On International Environmental Law – Book Summary
International Environmental Law in a Nutshell, which is written by Lakshman D. Guruswamy and Brent R. Hendricks, introduces the relevant concepts of international environmental law(IEL), contemplates the socio—scientific evidence confronting lawmakers and addresses the resulting corpus of substantive law. Expert authors cover international environmental problems such as
population, biodiversity, global climate change, ozone depletion, Antarctica, toxic and hazardous substances, land and vessel—based pollution, transboundary water pollution, desertification, and nuclear damage.
Generally, this book can be divided into three parts: Part one, which consists of Chapter one, two and three, discusses the basic concepts of the international environmental law, such as the definition of the international environmental law, the sources and forms of the international environmental law and so on. Part two, including fourteen chapters, from Chapter Four to Chapter Seventeen, emphasizes the specific international environmental problems, such as population, biodiversity, global climate change and etc. Part Three, the last part, Chapter Eighteen, draws the blueprint of the future of the international environmental law.
The first part of this book (Chapter one, two and three) illustrates the basic and important concepts of the international environmental law, which can help students, especially the ones who have not studied the IEL at all, clearly understand what the IEL is, what makes the IEL different from the other international laws, what constitutes the IEL and how the IEL become effective.
Although the definition of the IEL can be diverse, this book gives the most understandable one to the students. In the first page of this book, it is written that “International Environmental Law (IEL) bears a name that reflects the content. At its substantive core, IEL endeavors to control pollution and the depletion of natural resources within a framework of sustainable development… IEL is formally a branch of nation states for nation states, to govern problems that arise between nation states. ”
Then, the authors distinguish the IEL from traditional international law in two aspects. “First, its creation and vigorous, if uneven growth, owe much to national environmental laws and policies. Nation states frequently have entered into landmark international agreements and practices, driven largely by the momentum of law, regulation, and policies applicable to their own environmental problems, and not necessarily because of the gravity of international problems. Second, the law—making in IEL has been shaped primarily by bio—physical not geo—political forces, and this communal foundation has at times sheltered it from the disfiguring political dissension found in other areas of international law. These two factors have inevitably, albeit asymmetrically, infused the objectives of national environmental regulatory laws, and the conceptual frameworks of environmental sciences, into the corpus of IEL. ”
To wholly study IEL, it is crucial for students to grasp the substantive corpus of the IEL. And in authors’ view, there are several types of the sources of the IEL: treaties, customary law, general principles of law and judicial decisions. 1,Treaties “are written agreements governed by international law, entered into between two or more states, creating or restating legal rights and duties.” Treaties are the principle source of IEL, owing to the nature of environmental problems. “These problems range over a wide spectrum of future contingencies. Moreover, they demand continuous observation and monitoring, as well as quick legal action and implementation in response to ongoing and relatively rapid changes in scientific knowledge and conclusions… None of the four sources of IEL can fulfill all of these requirements…” And treaties, vague and nebulous, need to be interpreted so that they can be implemented. Usually, in the opinion of the authors, the International Court of Justice (ICJ) is perhaps the best known international courts, but the ICJ depends on the acquiescence of the parties for its jurisdiction. Also, the authors introduce the conflict between the treaties and other international laws. 2, Customary law “refers largely to unwritten law inferred from the conduct of states (practice) undertaken in the belief that they were bound to do so by law.” And customary law mainly comes from the forms, such as the national legislation, diplomatic notes and correspondence and statements and votes by governments in international organizations and forums of varying kinds and etc. One of the weaknesses of custom is that they are all unwritten and uncodified, so one way to remedy this shortcoming is to codify or re-state customary law, thus making it known and accessible. 3, General principles of law. It is of the great importance when some articles of a statute “need to be interpreted in accordance with its ordinary or plain meaning, in context, and in light of its object and purpose.” 4, Judicial decisions. “The statute of the ICJ restricts the role of judicial decisions to that of a ‘subsidiary means for the determination of riles of law’ however, judicial decisions still play an important role in any system of customary law by restating, codifying, and clarifying the often uncertain and usually unwritten customary law.” The authors also list the other sources of law, such as the writings of the most highly qualified publicists or scholars, resolutions, declarations, action plans and so on.
In the first part of this book, the authors introduce the landmark developments of IEL from 1972 to the present—the historical continuum, which helps us better understand the strengths and weaknesses of the subject. It includes five historical conferences that have influences on the development of the IEL; they are The 1972 Stockholm Conference on the Human Environment. The 1982 United Nation Convention on the Law of the Sea. The World Commission on Environment and Development. The 1992 United Nation Conference on Environment and Development. The 2002 World Summit on Sustainable Development.
