Environmental law

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Environmental law is a body of law—a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies—that seeks to protect the natural environment, which may be affected, impacted, or endangered by human activities. Environmental law may regulate policy locally, statewide (or in the province), nationally, and internationally. International environmental law refers the body of international law that concerns the protection of the global environment.

Environmental law is one of several methods of protecting the enviroment. Other avenues include environmental education, economic incentives (ecotourism, debt exchange), and using religious traditions and humanity's spiritual dimension in promoting enviornmental protection.

Each method has shortomings. In the case of environmental law and regulations, they often lack effectiveness due to the difficulty of law enforcement. This is particularly evident in less developed countries and regions that may be especially vulnerable. For example, the Pantanal – which is located in South America and is the world’s largest wetland – is protected by many environmental regulations; however there is very poor enforcement of those regulations. In addition, environmental laws and regulations often are reactionary measures to undesirable consequences that have already occurred. We are now seeing a lot of environmental regulations in the United States and worldwide protecting wetlands. However, this is after about 50% of the wetlands already have been destroyed worldwide.

When attempting to understand the boundaries of environmental law one finds no clear limit. Like other branches of international law, international environmental law is interdisciplinary and includes fields such as economics, political science, ecology, human rights etc.

Environmental law changed greatly with the Stockholm Declaration of the United Nations Conference on the Environment. (See: http://www.unep.org/Documents/Default.asp?DocumentID=97) This Conference led to new thinking on how to reduce damages and better preserve the environment through international law.

Major topics

Some of the major topics cited by the American Society for Environmental Law that have been addressed in recent decades include:

• sustainable development (The Rio Declaration on Environment and Development http://www.unep.org/documents/default.asp?documentid=78),

• biodiversity (Convention on Biological Diversity http://www.biodiv.org/convention/articles.asp,

• transfrontier pollution (Convention on Long-Range Transboundary Pollution http://www.unece.org/env/lrtap/,

• marine pollution (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter http://www.londonconvention.org/,

• endangered species (Convention on International Trade in Endangered Species(CITES) http://www.cites.org/eng/disc/text.shtml

• hazardous materials and activities (Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal http://www.basel.int/text/text.html

• cultural preservation (Convention Concerning the Protection of the World Cultural & Natural Heritage, http://whc.unesco.org/world_he.htm),

• desertification (United Nations Convention to Combat Desertification, http://www.unccd.int/),

• uses of the seas (United Nations Convention on Law of the Sea (UNCLOS) linked from http://www.un.org/Depts/los/index.htm), and

• climate change (United Nations Framework Convention on Climate Change and the Kyoto Protocol on Global Warming (http://unfccc.int/essential_background/convention/items/2627.php).

Key principles

International Environmental law is shaped by a number of key principles. Some of the major ones are described below.

1. Exclusive Economic Zone - All States will have an exclusive economic zone that they will govern up to 200 miles in the ocean from their land border. This zone is to be managed with environmental sensitivity to other States. Provisions for this law are found in the U.N. Law of the Sea Convention. http://www.hri.org/docs/LOS/part5-1.html

2. Right to Development - Each State will have the right to development as an inalienable right and a right of self determination as stated in the Declaration on the Right to Development http://hei.unige.ch/humanrts/instree/s3drd.htm

3. Common Heritage of Humankind - The Moon Treaty provides that exploration and the use of the moon shall be available for all humankind as a common heritage. http://www.greaterearth.org/laws/moon_try.htm

The Convention on Biological Diversity in its preamble also provides for this same principle where it states “Affirming that the conservation of biological diversity is a common concern of humankind,” http://www.greaterearth.org/laws/moon_try.htm

4. The Precautionary Principle - The precautionary principle is the idea that if the consequences of an action are unknown, but are judged to have some potential for major or irreversible negative consequences, then it is better to avoid that action. The principle can alternately be applied in an active sense, through the concept of "preventative anticipation" [1], or a willingness to take action in advance of scientific proof of evidence of the need for the proposed action on the grounds that further delay will prove ultimately most costly to society and nature, and, in the longer term, selfish and unfair to future generations. In practice the principle is most often applied in the context of the impact of human civilization or new technology on the environment, as the environment is a complex system where the consequences of some kinds of actions are often unpredictable.

5. The Principle to Not Cause Harm - This principle developed from the Corfu Channel Case where it established that nations have an obligation to not take actions or create circumstances that will harm other nations.

6. The Principle of State Responsibility - This principle is based on the concept that states have liability for damage to other states that they may cause.

