es167: environmental assessment

ES167: ENVIRONMENTAL ASSESSMENT

November 15, 2009Lecture 18

Environmental Institutions and Law

Guest Speaker:

Professor John A. Boyd

Environmental Institutions and Law

Source: Antonio A. Oposa Jr.

Environmental Institutions and LawBy John A. Boyd

Formerly a lawyer at the Asian Development Bank (ADB) and U.S. Department of State;

currently a Lecturer in the Graduate School of Law, San Beda College, Manila, Philippines,

a member of the Commission on Environmental Law of IUCN (World Conservation Union) and

President of the Glen Educational Foundation, a Philippine corporation with a focus on Governance, Law, and Environmental

Networks

views expressed are not necessarily those of ADB, U.S. Government, or IUCN

ENVIRONMENTAL INSTITUTIONS AND LAW

I. INTRODUCTION

II. ENVIRONMENTAL INSTITUTIONS

A. NATION STATES

B. TREATY ORGANIZATIONS INCLUDING THE UN

C. PRIVATE SECTOR

D. FOUR EXAMPLES

III. ENVIRONMENTAL LAW

A. INTRODUCTION

B. FOUR QUESTIONS IN INTERNATIONAL LAW

C. SUSTAINABLE DEVELOPMENT AS A CONCEPT

D. MULTILATERAL ENVIRONMENTAL AGREEMENTS (MEAs)

E. JOHANNESBURG PRINCIPLES ON THE ROLE OF LAW AND SUSTAINABLE DEVELOPMENT

IV. CONCLUSION

ENVIRONMENTAL INSTITUTIONS AND LAW

I. INTRODUCTIONA. Your questions are welcome, but I may not be able

to answer every good question.

B. Many environmental institutions are based on law. “The aim of environmental law is to reduce the anthropogenic sources of environmental harm by modifying human behavior.”

Kiss & Shelton, International Environmental Law, (2007), p. ix.

C. Environmental law is like a layer cake, with i) international law the top layer, ii) national law the next layer down, iii) local law further below,iv) but the bottom layer is based on experience and actions by scientists and others, including lawyers.

ENVIRONMENTAL INSTITUTIONS AND LAWI. INTRODUCTIONAn example of the evolution of environmental law from the

Philippine Supreme Court--Oposa v. Factoran, described on page 188 of An Introduction to Sustainable Development [ISD]:

The Petitioners, minors represented by their parents, and a Philippine NGO, sought to have the defendant, the Philippine Secretary of the Department of Environment and Natural Resources, ordered to rescind all existing Timber License Agreements, and desist from approving new agreements.

Professor Oposa argued in behalf of children that a right to the environment had been breached.

Inter-Generational Responsibility


RESPONSIBILITY TO FUTURE GENERATIONS

“The case … has a special and novel element. Petitioners claim that they represent their generation as well as generations yet unborn.”

Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources, Donna Craig, Nicholas A. Robinson, and Koh Kheng Lian, eds., ADB 2003, Vol. I, pages 720-726.


Chief Justice Hilario Davide Jr. for Philippine Supreme Court:

“Their personality to sue in behalf of the succeeding generations can only be based on the concept of inter-generational responsibility.” (Ibid)


RESPONSIBILITY TO FUTURE GENERATIONSPhilippine Supreme

Court: “We find no difficulty

in ruling that they can, for themselves, for others in their generation and for their succeeding generations, file a class suit.” (Ibid)


RESPONSIBILITY TO FUTURE GENERATIONSDavide: If the present

generation failed to represent future generations,

“the day would not be too far when all else would be lost not only for the present generation, but also for those to come-- generations which stand to inherit nothing but a parched earth incapable of sustaining life.” (Ibid)



Davide for the Philippine Supreme Court:

“[The right to a balanced and healthful ecology] …is no less important than any of the civil and political rights of human beings.” (Ibid)


Davide: “Such a right [to a balanced and healthful ecology] …concerns nothing less than the right to self-

preservation and self-perpetuation, a right that may even be said to predate all governments and constitutions.”

(Ibid)


Thus the “Philippine Supreme Court declared that all citizens have a fundamental right to a ‘balanced and healthy ecology’

and a duty to protect the environment for future generations.”

Dan Tarlock, “Ecosystems”, The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunee and Ellen Hey (2007), page 585.



Davide held that, without the forests which were threatened by the Timber License Agreements, “a balanced and healthful ecology would not …be achievable.”

Subsequently, all Timber License Agreements were cancelled. (Ibid) Professor Antonio A. Oposa

Jr.

RESPONSIBILITY TO FUTURE GENERATIONS Bruntland Commission Report:

"Humanity has the ability to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs."

“ Making the difficult choices involved in achieving sustainable development will depend on the widespread support and involvement of an informed public and nongovernmental organizations, the scientific community, and industry."

Capacity Building for Environmental Law: Approaches and Resources, Donna Craig, Nicholas Robinson, and Koh Kheng Leng (ADB: 2nd-2003)" pages 93 and 96.

A. NATION STATES—EXAMPLES FROM BRITAIN

1. “Britain’s first recorded legislation dates from 1273 when King Edward I, known better for fighting the Scots [Sir William WALLACE and Robert the Bruce] and the Welsh, prohibited the burning of “Sea Coal” in order to protect the health of its subjects. In the 1500s, it is understood that Elizabeth I banned the use of coal while Parliament was sitting with the penalty of death in default.”

Paul Stookes, A Practical Approach to Environmental Law (Oxford University Press, 2005), page 13 (Paul Stookes).

A. NATION STATES—EXAMPLES FROM BRITAIN

2. “By the 1840s, Victorian England had to tackle the adverse consequences of the industrial revolution. During this period, the UK government began to legislate more generally for public health including the introduction of the Alkali Act 1863 [to deal with heating common salt with sulfuric acid to produce salt cake (sodium sulfate) and hydrochloric acid for the glass, textile, and soap industries] to try and reduce the heavy build up of acid in the local atmosphere…”

Paul Stookes, page 13; http://pubs.acs.org/subscribe/journals/tcaw/11/i01/html/01chemchron.html

A. NATION STATES—EXAMPLES FROM BRITAIN3. “Sustainable Development was introduced into UK

Legislation in the Environmental Act 1995, which, among other things, established the Environment Agency and the Scottish Environment Protection Agency. Section 4(1) of the Act provides that:

“It shall be the principal aim of the Agency (subject to and in accordance with the provisions of this Act or any other enactment and taking into account any likely costs) in discharging its functions so to protect or enhance the environment, taken as a whole, as to make the contribution towards attaining the objective of achieving sustainable development.”

