International Law. The History of International Environmental Law. Insects. Further Reading

Transcription

1 Insects (especially beetle) variety that scientists are still debating the complex issues. One of these issues the almost unimaginable diversity of the Earth is becoming increasingly important in humankind s relationship with the world, particularly in an age of Earth summits and biodiversity initiatives. At the end of the twentieth century the measure of insect diversity (the number of species in the world) was based on the number of known species housed in the world s museums and on the descriptions of those species that had been published in the scientific literature. By 1980 about 1.2 million animal species were known, 1 million of these being insects. But when entomologists (those who study insects) began to study tropical rain forest trees, this number had to be dramatically increased. The technique of counting was simple an insecticide fogging machine, hauled up into the rain forest canopy, knocked down huge numbers of insects (especially beetles) previously unknown to science. Extrapolating the data led to the suggestion that there are perhaps 30 million tropical arthropod species. Other researchers have followed this lead and have reinterpreted the data. But instead of consensus arising, further confusion rules. Current estimates of insect diversity lie somewhere between 3 and 85 million species. Whatever the number, fears are that most of them will become extinct from humanity s unsustainable use of the land before they are ever found or described. Richard Jones Further Reading Arnett, R. H., Jr. (1993). American insects: A handbook of the insects of America north of Mexico. Gainesville, FL: Sandhill Crane Press. Gullan, P. J., & Cranston, P. S. (1994). The insects: An outline of entomology. New York: Chapman & Hall. Hill, D. S. (1997). The economic importance of insects. New York: Chapman & Hall. Naumann, I. D. (Ed.). (1991). The insects of Australia (2nd ed.). Melbourne, Australia: Melbourne University Press. International Law International environmental law provides the rules and norms that countries must follow when they take actions that affect the human environment. Most of these rules are contained in treaties or other written international agreements that countries have explicitly agreed to. Some of the rules reflect customary international law, which means that they have arisen from a consistent practice among states, which felt obligated to follow that practice. (In international law, the term state is used to refer to countries, not subunits which are often called states within a country.) Binding international agreements can be referred to as treaties, conventions, international agreements, or sometimes protocols. There are also many other instruments, such as declarations, that countries are not obligated to follow, but often do. These are sometimes referred to as soft law or nonbinding legal instruments. The History of International Environmental Law International environmental law developed during the twentieth century. Most of it was negotiated after the June 1972 United Nations Stockholm Conference on the Human Environment. In 1972 there were only about three dozen multilateral environmental agreements; in 2002 there were more than 1100 important legal instruments concerned with the environment. There are agreements to control pollution in the oceans, air, and freshwater; to protect regional seas; to conserve biological diversity, wetlands, and world natural and cultural heritage sites; to control international trade in endangered species of fauna and flora, hazardous wastes, and toxic chemicals; and to protect global commons such as the high-level ozone layer, the climate, the high seas, and Antarctica. Many of these are binding agreements, although some are nonbinding legal instruments. In 1900 international law was based on the principle that countries could exercise almost unfettered national sovereignty over the natural resources within their territory or jurisdiction. International agreements addressed boundary waters, navigation, fishing rights in shared rivers, and the protection of commercially valuable species of birds, fur seals, and other specific species of fauna. The 1909 Boundary Waters Treaty between the United States and the United Kingdom (now Canada) is noteworthy as an early treaty that addressed water pollution. Article 4 of the Treaty provides that water shall not be polluted on either side to the injury or health or property on the other. 32

2 The most famous early adjudication of a pollution problem that crossed national borders is the Trail Smelter Arbitration between Canada and the United States. Settled in the late 1930s, it affirmed Canada s responsibility for the fumes from a copper smelter in British Columbia that harmed crops and acreage in the state of Washington. The arbitral tribunal established for this dispute awarded damages to the United States and set up a regime to monitor the pollution in the future. During the 1930s and 1940s countries negotiated international agreements that were intended to ensure sustainable harvesting of whales, to protect fisheries, and to conserve other fauna and flora. In the 1950s and 1960s international agreements were concluded that addressed oil pollution of the oceans and liability for nuclear-powered ships. The surge in bilateral and multilateral environmental agreements came after In 1972, countries established the United Nations Environment Programme (UNEP), the first international intergovernmental organization dedicated to protecting the environment. It is headquartered in Nairobi, Kenya. Under the UNEP, countries negotiated many regional agreements to protect regional seas, such as the Mediterranean