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

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

Why is it so hard to have an efficient international environmental protection?
International Environnemental Law 2020 International Environmental Law The Precautionary Principle in International Environmental Law Extension of prevention, goes beyond the traditional approach of prevention, which is based on scientific knowledge. Precaution is anticipation of anticipation because of IRREVERSIBILITY. Origins of the precautionary principle  domestic principle (Germany). At the international level, the principle started to be formulated in 1987, at the second international conference on the protection of the North Sea. Final declaration: the precautionary principle is necessary even if a causal link has not been established with absolutely clear scientific evidence.  idea of the absence of clear scientific evidence. Real birth of the Precautionary Principle: Rio declaration.  recognition that in case of scientific uncertainty, States have to adopt measures. Precaution is a sophistication of prevention. Convention on biological diversity (1992). The treaty is based on the idea of precaution. Climate change convention (1992): precautionary approach is one of the principles that governs the fight against climate change. Migratory fish stock (1995): More legalistic approach, positive statement. Try to operationalize the precautionary principle. Cartagena protocol on biosafety (2000): treaty that is dealing with GMOs. Reaffirms the precautionary approach. Shows that soft law can become hard law (here It’s a protocol). Legal stages of the precautionary approach / principle Variation in the practice because there is not a strong consensus at the international level. Hungary / Slovakia (1997): The court has said “vigilance and prevention”. Because precaution was still sensitive. Hormones case (1998) at the WTO: EU vs USA and Canada. This principle has not necessarily been recognized in the International Law outside of the environmental field (Appellate Body). Pulp Mill case : the court has been a bit more open minded. “(…) The precautionary approach may be relevant in the interpretation (…)”. Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the area (Seabed Dispute, 2011): precaution is now becoming customary international law. Precaution is part of customary international law.  evolution of IL (soft law becomes customary law). There is still resistance today, some courts don’t go as far as the international tribunal in the seabed dispute. Burden of proof (who has to prove that something can cause damage)? Hormone case: the State calling upon a precautionary approach has to prove ; but very hard to prove the uncertainty !  Resistance that still exists in the system, the idea of precaution is not fully integrated yet. Climate Change and International Law United Nations framework convention on Climate Change (1992): Adopted as the very first instrument to deal with climate change. Context of scientific uncertainty  only pave the way. Weak objective; lot of uncertainties in the instrument.  Very soft. Specific differentiation between States regarding obligations: Annex 1 countries, Annex 2 countries, non-Annex 1 countries.  Several layers of differentiation make the system very complex. Not only developed and not developed, but essentially annex 1 and non-annex one. Framework convention, lots of limits. No quantified obligations e.g. (very soft). But still, it was very revolutionary to have this kind of instrument based on scientific uncertainty. The Kyoto Protocol Idea to implement and quantify the obligations of the IPCC. Art.25 par.1 conditions for the entry into force: 55 state have to ratify (quantitative condition) These 55 states have to represent 55% of the emission coming from Annex 1 (qualitative condition). Russia saved the protocol with its acceptance to ratify (55% of the emission was fulfilled). Difference between Kyoto and Rio: Annex A and B. A: list of greenhouse gases targeting. In Rio, no mention at all to that. List of the sectors of the economy that are targeted. B: quantified emission limitation or reduction commitment – the obligations are quantified (≠Rio). Tons of carbons that each state in annex B can emit. Now the states have credits of emission, and they can sell them if they don’t use them (that’s why Russia was attracted). Economic instruments: Carbon market, art.17 Clean development mechanism (CDM) art.12. Get credit in order to pollute more. P.eg. if France goes to Burkina and implement green investments (to reduce emission of greenhouse gases), it can have credits and use them to pollute more in France or then sell them on the carbon market. Joint application mechanism, art. 6 : annex 1 state which invest green investments in another annex 1 (usually economies in transition), it won’t get credits, but the reduction is considered as if the state has reduced in his own territory. E.g. Germany invest in Ukraine, but the reduction goes to Germany AND Ukraine. Bali Action Plan 2007: IPCC and Al Gore received the peace Nobel price. The Bali Action Plan is a turning point for two reasons: Par.1 a) global action : for the first time since 1992, the negotiators have accepted that climate change would be an issue for every country, need to go to a long term cooperative action. Paradigm shift. No distinction between Annex 1 and no-Annex 1 (only developed and developing country). Par.1 c) enhances action on adaptation. We need to think about how countries can adapt to climate change. Before, only mitigation, now adaptation. Mitigation = more pressure, so it has to be adaptation, too. Now the negociations are even more complicated. The Copenhagen Accord “Accord”, not agreement. Developing countries and developed countries were very strict about their positions. Developing countries would not agree to make commitments. At the end of Conference, there was no consensus, so this accord was never adopted. It is a political declaration, but not an agreement. Doha