What weights most in these three chapters is the implementation. It is said that “most international treaties require implementation within individual nation states. Implementation of treaty obligations, however, is hampered by the fact that the vertical command and control power structure governing domestic politics within nations is conspicuously absent within the international legal order. In international society, power or authority rests on a horizontal base made up of coequal sovereign states, and can be built into a pyramidal structure only if these nations consent to and join in such an endeavor. While piecemeal building upon the base has resulted in the substantive corpus of IEL noted in Chapter One, there is no overarching pyramid of authority consisting of law—making, law—interpreting, law—implementing, or law—enforcing institutions.” So, the authors start discussing the many international organizations that facilitate the implementation of IEL, the compliance mechanism, the diplomatic avenues and judicial remedies.
It is in the view of the authors that despite the impressive growth of IEL and its expanding domain, there is still no single institution or organization that serves environmental protection in the way that the World Trade Organization (WTO) advances, interprets, implements, and enforces the concept of free trade. The institutions and organizations enlisted to advance IEL are fractured, fragmented, and divided along functional, regional, bureaucratic, and geo—political lines. In the global area, there are institutions and organizations, such as the Food and Agricultural Organization (FAO), the International Labor Organization (ILO), the World Health Organization (WHO), the World Meteorological Organization (WMO), the International Maritime Organization (IMO), the UN Educational, Scientific, and Cultural Organization (UNESCO), the International Atomic Energy Agency (IAEA), the UN Development Program (UNDP), the World Bank, the International Finance Corporation (IFC), and so on. In the regional area, there are many institutions also become a part of role in developing IEL, and European Union (EU) is the most advanced form of international organization in the world and is evolving into a continent—wide political confederation. Still, many treaties have set up institutional arrangements (or rudimentary international organizations) for their implementation. For example, the sporadic conference of the parties under the Vienna Convention for the Protection of the Ozone Layer is one way to implement the treaties. And, the Non-governmental organizations (NGOs) are playing an increasingly important role in IEL, such as the World Wildlife Fund (WWF).
Although there are so many institutions and organizations in the World, they do not enjoy or exercise the power and authority of national legislative, executive, and judicial bodies that supervise and enforce the implementation of laws within nation states. Then, it is important that the substantive rules of international law should first possess an internal force or dynamic that makes sense to the parties and invokes an attitude of compliance rather than non-compliance. There are two ways that lead to compliance, first, treaty negotiators try to formulate and endow substantive rules with some compliance-generating character. Second, conventions or treaties also create institutions and techniques that induce compliance. The authors give some examples to illustrate how the two ways, especially latter way, form the compliance mechanism.
Many environmental treaties require that parties explore diplomatic and other means of settling their differences before resorting to judicial or quasi-judicial dispute settlement. Such as the International Convention for the Prevention of Pollution from Ships (MARPOL), the Convention on International Liability for Damage Caused by Space Objects and so on. Therefore, the diplomatic avenues become a way to settle the international environmental problems.
Apart from regulatory regimes supervised by or through agencies established by treaty, judicial enforcement provides another avenue for securing compliance with the law. Judicial remedies may be used to obtain specific items of compliance and can act as deterrents by bringing embarrassment, perhaps ignominy, to bear on wrongdoing states. More commonly judicial or quasi-judicial remedies within IEL are invoked through inter-state litigation, and are based on the grievance remedial principles of “state responsibility” or international trot law. And then, the authors explain in detail on the judicial avenue to resort the problems caused by the traditional ways. 1, Jurisdiction, jurisdiction can prove to be a difficult obstacle. In the Legality of the Use by a State of Nuclear Weapons in Armed Conflict case, the ICJ defined the concept to include legal capacity or status, and held that it lacked jurisdiction because the WHO was unable to demonstrate legal capacity. However, despite these defects, judicial remedies can prove to be an effective way of implementation the law if they are administered by a tribunal having compulsory and binding jurisdiction like the UNCLOS tribunals, and if the tribunals assume a more activist role in interpreting and applying the substantive law. 2, Accountability for transboundary environmental harms, in this part, the authors use the accountability for transboundary harms in 1955 to illustrate the specific way of how the ILC to deal with the codification of the law, including the application of SR, international liability for injurious consequences arising out of acts not prohibited by international law, civil liability, conclusion, the effectiveness of international environmental law, the relationship between IEL and domestic law,.
