Sources of international environmental law
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This article is submitted by Anshika Agarwal, pursuing B.A.LLB from VIPS, IP. The article aims to analyse all such policies and sources of laws undertaken by the world to combat the environmental crisis.

Introduction

As we progress into the twenty-first century, anyone who considers themselves a realist will have to make the environment a top priority.” -Leonardo DiCaprio

Climate changes, greenhouse emissions, global warming, upsurge in the levels of pollution, technological advancements, and anthropogenic activities have constantly played a collective role in blemishing the environment thereby causing disturbances in the ecological cycles.

The international data compiled as per the reports of the World Meteorological Organisation reveals 2019 to be the second hottest year on record after 2016. The years 2010 to 2019 have recorded the highest temperatures as per the WMO Statement on the State of the Global Climate in 2019. The Report on Global Climate Change 2018 by the Intergovernmental Panel on Climate Change warned the international market about the catastrophic consequences that the world would face if the global warming temperatures exceed 1.5 C above pre-industrial levels.

This diverts our concerns towards an immediate need of measures, methods, policies and a set of comprehensive laws to regulate international cooperation from the nations towards the achievement of sustainable development goals. 

International environmental law

International environment law is an international effort on the part of the nations to act within a framework of sustainable development to combat the issues casting a crisis on the environment. It is part of public international law monitoring the behaviour of States towards subjects like ozone layer depletion, conservation of natural resources, preservation of flora and fauna, maintaining the hydrological and ecological cycles.

These laws are soft laws that serve to influence and aspire member nations to comply with the standard norms and principles, without compelling their enforcement. This is an outcome of the sovereignty concerns of the nations that make them reluctant in submitting control over their people and their affairs to an external authority.

The disputes arising out of international environmental laws can be referred to the International Court of Justice and other arbitral institutions provided that the parties to the dispute have voluntarily submitted to their jurisdictions by such an agreement. The forums while adjudicating have to rely on the national laws to enforce their orders or awards.

Sources

There is no fixed international authority or organisation to create laws on the subject of the environment. These laws are a contribution of a variety of sources created by different international bodies from time to time.

Article 38(1) of the Statute of International Court of Justice provides with the list of sources to be referred by the Court while adjudicating. These include international conventions, customs, a set of general principles followed by the civilised nations, judicial opinions and precedents of experts and academicians for the ascertainment of laws. Apart from the said sources, newer law-making processes can also be considered to formulate an opinion of the law.

Treaties

Treaties, commonly known as conventions, agreements or protocols are the primary sources of international law. An agreement having a binding effect on its member nations or the international organisations is a treaty. 

The evolving environmental concerns have prioritised the use of treaty law amongst the nations. As a result, a plethora of multilateral and bilateral agreements have been entered into by the States. Some of the major treaties are:

Vienna Convention, 1985

The UNEP(United Nations Environment Programme), in 1981, started to draft a global framework on the protection of the ozone layer. The draft was concluded in 1985 and was called the Vienna Convention. It came into effect in 1988 with the ratification of Canada and is now reckoned as the most widely accepted treaty in UN history.

The Vienna Convention provides the global framework for managing and controlling anthropogenic activities leading to stratospheric ozone depletion with international cooperation in the scientific assessment and research activities. The Convention outlined the regulation of CFCs in the atmosphere by the process of exchange of information and research outcomes amongst the nations followed by their implementation.

Montreal Protocol, 1987

Under the aegis of the Vienna Convention, Montreal Protocol aiming at the monitoring and reducing of the limits of the toxic substances depleting the ozone layer was adopted. It came into effect on 16 September 1987, now celebrated as International day for Ozone Protection, marking the anniversary of the protocol. A country can only be a member of the Protocol if it has ratified the Vienna Convention.

The Protocol sets binding obligations on the countries to discontinue the use of hazardous ozone threatening substances namely chlorofluorocarbons (CFCs), hydrofluorocarbons (HFCs), carbon tetrachloride, bromochloromethane, methyl bromide and other halo compounds. Article 3 of the protocol estimates the levels of production, import and export, consumption and the emission of these substances by the developed and the developing countries. 