Paul Stookes, page 14

II. ENVIRONMENTAL INSTITUTIONSII. ENVIRONMENTAL INSTITUTIONS

A. NATION STATES--EXAMPLE FROM USA

1. Congress and the President

a. National Environmental Policy Act (NEPA) of 1969

b. Environmental Protection Agency, est'd 1970

c. Departments of Interior, Commerce, Transportation, Labor, the Council on Environmental Quality, State Dept.

d. Multilateral Environmental Agreements such as the UN Framework Convention on Climate Change

2. Federal Courts

3. State and Local Legislation, Institutions, and Courts (cont'd) (S. Ferry, Environmental Law (2nd Ed. 2001) [EL])


A. NATION STATES--EXAMPLE FROM USA (cont'd)

4. Nongovernmental Organizations--such as the Sierra Club and the Natural Resources Defense Council (both of which have international aspects)5. Scientific Organizations and Educational Institutions such as the Massachusetts Institute of Technology 6. Industry7. The Media including newspapers and television8. Civil Society

II. ENVIRONMENTAL INSTITUTIONSII. ENVIRONMENTAL INSTITUTIONS1. Congress and the President (cont'd)

The Environmental Protection Agency (NEPA) administers

nine major environmental statutes including legislation dealing with Clean Air; Clean Water; Marine Protection, Research and Sanctuaries; Solid Waste, Insecticides, Fungicides and Rodenticides; Toxic Substances; Noise Control; Safe Drinking Water

Departments of Interior, Commerce, Transportation, Labor,and the Council on Environmental Quality are responsible for much more environmental legislation dealing with such topics as

Coastal Zone Management, Deepwater, Endangered Species, Federal Land, Fishery Conservation, Forests,Wildlife, Occupational Safety and Health, Rivers(EL)


1. Congress and the President (cont'd)

c. Department of State and U.S. Agency for International Development (USAID)

1) Department of State negotiates treaties, monitors international organizations

2) USAID provides grants to foreign governments, schools, NGOs others

II. ENVIRONMENTAL INSTITUTIONSII. ENVIRONMENTAL INSTITUTIONSA. NATION STATES—AN EXAMPLE FROM USA

2. Federal Courts

a. Common Law Environmental Remedies including nuisance, trespass, negligence, strict liability, public trust doctrine

b. Federal Environmental Legislation (NEPA, etc.)

c. Administrative Procedure Act, Freedom of Information Act, Federal Tort Claims Act, etc.

d. Constitutional Issues such as the Federal Commerce Clause versus State Power and Legislation

A. NATION STATES—AN EXAMPLE FROM USA

3. State Courts--An examplea. Common Law:1). "Nuisance is the most frequently pled common law tort action in environmental litigation. Nuisance law traditionally protected the right of a landowner to use and enjoy property. This is a broad interest that can be violated without direct physical invasion." (EL p. 33). 2). In Village of Wilsonville v. SCA Services (1981), the court granted an injunction and ordered a site clean-up of the "defendant's hazardous chemical landfill" which presented "a substantial danger of groundwater contamination and explosions from chemical reaction." (EL p 26)

A. Nation States—An Example from South A. Nation States—An Example from South AfricaAfrica

“Article 24 of the South African Constitution 1994 states that everyone has the right to:

(a) Have an environment, that is not harmful to his or her health or well-being;

(b) An environment protected for the benefit of present and future generations, through reasonable legislative and other measures that—(i) prevent pollution and ecological degradation;(ii) promote conservation; and(iii) secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.”

(Paul Stookes, page 28; emphasis added.)

II. ENVIRONMENTAL INSTITUTIONSB. TREATY ORGANIZATIONS 1. United Nations Systema. General Assembly and the Security Councilb. International Court of Justice c. UN Environmental Programme (UNEP)d. UN Development Programmee. UN Division for Sustainable Developmentf. Committee on Economic, Social and Cultural Rightsg. Other committees and commissions on women, etc.h. World Health Organizationi. UN Educational, Scientific and Cultural Organizationj. World Trade Organization

II. ENVIRONMENTAL INSTITUTIONSB. TREATY ORGANIZATIONS 1. United Nations System (cont'd)k. World Meteorological Organization, othersl. Secretariats of Multilateral Environmental Agreements m. International Financial Institutions1). The World Bank including its Inspection Panel2). The International Finance Corporation including its Compliance Advisor Ombudsman

II. ENVIRONMENTAL INSTITUTIONS2. Non-UN System such as the Asian Development

Bank (ADB) and its Accountability Mechanisma. Program loans for poverty eradication such as

"Access to Justice Program in Pakistan"; see Rogers, Jalal, Boyd, An Introduction to Sustainable Development [ISD] at page 194;

b. Project loans for water, sanitation, healthc. Grants for reform of the land administration

law of the People's Republic of Chinad. Monitoring of sustainable development

aspects throughout the project cycle

II. ENVIRONMENTAL INSTITUTIONSC. PRIVATE SECTOR1. NON-GOVERNMENT ORGANIZATIONS

a. International NGOs such as IUCN, known as the World Conservation Union, WWF, The Nature Conservancy, World Resources Institute

b. Industrial NGOs such as World Business Council for Sustainable Development.

2. Educational Organizations such as the UN University3. The Media including cable news networks and

international newspapers such as the International Herald Tribune and Financial Times

II. ENVIRONMENTAL INSTITUTIONS4. Private Foundationsa. Bill and Melinda Gates Foundationb. David and Lucile Packard Foundationc. MacArthur Foundationd. Pew CharitableTrustse. Ted Turner/UN Foundationf. Others

Source:WBCSD, Finding Capital for Sustainable Livelihoods Business <wbcsd.org>

II. ENVIRONMENTAL INSTITUTIONSD. FOUR EXAMPLES

1. UN Environment Programme (UNEP)

a. Established by UN General Assembly in 1975b. Governing Council has 58 Member Statesc. The UNEP secretariat consists of 890 staff members,

roughly 500 of whom are international staff while the remaining are hired locally. http://en.wikipedia.org/wiki/UNEP

d. Expended about $171,000 million for 2008-2009 (www.unep.org/gc/gcss-x/download.asp?ID=979 )

e. Programs include focus on Climate Change, Disasters and Conflicts, Ecosystem Management, Environmental Governance, Harmful Substances, Resource Efficiency, Freshwater, Biodiversity.