7. The Principle of Intergenerational Equity - This principle is referred to in a number of treaties such as the Convention on Biological Diversity and further proposed in refinement by environmental scholars. See: http://www.defenders.org/bio-co05.html

8. The Principle of Differentiated Responsibilities - This concept is found in the Climate Change Convention Article 3. The concept provides for those with more resources to take more responsibility than those with less capability.

9. The Principle of a Duty to Assess Environmental Impacts - This principle has applied to World Heritage sites and has been developed within individual countries such at the United States National Environmental Policy Act (NEPA) and the Australian Environment Protection and Biodiversity Act. The basic concept is to assess potential impacts before actions are taken that may adversely affect the environment.

10. Principle of the Duty to Cooperate - This principle requires nations to cooperate in addressing environmental issues. This is both part of the U.N. Charter Article 1.3 and is also found in the Moon Treaty as well. See: http://www.un.org/aboutun/charter/chapter1.htm

11. Polluter Pays Principle - The idea that the entity that pollutes the environment pays for its cleanup and consequences. An example of this is found in the preamble of the Convention on the Transboundary Effects of Industrial Accidents See: http://fletcher.tufts.edu/multi/texts/BH1000.txt

12. The Principe for Equal Right To Access Justice - This principle provides anyone injured from another’s damage to environment the right to bring an action for justice to an appropriate Court. This principle is found in the Nordic Environmental Protection Convention. See: http://sedac.ciesin.columbia.edu/entri/texts/acrc/Nordic.txt.html

There have been many important cases in the area of international environmental law. Important cases have included the various nuclear testing cases such as between New Zealand and France before the International Court of Justice.

Groups active in the area include the Environmental Law Alliance Worldwide(E-LAW) and the Centre for International Environmental Law

International environmental lawyers often receive specialized training in the form of an LL.M. degree after having a first law degree — often in another country from where they got their first law degree. Notable programs include the LL.M. in Environmental Law Program at the University of Oregon and the Stetson University College of Law Environmental Moot Court. (See: http://www.law.stetson.edu/environmental

Existing environmental law principles as well the development of new concepts as are increasingly applied to issues related to Sustainable Development, Environmental Degradation described further below.

Sustainable Development

Sustainable developmentis one of key the issues addressed by international environmental law.

Sustainable development is a process of developing (land, cities, business, communities, etc.) that "meets the needs of the present without compromising the ability of future generations to meet their own needs" according to the Brundtland Report also called “Our Common Future”, a 1987 report from the United Nations.

One of the factors which sustainable development seeks to overcome is environmental degradation while not forgoing the needs of economic development as well as social equity and justice.

Several United Nations texts, most recently the 2005 World Summit Outcome Document, refer to the "interdependent and mutually reinforcing pillars" of sustainable development as economic development, social development, and environmental protection.

For some, the issue is considered to be closely tied to economic growth and the need to find ways to expand the economy in the long term without using up natural capital for current growth at the cost of long term growth. For others, the concept of growth itself is problematic, as the resources of the Earth are finite.

The 2005 UK Sustainable Development Strategy has the objective of enabling all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations.

Many people reject the term sustainable development as an overall term in favor of sustainability, and reserve sustainable development only for specific development activities such as energy development.

One of the key difficulties with the concept of sustainable development is that as population increases it becomes by definition more difficult to sustain the same quality of life with the same amount of resources that may have been sustaining with a smaller population.

Environmental degradation

Environmental degradation is also a key concept for environmental law.

Environmental degradation refers to the diminishment of a local ecosystem or the biosphere as a whole due to human activity. Environmental degradation occurs when nature's resources (such as trees, habitat, earth, water, air) are being consumed faster than nature can replenish them. An unsustainable situation occurs when natural capital (the sum total of nature's resources), is used up faster than it can be replenished. Sustainability requires that human activity, at a minimum, only uses nature's resources to the point where they can be replenished naturally:

Consumption of renewable resources	State of environment	Sustainability
More than nature's ability to replenish	Environmental degradation	Not sustainable
Equal to nature's ability to replenish	Environmental equilibrium	Sustainable growth
Less than nature's ability to replenish	Environmental renewal	Sustainable growth

The long term final result of environmental degradation will be local environments that are no longer able to sustain human populations.

United Nations Environment Programme:

The United Nations Environment Programme (UNEP) is the U.N. organization most focused on the issues sustainable development and environmental degradation.

UNEP”s mission is:

To provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations.

UNEP was responsible for both the Earth Summit in Brazil in 1992 and the World Summit on Sustainable Development in South Africa in 2002.