The Protocol inserts special provision with respect to the developing countries in the disguise of Article 5 by providing them with a delay period of ten years to comply with the set standards and deadlines, a consumption limit of 0.3 kg per capita and access to the assistance Fund. 

Amendments

The Protocol has been subjected to 5 amendments over time. 

  1. The 1990 London Amendment introduced the concept of the Interim Multilateral Fund to assist the developing countries and expanded the list of controlled substances. 
  2. The provision of the Interim Multilateral Fund was made permanent by the corresponding amendment of Copenhagen in 1992. It also confirmed the addition of the substances including methyl bromide, HFCs to the list of controlled substances. 
  3. The amendment of 1997 also called Montreal Amendment compelled the countries to exercise the use of licenses while exporting or importing the control substances and to mitigate trade of banned substances with countries not bound by the Protocol. 
  4. The defence of “basic domestic needs” was introduced for the export and import of the controlled substances along with the addition of bromochloromethane to the controlled substances by the subsequent amendment of Beijing in 1999.
  5. The 2016 Kigali Amendment suggested mitigating the use of HFCs which were used as a substitute to CFCs and HCFCs by using newer and innovative techniques. 

Basel Convention, 1989

The Conference of Plenipotentiaries further adopted eight resolutions associated with subsequent future developments in the Convention. The Convention aims at regulating the movement of hazardous waste from one jurisdiction to another. Its scope precludes waste that is radioactive in nature. 

Article 4 of the said Convention binds the parties with certain obligations in relation to export and import, generation, transboundary movement and disposal of hazardous waste. It makes the illegal traffic or transboundary movement of waste without complying with the standard norms provided under Article 9, an offence. The nations are promoted to employ techniques and methods that do not disturb the equilibrium of the environment while handling such waste. The Convention provides for the establishment of an interim fund to serve emergency purposes under Article 14.

Ban Amendment 

The amendment adopted in 1995, in the Conference of Parties meeting, imposed a ban on the transboundary movement of hazardous waste for the purpose of recycling, reuse or final disposal from the countries that were members of organisations like OECD (Organisation for Economic Cooperation and Development), EC and Liechtenstein.

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United Nations Framework Convention on Climate Change, 1992 (UNFCCC)

An international level Negotiating Committee was constituted under the UN General Assembly to provide an intergovernmental framework composed of legal instruments and commitments to prevent the negative effect of human-induced activities on the climate. The final draft, mandated by the Committee came into force in 1992. 

Article 1 of the Convention defines climate change as the disturbance in the composition of the atmosphere as a result of dangerous human activities. The objective of the framework and other associated legal instruments is to limit the emissions of greenhouse gases by the Parties within a time frame to ensure economic progress within a sustainable framework. This is envisaged under Article 2. The Convention, under Article 3, outlines the principles of international cooperation to adopt cost-efficient socio-economic measures and promote a stable economic system to realise the objective of sustainable development.

Institutions Responsible

The Conference of Parties acts as a prime authority governing the implementation of the Convention. Under Article 4 paragraph 2, the COP is authorised to approve and decide on the national policies used by the countries for the estimation and phasing out of greenhouse gases. The COP holds the authority to assess the scientific methods and review the technical, social, and economical information exchanged by the countries. 

The Convention further establishes additional authorities subordinate to COP. Article 8 establishes the authority of the Secretariat, majorly responsible for providing assistance in the smooth functioning of COP. Subsidiary institutions supervising the scientific aspects are envisaged under Article 9 and an additional authority ensuring effective implementation of the framework is incorporated under Article 10.

Kyoto Protocol, 1997

The nations eventually realised that the commitments set by the UNFCCC under Article 4 were not adequate enough. Hence, an Ad Hoc Committee was constituted to negotiate on the need to impose more adequate commitments on the nations to manage the greenhouse gas emissions. The final draft of the Protocol was adopted in 1997 in the city of Kyoto, Japan. The framework outlined innovative mechanisms for firm enforcement of the existing commitments of the UNFCCC.

