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International Environmental Law

  1. Introduction

Human existence is very dependent on the existence of its surroundings, in this context, the environment. Over decades, human continuously exploited the earth however this exploitation is not balanced with the preservation and the protection to the environment itself. In early 1970's, the first modern environmental movement was established. It started when people started to realize the impact of neglecting the environment. One of the starting points is the Minamata Case in Japan.  It started in 1970’s where several people were contaminated with mercury, one of the most dangerous carcinogenic substances. The most tragic result is that this contamination is descendible.

Many countries have tried to enact their own law to overcome this issue. But environmental issue is unpredictable one. The environmental issue is not a certain nation problem, since it may create a domino effect and may go beyond the national boundaries.  Thus, one country’s action is insufficient. International cooperation is required, having in mind the scale of the environmental issue. This is when the International Environmental Law takes the role to conform this issue, since the environmental issue has become the global concern.

  1. Sources of International Environmental Law.

Every principles of international law developed from necessity or problems. These principles were codified into a well established law in such form to make the law itself binding and enforceable. The international environmental law was first established based on environmental problems that crossed the borders among nations.

The very first environmental problems that established a principle of international environmental law were the utilization of water between neighboring countries. The existence of absolute territorial sovereignty[1] which exemplified by the Harmon Doctrine in 1895 which granted unrestricted sovereignty concerning its territorial waters, without consideration of downstream States or possible interests of other neighboring states. This of course created a rejection mostly by downstream States that converting the absolute territorial sovereignty theory to restricted territorial sovereignty theory. This controversy between the upstream and downstream States was settled agreements leading to a principle of reasonable utilization of waters.

The disappearance of absolute territorial doctrine was brought by arbitration court decisions in 1941 and 1957 and ICJ decision in 1949. According to the Trail Smelter Case arbitral award of 1941, no State has the right to make use of its own territory in any manner that might lead to emissions causing serious and clearly provable damage to the territory of another States or the property of its residents.[2] The 1957 Lac Lanoux Case arbitral award held that, if changes to a section of a river would severely impair water interests of another State (or States), such changes would not be legally permissible. Furthermore, the Corfu Channel Case in 1949 emphasize that a State is legally bound not to permit the use of its territory for the purpose of committing acts contrary to international law or causing serious and clearly provable damage to a neighboring State.[3] These cases lead to restricted territorial sovereignty principle which granted the restricted sovereignty of the utilization of its territory but not to cause environmental damage beyond its national territory.

  1. Traditional Sources
  1. Treaties

The definition of a treaty itself can be found in the Article 2.1(a) of the Vienna Convention on the Law of Treaties “as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. Various alternative terminologies include convention, protocol, covenant, pact, act, etc.

The treaties were made to create an enforceable obligation that can be imposed to its parties. In its development, the treaties do not only become the codification of international principles. But further, the treaties become the starting point of new international principles to be accepted internationally. One of the examples is the UNCLOS 1982, where there are new international principles such as Exclusive Economic Zone, International Seabed Area that later become acknowledged and accepted internationally by virtue of customary international law.

There are three basic steps required before the conclusion of any international agreements: 1) negotiation; 2) signature; and 3) ratification.[4]

The first step of treaty-making is the negotiation. A State discusses certain issues with other States to achieve the desired goal that favors all parties. Nowadays, negotiations are initiated by a State to recommend an international organization to establish a committee or convene an international conference to consider a particular issue. The host organization will then organize preparatory committees, working groups of technical and legal experts, scientific symposia and preliminary conferences. During these informal discussions, information is spread, the preliminary positions of interested States are established, the parameters of a possible agreement are narrowed, and the slow process of building international consensus begins. Generally draft conventions are prepared with significant participation by the interested parties, and many disagreements among States are likely to be ironed out before the final conference concludes[5].

