitised in international discourse, such as the climate, biodiversity, and water. Other regimes inform the development of international responses to security, environmental degradation, or development. Finally, the breadth of these regimes across the time-period in question means that it should be possible to examine the evolution of the international community’s perception of the environment, in light of the growing securitisation of the environment, and different interests that are balanced in relation to the environment.