D. FOUR EXAMPLES (cont'd)2. World Conservation Union (IUCN)a. Founded in 1948 as a Swiss corporation.b. Members include 83 state members, 108 Gov. agencies, 766

NGOs, including 81 international NGOsc. Total expenses in 2008 were $135.264 million

(http://www.conservation.org/discover/annual_report/Documents/CI%20Financials.pdf)

d. Has 1,100 professional staff in 60 offices worldwide; about 10,000 scientists and experts from 160 countries. (http://en.wikipedia.org/wiki/World_Conservation_Union)

e. Enjoys observer status at the UNf. “The first publicly visible use of the term ‘sustainable

development’ was most probably in 1980, when it appeared in …a document prepared by [IUCN].” Daniel Barstow Magraw & Lisa D. Hawke, “Sustainable Development”, The Oxford Handbook of International Environmental Law(2008), page 615.

II. ENVIRONMENTAL INSTITUTIONSD. FOUR EXAMPLES (cont'd)3. World Business Council for Sustainable

Development <http://www.wbcsd>a. First publication in 1992; formally established 1994.b. Coalition of 200 international companies in such

sectors as cement, electricity, forest products, mining and minerals;

c. Members include Alcoa, Bayer, BP, Caterpillar, Chevron, China Petrochemical Corporation (SINOPEC), Deutsche Bank, Deloitte Touche Tomatsu, Dow Chemical, Dupont, Johnson & Johnson, JSC Gazprom, Michelin, Mitsubishi Corporation, Nokia, Proctor and Gamble, Rio Tinto, Royal Dutch Shell, Sumitomo Chemicals, Sony, Toyota Motors, and Volkswagen

3. World Business Council for Sustainable Development

c. Mission Statement: “Our mission is to provide business leadership as a catalyst for change toward sustainable development, and to support the business license to operate, innovate and grow in a world increasingly shaped by sustainable development issues.”

d. Focus Areas: “Energy & Climate, Development, Business Role, Ecosystems”

e. Projects: “Water, Energy Efficiency in Buildings, Forest Products, Cement, Electricity Utilities, Tire Industry, Mobility, Mining & Minerals”

D. FOUR EXAMPLES (cont'd)4. 1992 UN Conference on Environment and

Development resulted in part in the United Nations Framework Convention on Climate Change.

U.S. Government ratified this Convention on15/10/92, and the Convention entered into force on 21/03/94.

UNFCCC Core programme budget for 2008 was $27 million, supporting 144 staff of which 88 are professional or above. (http://unfccc.int/files/meetings/cop_13/application/pdf/cp_budg_eigh_ni.pdf)

UNFCC is committed to • Making a contribution to sustainable development

through support for action to mitigate and to adapt to climate change at the global, regional and national level.

• Providing high-quality support to the intergovernmental process in the context of the Convention and the Kyoto Protocol. http://unfccc.int/secretariat/items/1629.php

III. ENVIRONMENTAL LAW

Source:<http://www.bbc.co.uk/nature/wildfacts/factfiles/174.shtml>

http://www.bbc.co.uk/nature/wildfacts/factfiles/picpops/287.shtml

III. ENVIRONMENTAL LAW A. Introduction

1. Why study environmental law?a. Of what legal force is a "Declaration"?b. What has the International Court of Justice said

about the environment and sustainable development?

c. What is "customary international law" and can it be enforced?

d. What is "soft law"?e. When did "the law" of sustainable development

begin?


PACIFIC FUR SEALS CASE “From the legal point of view, the concept of

sustainable development began more than 100 years ago with the Behring Sea Fur Seals Fisheries case, decided in international arbitration.” (ISD p 211)

Source:<http://www.bbc.co.uk/nature/wildfacts/factfiles/174.shtml>

http://www.bbc.co.uk/nature/wildfacts/factfiles/picpops/285.shtml

PACIFIC FUR SEALS CASEAccording to Professor Phillippe Sands:

"Indeed, the inherent features of the concept [of sustainable development] have been an aspect of international legal relations since at least 1893, when the United States asserted a right to protect Pacific fur seals, for the benefit of mankind, from wanton destruction, in opposition to the assertion by Great Britain that its nationals were entitled to exploit these resources for their own developmental purposes.” (ISD p 211; emphasis added.)

III. ENVIRONMENTAL LAW A. Introduction 2. Law

Oxford English Reference Dictionary (1966) defines law as "a rule enacted or customary in a community, and recognized as enjoining or prohibiting certain actions, and enforced by the imposition of penalties."

Mark Twain: "Laws are sand, customs are rock. Laws can be evaded and punishment escaped, but an openly transgressed custom brings sure punishment."(ISD p 184.)


3. INTERNATIONAL LAWIn a well known US State Department publication,

international law is defined as a “standard of conduct” pertaining to both “states” and “other entities”:

“International law is the standard of conduct, at a given time, for states and other entities subject thereto. It comprises the rights, privileges, powers, and immunities of states and entities invoking its provisions, as well as the correlative fundamental duties, absence of rights, liabilities, and disabilities.” (Whiteman, 1963, Vol.1, p. 1, quoted in

ISD p 185)

4. "ENVIRONMENT"

International treaty law describes

the word “environment.” Professors of law

Alexandre Kiss and Dinah Shelton point out

that the European Convention on Civil Liability

for Damage Resulting from Activities Dangerous

to the Environment describes the “environment”

as including the following:

• natural resources both abiotic and biotic, such as air, water,

soil, fauna and flora and the interaction between the same factors;

• property which forms part of the cultural heritage; and

• the characteristic aspects of the landscape [footnote omitted].

( ISD p 185)


4. ENVIRONMENT--a social dimensionFurthermore, as Kiss and Shelton note, the

International Court of Justice (ICJ) in its opinion on the Legality of the Threat or Use of Nuclear Weapons “includes a social dimension in the definition of the environment", stating that “the environment is not an abstraction, but represents the living space, the quality of life, and the very health of human beings, including generations unborn.” (International Environmental Law p 2)

5. SOURCES OF INTERNATIONAL LAW

(a) international conventions; (b) international custom;

(c) general principles of law; (d) judicial decisions and teachings



Article 38(1) of the international agreement establishing the ICJ, which forms the apex of the judicial branch of the UN, describes the following four sources of international law:

(a) international conventions, general or particular, establishing rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law [Emphasis added].