Before the negotiation phase of the treaty-making process can be concluded, and the treaty “opened’ for signature and ratification, the text must be adopted. Unless a State has specified otherwise, adoption of a treaty text does not make the treaty binding on that State. Adoption only indicates the agreement that the text of the treaty is acceptable. When the final draft of the treaty has been adopted, it must be authenticated by a representative of each State, generally by signing the treaty. A State’s signature on a treaty generally does not construe its consent to be bound by the treaty, however, a State does agree to refrain from acts “which would defeat the object and purpose of the treaty[6], until it has made clear its intention not to become a treaty party.[7]

The last step is ratification, where a State declares its consent to be bound by the concluded treaty. No treaty enters into force for a specific State until that State has ratified the treaty and deposited and instrument of ratification with the appropriate depositary, and any pre-conditions of the treaty’s entry into force have been satisfied. If the treaty makes no special provision for entry into force, it enters into force as soon as all the negotiating States have ratified. More often, however, the treaty will provide for its entry into force after a certain minimum member of States have ratified, even if other States have not[8].

The typical international law treaty is interpreted according to the rules of the customary law codified in the Vienna Convention on the Law of Treaties. However, there are additional considerations affecting the interpretation of treaties on the environment. Interpretation of these treaties often differs from standard interpretive principles because the treaties themselves often lay out different standards for developing as opposed to developed countries and for regional aggregations. Moreover, treaties in the international environment area often contain incentives for different groups of countries to ratify the treaty and/or to enter into separate protocols.[9]

  1. Customary international law

A customary international law is binding on all nations with all of their requirements, as it has been generally accepted as a rule of conduct. To prove that such customary law exists, we need to identify State practice and opinio juris.[10] State practice is similar policies that have been conducted by many States in a widespread and consistent manner. Whether State practice has been sufficiently consistent to establish a customary practice will generally depend on the facts of the case. Acts must also occur out of sense of legal obligation (opinio juris), rather than from a sense of moral obligation or political expediency. Such existence of opinio juris is a factual matter that can be seen from, among other things, government policy statements and press releases, opinions of legal advisors, official manuals on legal questions, and other evidences.

An example of customary international law relevant to the international environmental law is the Principle 21 of Stockholm Declaration:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

 

The principle above explains that a State should not use its territory in a way that causes harm outside that territory, or in other terms, ‘Good Neighborliness’. Many States practice this principle and have legally obliged to do so.[11]

An example of international environmental law custom would not be complete without the mention of the Trail Smelter Arbitration case. This becomes the cause celebre dealing with air pollution. The facts suggest an unusual transboundary air pollution scenario, without the usual causation problems due to multiple polluters and multiple delivery streams. In this situation a single identifiable polluter – a smelter plant owned by a Canadian corporation and located in Canada – was found by an arbitral tribunal to have caused air pollution damage to a region of the State of Washington (United States). In the next stage of the bifurcated proceedings the tribunal held Canada itself responsible for the pollution damage, providing injunctive relief and a monetary award. In dealing with the doctrine of state responsibility, the tribunal made the following decision[12]:

The Tribunal, therefore, finds that the above [U.S. domestic] decisions, taken as a whole, constitute an adequate basis for its conclusions. Namely, that, under the principles of international law, as well as of the law of the United States, 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 properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence[13].

 

This decision has crystallized into the international environmental law principle against transboundary environmental harm that was restated in the Principle 2 of the 1992 Rio Declaration and the Principle 21 of the Stockholm Declaration. The basic premise of Trail Smelter has evolved into a well-accepted rule of customary international law – restated in a myriad of international, regional and bilateral agreements. Taking into account the sovereign right to development, one country may not cause significant transboundary environmental harm to another.

The judgment of the ICJ in the Corfu Channel Case supports a similar conclusion, although the context is rather different and its application to the environment more doubtful. Here the Court held Albania responsible for damage to British warships caused by a failure to warn them of the mines in territorial waters, and it indicated that it was ‘every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states. This judgment does not suggest what the environmental rights of other states might be, and its true significance may be confined to a narrower point about warning other states of known dangers[14]. States have the right to protection from environmental harm, and for this reason, it is legitimate to view the Corfu Channel case as authority for a customary obligation to give warning of known environmental hazards.