In the second part of this book, the authors detailedly enumerate the problems that facing people, such as population, biodiversity, global climate change, ozone depletion, Antarctica, toxic and hazardous substances, land and vessel—based pollution, transboundary water pollution, desertification, and nuclear damage. And in every single chapter, the authors usually illustrate in a way as the nature of the problem, and then the legal response.
One, Population.
Needless to say, the growth of global population has dramatically increased to an extent that the earth we live can no longer afford. On the basis of the statistics, “it took until approximately 1804 for the global population to reach 1 billion, this figure doubled to 2 billion by 1927—a span of only 123 years. The global population reached 3 billion in 1960 (33years); 4 billion in 1974 (14year); and 5 billion in 1987 (13year). It then took a mere 12 years for the global population to reach the current level of approximately 6 billion people in 1999.” And without doubt, the numbers will continue rising in the future, so what directly induces from the unchecked population growth is that the resources on the earth will not meet the need of everyone. Meantime, the environmental impacts of population growth are ubiquitous and universal. For instance, population growth has a direct impact on agricultural resources. The demand for food created from population growth has necessitated an increase in required cropland area at the expense of natural ecosystems such as forests, grasslands, and wetlands.
In order to introduce the remedial objectives, the authors first illustrate the theories on population growth. They are the Malthusian apocalypse and neo-Malthusian, economic transition and redistributional theories of population growth. Although the two theories are poles apart, they both seriously believe that the growth of population must be checked.
So, the authors relate on the legal response on the growth of population. The approach fashioned and proclaimed at the “Earth Summit” the 1992 United Nations Conference on Environment and Development (UNCED), and the World Summit on Sustainable Development (WSSD), hopes to integrate economic development, social development and environmental protection without compromising the needs of present and future generations. In the 1994 United Nations International Conference on Population and Development, the result is a comprehensive plan that incorporates ideas from many theories. Though there is controversy in this Program of Action, this is one big step of humans to give methods on balancing the growth of population and other problems.
Two, Biodiversity
Biodiversity sustains life on earth by maintaining atmospheric quality, regulating local climates, absorbing pollutants, protecting watersheds, and generating and maintaining soils. Despite the fact that biodiversity plays an important role in the humans life, it is suffering from loss, and mainly based on the “use-value” of species and ecosystems, within economic, ecological, and aesthetic frameworks, also on ethical values, which are different than use-values and arises from a belief in the intrinsic worth of a species. The primary cause of the loss of biodiversity is habitat destruction resulting from the expansion of human population and activities. And other direct causes include invasion by introduced species, over-exploitation of biological resources, industrial agriculture and forestry, pollution, and potentially, global climate change.
In order to meet people’s needs for biological resources while ensuring that those resources last indefinitely, it is crucial for all the humans to conserve the species biodiversity, and it must be based on global frameworks of equity and justices as well as sustainable development.
And the legal response to the conservation includes the Convention on Biological Diversity (CBD), Cartagena Protocol on Biosafety, and International Treaties Related to Biological Diversity, Regional Treaties and Agreements Related to Biodiversity. The CBD is a framework treaty which possesses only the power to seek appropriate forms of cooperation with the executive bodies of other biodiversity conventions. And in order to fully understand this treaty, the authors bring us to the two overriding principles in this framework convention: (1) Equity and Resources Transfers, (2) Sustainable Development (Conservation and Sustainable Use). After the authors pay more attention to detailedly illustrate the two principles and thus we can see how important these two principles are in the framework treaty. The Cartagena Protocol on Biodiversity is a supplementary agreement to the CBD, which acted upon the Art 19(3) of CBD: “The parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity.” And thus the protocol aims at the detailed aspect on the biotechnology which can make a contribution towards achieving the objectives of the Convention if developed and used with adequate safety measures for the environment and human health. The International Treaties Related to Biological Diversity includes: The 1973 Convention on International Trade in Endangered Species of Fauna and Flora (CITES), The 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), The 1971 Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar Convention), The 1979 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Conservation). The Regional Treaties and Agreements Related to Biodiversity. They include a cluster of treaties protecting the Antarctic and so on.
Three, Global Climate Change
When referring to the global climate, one will mention the Greenhouse gases (GHGs), and the past several years had witnessed the on and on discharging of carbon dioxide, and significant quantities of other GHGs such as methane and nitrous oxide, all of these have altered the natural distribution of atmospheric gases that blanket the earth. According to the statistics, the atmospheric CO levels will increase to between 540 ppm to 970 ppm by2100, which is respectively 90% to 250% higher than the concentration in the late 1700s. Today’s CO concentration of approximately 370 ppm is about 95 ppm greater than the pre-industrial concentration. This could correspond to a mean global temperature increase from 1.4? to 5.8?,an increase range that is two to ten times larger than the central value of observed warming over the 20th century. And scientists predict that if the trend continues in the future, the global climate will be changed greatly that cannot be reversed, and will do harm to not only the humans themselves, but also the plants and animals living on the earth, maybe one day what happened in the science fiction will come true.
