International Environmental Law and Policy

Transcription

1 International Environmental Law and Policy

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3 International Environmental Law and Policy Cases, Materials, and Prob lems Document Supplement third edition Thomas J. Schoenbaum Harold S. Shefelman Distinguished Professor of Law University of Washington Michael K. Young President Texas A&M University Carolina Academic Press Durham, North Carolina

4 Copyright 2018 Carolina Academic Press All Rights Reserved ISBN eisbn Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) Printed in the United States of America

5 Contents Chapter 1 Foundation Documents 3 General Assembly Resolution on Permanent Sovereignty Over Natu ral Resources 3 United Nations Environment Programme, Draft Princi ples of Conduct in the Field of the Environment for Guidance of States in the Conservation and Harmonious Utilization of Natu ral Resources Shared by Two or More States 5 General Assembly Resolution on Historical Responsibility of States for the Preservation of Nature for Pres ent and Future Generations 9 General Assembly Resolution on World Charter for Nature 10 World Commission on Environment and Development Experts Group, Legal Princi ples for Environmental Protection and Sustainable Development 14 Princi ples Specifically Concerning Transboundary Natu ral Resources and Environmental Interferences 16 State Responsibility 19 Peaceful Settlement of Disputes 19 World Commission on Environment and Development, Our Common Future 20 Report of the United Nations Conference on Environment and Development, Agenda Preamble 33 Chapter 2 International Cooperation to Accelerate Sustainable Development in Developing Countries and Related Domestic Policies 34 Programme Areas 35 Chapter 8 Integrating Environment and Development in Decision-making 46 Programme Areas 46 Chapter 23 Strengthening the Role of Major Groups 61 Preamble 61 Chapter 38 International Institutional Arrangements 61 Objectives 62 Institutional Structure 63 Chapter 39 International Legal Instruments and Mechanisms 72 v

6 vi TABLE OF CONTENTS General Assembly Resolution on Institutional Arrangements to Follow up the United Nations Conference on Environment and Development 76 The Nairobi Declaration (1997) 85 The Earth Charter 86 Preamble 86 Principles 87 The Way Forward 92 United Nations Environment Programme, Background Study on Possi ble Components of the Programme for the Development and Periodic Review of Environmental Law for the First Decade of the Twenty- First Century 93 Chapter 2 General International Environmental Law 109 Vienna Convention on the law of Treaties (1969) 109 Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters 114 Chapter 3 State Responsibility and Liability for Transboundary Harm 135 International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001) 135 Part One The Internationally Wrongful Act of a State 135 Chapter I General Princi ples 135 Chapter II Attribution of Conduct to a State 136 Chapter III Breach of an International Obligation 137 Chapter IV Responsibility of a State in Connection with the Act of another State 138 Chapter V Circumstances Precluding Wrongfulness 138 Part Two Content of the International Responsibility of a State 140 Chapter I General Princi ples 140 Chapter II Reparation for Injury 141 Chapter III Serious Breaches of Obligations under Peremptory Norms of General International Law 142 Part Three The Implementation of the International Responsibility of a State 142 Chapter I Invocation of the Responsibility of a State 142 Chapter II Countermeasures 144 International Law Commission, Draft Articles on International Liability for the Injurious Consequences Arising out of Acts not Prohibited by International Law (1996) 145 Chapter I. General Provisions 145 Chapter III. Compensation or Other Relief 146 International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (2001) 148