(ISA p. 186-187)

I. INTRODUCTION


a. .INTERNATIONAL CONVENTIONS OR TREATIES

Black’s Law Dictionary (1999) states, “A convention is an agreement or compact among nations….”

Thus, an international convention includes agreements which are often called treaties. The Vienna Convention on the Law of Treaties (1969) states in part:

For the purposes of the present Convention: (a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;…. (ISD p 186)

5. SOURCES OF INTERNATIONAL LAW (cont'd)

a. INTERNATIONAL CONVENTIONS OR TREATIES

Since a treaty may exist “whatever its particular designation,” and since such agreements have been negotiated for thousands of years, treaties have been designated with a wide variety of titles, including agreement, compact, protocol, and the like. One of the earliest treaties, written on a clay tablet, was between King Silis of the Hittites and Ramses II of Egypt. [Italics added] That was in 1269 B.C….”(ISD p 186)

http://un.org


b. CUSTOMARY INTERNATIONAL LAW

“International law that derives from the practice of states and is accepted by them as legally binding.

This is one of the principle sources or building blocks of the international legal system.”

Black’s Law Dictionary, Bryan A. Garner, Editor in Chief, eighth edition (1999) p. 835.

“[T]he approach … attempts to describe the existing norms that govern the relations among states, but does not advocate or prescribe new norms. …Customary norms depend not only on state practice (that is, on observable regularities of behavior), but also on acceptance of these regularities as law by states….”

ISD 187


c. GENERAL PRINCIPLES

Hunter, Salzman, and Zaelke … quote Professor of Law Ian Brownlie, who “states that ‘general principles’ may refer to ‘rules accepted in the domestic law of all civilized states,’ or alternatively, to the general principles of private law used within all or most States,… insofar as those principles are applicable to relations of States.

General principles, then, fill in the gaps in international law that have not already been filled by treaty or custom.” [G]eneral principles include principles which have emerged from municipal legal systems….“(ISD pp 188)

5. SOURCES OF INTERNATIONAL LAW c. GENERAL PRINCIPLES--an example

The environmental impact assessment (EIA) procedure began in the United States at the end of the 1960s in Michigan.

EIA procedure was adopted in the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution in 1978.

EIA procedure was adopted at the global level in the 1982 Convention of the Law of the Sea (UNCLOS). (Kiss and Shelton p 44)

5. SOURCES OF INTERNATIONAL LAWd. JUDICIAL DECISIONS AND THE TEACHINGS OF THE MOST QUALIFIED

Law Professor Antonio A. Oposa, Jr. gives the following description of the role of “Judicial Decisions and Scholarly Writings” in the articulation of international law:

"International Law may also be expressed through the judicial decisions of international courts and tribunals, and of national courts. It must be noted that a judicial decision is not, by and of itself, the International Law. Rather, the judicial decision is said to be only an expression or an articulation of the principle of International Law which is applied to a particular controversy or case at hand. In other words, it is not International Law itself but only evidence of the existence of the legal principle involved.“ (ISD p 187)

5. SOURCES OF INTERNATIONAL LAWd. JUDICIAL DECISIONS AND THE TEACHINGS OF THE MOST QUALIFIED (cont'd)

Teachings of the Most Qualified Law Professor Antonio A. Oposa, Jr.:

“So also with the writings and learned explanations of the “most highly qualified” scholars. The writings of these scholars, who through years of labor, research, and experience, have become intimately acquainted with the principles and practice of international law are in a position to explain what it is….”(ISD p 187)

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

1. Armed with these definitions, we can go back to our original questions about how international law would interpret a) the Stockholm Declaration of 1972,

b) UN General Assembly resolutions, c) UN Security Council Resolutions, andd) the Rio Declaration at the World Summit on Sustainable Development in 1992.

First, would any of these satisfy the definition of a convention or treaty, the first source of international law?


2. Would "Declarations" usually be considered an international convention?

No, they would not. When states have acted on these three instruments through their representatives, they usually do so without the requisite intent to be bound to an international convention or treaty. However, this is not to suggest that Declarations and like instruments are unimportant.


3. Declarations as Soft Law Documents such as the Rio Declaration

are often referred to as “soft law,” which Black’s Dictionary defines in part as “Guidelines, policy declarations, or codes of conduct that set standards of conduct but are not directly enforceable.”

Hard law compared to Soft Lawa. Hard Law (legally binding)

1. Treaties (or conventions or agreements)2. Custom (Implicit Agreements)3. Generally recognized principles of law. [generally fills in gaps not already filled by treaty or custom] “They are mostly used to identify basic rules of procedure..(e.g. evidence is admissible)[use of EIAs]. They are not to be confused with ‘principles’ of International Environmental Law which are contained either in treaties or which may be distilled from treaties…”)

Bell & McGillivray, page 153.

4. Judicial decisions and the teachings of the most qualified

b. Soft Law (sets standards of conduct but are not legally binding)

1. Declarations

2. Principles contained in Treaties such as “The Parties have a right to, and should promote sustainable development” from Article 3 of the Climate Change Convention

3. Recommendations

4. Standards [also Guidelines, Codes of Conduct, etc.] (Stuart Bell & Donald MsGillivray, Environemental Law (Sixth Edition) Oxford University Press 2006, pp 152-154)

Stockholm

http://images.google.com.ph/images?svnum=10&hl=en&lr=&q=stockholm

a) However, the Stockholm Declaration of 1972Principle 21 of the Stockholm Declaration declaring

no state may "cause damage to the environment of other States" has "evolved into international customary law.“ Italics added. Capacity Building p 87.

"States have, in accordance with the Charter of the United Nations and the principles of international law, …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." (ISD p 189)

<http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID=1503>

b) However, the Stockholm Declaration of 1972Principle 24 of the Stockholm Declaration concerning the "duty

to cooperate" "also appears to have acquired this status" of a customary rule of international environmental law. (Kiss and Shelton p 43)

Principle 24:"…Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control,prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.“ http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503

U.N. General Assembly

http://update.unu.edu

1.b) UN General Assembly resolutions"A General Assembly resolution may

contribute to the development of international law …

if the resolution gains virtually universal support,

if the members of the Generally Assembly share a lawmaking or law-declaring intent --

and if the content of that resolution is reflected in general state practice." (ISD p 190)

UN Security Council

www.un.org

1.c) UN Security Council ResolutionsUnlike UN General Assembly resolutions,

UN Security Council resolutions adopted pursuant to Chapter VII of the UN Charter are "legally binding on all member states of the United Nations."