 

  1. General Principles of International Law

General principles of international law recognized by civilized nations is based on the concept of the certain principles existed in so-called ‘natural law’, principles of ‘objective justice’ that could be identified by all rational human beings. In practice, there is no such codification on the principles of the general principles itself. However, the International Courts, namely PCIJ and ICJ have relied in these principles in certain cases. This gives the legitimate reason that the International Courts are the legitimate body to give decision whether or not certain principles that widely known and practiced can be regarded as general principles of international law.

In international environmental law, International Courts have relied on several principles that were considered by the Courts the general principles of international law. In Diversion of Water from the Meuse Case[15] in 1937, PCIJ considered the ‘equitable principles’ might be derived from ‘general principles of law recognized by civilized nations’.[16] In the Chorzow Factory Case, the Court enunciated the general principles of state responsibility and reparation, including the principle of restutio in integrum.[17] These principles are the fundamental principles of international environmental law that later codified into the Declarations, such as Stockholm and Rio Declaration.

 

  1. Judicial Decisions and the Writings of Eminent Publicists

In addition to treaties, customary norms, and general principles, article 38 of the ICJ Statute lists judicial decisions and the writings of highly qualified publicists as subsidiary means for determining international law.

International jurists may take guidance from the principles and reasoning employed by the judges in national courts, even though those decisions are not, themselves, international law. Likewise, the writings of publicists may help States and courts determine what the law is, and may help decision-makers decide what the law should be, but they have no independent force[18].

  1. Non-Traditional Sources: ‘Soft Law’

‘Soft law’ is a non legally-binding international agreement, but it became the ‘written norm’ that includes several obligations that have to be complied by the parties.  This ‘soft law’ has a considerable degree of discretion in interpretation and on how and when to conform the requirements is left to the participants. Other scholars called this ‘soft law’ as a ‘pledge’.[19] Soft law are often within the context of so-called ‘framework’ or ‘umbrella’ treaties, in a way that does not fit neatly into the categories of legal sources referred in Article 38 (1) of the ICJ Statute. These instruments are clearly not law in the sense used by that article but nonetheless they do not lack all authority, they are carefully negotiated and carefully drafted statements which have some normative significance despite their non-binding, non-treaty form[20].

The soft law norms were recognized first in the protection of the human environment after the Stockholm Conference, one of the consequences of which was the creation of a special subsidiary organ of the UN General Assembly devoted to the promotion of both universal and regional environmental law, the United Nations Environment Program (UNEP). This soft law is preferred by the countries than the ‘hard law’ since it is not legally binding to its members and also it is open for their own. However the soft law provides the guidelines that must be complied by its members even with their own interpretation. Thus the purpose of the agreements will be nonetheless achieved.

 The action of non-governmental organizations (NGOs) has also contributed to the enunciation of ‘soft law’ principles regarding the environment. The International Law Association (ILA), for example, adopted an influential resolution in 1966 known as the Helsinki Rules on the Use of Waters of International Rivers which was expanded and enlarged by the same institution in 1982 with the adoption of the Montreal Rules of International Law Applicable to Transfrontier Pollution. The Institute of International Law (IIL) has played an equally important role by promulgating resolutions on the Utilization of Non-Maritime International Waters; on the Pollution of Rivers and Lakes and International Law; and on Transboundary Air Pollution.

The soft law plays a significant role in the development of the international environmental law, since can set standards of best practice or due diligence to be achieved by the parties in implementing their obligations.

  1. Subjects of International Environmental Law

A.    Traditional Subject

  1. States

State is the main subject for international environmental law. State has become a classic subject of international law since the birth of international law.

State sovereignty is the primary subject of International Environmental Law-indeed all international law- because it’s the fundamental base between the state’s interests to protect its independence towards international involvement. Sovereignty in the legal sense signifies the right to exercise, within portion of the globe and among other states, the function of the states to exercise a jurisdiction and enforcement of laws over person therein[21]. The sovereignty that a state possesses can ensure the enforcement of the international law to its nationals.