Then a cluster of remedies objectives have been set forth in the United Nations Framework Conventions on Climate Changes (UNFCCC), and the ultimate objective is to achieve “…stabilization of greenhouse gas concentration in the atmosphere at a level that would present dangerous anthropogenic interference with the climate system. Such a level should be ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. ”
The international legal responses to the threat of climate change or global warming are not only found in the UNFCCC, but also in the Tokyo protocol to the UNFCCC. On the basis of the UNFCCC and the Tokyo protocol, the authors discussed the substantive obligations, institutions and implementation, outstanding issues, and implications. 1, Substantive obligations. It is important not only for the developed countries but also the less-developed countries to cooperate together to solve the climate problems.2, Institutions and implementation. The authors specifically introduce how to implement the convention; they are conference of the parties, secretariat, subsidiary body for scientific and technological advice, subsidiary body for implementation, financial mechanism. 3, Outstanding issues. In this part, the authors quote the famous issues concerning the implementation, such as joint implementation, technology transfer and financing, adaptation, and costs?benefits. 4, Implications. The authors talked about the small problems involving the implementation, and give some suggestions.
Four, Ozone Depletion
Ozone is a shield to protect living organisms and humans on earth from exposing to a range of adverse consequences. However, research data has largely concluded that human activities are causing the ozone depletion.
In order to restore the ozone shield and prevent the future enlarging of the ozone hole, it is necessary to prohibit the use of damaging chemicals. And legal responses to this include the Vienna Ozone Convention, the Montreal Protocol, adjustments and amendments, transfers, trade restrictions, technological and financial assistance, and the impact of the regime. There are abundant ideas in this part and this will help students to better understand the problem of the ozone depletion.
Five, Antarctica
Antarctica is the coldest, windiest, iciest, driest and highest major landmass on earth. The fifth largest continent in the world, Antarctica comprises around 9% of the earth’s continental crust and is approximately twice the size of Australia. However, only a tiny fraction of the continent itself is visible, as 98% of its 5.4 million square miles is buried beneath an immense sheet of ice.
Antarctica means to humans not only the scientific and archeological importance but also the economic and political consequence. Unfortunately, over the last half of the 20th century, the Antarctic Peninsula region has grown warmer. Given that the 90% of the world’s ice located in Antarctica, were this ice to melt the sea level would rise some 200feet—dramatically impacting human and other forms of life across the entire planet.
Considering the threat to the Antarctica, in 1959 the 12 claimant and nonclaimant states met to resolve the problem and eventually sighing a compromise treaty—the Antarctica Treaty. Within the 1959 Antarctica Treaty area, the 1972 Convention for the Conservation of Antarctica Seals limits harvesting of three species of seals. And 1980 Convention on the Conservation of Antarctic marine living resources aims to conserve all living resources found south of the Antarctic Convergence. And 1988 Antarctic Mineral Resources Convention. 1991 Antarctic Environment Protocol chose to create an environmental protocol to the 1959 treaty.
Six, Toxic and Hazardous Substances
Toxic and hazardous substances can cause significant damage in small, even minuscule, amounts. They are among the pollutants responsible for transboundary air and water pollution, as well as land-based pollution and dumping. About 95% of all hazardous pollutants are created by industries that generate four primary groups of toxic and hazardous chemicals. They are toxic metals, petrochemicals, pesticides and radioactive materials. Toxics often impact ecological food chains by bio-accumulating in the tissues of aquatic organisms and this does harm to the humans and living organisms deeply.
Legal responses to the toxic and hazardous substances include toxic and hazardous substances in general, before 1998, no international treaty existed regarding the distribution and use of hazardous substances across all media. In the absence of such a treaty, the FAO and UNEP filled this gap with two sets of voluntary guidelines. After there is prior informed consent, such as 2002 FAO International Code of Conduct on the Distribution and Use of Pesticides, 1987 UNEP London Guidelines for the Exchange of information on Chemicals in International Trade, Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. In light of hazardous wastes, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the Convention on the Ban of Imports Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, the International Convention on Liability and Compensation for damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea.