Chapter VII is entitled "Action with Respect to Threats of Peace, Breaches of the Peace, and Acts of Agression" (ISD p 190)

Rio de Janeiro

www.millennium-ride.com


1.d. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT

The Rio Declaration on Environment and Development., adopted at the 1992 UN Conference on Environment and Development, is one of three nonbinding instruments that emerged in Rio de Janeiro. The other two are Agenda 21 and the Forest Principles. (ISD p 190)


5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)

a.The Rio Declaration of 1992 consists of a preamble and 27 principles.

b.Kiss and Shelton suggest that the Rio Declaration contains principles that may be placed under four categories: legal, policy, economic, and public policy.

(International Environmental Law p 71; ISD p. 190)



c. Concerning those principles, Kiss and Shelton point out that Principle 2 concerns transboundary effects.

Principle15 concerns the formulation of then-emerging principle of the precautionary principle.

Principle 17 the emerging “polluter pays” principle, requires internationalization of environmental costs.(ISD p 191)


5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)d. Kiss and Shelton: In the view of many, the key to the Rio Declaration is found in Principle 3, which is a restatement of the definition of sustainable development proposed in the Brundtland Report. Principle 3 states that “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” (ISD p 191)


5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)e. Kiss and Shelton: Principle 5 declares that “All States and all people shall cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world." (ISD p 191)


“The famous Brundtland definition [footnote omitted]contains two ethical elements that are widely accepted asbeing essential to the idea of sustainable development:1. concern for the poor (intragenerational justice or

equity); and [Principal 5 of the Rio Declaration]2. concern for the future (intergenerational justice or

equity). [Principal 3 of the Rio Declaration]The concern for the poor includes all social and minoritygroups discriminated against by the social and economicsystem.Klaus Bosselmann, The Principle of Sustainability: Transforming Law and Governance,

Ashgate (2008) p. 99.

B. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT (CONT'D)

Kiss and Shelton:f. “Other legal norms can be found in Principle 10, affirming rights of public information, participation, and remedies;

Principle 13 … calls for the development of liability rules.

Principle 11 stresses the importance of enacting effective environmental legislation.” (ISD p. 191)


5. RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT

g. Principle 20 indicates that “Women have a vital role in environmental management and development” and that “Their full participation is therefore essential to achieve sustainable development.” h. Principle 22 of the Rio Declaration provides that “Indigenous people and their communities and other local communities have a vital role… in the achievement of sustainable development.” (ISD p 190)


5. i. DOES THE RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT

CONSTITUTE INTERNATIONAL LAW?

NO, NOT AS HARD LAW. BUT IT IS CONSIDERED TO BE SOFT LAW, AND IT HAS THE POLITICAL ENDORSEMENT OF MORE THAN 170 GOVERNMENTS PARTICIPATING IN THE RIO CONFERENCE.

AS SUCH, THE "RIO DECLARATION" IS VERY IMPORTANT, CONTAINING MANY KEY PRINCIPLES RELATING TO THE ENVIRONMENT AND DEVELOPMENT, INCLUDING SUSTAINABLE DEVELOPMENT.

II. FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

6. RIO'S LEGALLY BINDING INSTRUMENTS“The legally binding instruments that emerged in

Rio were two international conventions – (i) the UN Framework Convention on Climate

Change and (ii) the Convention on Biological Diversity --both

of which were signed in Rio and subsequently entered into force.” (ISD p 190)

III. C. Sustainable Development as a Concept


International Court of Justice, The Hague, The Netherlands

www.aijac.org.au

III. C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?

Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997)

This ICJ case concerned a system of dams on the Danube River designed to produce electrical energy and improve the “navigability of the Danube, flood control and regulation of ice-discharge, and the protection of the environment.” (ISD p 193)

“Hungary attempted to invoke an environmental emergency to justify its withdrawal from a treaty involving a large dam project. However, the ICJ found that there was not a sufficient state of necessity at the time that Hungary withdrew.” Dan Tarlock, Ecosystems, The Oxford Handbook of International Environmental Law, p.583.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

www.icj-cij.org

III. C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?


The International Court of Justice judgment, delivered by the 15 Judges of the Court, with Stephen M. Schwebel, appointed by the US, serving as President, included the following paragraph dealing with “effects upon the environment,” “risks for mankind – for present and future generations,” and the “concept of sustainable development”:(ISD p 193)

III. C.. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?

Gabcikovo-Nagymaros Project (Hungary/Slovakia) “Paragraph 140.… Owing to new scientific insightsand to a growing awareness of the risks for mankindfor present and future generations…new norms andstandards have been developed, set forth in a greatnumber of instruments during the last two decades. Such new norms have to be taken into consideration,….This need to reconcile economic developmentwith protection of the environment is aptly expressedin the concept of sustainable development.” Italicsadded.(ISD p 193) (continued)

C. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW?


International Court of Justice decided that“For the purposes of the present case, this means

that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant. [Italics added]

In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into side-arms on both sides of the river.”

David Hunter, James Salzman, Durwood Zaelke, International Environmental Law and Policy, 2d Edition, Foundation Press (2002), p. 338

III. C.. SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF INTERNATIONAL LAW? Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997) As pointed out by Kiss, in the case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) in 1997, the ICJ explained the “concept” of sustainable development, though in a dissenting opinion, argued that sustainable development is a “principle of international law.” (ISD p 194)

III. C. SUSTAINABLE DEVELOPMENT: A DUTY AND SIX PRINCIPLES

These are the duty and six principles of international law in the field of sustainable development that Professor Kiss indicates “have been proposed to establish its concrete content”:

1. The duty of the States to ensure sustainable use of natural resources.The principles of2. …equity and the eradication of poverty.3. …common but differentiated responsibilities.4. …the precautionary approach to fields such as

health, natural resources and ecosystems.5. …public participation and access to information and justice.6. …good governance.7. …integration and interrelationship, in particular in relation to

human rights and social, economic and environmental objectives.(A.Kiss,"Academy Public Lectures on International Environmental Law,"IUCN Academy of Environmental Law p. 9; ISD pp 196-198)

III. C. SUSTAINABLE DEVELOPMENT: IMPLEMENTING THE SIX PRINCIPLES

As Kiss points out these principles must be implemented through policies dealing with such matters as land-use planning, energy, soil protection, education, and capacity building. Kiss further points out that implementation of each such policy involves

[a] legal measures,

[b] good institutions, and

[c] good norms, and

that among these legal measures are

international conventions,

constitutional provisions,

statutes providing basic services such as water,

statutes protecting the environment,

relevant regulations, and

judicial decisions.

