The history and origin of international enviromental law

Environmental Law is one of the separate areas of the Public International Law. Growth of International Environmental Law began in the 1970s with the Stockholm Conference on the Environment in 1972. Since 1972, the interest has steadily increased and it has become one of the fastest growing areas of Public International Law. Some of the current issues of International concern covered by the Environmental Law include Ozone Layer Depletion, Global Warming, Desertification, Destruction of Tropical Rainforests, Marine Plastics Pollution from Ships, International Trade in Endangered Species (i.e. ivory trade), Shipment of hazardous wastes to Third World Countries, deforestation of Brazil and the Philippines, Protection of Wetlands, Oil Spills, Transboundary Nuclear Air Pollution (i.e. Chernobyl), Dumping of Hazardous Wastes, Groundwater Depletion, International Trade in Pesticides, and Acid rain. Environmental Law is also invigorating across other areas of International Law, such as Commercial/Business Law, Trade, Human Rights and so on. Moreover, Environmental Law developed internationally through Treaties, Agreements and Resolutions created by Intergovernmental Organizations. The historic evolution of the Environment Law has been divided into three major phases:

The ‘traditional era’ until about 1970 (i.e., afore the 1972 United Nations Stockholm Conference), which is sub-divided into a pre-1945 and a post-1945 period;

The formative ‘modern era’ from Stockholm to the 1992 United Nations Conference on

• Environment and Development (UNCED) in Rio de Janeiro; and
• The ‘post-modern era’ from Rio onwards.

THE TRADITIONAL ERA

Natural Resources Management has been a subject of International law-making for more than over five hundred years, starting with Bilateral and Regional Regulatory Agreements between States and Dispute Settlement Arrangements over the shared utilization of watercourses, wildlife and fisheries in transboundary areas, and over the allocation and exploitation of ‘fugitive’ marine resources in areas outside national jurisdiction.

PRE 1950’s ERA

There were relevant International Agreements based on unrestrained national sovereignty over natural resources and focused primarily on boundary waters, navigation, and fishing rights along shared waterways, particularly the Rhine River and other European waterways. They did not harangue pollution or other ecological issues which sluggishly developed through several treaties and agreements in upcoming years. This commenced the reign during which the States recognized the momentousness of preserving the natural resources and negotiated several agreements to protect fauna and flora radically.

POST 1950's ERA

During the early 1950’s, the international community was however concerned with nuclear damage and marine pollution resulting from oil spills and thus the countries negotiated agreements governing international liability for nuclear damage and required measures to prevent oil pollution at sea. In the United States, this new environmental awareness led to the adoption of the first major piece of federal environmental legislation, the National Environmental Policy Act of 1969, which initiated the environmental impact statement. In 1971 the U.S. Council on Environmental Quality and the U.S. Environmental Protection Agency were formed. Internationally, during the 1960s, multilateral international environmental agreements increased significantly. Conventions were negotiated relating to the interventions in case of oil pollution casualties, to civil liability for oil pollution damage, and to oil pollution control in the North Sea. The African Convention on the Conservation of Nature and Natural Resources was concluded in 1968.

THE MODERN ERA (Period beyond 1972)

The beginning of the Modern International Environmental Law dates back to 5 June 1972, (the day now annually celebrated as ‘World Environment Day’) when countries gathered for the United Nations Stockholm Conference on the Human Environment, and the United Nations Environment Programme (UNEP) was established. Many important legal developments took place during this period, including negotiation of the Convention on International Trade in Endangered Species, the London Ocean Dumping Convention, the World Heritage Convention, and the first of the UNEP Regional Seas Conventions. Since then, there has been a rapid rise in international legal instruments concerned with the environment, to the point that we are concerned today with developing new means for coordinating the negotiation and implementation of related agreements, in particular their administrative, monitoring, and financial provisions. Since 1970, hundreds of international environmental instruments have been concluded. Including bilateral and multilateral instruments (binding and nonbinding), there are close to nine hundred International Legal Instruments that have one or more significant provisions addressing the Environment. The building of the historic 1972 Stockholm Declaration on the Human Environment leads to the consensual international law making in the form of soft law.

THE POSTMODERN ERA

After emerging hundreds of treaties and multilateral agreements, the proliferation of such instruments leads to ‘treaty congestion’. As the institutional structure for implementing the multitude of these treaties was highly decentralized, due to the network of quasi-autonomous ‘conferences of the parties’ for the most part hosted by different existing international organizations and linked by inter-agency coordination arrangements.