and the Baltic. These were framework agreements that set forth general obligations and usually called for research, monitoring of the conditions of the seas, and exchange of information. The detailed obligations relating to emergencies, land-based sources of marine pollution, or other specific problems were contained in separate agreements (called protocols) attached to the main framework agreement. Countries must join a protocol at the same time that they join the framework agreement for a particular regional sea. During the 1980s and 1990s countries negotiated international agreements that addressed the problems of high-level ozone layer depletion (by human-made chemicals) and climate change (from human activities); loss of biodiversity; contamination by organic pollutants that persist in the environment, such as dioxin, polychlorinated biphenyls (PCBs), and DDT; and trade in pesticides and in chemicals that have been banned or severely restricted in the country of production. They concluded regional agreements on air pollution and water quality. In 1982, after almost a decade of negotiations, countries concluded the Law of the Sea Convention, which deals with the multiple uses of the oceans and also sets forth the basic framework for managing marine pollution. Characteristics of International Environmental Law Since 1990 The international agreements negotiated since 1990 generally contain more detailed obligations than earlier ones (with the notable exception of the Law of the Sea Convention), often recognize the importance of conserving ecosystems in protecting the environment (rather than addressing only the dangers of specific pollutants), frequently assign countries different levels of responsibility based on their level of economic development (as in ozone and climate agreements), and establish a special implementation committee to focus on promoting national implementation and compliance with the obligations in the agreement, or to enforce the obligations if violations occur. Some provide for a special fund to assist developing countries in complying with the agreement or limit trade in designated products with countries that have not joined the agreement, or both. Most international agreements have secretariats that carry out the administrative work associated with the agreements. The countries party to the agreements usually meet annually or biennially, with special committees meeting more frequently. They often take decisions, issue guidelines, or initiate programs to keep up with changes in the scientific, economic, or political aspects of the environmental problem addressed by the agreement. Sometimes the parties formally amend the agreement (for example, they may add new chemicals to those already covered by an agreement). Each country must consent to the amendment in order to be bound by it. Some of the agreements set up formal procedures for settling disputes, such as by fact-finding, mediation, arbitration, or judicial settlement, although these have been used infrequently. Nongovernmental organizations (NGOs) have been important in the negotiation and implementation of environmental agreements and in securing compliance with them. Many NGOs are focused on environmental protections; a few represent the interests of indigenous peoples. Other organizations are associated with business, insurance, and other aspects of the private sector. In 1992, countries met in Rio de Janeiro to celebrate the twentieth anniversary of the 1972 United Nations Stockholm Conference on the Human Environment and to confirm formally the concept of sustainable development. At this Conference, countries adopted the Rio Declaration on Environment and Development, 33

3 framework agreements on climate and on biodiversity, nonbinding principles on forests, and Agenda 21, a nonbinding document that sets out a comprehensive program of action to promote sustainable development. In September 2002, they met in Johannesburg, South Africa, to review progress since the Rio conference. International environmental law has become increasingly linked with other areas of international law, particularly human-rights law and trade law. National constitutions in some countries provide for a right to environment, and some jurists and others have argued that a right to environment also exists in international human-rights law. There is no consensus yet on whether there is a separate right to environment in international law, nor is there consensus on what the right covers. Some argue that the right is included within other human rights. The World Trade Organization (WTO) has established the Committee on Trade and Environment to look at issues such as whether multilateral environmental agreements that contain provisions limiting trade with countries not party to the agreements are consistent with the provisions of the General Agreement on Tariffs and Trade (GATT, 1994). The committee also examines the extent to which a country s national environmental measures restricting imports or exports are consistent with GATT. Environmental advocates are concerned that panels settling trade disputes may limit measures that countries take pursuant to international environmental agreements or may constrain national initiatives to protect shared environments or resources. The law in this area is evolving. Principles of International Environmental Law Unlike in international trade law, in international environmental law, no one document sets forth binding legal principles. The 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and Development are the two basic documents that set forth principles of international environmental law, but while some of their provisions represent customary international law and are thus binding, most are not. Neither