(A.Kiss,"Academy Public Lectures on International Environmental Law,"IUCN Academy of Environmental Law pp. 14-15;ISD p 199)

SUSTAINABLE DEVELOPMENT: A DUTY AND SIX PRINCIPLES

In the Gabcikovo-Nagymaros Dam case, the ICJ agreed that “[f]or the purposes of the present case, this [need to reconcile norms dealing with economic development with norms for the protection of the environment] means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant.” Bosselmann, The Principle of Sustainability, p. 56. Italics added.

Klaus Bossermann: “While the Court stopped short of saying that sustainable development ‘is a principle with normative value’, [footnote omitted] it did certainly confirm its guiding function, which [Peter] Sands interprets as the Court’s recognition ‘that the term has a legal function.’” Bosselmann, The Principle of Sustainability, p. 56.

III. C. SUSTAINABLE DEVELOPMENT: A GENERAL CONCEPT

“ Sustainability is a general concept and should be applied in law in much the same way as other

general concepts such as liberty, equality and justice.”

New Zealand Ministry for the Environments Working Paper November 24, 1989, quoted by Klaus Bosselmann, New Zealand Centre for

Environmental Law, The University of Auckland, Faculty of Law in “The Environmental Jurisprudence of International Tribunals: making

sustainability count”

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS



1. CHARACTERISTICS OF ENVIRONMENTAL TREATIES

Kiss and Shelton describe seven main features of environmental treaties:1.an emphasis on national implementing measures being taken by the states parties;2. the creation of international supervisory mechanisms to review compliance by states parties;3. simplified procedures to enable rapid modification of the treaties;4. the use of action plans for further measures; 5. the creation of new institutions or the utilization of already existing

ones to promote continuous cooperation;6. the use of framework agreements; and7. interrelated or cross-referenced provisions from other environmental instruments.

(ISD p 201)


2. The UNEP Global Judges Symposium “Status” (2002)(ISD, p. 203) lists 5 Multilateral Environmental Agreements to be ratified:

1. Amendment to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,

2. Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal [now ratified],

3. Kyoto Protocol to the United Nations Framework Convention on Climate Change [now ratified],

4. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC) [now ratified], and

5. Stockholm Convention on Persistent Organic Pollutants (POPs) [now ratified.]


3. UNEP’s Global Judges Symposium “Status” lists 13 Multilateral Agreements which have been ratified but need assistance in implementation:

1. Convention on the Conservation of Migratory Species of Wild Animals,

2. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),

3. Convention on Biological Diversity,4. Cartegena Protocol on Biosafety to the Convention on

Biological Diversity,5. Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal,6. Vienna Convention for the Protection of the Ozone

Layer, (continued on next slide)(ISD p 203)

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS3. The UNEP Global Judges Symposium “Status” lists 13

Multilateral Agreements which have been ratified but need assistance in implementation (cont'd):

7. Montreal Protocol on Substances that Deplete the Ozone Layer,

8. United Nations Framework Convention on Climate Change (UNFCCC),

9. UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD),

10. UN Convention on the Law of the Sea (UNCLOS),11. Convention for the Protection of the World Cultural and

Natural Heritage,12. Convention on Wetlands of International Importance

Especially as Waterfowl Habitat (RAMSAR), and13. Convention on Access to Information, Public Participation in

Decision-Making and Access to Justice in Environmental Matter (AARHUS). (ISD p. 203)

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTSBeyond this list of Multilateral Environmental Agreements

from UNEP Global Judges Symposium, the following agreements dealing with nuclear issues are relevant to the protection of the environment:

1. Vienna Convention on Civil Liability for Nuclear Damage 1963;

2. Treaty on the Non-Proliferation of Nuclear Weapons (1968);

3. Convention on Early Notification of a Nuclear Accident (1986);

4. Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986).

Linda A. Malone, Environmental Law, 2nd Edition, Emanuel Law Outlines, Wolters Kluwer, p. 213.


4. SUSTAINABLE DEVELOPMENT AND TREATIESa. Perhaps the most significant MEA in support of sustainable development is the UN Framework Convention on Climate Change, a treaty that has been signed by more than 175 nations and for which the total number of ratifications/accessions/ acceptances near 170 throughout the world. As he first sentence of paragraph 4 of Article 3 of this UN Convention states,

The Parties have a right to, and should, promote sustainable development. [Italics added for emphasis.]

(ISD p 203) (Note that this reference to sustainable development “does not in itself make sustainable development a legal principle” because to become a legal principle “a law-creating act or process is necessary.” Klaus Bossermann, The Principle of Sustainability: Transforming Law and Governance, Ashgate (2008), page 45.)


4 . SUSTAINABLE DEVELOPMENT AND TREATIES

b. The UN Framework Convention on Climate Change further provides in paragraph 1(d) of Article 4 that Parties to this Convention must

promote sustainable management [emphasis added], and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems.

Thus, the concepts of sustainable development and sustainable management have a firm foundation in a treaty with almost universal acceptance. (ISD p 201)

III. D. PROBLEMS ASSOCIATED WITH MEAs

1. GOVERNANCE

a. One of these problems arises from the large number of MEAs. Professor Daniel Estes and Maria Ivanova, Director of the Global Environmental Governance Project at Yale, indicate that there are “more than 500 multilateral environmental agreements…, more than a dozen international agencies share environmental responsibilities, and yet environmental conditions are not improving across a number of critical dimensions.”

(ISD p 202)


1. GOVERNANCE--scattered financial mechanisms

b. Estes and Ivanova suggest that the “implementation gap” may be the “biggest single obstacle to environmental progress at the global scale” and that this gap is caused by “the lack of an action orientation.” They also indicate that the implementation gap arises in part from the

existing financial mechanisms… scattered across the Global Environment Facility, UNEP, the World Bank, and separate treaty-based funds such as the Montreal Protocol Finance Mechanisms. (ISD p 202)

They explain that “few international environmental agreements contain serious enforcement provisions.” (ISD p 202)

III. D. PROBLEMS ASSOCIATED WITH MEAs--c. scattered financial mechanisms for Multilateral Environmental Agreements; for

example, the Global Environmental Facility (GEF),which finances the Convention on Biological Diversity, UN Framework Convention on Climate Change, UN Convention

to Combat Desertification, and Stockholm Convention on Persistent Organic Pollutants

The GEF-4 funding period began in November 2006. 32 donor countries pledged $3.13 billion to the fourth GEF Replenishment, which will fund operations until June 30, 2010.

