Why is it so hard to have an efficient international environmental protection?
International Environnemental Law 2020
International Environmental Law
International environmental law (IEL) has evolved from protection of the environment to sustainable development (SD). Today, environmental protection is seen through the lens of sustainable development.
The Rio Conference on Environment and Development (1992)
The sustainable development Agenda is not an ecological agenda, but a development agenda.
Basis of the sustainable development: how to create a relationship between environmental protection and economic development?
Preamble: three very important aspects that show a shift for the system.
Idea of a new and global partnership. All the actors need to be active in terms of environmental protection.
Call for a more legalistic approach.
Reaffirmation of the concept of global environment: interdependent nature of the Earth.
Contribution of Rio in terms of principle:
Principle 1: Human beings “are entitled to a healthy and productive life in harmony with nature”. Autonomisation of the right to a healthy environment as a human right.
Principle 2: no harm principle. The “development” dimension is added, to show that it’s not only an environmental agenda.
Principle 3: Intergenerational equity. The unborn generation has to be taken into account now by the international community.
Principle 4: Balance between development and environmental protection.
Principle 6: Developing countries put a condition for the SDA: principle that would allow to give more flexibility to the developing countries, take account the special situation of these countries, and correct the gap rich / poor.
Principle 5: The Sustainable Development Agenda (SDA) is to eradicate poverty, which is a condition of SD.
Principle 7: States have common, but differentiated responsibilities (CBDR).
Principle 14: Principle of prevention. Deals with dangerous substances transported to other countries.
Principle 15: Precaution. Is a step before prevention, it is adopting anticipatorily measures in a situation of scientific uncertainty.
Principle 16: Polluter pays principle. Reactive (and not preventive) principle.
Principle 17: Obligation to conduct an environmental impact assessment, which here is recognized as customary law.
Principle 10: Environmental democracy. Three pillars: public participation, access to environmental information and access to justice.
Principle 12: Principle of cooperation.
Principle 25: Emphasizes the link between peace and security and SD.
Rio has come up with a list of legal principle that are now the foundations of IEL.
Rio : Three visions of SD are established:
Principle 1: anthropocentric approach.
Principle 3: intergenerational equity intertemporal approach.
Principle 4: constitute an integral part of the process and can not be isolated integrative approach.
Johannesburg Declaration: Summit on Sustainable Development (2002): Paragraph 5: new approach to sustainable development. Three pillars: economic development, social development, environmental protection.
The Future we want (Rio + 20): now it’s about the “green economy” in the context of SD. So we are back to the economy.
These treaties see SD as an objective, without clearly defining it. When it comes to environmental convention, there is no definition. The Paris Convention on Climate Change adopted in 2015 confirms that.
The international community has not yet achieved to formulate a clear definition of SD.
Emerging rights, a lot of discussion about their importance.
Two kinds of Human rights:
Charter based: UN Charter. Every state part of the UN has to follow it.
Treaty-based: human rights treaties. Only the states that have ratified are bound.
UN Charter and European Convention on HR before Stockholm, so, they were not explicitly called upon regarding environmental protection.
Importance of the jurisprudence. With more jurisprudence, it is easier to establish the relation between HR and the Environment.
For instance, Lopez Ostra v Spain (ECHR, 1994) : First time the ECHR is recognizing a violation of art.8 relating to family life.
The no harm rule may be seen as the ancestor of the prevention principle.
First manifestation of no harm rule: Trail smelter case. Then, 1949: Affaire du Detroit de Corfou (Corfu Channel Case). Not a pure environmental case. Finally, Lake Lanoux.
If the no harm rule was pushed by judicial order, then, it was not mentioned during a time. The Stockholm conference (1972) resurrected this rule and made it more important.
reformulation that is closer to IEL. All the other formulations before were not really made in pure environmental context.
At the beginning, the prevention principle was the no harm rule. Then, distinction between the principles: the no harm rule became one of the aspect of the prevention principle.
Montego Bay Convention
Part 12, art. 192 “States have the obligation to protect and preserve the marine environment”.
Rio declaration
Sophistication of prevention compared to Stockholm.
Prevention is not limited to no harm. It is not only about “not doing”, but it is also about anticipation. Rio = agenda of anticipation of environmental risks and damages. New techniques.
Principle 17: environmental impact assessment. Proactive measures.
Watercourses convention 1997 (entered into force 17 years later)
Article 7: no harm rule (“obligation not to cause significant harm”). Even here the no harm rule has been reformulated in the prevention spirit.
Art. 20: protection and preservation of ecosystem. Prevention today is not only no harm rule (which is only a facette).
Not only treaties are enforcing this principle, but also jurisprudence.
ICJ, 1996 Advisory opinion of the ICJ about the legality of the nuclear weapons test. International law needs to adapt to the environment that is something so special (and not an abstraction).
Hungary Slovaquia case, ICJ, 1998, Gabcikovo-Nagymaros : Vigilance and prevention are required, now it’s absolutely clear. The duty to prevent, or at least mitigate, harm has now become a principle of international law.
Pulp Mills case, ICJ, 2010: the court has pointed out the principle of prevention (customary rule). International Courts influences the evolution of the IL. The court links due diligence with prevention. Today, prevention means first of all due diligence.
Due diligence is not static, it’s subject to evolution depending on scientific knowledge, etc.
Conclusion
Both no harm and prevention are based on an ex ante approach (anticipatory); but prevention is much more anticipatory. But no result requirement ; a State will be internationaly responsible only if he has not taken the appropriate measures to avoid a harm due diligence.
Confirmation with Seabed disputes chamber of the international tribunal for the law of the sea, Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the area, Advisory opinion, Feb. 2011) par. 117 : due diligence is a very dynamic and variable concept, on a case by case basis. It may change over time.
Today, one of the best way for a State to prove that he has acted with diligence is to conduct an environmental impact assessment (EIA) to determine risks, damages etc. (custmomary law).
But problem: no IL specify how to conduct a good EIA, no requirements. Principle 17 of Rio : EIA as a national instrument, so it is all based on national managing.
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