In the time when the World’s Environment continuing to deteriorate, International Environmental Law as a grand narrative or ‘mobilizing myth’ risked suffering a loss of credibility – a symptom typical of post-modernity. Hence the focus of attention in preparations for the 1992 Rio Conference on Environment and Development (UNCED) shifted to the ‘effectiveness’ of the existing International Legal Instruments. This led to the adding of another layer of Global Treaties (the UN Framework Convention on Climate Change and the Convention on Biological Diversity) and Environmental Soft Law (the Rio Declaration on Environment and Development and Agenda 21).

THE CHANGING THEMES AND FOCUS OF INTERNATIONAL ENVIRONMENTAL AGREEMENTS

The subject matter of the International Environmental Agreements at the time of first half of this century, which only focused on boundary rivers, fishing rights, and protection of particularly valued animal species are nowadays transformed into agreements to control pollution in all environmental media, conserve habitats, protect global commons, such as the high-level ozone layer, and protect resources located within countries that are of concern to the international community. Moreover, the U.N. Conference on Environment and Development in Rio de Janeiro, Brazil, expands the scope by discussing matters over Environmental and Economic issue. Therefore,  the scope of International Agreements has expanded significantly since 1972: from Transboundary Pollution Agreements to Global Pollution Agreements; from control of direct emissions into lakes to comprehensive river basin system regimes; from preservation of certain species to conservation of ecosystems; from agreements that take effect only at national borders to ones that restrain resource use and control activities within national borders, such as for world heritages, wetlands, and biologically diverse areas.

The duties of the parties to these agreements have also become more comprehensive: from undertaking research and monitoring to preventing pollution and reducing certain pollutants to specified levels. The international community is increasingly aware that it is important not only to monitor and research environmental risks, but also to reduce them.

The period from 1985 to 1992 illustrated the rapid development of International Environmental Law as many countries have negotiated a large number of global agreements. These include the Vienna Convention on the Protection of the Ozone Layer; the Montreal Protocol on Substances that Deplete the Ozone Layer with the London Adjustments and Amendments; the Protocol on Environmental Protection (with annexes) to the Antarctic Treaty, the Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal; the two International Atomic Energy Agency (IAEA) Conventions on Early Notification of a Nuclear Accident and on Assistance in the Case of a Nuclear Accident or Radiological Emergency; the International Convention on Oil Pollution Preparedness, Response and Co-operation, the Framework Convention on Climate Change; the Convention on Biological Diversity; the principles on forests; the non-binding legal instrument of the Arctic Environmental Protection Strategy; and the London Guidelines for the Exchange of Information on Chemicals in International Trade.

International Environmental Law has also been developed at regional level where members states have negotiated several agreements and conducting several regional programme covered by national laws. The provisions in the new agreements are generally more stringent and detailed than in the previous ones, the subject matter has broader, and the provisions for implementation and adjustment becomes more sophisticated. This history is encouraging and gives hope that we may be able, with some efforts address the immense challenges of Global Environmental Change and meet the urgent need for environmentally sustainable development.

MEANS OR MODES OF ENVIRONMENTAL DISPUTE SETTLEMENT

The increasing rate of the worldwide industrialization and population growth gave more pressure on resources and leads to serious environmental disputes. Parties to such disputes have a pressing to resolve their disputes quickly and efficiently. When these disputes take place in the international scene, the complexities are compounded by multiple government with varying levels of international commitments and by multinationals with different interest. The dispute settlement structure in International Law is defined under Article 33 of the United Nations Charter, 1945. It provides that the disputes ought to be settled through pacific means like Negotiation, Enquiry, Mediation, Conciliation, Arbitration and Adjudication by a Judicial Institution apart from resorting to regional agencies or arrangements.

In case of environmental disputes many International Environmental Agreements give meaning to this article by including a dispute resolution clause in their treaty administration structures. The dispute mechanism clause that has been put in place in most of the treaties can be broadly categorized under two heads:

The use of diplomatic means where parties retain control over the dispute in so far as they may accept or reject a proposed settlement, like, Fact-finding, Mediation/Conciliation, Negotiation, Consultation, Inquiry; and,

The legal means that result in binding decisions on the dispute, like, Arbitration and Judicial Settlement.