The 32 donors to the fourth replenishment are Australia, Austria, Belgium, Canada, China, Czech Republic, Denmark, Finland, France, Germany, Greece, India, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Nigeria, Norway, Pakistan, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States.

Strategies for the six focal areas of the GEF and for two cross-cutting areas (sustainable forest management and sound chemicals management) include

1) Biodiversity2) Climate Change3) International Water 4) Land Degradation5) Ozone Layer Depletion 6) Persistent Organic Pollutants (gefweb.org)

What are some key MEA problems (cont’d.)d. UNEP’s annual budget of $171,000 million for 2008-2009 is comparable to

and sometimes less than that of many environmental non-governmental organizations (NGOs). www.unep.org/gc/gcss-x/download.asp?ID=979

i) “UNEP does not possess executive powers; instead, its primary function is to monitor and coordinate environmental governance, which includes engaging in partnerships with other intergovernmental and non-governmental organizations. [footnote omitted]”

Klaus Bosselmann, The Principle of Sustainability: Transforming Law and Governance,Ashgate (2008) p. 181.

ii) “Perceived ineffectiveness of UNEP has been linked primarily to the organization’s geographical isolation in the UN system [Kenya], an insufficient mandate [engage in partnerships], lack of support from governments and a low budget. [footnote omitted]”

Klaus Bosselmann, The Principle of Sustainability: Transforming Law and

Governance,Ashgate (2008) p. 181.

(See ISD pp 205 and 207)

What are some key MEA problems (cont’d.)

2. Lack of public participation. When governments are reluctant to complain about another government’s failure to comply with an environmental standard established in an MEA, people need to speak up, perhaps through an environmental NGO. Our future depends on public vigilance!

3. Lack of environment compliance indicators-- measuring and reducing pollution--measuring improved environmental conditions such as water quality

4. RATIFICATION OF TREATIES--ProblemsAn environmental law professor Amber Pant of the

Tribhuvan University Faculty of Law notes that Nepal has more than 100 sector legislative acts that bear on the environment. Of these, 20 are environmental treaties to which Nepal has become a signatory. However, Pant points out,

It would be wrong to say that we have legislation for every treaty to which Nepal is a party. He goes on to state that “this would not be possible unless we…

suggest to the Government that they draft legislation….” [emphasis added] “Pant closes by suggesting the need is to find funds “to engage ‘experts to … prepare draft legislation for the consideration of governmental authorities….’” (ISD p 205)


4. RATIFICATION OF TREATIES

“Some [countries] have a two-step procedure wherein a treaty may become binding under international law, but years may pass before appropriate implementing domestic legislation is enacted. The case of Nepal provides an example.”

(ISD p 205)


5. WORLD TRADE ORGANIZATION (WTO), AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS

The “treaty establishing WTO is likely one of the most important multilateral “environmental” agreements in the world, because it deals with a great many environmental issues under the heading of trade. Note the preamble to the treaty establishing WTO states the “Parties...recognize that their relations in the field of trade and economic endeavor should be conducted with a view to raising the standards of living… while allowing for optimal use of the world’s resources in accordance with the objective of sustainable development.” (ISD p 207; emphasis added)

Professor Klaus Bosselmann: “The ‘trump card’ of the WTO is efficiency of free trade, although the principle of sustainability is indirectly referred to in the Preamble of the GATT…” p.69.


4. WORLD TRADE ORGANIZATION (WTO), AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS (cont’d)

“For example, there is legislation in the US about net fishing, enacted to save the dolphin, the sea turtle, and other endangered marine species. However, these laws can be construed as a restriction on trade” and thus subject to the jurisdiction of the WTO [emphasis added] (ISD p 209)


4. WORLD TRADE ORGANIZATION, AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS

a. Dolphins

“If Mexico ships fish to the US that were caught in violation of US legislation, someone can appear before the relevant bodies of WTO, which might decide the case in a manner not pleasing to environmental advocates. …”

“In this regard it is of interest to note that in cases involving net fishing for tuna that resulted in catches of dolphins, recent WTO decisions have recognized the role of NGOs in advancing rules implementing international law. In these WTO cases, the US sought to require Thailand and others to certify that techniques for catching tuna were safe for dolphins.” [emphasis added] (ISD p. 207)

4. WORLD TRADE ORGANIZATION, AGRICULTURAL SUBSIDIES, AND TRADE BARRIERS

b. Effect on the Environment

“A second example relates to the rules permitting agricultural subsidies and the creation of trade barriers. These rules can have a profound effect on the environment. For example, subsidies can often result in wasteful, overproduction of goods and services that unnecessarily deplete natural resources in the country providing such subsidies. Similar problems may arise from trade barriers, which can prevent the sale of economically and environmentally sound goods and services originating in countries outside of such trade barriers.” [emphasis added] (ISD p 208)

III. D. JOHANNESBURG PRINCIPLES ON THE ROLE OF LAW AND SUSTAINABLE DEVELOPMENT

“On August 20, 2002, judges representing 59 countries at the Global Judges Symposium on Sustainable Development and the Role of Law adopted the Johannesburg Principles on the Role of Law and Sustainable Development.”

(ISD p 213)


2. The second page of the Principles emphasizes the concept of sustainable development, including reducing poverty, for the present and succeeding generations:

We emphasize that the fragile state of the global environment requires the Judiciary as the guardian of the Rule of

Law, to boldly and fearlessly implement and enforce applicable international and national laws, which in the field of environment and sustainable development will assist in alleviating poverty and sustaining an enduring civilization, and ensuring that the present generation will enjoy and improve the quality of life of all peoples, while also ensuring that the inherent rights and interests of succeeding generations are not compromised. [emphasis added]

(ISD p 213)


3. “Accordingly, these judges agreed with the third page of the Principles on the need for guidance for the judiciary, including

full commitment to contributing towards the realization of the goals of sustainable development through the

judicial mandate to implement, develop and enforce the law, and to uphold the Rule of Law and the democratic process.