The UNEP position on sustainabile development is: The intensified and unsustainable demand for land, water marine and coastal resources resulting from the expansion of agriculture and uncontrolled urbanisation lead to increased degradation of natural ecosystems and erode the life supporting systems that uphold human civilization. Caring for natural resources and promoting their sustainable use is an essential response of the world community to ensure its own survival and well being. (source: Sustainable Management and Use of Natural Resources)

UNEP is one of the few United Nations programs with its headquarters in Africa, symbolic of its understanding of the relationship of poverty to the issues of sustainable development and environmental degradation.

The intensified and unsustainable demand for land, water marine and coastal resources resulting from the expansion of agriculture and uncontrolled urbanisation lead to increased degradation of natural ecosystems and erode the life supporting systems that uphold human civilization. Caring for natural resources and promoting their sustainable use is an essential response of the world community to ensure its own survival and well being. (source: Sustainable Management and Use of Natural Resources)

Environmental agreements

There are numerous international environmental agreements made to protect the environment in different ways. Many of these are legally binding.

International environmental agreements include:

• Alpine Convention together with its nine protocols
• ASEAN Agreement on Transboundary Haze Pollution
• Antarctic Treaty
  • Agreed Measures for the Conservation of Antarctic Fauna and Flora [1]
  • Convention for the Conservation of Antarctic Seals [2]
  • Convention for the Conservation of Antarctic Marine Living Resources [3]
  • Protocol on Environmental Protection to the Antarctic Treaty
• Basel Convention
• Carpathian Convention Framework Convention on the Protection and Sustainable Development of the Carpathians [4]
• Convention on Biological Diversity
• Convention on Fishing and Conservation of Living Resources of the High Seas
• Convention on Long-Range Transboundary Air Pollution
  • EMEP Protocol
  • Sulphur Protocol 1985
  • Nitrogen Oxide Protocol
  • Volatile Organic Compounds Protocol
  • Sulphur Emissions Reduction Protocol 1994
  • Heavy Metals Protocol
  • POP Air Pollution Protocol
  • Multi-effect Protocol (Gothenburg protocol)
• Convention on the conservation of European wildlife and natural habitats
• Convention on the Conservation of Migratory Species of Wild Animals
• Convention on the International Trade in Endangered Species of Wild Flora and Fauna
• Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter
• Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques
• Convention on Wetlands of International Importance Especially As Waterfowl Habitat
• International Convention for the Prevention of Pollution from Ships
• International Convention for the Regulation of Whaling
• International Treaty on Plant Genetic Resources for Food and Agriculture
• International Tropical Timber Agreement, 1983 (expired)
• International Tropical Timber Agreement, 1994
• Kyoto Protocol - greenhouse gas emission reductions
• Montreal Protocol on Substances That Deplete the Ozone Layer
• North American Agreement on Environmental Cooperation
• Stockholm Convention on persistent organic pollutants.
• Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water
• United Nations Convention on the Law of the Sea
• United Nations Convention to Combat Desertification
• United Nations Framework Convention on Climate Change

References

ISBN links support NWE through referral fees

• Arrow, K.J. and Fischer, A.C. (1974), "Environmental preservation, uncertainty and irreversibility", Quarterly Journal of Economics 88(2):312-319.
• Epstein, L.S. (1980), "Decision-making and the temporal resolution of uncertainty", International Economic Review 21(2):269-283.
• Christian Gollier, Bruno Jullien and Nicolas Treich (2000), "Scientific Progress and Irreversibility: An Economic Interpretation of the ‘Precautionary Principle’", Journal of Public Economics 75(2):229-253.
• Harremoës, Poul, David Gee, Malcom MacGarvin, Andy Stirling, Jane Keys, Brian Wynne, Sofia Guedes Vaz. The Precautionary Principle in the 20th Century: Late Lessons from Early Warnings, Earthscan, 2002. Review, Nature, 419, Oct 2002, 433
• O’Riordan, T. and Cameron, J. (1995), Interpreting the Precautionary Principle, Earthscan Publications, London.
• Saunders, P.T. (2000), "Use and Abuse of the Precautionary Principle". Institute of Science in Society Submission to US Advisory Committee on International Economic Policy (ACIEP) Biotech. Working Group, 13 July.

External links

• International Environmental Law Research Centre (IELRC)
• Environmental Law Program and LL.M., University of Oregon
• Public Interest Environmental Law Conference
• Centre for International Environmental Law
• Law, Environment and Development Journal (LEAD Journal)
• Environmental Law Centre (ELC)
• Environmental Law Alliance Worldwide(E-LAW)
• Environmental Law Net

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