In a federal country, the bearer of right and duty is the federal government, but sometimes the federal constitution allows its states to have a limited federal right and duty. For example, in the USSR constitution allows states Byelorussia and Ukrainian SSR to have their own international relation[22].

In the conclusion of the international law, the consequence of entering and ratification of the treaty is obligatory. Once a state participated, it obtain a moral and legal right and obligations of the international law.

2.      International Organizations (United Nations)

International organizations also play a significant role in the international environmental law. International organizations such as United Nations have rights and obligations to become the regulators of its members to cope with the conventions related to the international environmental law. Another role that can be done is to be the drafter of the international agreements related to the international environmental law. Furthermore, the International Court of Justice gave an important Advisory Opinion in the Reparation for Injuries Case[23] in 1958. ICJ held that the United Nations is an international person. That is not the same thing as state or legal personality; nevertheless it is the same thing as saying it is a “super state”, what ever the expression means[24].

A number of international organizations created by treaty or agreement are known as Specialized Agencies on UN. The Specialized Agencies are the Food and Agricultural Organization (FAO), the International Labor Organization (ILO), the World Health Organization (WHO), the World Meteorological Organization (WMO), the International Maritime Organization (IMO), the UN Educational, Scientific, and Cultural Organization (UNESCO). They also enjoy juridical personality and may exercise rights and duties as subjects of international law based on the international treaty.

 

  1. Non-Traditional Subjects

In its development, the object of International Environmental Law has focused to the study of conservation and sustainable use of natural resources and biodiversity, conservation of endangered and migratory species, prevention of deforestation and desertification, preservation of Antarctica and areas of outstanding natural heritage, global warming, climate change, ozone destruction, wild life extinction, loss of biological diversity, the contamination of air, land, water throughout the world. Eventually, the focus of the international environmental law becomes the study of what we can do and how to use the law to address the environmental challenges[25]. These activities involve environmental lawyers, business man, independent observers, non government organizations, students, scientists, activists, technicians, engineers, doctors etc. In short, international environmental law deals with global society in general.

This is evidenced by the many state practices. For example, in United States, more than 100 NGOs and environmental groups have the capacity to be involved in international affairs[26]. In the other hand, environmentalists as an individual have forced their way to gain attention in international diplomacy. Although most of their policy have not yet adopted, but their contribution to promote environment protection by actively campaign, educate and criticize international policy, soon or later will have impact on international environment governance.

Individuals      

Individuals have gained significant role in the international law. International law has grown into a state where the subject of the international law is no longer state and international organizations only, but also individuals. For example in the view of humanitarian law, an individual that conduct a serious violation of international law is able to appear in the front of international tribunal to be prosecuted, such as Nuremberg Tribunal, ICTY, and ICTR.

No matter how fast international law may grow, nevertheless individuals are not the same with states and international organizations. Individuals still do not possess the legal capacity the same with a state possesses. For example, Individuals cannot ratify a treaty, thus cannot be bind himself to comply with the regulations. Individuals only gain limited legal capacity in international law, depending on the stipulations on the certain regulations or conventions that might give the legal capacity to an individual. For example, in ICCPR preambles stated

The individual having duties to other individuals and the community to which he belongs, is under responsibility to strive for the promotion and observance of the rights recognized in the present covenant.

This gives the individuals certain rights under ICCPR. Another example can be seen from the ICSID rules. ICSID provides that an individual have a legal capacity to file a suit against a state in front international arbitration concerning direct investment issues. In the international environmental law, individuals are recognized to have certain legal capacities. In the Stockholm Declaration 1972, it was stated in the preambule that:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”. In other words, every man also has a right and obligation to participate in preservation of the world and as a subject of International Environmental Law at the same time.”

San Salvador Protocol to the America Convention in Human Rights and the African Charter on Human and People’s Rights also recognizes:

1.      Everyone shall have the right to live in healthy environment and to have access in basic public services.

2.      The States Parties shall promote the protection, preservation and improvement of the environment.

Some states even put the participation in environmental concern as part of human rights in their constitution, for example: Spanish Constitution speaks of “the right to enjoy an environment suitable for the development of the person.” The 1979 Peruvian Constitution recognizes “the right to live in a healthy environment, ecologically balance and adequate for the development of life and the preservation of the countryside and nature[27].

