Why is it so hard to have an efficient international environmental protection?

International Environnemental Law 2020

International Environmental Law

Introduction

Role of international law: Regulate and govern relations within the international society. Then it became an instrument, framework that facilitate cooperation between states. Because no state acting alone can achieve its goals. But cooperation needs to be organized.

International law : Coexistence —> cooperation

Today there is no more doubt about the fact that the earth is threatened. That’s why the international community started to develop the field of international environmental law (IEL).

Sources of IEL: art.38 of the statute of the ICJ.

* International conventions / treaties / charters, etc.

* International custom.

* General principles: common to all domestic system.

* Judicial decisions (jurisprudence): not really a source of IL, but it clarifies the law.

In the field of environmental protections, some other instruments that regulate corporations are very important even if they don’t appear in article 38 (for instance, guiding principles).

The Emergence of Environmental Issues at the International Level

From Stockholm to Rio - Three critical period of time:

1893: cooperation principle - Fur seals case

 first time that the principle of cooperation is mentioned ; here, by an ad hoc arbitral tribunal. This is today one of the most fundamental principle in IEL.

 this case shows that environmental concerns can be integrated by using certain principles, even where there are no treaties.

At that time, utilitarian approach : we protect because it is useful. Confirmed by treaties (Convention of the protection of birds that are useful for agriculture (1902), International Convention for the Regulation of Whaling (1946))

1941: no harm principle - Trail smelter case

No State can use or permit the use of its territory in a manner that could harm the territory of another State.

The rule created by the arbitral tribunal in this case has been implemented in various instruments, for instance in the Nuclear Test-Ban treaty of 1963.

1957 - Lake Lanoux case

 Primacy of economic concerns over environmental issues.

Conclusion: environmental concerns have progressively emerged. International tribunals have pushed env. concerns in the system; some were activist, some more cautious. Little concern by States for the environment. So courts have been progressive. What about states and IO?

1945: United Nations charter remains silent about the environment. So the international community was not really aware of the need to preserve the environment. They started to get involved in environmental issues through env. disaster during the 1960’  e.g. oil pollution.

Important role of civil society: 1972 first multilateral conference dedicated to the environment  Stockholm. Influenced by :

Silent Spring, boked written in 1962 by Rachel Carston. In the 70s, it has contributed to create awareness on the international level of the need to preserve the env.
Club de Rome 1960’: think tank that alerted the international community on the need to start to have a internat. cooperation on the resources which started to be more and more restricted.

From Stockholm to Rio: Initial Approaches to the Protection of the Environment at the International Level

Stockholm conference, 1972

 anthropocentric approach (man is considered as the center of universe).

This conference was a declaration of principle, which is an instrument of soft law par excellence.

Pillars of the Stockholm Declaration :

The right to a healthy environment.
The idea of renewability.
Primacy of economic development.
Importance of science: solution to environmental problems.
No harm principle revisited.
Principle of cooperation.

 Institutional contribution: established the UNEP environmental program.

The World Charter for Nature, 1982

There has been a paradigm shift: Stockholm was very anthropocentric, and here the focus is on nature (≠human environment). Birth of the ecosystemic approach.

Confirmation of the customary status of the no harm principle.

Anthropocentric  ecosystemic  global environmental view (Rio)

Conclusion:

Starting from the 70’s with Stockholm and the birth of EIL, new approach was developed. But all that was not sufficient; even if there was an awareness, economic development was still prioritized.

80’ = decade of big disasters:

Tchernobyl happened because the international community has never thought about how to cooperate in case of this type of big catastrophy.
Bhopal accident in India : gas leak.
Tcherno”bale” : explosion of a pesticide fabric (Sandoz fabric in Bale) which contaminated the water ; but because the countries were rich, they could handle it.
Desertification in Africa: millions of death because of the drought.
Etc.

Commission on Environment and development:

The UN realized that there was a need to bring a new agenda and put in place the Commission on Environment and development, which after three years published a report (1987) that is one of the most important report in EIL called “Our common future”.

 pathway sustainable development.