Seven, Land-based pollution
At least 80% of all marine pollution comes from sources that are located on land, and it has loomed more problematic to the extent that urban growth has departed from principles of sustainable development, and environmental protection has been ignored or minimized by economic growth. In general, there are eight groups of pollutants that are deposited into the ocean from land-based sources: chemical nutrients, sewage and bacterial agents, oil, organic chemicals, metals, sediments and litter, radioactive substances, heat.
Though land-based sources contribute the highest percentage of marine pollution, the international commitment to controlling these wastes remains understandably low. Only the United Nations Convention on the Law of the Sea, Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-based Sources, the Global Program of Action for the Protection of the Marine Environment from Land-based Activities and the Washington Declaration on Protection of the Marine Environment from Land-based Activities.
Eight, Vessel-based Pollution
The transportation of crude oil or refined products results in the release of approximately 136,000 tons of petroleum per year into the oceans of the world. And this will cause harm not only to the sea itself but also the humans and the living organisms.
International law has responded to the harms, the 1973/1978 International Convention for the Prevention of Pollution from Ships, the United Nations Convention on the Law of the Sea, International Convention on Oil Pollution Preparedness, Response and Co-operation, International Convention Relating to Intervention on the High Seas In Cases of Oil Pollution Casualties, Protocol on Preparedness, Response and Cooperation for Pollution Incidents by Hazardous and Noxious Substances, 2000.
Nine, Dumping
Many types of wastes that are difficult to dispose of on land have traditionally been dumped directly into oceans and rivers without regulation. This includes many hazardous materials, such as sewage, industrial effluents, sludges, radioactive wastes and polluted dredged spoils.
Thus, to reduce the harm, international legal responses include United Nations Convention on the Law of the Sea, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.
Ten, Conservation of Marine Living Resources
The Oceans cover 75% of the earth’s surface and human depend on the oceans for their living, however, without protection, the oceans will not be capable for the future of the next generation, so, it is the time to protect the oceans.
The legal responses to the protection of the Oceans include United Nations Convention on the Law of the Sea, UNEP regional seas programme, International Convention for the Regulation of Whalting.
Eleven, Transboundary Air Pollution
Human demands lead to a number of physical processes and activities that convert raw materials, energy, and labor into desired finished products. Diverse pollutants are introduced into the environment during various stages of these production and consumption cycles.
In this part, the authors mention the famous case—1941Trail Smelter Arbitration. This case has since become the basis for the general prohibition against transboundary environment harm that was definitely restated in the 1992 Rio Declaration: States have , in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and 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. Also, Convention on Long-range Transboundary Air Pollution is the treaty that regulates the transboundary pollution.
Twelve, Transboundary Water Pollution
Waters cover the face of the earth. And we have seen that the environmental health of the oceans is critical to humanity. However, the healthy waters have become polluted because of human activities. Meantime, pollution introduces into rivers, watercourses, and coastal waters of one state can affect another through transport, diffusion or dispersion.
International and Regional ways include Convention on the Law of the Non-Navigational Uses of International Watercourses, 1992 ECE Convention on the Protection and Use of Transboundary Watercourses and Lakes. And also the authors mention some famous cases on the transboundary water pollution, which become the rules for the future solving problems.
Thirteen, Desertification
Desertification refers to the process of climate change and human impacts that create desert environments in “drylands”—the arid, semi-arid, or dry sub-humid regions of the world. Human activities, driven by population growth, energy needs, and the lack of land have led to over-cultivation—the farming of land beyond its sustainable fertility.
Desertification raises questions common to other international environmental problems, and must be addressed within the conceptual framework of sustainable development. In 1992, the United Nations Conference on Environment and development adopted Agenda 21, a program for sustainable development, which recommended preventive measures for threatened or slightly degraded drylands and rehabilitative measures for moderately or severely degraded drylands.
Fourteen, Nuclear Damage
The military use of nuclear bombs can lead to unparalleled suffering, especially the radiation, radiation can cause destructive chemical changes, and when harmful radiation strikes human tissue, it strips electrons or neutrons of the molecules and atoms and thereby kills or damages human cells. And it has the power to destroy all civilization and the entire ecosystems of the planet. So, fear of such destruction has led the international community to seek way of containing and eliminating the nuclear threat from both military and civilian sources.
To ban all together the nuclear weapons and find other ways to substitute for the civilian nuclear uses are the best method to control the nuclear damage, however, it is unreal to realize this, so the authors discuss the international way concerning the protection from the nuclear damage.
The last part of this book mainly talks on the future of the international environmental law, although the international community has done much concerning the protection of our environment, the road ahead still in the twists and turns.
International Environmental Law in a Nutshell is a very useful book that not only for the students, who study the IEL, but also the handbook to the teachers and students who have well known the IEL.