 

Non-Government Organizations

Global NGOs are playing an increasing important role in international environmental law. There are several reasons that make NGOs have become an established actor in the implementation of international environmental law. First, they are closer to people that affected by environmental degradation, and have the ability to represent them more faithfully; second, NGOs have played invisible colleges of scientist for the purpose of studying the effect and impact for the various environmental problem and have participated, unofficially but visibly, in the making of treaties; third, the international character, their large and vocal membership is undeniably gives them international political standing.

Despite the critique that NGO have not yet attained their status of state as subject of international law, on a functional level there ought not to be objections to states or international organization or other civic for that matter, from performing the role of private attorneys general empowered to protect the international environment.

Several treaties point the way to this point, The convention on the Protection of the Environment Between Denmark, Finland, Norway and Sweden (Nordic Treaty), [art. 2, Feb.9, 1974, (entered to force Oct. 5, 1976)] and Treaty Establishing the European Community [Mar. 25, 1957, art 230] goes further and grants all legal persons, including individuals, and NGOs the right to protest and vindicate environmental rights and duties in the legal systems of the parties[28].

Multinational Corporations

Multinational Corporations are corporations which own or control its production facility and conduct a trans-boundary activity[29]. These days a Multi National Corporations (MNC) could grow into a very large entity and it is possible for one MNC to have a gross income that bigger than one of the developing country’s state general budget annually. MNC have a significant role in the policy making process in the developing country, having in mind that MNC has international network of corporations that operates in many countries .Sometimes the developing country is dependent of the existence of MNC, as the MNC gives a lot of direct investment to the country.

The status MNC as a subject of international law is still debatable, but MNC have a few characteristic to be recognized as a limited subject of international law such as there’s a cross border aspect in MNC, MNC could have an international rights and obligations. There are also some international laws that address the MNC as the subject of the regulations.

When business faces a stronger domestic and international regulations on activity with a global environmental division, business interest have been able to prevent or delay the formation of a global environmental damage. Certain business sectors have been able to use their asset and ability to put forward technical solutions toward pollution damage issue, hazardous and noxious substances[30].

In the environmental issues, international environmental law gives certain legal aspects to the MNC. Certain international laws provided guidelines, and principles that have to be complied by the MNCs.

The most popular principles are the precautionary principle, sustainable development principle, polluter pays principle and state responsibilities. The MNCs must comply with these principles, as the principles have become widely known in the international society. These principles were found in international conventions, such as: Declaration Rio 1992 and World Summit on Sustainable Development (WSSD) in Johannesburg 2002.  WSSD is the world declaration among the traditional actors and non-traditional actors that shows the sustainable development principle is not only state’s responsibilities but also all aspects of mankind. This declaration focused on the non-state actors, delegations who attended this conference are 10.000 states, 8000 NGOs, civil, and business sectors. These non-state actors created more than 300 partnerships committed to give their effort and financial support to implement the steps of the sustainable development.

Furthermore, UN Global Compact that held by Kofi Annan in 2000 tries to give the recommendations to the business sector to pay more attention to the environment in performing their activities. The principles that UN Global Compact adopt related to the business sector[31]:

  1. To support the precautionary approach in answering environmental challenge
  2. To perform initiative to promote bigger responsibilities to the environment
  3. To support the development of more environmental friendly technology

 

However, in several cases like Union Carbide Corporation Gas Plant Disaster at Bhopal India (1986), Beanal v. Freeport McMoran (1997), the dispute that arose with a claim against the MNC because of the violation of the right of suitable environmental and trans-boundary environmental harm, does not give satisfaction to the principles that must be complied by MNCs. The American Court held that the MNCs cannot be held liable because those principles had not been recognized as a general principle of law or customary international law and besides the principles only bind the member of international society not binds the non state actors.