7 TABLE OF CONTENTS vii International Law Commission, Draft Princi ples on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities (2006) 152 Convention on Civil Liability for Damage Caused by Space Objects (1972) Vienna Convention on Civil Liability for Nuclear Damage 156 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention, 1991) 171 Chapter 4 Atmosphere and Climate 189 Convention on Long- Range Transboundary Air Pollution (1979) 189 Definitions 190 Fundamental Principles 190 Air Quality Management 191 Research and Development 191 Exchange of Information 192 Implementation and Further Development of the Cooperative Programme for the Monitoring and Evaluation of the Long- Range Transmission of Air Pollutants in Europe 192 Executive Body 193 Secretariat 194 Amendments to the Convention 194 Settlement of Disputes 195 Protocols to the Convention on Long- Range Transboundary Air Pollution ( ) 195 Montreal Protocol on Substances that Deplete the Ozone Layer 195 United Nations Framework Convention on Climate Change (1992) 226 Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997) 248 Paris Decision and Agreement on Climate Change (2015) 270 Chapter 5 Trade and Environment 301 General Agreement on Tariffs and Trade (GATT) 1947 (revised to 1994) 301 Agreement Establishing the World Trade Organ ization (1994) 309 Marrakesh Decision on Trade and Environment (1994) 314 Agreement on The Application of Sanitary and Phytosanitary Measures (1994) 316 Agreement on Technical Barriers to Trade (1994) 329 Technical Regulations and Standards 330 Conformity with Technical Regulations and Standards 334 Information and Assistance 339 Institutions, Consultation and Dispute Settlement 343 Final Provisions 344 Rotterdam Convention on the Prior Informed Consent Procedures for certain Hazardous Chemicals in International Trade (1998, revised 2011) 350

8 viii TABLE OF CONTENTS Stockholm Convention on Persistent Organic Pollutants (2001, in force 2004) 350 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989) 350 North Amer i ca Free Trade Agreement, Investment, Services and Related matters, Chapter Eleven 350 Section B Settlement of Disputes between a Party and an Investor of Another Party 358 Section C Definitions 367 Chapter 6 Fresh Water Resources 371 Helsinki Rules on the Uses of the Waters of International Rivers 371 Treaty between the United States of Amer i ca and Mexico, the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande 376 Bellagio Draft Treaty Concerning the use of Transboundary Groundwaters (1989) 376 Convention on the Protection and use of Transboundary Watercourses and International Lakes (1992) 385 Part I Provisions Relating to All Parties 385 Part II Provisions Relating to Riparian Parties 388 Convention on the Law of the Non- Navigational Uses of International Watercourses (1997) 394 Part I Introduction 394 Part II General Princi ples 395 Part III Planned Measures 397 Part IV Protection, Preservation and Management 399 Part V Harmful Conditions and Emergency Situations 401 Part VI Miscellaneous Provisions 401 The Berlin Rules on Water Resources (2004) 403 Chapter II Princi ples of International Law Governing the Management of All Waters 405 Chapter III Internationally Shared Waters 406 Chapter IV Rights of Persons 408 Chapter V Protection of the Aquatic Environments 409 Chapter VI Impact Assessments 410 Chapter VII Extreme Situations 411 Chapter VIII Groundwater 413 Chapter IX Navigation 415 Chapter X Protection of Waters and Water Installations during War or Armed Conflict 415 Chapter XI International Cooperation and Administration 415 Chapter XII State Responsibility 420 Chapter XIII Legal Remedies 420 International Law Commission, Draft Articles on the Law of Transboundary Aquifers (2008) 421

9 TABLE OF CONTENTS ix Chapter 7 The Marine Environment 423 United Nations Convention on the Law of the Sea (1982) 424 Part I Introduction 424 Part II Territorial Sea and Contiguous Zone 425 Section 2. Limits of the Territorial Sea 425 Part V Territorial Sea and Contiguous Zone 425 Part VII High Seas 434 Section 2. Conservation and Management of the Living Resources of the High Seas 438 Part IX Enclosed or Semi- enclosed Seas 440 Part XII Protection and Preservation of the Marine Environment 440 Section 2. Global and Regional Cooperation 442 Section 3. Technical Assistance 442 Section 4. Monitoring and Environmental Assessment 443 Section 5. International Rules and National Legislation to Prevent, Reduce and Control Pollution of the Marine Environment 444 Section 6. Enforcement 448 Section 7. Safeguards 452 Section 8. ICE- Covered Areas 455 Section 9. Responsibility and Liability 455 Section 10. Sovereign Immunity 456 Section 11. Obligations under other Conventions on the Protection and Preservation of the Marine Environment 456 Part XV Settlement of Disputes 456 Section 2. Compulsory Procedures Entailing Binding Decisions 458 Section 3. Limitations and Exceptions to Applicability of Section The 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea 464 Agenda 21, Chapter 17, the 1992 Report of the United Nations Conference on Environment and Development 464 Chapter 17 Protection of the Oceans, all Kinds of Seas, Including Enclosed and Semi- enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of their Living Resources 464 The 1946 International Convention for the Regulation of Whaling (and 1956 Protocol) 474 The Protocol 479 The 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 480 The 1969 International Convention On Civil Liability for Oil Pollution Damage 482