declaration is an international agreement. The proposed principles include both substantive obligations and procedural ones. Substantive Obligations While states have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, they also have 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 (Principle 21 of the 1972 Stockholm Declaration on the Human Environment). This primary obligation has been reiterated in many documents. The International Court of Justice indicated in two decisions in the 1990s that a close variant of the principle now forms part of the corpus of international law relating to the environment and is thus binding. This means, for example, that a country is obligated to prevent pollution from going into a neighboring country if it causes significant damage. Many jurists argue that states have an obligation to cooperate to protect the health and integrity of Earth s ecosystem. The principle is found in the 1992 Rio Declaration and in many international agreements. The related notion of the common concern of humankind recognizes that the international community has a legitimate interest in issues that affect the community as a whole, such as biological diversity and climate change. A major environmental problem is the risk of serious future harm from our actions today. There is always scientific uncertainty regarding these dangers. The precautionary principle addresses this. While there are different formulations of the principle, the Rio Declaration s Principle 15 provides an authoritative text: [w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle has been applied to climate change, depletion of the ozone layer, and similar risks. What we do today affects the well-being of future generations. Some jurists argue that there is a principle of intergenerational equity, which makes it necessary to consider the interests of future generations when we act today. This applies to all areas of environmental activity. Under this principle, future generations are arguably entitled to comparable diversity (options) and comparable quality (on balance) to that which we have in the environment today and to comparable access to environmental benefits and comparable sharing of environmental burdens. The emerging principle of common but differentiated responsibilities applies among states. Its premise is that while all states must work together to manage certain environmental problems, some states historically have contributed more to the problem and there- 34

4 fore should bear a heavier burden in mitigating it. The principle also covers the different capacities of states to implement their international obligations: Some states may need more time to implement them, their initial obligations may be less, and they may be provided with assistance in implementing them. There is controversy over whether the principle exists or whether it is merely a negotiating tool in concluding certain international agreements, such as those to limit climate change. Procedural Obligations If countries engage in activities (such as building power plants or developing mining operations) that could affect neighboring countries adversely, they are obligated to notify those countries before undertaking the activity, to provide relevant information, and to consult with them early on and in good faith. There is disagreement as to whether the country with the project must initiate consultations or only respond to a consultation request by the neighboring country. Increasingly, there is an obligation for countries to provide an environmental impact assessment for proposed activities that, according to Principle 17 of the Rio Declaration on Environment and Development, are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. The U.S. National Environmental Policy Act of 1969 (Section 102c) provides for environmental impact statements for major Federal action significantly affecting the quality of the human environment. The term federal actions indicates that the federal government must be involved to some degree, if only by financing or giving approval. The United Nations Economic Commission for Europe has concluded a treaty on Environmental Impact Assessment, which sets forth the obligations in detail, and applies to those countries that have joined the treaty. For hazardous wastes, chemicals, and pesticides, there are international agreements that require exporting countries or their exporters to obtain the prior informed consent of the importing country before the exporter can send the hazardous goods or wastes into the country. This general procedural obligation may be evolving into a rule of customary international law, which would then bind all countries. The Rio Declaration in Principle 10 set forth several other procedural obligations that are phrased as individual rights: the right of each individual to appropriate access to information concerning the environment held by public authorities and the opportunity to participate in decision-making processes. Countries are obligated to make information widely available and to provide effective access to judicial and administrative proceedings. These obligations are sometimes referred to as implementing a democratic entitlement of individuals. Specific International Agreements Agreements concerned with ozone depletion and climate change illustrate how countries are trying to address global environmental problems. Ozone Depletion The 1985 Vienna Convention on the Protection of the Ozone Layer obligates countries to cooperate by monitoring the high-level ozone layer, engaging in scientific research, and exchanging information, and to adopt appropriate legislation or take other measures to control activities that deplete the ozone layer. The 1987 Montreal Protocol to the