The Protocol mandates the measures and policies to be adopted by the nations to achieve the minimum target of emission under Article 2 and 3. It majorly includes promoting the use of alternative forms of energy, phasing out of taxes and subsidies on emission centres and controlling emissions from the sources not falling under the aegis of Montreal Protocol like that from marine and aviation fuels. The nations are required to follow these set policies to combat the adverse effect of anthropogenic activities and quantify the emissions.

Article 4 of the Protocol sets out the procedure to be followed by the nations to meet the commitments. The parties are required to inform the Secretariat about the date of ratification, acceptance and approval of the agreement. There is an obligation on the nations to correspond to the levels of emissions set by the Protocol. 

Declarations

The statements of affirmation or the instruments declaring the aspirations of the parties and not imposing a binding obligation on them are called declarations. Such an instrument can become a treaty if the parties intend to be bound by it. When no binding obligation is imposed on the parties, the instrument holds a lesser effect. Two Declarations associated with environmental law are:

  • Stockholm Declaration, 1972

The United Nations Conference on Environment and Development in its first global conference in Stockholm in 1972 made a declaration (Declaration of the United Nations Conference on the Human Environment), addressing the environmental challenges. It attempted to promote economic growth along with sustainable development of the environment. It also addressed the challenges faced by the developing countries due to lack of food and shelter and the developed countries due to the process of rapid industrialisation.

  • Rio Declaration, 1992

The UNCED confirmed the Stockholm Declaration in a global conference by the 1992, Rio Declaration. It consolidated the previously laid principles. The Declaration is composed of a preamble and 27 human-oriented principles. It calls for international cooperation to combat poverty and climate change. Principle 2 focuses on the State’s responsibility to prevent the effect of its activities beyond the territories of the State. However, these principles only have persuasive value and  are not obligatory in nature.

Conclusion

The growing environmental concerns encountered by the developed and developing nations have resulted in the formulation of global instruments regulating international behaviour. The enforceability of these instruments depends upon the intention of the parties consenting to be bound. Several organisations have efforted over the time to strengthen the environmental principles in form of treaties, making it obligatory for the parties to meet the commitments outlined by the instrument so adopted. These efforts in the form of treaties, conventions and protocols attract a sense of legality making parties responsible for their actions. 

References

  • https://dontforgetyourboots.com/conservation/conservation-and-environment-quotes/
  • https://library.wmo.int/doc_num.php?explnum_id=10211
  • https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments/
  • https://www.icj-cij.org/en/statute
  • https://legal.un.org/avl/ha/vcpol/vcpol.html
  • https://ozone.unep.org/treaties/montreal-protocol/articles/article-3-calculation-control-levels
  • https://ozone.unep.org/treaties/montreal-protocol/articles/article-5-special-situation-developing-countries
  • http://www.basel.int/TheConvention/Overview/tabid/1271/Default.aspx
  • https://www.jus.uio.no/lm/hazardous.waste.transboundry.movement.control.and.disposal.basel.convention.1989/_4.html
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  • https://www.jus.uio.no/lm/hazardous.waste.transboundry.movement.control.and.disposal.basel.convention.1989/14.html
  • https://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf
  • http://kyotoprotocol.com/resource/kpeng.pdf
  • https://www.soas.ac.uk/cedep-demos/000_P514_IEL_K3736-Demo/treaties/media/1972%20Stockholm%201972%20-%20Declaration%20of%20the%20United%20Nations%20Conference%20on%20the%20Human%20Env
  • https://www.cbd.int/doc/ref/rio-declaration.shtml
  • https://www.ecacool.com/en/legislation/key_documents/amendment_montreal_protocol/london_amendment_1990/
  • https://www.informea.org/en/node/438805/print
  • https://www.informea.org/en/node/438816/print
  • https://www.informea.org/en/node/438816/print
  • https://www.informea.org/en/treaties/beijing-amendment-1999
  • https://www.unenvironment.org/news-and-stories/news/kigali-amendment-montreal-protocol-another-global-commitment-stop-climate

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