amendment to the Kyoto Protocol This amendment only allows Kyoto to be clinically alive (actually it’s dead). Paris Agreement Implementation of the UN-FCCC. It’s playing the role of a protocol, but they didn’t want to call it so (USA). This is the death of a top-down approach in the fight against climate change. Now every State is free to communicate what it is intending to do. Top down = Kyoto = international commitments. Bottom up = every state has to communicate its contribution. Global agreement: Every state (even the developing). But the counter side is bottom up. Every state reduces the level that it chooses. The dream of top-down with a strict system of control has ended. The implementation of environmental protection Legal Tools and Techniques * Conventional instrument Agreements / treaties concluded between states and governed by international law. Rio was not an agreement (only a declaration). Different kinds: Framework conventions: UNFCCC Conventions that are not entitled framework (but actually are): Convention on biological diversity, Convention of the protection of the ozone layer Framework = flexibility. Many issues are characterized by scientific uncertainty (e.g. UNFCCC then the issue of climate change had no certainty). A framework convention is very adapted here because it allows to build the pillow of a regime / fix a foundation without going into strict rules / obligations. Whereas traditional conventions are characterized by very strict and detailed procedures. Soft law instruments. Protocols: Strengthen / consolidate / clarify the regime established on framework conventions. Very specific function, always comes with a convention. Cartagena protocol on biosafety Montreal protocol (to the Vienna Convention on the protection of the ozone layer) Hard law instruments. Very detailed rules, obligations and procedure. Annexes: Deal with technical aspects, highly scientific issues, e.g. level of chemical composition qualified as dangerous. * Non-conventional instruments Sometimes, more impact than treaties. Different kinds: Declarations that are made at the end of the conference. Soft law Reflect the consensus of the international community on the fundamental conception that should have the environmental governments. Principles: Very important specific tool of IEL. Regulating via principle. Programmes of action: Agenda 21, applicate till today. Sustainable development goals. Recommendations with respect to different env. issues (water, pollution, species etc.). Given to state in order to better preserve the global environment.  Soft law but still very important. Monitoring enforcement of environmental obligations Three levels of control: Reporting: The state has to communicate information about the measures adopted. Convention on the international trade of endangered species : point7 : each party shall prepare periodic reports. Ozon layer convention, art.5 : transmission of information Not only IEL, general International public law. Verification: Experts go check if a country does what he claims. E.g. reduction of greenhouse gazes as mentioned in the reports. In the field of environmental protection, verification is very important. Compliance control: When there is a gap between reporting and verification (the state has not given the right information). Identify whether there is an issue of compliance. First treaty to put in place compliance mechanism: Montreal protocol. Today all big env. agreements establish compliance procedure. IEL has developed very specific compliance procedure. Compliance and non-compliance mechanism. Soft responsibility mechanism. Some States are taking advantage of that, but if it where punitive, the States would not be part of these conventions (whaling: many States left the convention). Conclusion : Global Governance and the environment Global governance is characterized by fragmentation and scientific uncertainty. The international community has not succeeded in putting in place a real system of global governance. United Nation Charter: No institutional pillar for the protection of the environment. Stockholm: Very first UN program in charge of environmental protection (UNEP created in a resolution of the General Assembly at the end of Stockholm). UNEP : was not created as an international organisation; it is only a subsidiary organ of the UN. – Problem: an institution can’t coordinate when it is not empowered. Today, no multilateral organisation empowered to deal with the environment. No World Environment Organisation. Since Rio, idea of greening in the system. A lot of international organizations do sustainable development The UNEP has no hierarchy or higher place in the system, so it can’t tell for example the Word Bank what to do. fragmentation, incoherence and competition in the global environmental governance. Things have changed in 2012. The outcome document of Rio + 20 (“The Future we want”) has finally empowered the UNEP  par.88. UNEP has become the environmental institutional pillar ; but not clear what this involve, especially regarding coordination with other institutions.  empowering without empowering = post 2013 agenda. UNEP will still be confronted to problems in the system and the global env. governance will still be characterized by fragmentation. Positive point : since 2012, the UNEP is no longer composed of only 58 states, it’s universal. Now it’s called UN environment assembly. 6
Why is it so hard to have an efficient international environmental protection?
International Environnemental Law 2020 International Environmental Law Rio and the Birth of Sustainable Development: The Rio Principles 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. The Sustainable Development Principle 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. Human rights and the environment 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 Prevention Principle 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. 4
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. 3

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