Convention obligates countries to phase out, or greatly reduce, the consumption and production of chemicals that countries have agreed to list as threats to the ozone layer. Countries that belong to the Protocol are generally prohibited from trading in the listed chemicals with countries that are not party to the Protocol. Developing countries are given ten extra years to comply with the Protocol. A special fund (the Montreal Protocol Fund) is available to assist them with complying. Climate Change The 1992 U.N. Framework Convention on Climate Change (UNFCCC) establishes the basic approach for addressing climate change. Among other obligations, all countries must develop and publish national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol (Article 4 [1] [a]). Forests, for example, serve as sinks for carbon dioxide, a greenhouse gas. Annex I countries developed countries and those countries in transition to a market economy who have joined the Annex list agree to adopt national policies and to take measures to limit emissions of greenhouse gases and enhance the sinks for the gases. In different provisions of UNFCCC, the countries recognize that the Convention s objective is to return by the end of the present decade [1990s] to earlier levels of anthropogenic emissions of carbon 35

5 dioxide and other greenhouse gases (Article 4 [2] [a]) and acknowledge as a target the aim of returning greenhouse gas emissions to 1990 levels. The 1997 Kyoto Protocol to the UNFCC sets precise targets and timetables for countries listed in Annex 1 to limit their emissions of the six listed greenhouse gases. The Protocol permits Annex 1 countries to engage in joint implementation with other Annex 1 countries, which means that a country can invest in projects in another country that cut emissions and thereby satisfy part of its own obligation to reduce emissions. This provision targets projects between developed countries and countries in transition, such as (at the beginning of the twenty-first century) the Russian Federation. Other provisions permit trading of emissions among Annex 1 countries and establish a Clean Development Mechanism that encourages investment by developed countries in projects to reduce emissions in developing countries. In mid-2002, the Kyoto Protocol was not yet in effect because not enough countries had ratified it. Edith Brown Weiss See also Biological Weapons; Global Warming; Greenpeace; International Whaling Commission; Law of the Sea; Nuclear Weapons and Testing Further Reading Birnie, P. W., & Boyle, A. E. (1992). International law and the environment. New York: Oxford University Press Brown Weiss, E. (1988). In fairness to future generations. New York and Tokyo: Transnational Publishers and the United Nations University. Brown Weiss, E., & Jacobson, H. K. (1998). Engaging countries: Strengthening compliance with international environmental accords. Cambridge and London: MIT Press. Brown Weiss, E., McCaffrey, S. C., Magraw, D. B., Szasz, P. C., & Lutz, R. E. (1998). International environmental law and policy. New York: Aspen Law & Business. Kiss, A., & Shelton, D. (2000). International environmental law (2nd ed.). New York: Transnational Publishers. Morrison, F. L., & Wolfrum, R. (Eds.). (2000). International, regional and national environmental law. The Hague, Netherlands: Kluwer Law International. United Nations Environment Programme. (1992) Rio declaration on environment and development. Retrieved January 28, 2003, from Sands, P. (1995). Principles of international environmental law: Frameworks, standards and implementation. Manchester, U.K.: Manchester University Press. United Nations framework convention on climate change (UNFCCC). (1992). Retrieved January 28, 2003, from uncc p.cfm U.S. National Environmental Policy Act of Retrieved January 28, 2003, from regs/nepa/nepaeqia.htm International Union for the Conservation of Nature Founded as the World Conservation Union, the International Union for the Conservation of Nature (IUCN) was created in 1948 as a result of an initiative of the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the Swiss League for Nature Protection, and the French government. Since then it has provided the umbrella for research and conservation work, uniting government agencies, nongovernmental organizations, and individual experts from around the world. Today it employs approximately a thousand people, most of whom are located in its fortytwo regional and country offices while a hundred work at its headquarters in Gland, Switzerland. Awareness of humankind s proclivity to create environmental disasters had grown in the years between World War I and World War II, not least because of the dust bowl disaster on the American plains. Soil erosion was, however, only one symptom of a growing conflict between the planetary ecology and just one of the Earth s myriad species: humankind, whom some people were beginning to see not as Homo sapiens but as Homo rapiens. These commentators had included writers such as Paul Sears and, after the war, such prescient individuals as Fairfield Osborn and William Vogt. It was their growing concern and that of others that led to the founding of the IUCN. The IUCN s mission is to influence, encourage, and assist the conservation of the integrity and diversity of nature as well as to encourage a sustainable and equitable use of resources. The protection of forests, wetlands, and coastal areas has been a particular concern. The IUCN gives funds to individual countries to prepare and implement national conservation and biodiversity strategies. It provides guidelines for the establishment of protected areas and publicizes conservation issues. Another major activity is the compilation and publicizing of red lists of endangered species. 36