10 x TABLE OF CONTENTS IMO Historical Description of Protocols/Amendments 491 The 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 493 IMO Historical Description of Protocols/Amendments 506 The 1971 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material 511 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (1995) (Barcelona Convention) Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other matter (1972) 512 The International Convention for the Prevention of Pollution from Ships 527 IMO Historical Description of Protocols/Amendments 533 The 1974 Convention for the Prevention of Marine Pollution from Land Based Sources 550 Washington Declaration on the Protection of the Marine Environment from Land- Based Activities (1995) 557 The 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas 557 The 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea 565 The 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 573 Part I General Provisions 573 Part II Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 574 Part III Mechanisms for International Cooperation Concerning Straddling Fish Stocks and Highly Migratory Fish Stocks 578 Part IV Non- Members and Non- Participants 583 Part V Duties of the Flag State 584 Part VI Compliance and Enforcement 586 Part VII Requirements of Developing States 592 Part VIII Peaceful Settlement of Disputes 594 Part IX Non- Parties to this Agreement 595 Part X Good Faith and Abuse of Rights 596 Part XI Responsibility and Liability 596 Part XII Review Conference 596 The 1989 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (And Protocols) 596

11 TABLE OF CONTENTS xi Resolution on Large- Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World s Oceans and Seas 603 Resolution on Large- Scale Pelagic Driftnet Fishing and Its Impact on the Living Marine Resources of the World s Oceans and Seas 606 Chapter 8 Biological Diversity 609 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (1971) 609 Convention for the Protection of the World Cultural and Natu ral Heritage (1972) 614 World Heritage Committee, Rules of Procedure 625 Convention on International trade in Endangered Species and Wild Fauna and Flora (1973) 635 Convention for the Protection of the Natu ral Resources and Environment of the South Pacific Region (1986) 649 Convention on Biological Diversity (1992) 657 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (2000) 673 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (2010) 694 Nonlegally Binding Authoritative Statement of Princi ples for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (1992) 694 United Nations Convention to Combat Desertification (1994) 700 Chapter 9 The Polar Regions 701 Antarctica 701 Antarctic Treaty 701 Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964) 707 Convention for the Conservation of Antarctic Seals (1972) 707 Convention for the Conservation of Antarctic Marine Living Resources 707 Protocol on Environmental Protection to the Antarctic Treaty 719 Schedule to the Protocol 730 Arbitration 730 Annex I to the Protocol on Environmental Protection to the Antarctic Treaty Environmental Impact Assessment 734 Annex II to the Protocol on Environmental Protection to the Antarctic Treaty Conservation of Antarctic Fauna and Flora 737 Appendices to the Annex 741 Annex III to the Protocol on Environmental Protection to the Antarctic Treaty Waste Disposal and Waste Management 741 Annex IV to the Protocol on Environmental Protection to the Antarctic Treaty Prevention of Marine Pollution 746

12 xii TABLE OF CONTENTS Annex V to the Protocol on Environmental Protection to the Antarctic Treaty Area Protection and Management 750 The Arctic 757 Declaration on the Establishment of the Arctic Council 757 Arctic Council, Terms of Reference of the Sustainable Development Program 759 Arctic Council, Sustainable Development Framework Document 760 Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic (2013) 762 Chapter 10 Non- State Actors and Environmental Responsibility 763 Organ ization of Economic Cooperation and Development Guidelines for Multinational Enterprises (2011) 763 International Law Commission, Draft Articles on the Responsibility of International Organ izations (2001) 763 United Nations Human Rights Council, Human Rights and Transnational Corporations and Other Business Enterprises (2011) 766 Convention on the Transboundary Effects of Industrial Accidents 766 Convention on Civil Liability for Damages Resulting from Activities Dangerous to the Environment (1993) 768 Protocol On Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents 774