The court argument is not strong enough because by looking at the number of country who ratified many conventions and implement the sustainable principle development as legal duties in their national law, it proves that this principle has been recognize as a custom.[32] On the other hand, the ratio of environmental protection as a part of human right also has the support of the article 1 of Stockholm Declaration and Rio Declaration. Although this instrument not legally binding but it’s been accepted without reservation by 179 states in the UN Conferences on Population and Development in 1994[33]. Other than that, there many conventions which demand MNC liability as a comprehensive subject of international law; embargo regulation and Nuclear Convention constitutes that every legal entity including person and MNC have to comply with the regulation. This shows that MNC could be a potential subject of international environmental law as in MNC as a subject in an investment dispute settlement in front of international arbitration forum.

 

  1. Conclusion

The environment issues have already become the international problems nowadays. This required an international cooperation to cope with these issues. The international environmental law already develops its form into a ‘soft law’ which gives freedom to countries to solve the environmental problems with their own way, without having to comply with such ‘hard law’. Also it is already recognized by many countries that the international environmental laws have been crystallized into customary international law or general principle of law.

The actors also have to comply with the laws complying with their own legal capacities. And of course, sacrifices to the economic development are needed, since economic development is contradicting ecological development.

There are many conventions that regards to environmental problems, both regional and multinational. However, how fast the process of recuperating the environment depends on each country. It depends on how willing they are to use the mechanisms provided by international laws, how willing they are to adopt further measures, to establish any institutions that may be required. Our future depends on how we act today. Without restoring the environment it is inevitable, that we do not have future.

 



[1] According to this principle, every State has the absolute right to freely utilize its territory and airspace for its purposes, even if this utilization causes environmental damage beyond its national boundaries (Harald Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law.  p. 14)

[2] United States v. Canada (Trail Smelter Arbitration), 3 R.I.A.A. 1938 (1941)

[3] ICJ, 1949.

[4] Mochtar Kusumaatmadja, Pengantar Hukum Internasional, (Bandung: PT Alumni, 2003), p. 125.

[5] Hunter, Salzman and Zaelke, op. cit., p. 210-211.

[6] Article 18 of the Vienna Convention on the Law of Treaties 1969

[7] Hunter, Salzman and Zaelke, op. cit., p. 216-217.

[8] Ibid, p. 218-219

[9] Anthony D’amato and Kirsten Engel, International Environmental Law Anthology (Ohio: Anderson Publishing Company, 1994), p. 39.

[10] Patricia Birnie and Alan Boyle, International Law & the Environment (United States: Oxford, 2002), p. 16.

[11] Harald Hohmann. op. cit., p. 15

[12] Lakshman Guruswamy, International Environmental Law in a Nutshell, (United States: West Publishing Co, 2003) p. 419-421.

[13] Op. cit., 2

[14] Birnie and Boyle, op. cit., p. 109.

[15] [1937], P.C.I.J. (Ser. A/B)

[16] Birnie and Boyle, op. cit., p. 20.

[17] Ibid.

[18] Hunter, Salzman and Zaelke, op. cit., p. 247

[19] Kal Raustiala. Form and Substance in International Agreements. 99. A.J.I.L 581. July 2005

[20] Birnie and Boyle, op. cit., p. 25-26.

[21] Hunter, Salzman and Zaelke, op. cit., p. 326.

[22] Op. Cit. 4. p. 98.

 

[23] ICJ, 1949

[24] Ibid, page 102.

 

[25] Hunter, Salzman and Zaelke, op. cit., p. v-vi

[26] Ibid, p. 422.

 

[27] D’Amato, op. cit., p. 62-63.

 

[28] Ibid, p. 58

[29] Huala Adolf, Hukum Perdagangan Internasional, (Jakarta: PT Rajagrafindo, 2005), p. 70

 

[30] Hunter, Salzman and Zaelke, op. cit., p. 434-435.

[31] Principles 7, 8, 9 of the UN Global Compact 2000

[32] Tiza Mafira, “Pengaturan Hukum Lingkungan Internasional Terhadap Perusahaan Multi Nasional”, (Graduate Paper, Faculty of Law University of Indonesia, Depok, 2006 p 106

[33] Ibid. p. 107.

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