The agreed upon program of work, call for “strengthening of environmental law education in schools and universities, including research and analysis as essential to realizing sustainable development” as well as the "achievement of sustained improvement in compliance with and enforcement and development of environmental law.“(ISD p 213)

CONCLUSION


IV. E. Conclusion

1. Historical Roots of Controlling Environmental PollutionPlato on Water Pollution Law in about 347 B.C. • “And let this be the law:--If any one intentionally pollutes the

water of another, whether the water of a spring, or collected in reservoirs, either by poisonous substances, or by digging, or by theft, let the injured party bring the cause before the wardens of the city, and claim in writing the value of the loss; if the accused be found guilty of injuring the water by deleterious substances,

let him not only pay damages, but purify the stream or the cistern which contains the water, in such manner as the laws . . . order the purification to be made by the offender in each case.”

Plato advocated payments of damages plus restitution!

(Plato, Great Books of the Western World (1982), Robert Maynard Hutchins, Editor in Chief; ISD p 216)

IV. E. Conclusion

2. Historical Roots--Aristotle may have begun the discussion of the concept of intergenerational equity when he pointed out that "human well-being is realized only partly by satisfying whatever people's preferences happen to be at a particular time; it is also necessary for successive generations to leave behind sufficient resources so that future generations are not constrained in their preferences."(ISD p 10)

IV. E. Conclusion

3. Historical Roots- ETHICS.

The roots of environmental legislation, international law, MEAs, and sustainable development reach back into ancient times. Some might even suggest that the notion that we can stop our neighbor from polluting our backyard comes from such philosophers as Confucius, who in his lifetime from 551 to 479 B.C. wrote:

What you do not want done to yourself, do not do to others.(ISD p 213)

4. What are some key problems concerning environmental law in developing countries?

A.. Lack of political will for environmental legislation—to enact, implement (including finance), and amend1. By the public 2. By political leaders

B. Lack of environmentally knowledgeable legislators, administrators, judges, lawyers — lack of human resources

C. Lack of appropriate environmental legislation and regulations—“tools”1. For national and local legislation2. For multilateral environmental agreements

D. Note these problems are not necessarily present in each developing country. Consider, for example, Thailand and the People’s Republic of China.

5. What are some solutions for these problems?A. Public awareness needs to be enhanced; action is needed!B. Existing law schools and judicial academies need to be

strengthened with respect to environmental law.C. Role of UNEP concerning environmental law needs to be

broadened and strengthened.D. The sustainable development capacity of existing

international institutions, such as the World Trade Organization, need to be enhanced to deal with environmental issues.

E. NGOs will have to undertake more capacity building, especially at national and local levels.

F. More good books on sustainable development need to be distributed and more local workshops conducted so that a wide variety of people, including students, not just lawyers and judges, are better able to protect the environment and the poor. Also better indicators are needed concerning the capacity of judiciaries and law schools, as well as availability of freshwater, sanitation facilities, etc.

IV. E. Conclusion

6. JUDICIAL ACADEMIES AND LAW SCHOOLS

“To achieve all of this, much will need to be done, particularly with respect to awareness-raising, education, training, and capacity building. From the legal perspective, each person will need to contribute both individually and through participation with others in formulating sustainable development policies, and then converting these policies into enforceable laws. Significant support will likely be required for such international organizations as UNEP, development banks, governments, schools, and universities. The lack of support for such basic institutions as judicial academies and law schools constitutes perhaps one of the leading problems in the worldwide effort to achieve sustainable development.” (emphasis added; ISD p 215)

ENVIRONMENTAL INSTITUTIONS AND LAW Thank You

You may contact me at one of the following three addresses:

(1) Email: [email protected]

(2) ADB P.O. Box A084, Mandaluyong City, Philippines 1550.

WHAT CAN I DO?


Think global, act local


“If there is anything I have learnt from my eight years at UNEP, it would be that sustainability needs to completely transform present governance and law if it is to make a difference for humanity’s future.”

Klaus Topfer, Director, UN Environmental Programme, Key Note to the National Sustainability Conference, Berlin, G, Sept. 2005, Quoted by Klaus Bosselmann, “The Environmental Jurisprudence of International Tribunals: Making Sustainability Count.”

Partial Bibliography

1. Bosselmann, Klaus, The Environmental Jurisprudence of International Tribunals: “Making Sustainability Count” 4th International IUCN Academy of Environmental Law Colloquium, 16-20 October 2006, White Plains, New York

2. Klaus Bosselmann, The Principle of Sustainability: Transforming Law and Governance, Ashgate (2008)

3. Bell, Stuart, and Donald McGillivray, Environmental Law (Oxford University Press: 2006, Sixth Edition)

Partial Bibliography3. Craig, Donna G., Nicholas A. Robinson, and Koh Kheng-Lian, editors

of Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources, (2001);

4. Esty, Daniel C., and Maria H. Ivanova“ “Revitalizing Global Environmental Governance: A Function-Driven Approach" in Global Environmental Governance: Options Opportunities edited by Daniel C. Esty and Maria H. Ivanova (Yale School of Forestry & Environmental Studies: 2002);

5. Ferry, Steven, Environmental Law (3rd Ed. 2004)

6. Hunter, David, J. Salzman, D. Zaelke, International Environmental Law and Policy (2nd Ed.: 2002)

7. Kiss, Alexandre and Dinah Shelton, International Environmental Law (2nd Edition: Transnational Publishers, Inc: 2000)

Bibliography (cont’d)8. Malone, Linda A. & Scott Pasternack, Defending the Environment:

Civil Society Strategies to Enforce International Environmental Law (Transnational Publishers, Inc.: 2003)

9. Malone, Linda A., Environmental Law, 2nd Edition, Emanuel Law Outlines, Wolters Kluwer, (2007)

10. Rogers, Peter, K. F. Jalal, J.A.Boyd, An Introduction to Sustainable Development (2006)

11. Sands, Philippe, “International Law in the Field of Sustainable Development” at page 306 of the 1994 edition of The British Year Book of International Law (1995);

12. "Status of Ratification of Selected Multilateral Environmental Agreements” published on the occasion of Global Judges Symposium on Sustainable Development and the Role of Law Held in Johannesburg, South Africa, 18-20 August 2002;

Bibliography (cont’d)13. Stookes, Paul, A Practical Approach to Environmental Law (Oxford University

Press, 2005)

14. Tarlock, Dan, “Ecosystems”, The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunee and Ellen Hey (2007),

15. “The Johannesburg Principles on the Role of Law and Sustainable Development”, adopted at the Judges Symposium held in Johannesburg, South Africa, on 18-20 August, 2002.

16. UNEP 2003 ANNUAL REPORT

17. World Business Council for Sustainable Development, Finding capital for sustainable livelihoods business (2004)

18. World Business Council for Sustainable Development, Sustainable development reporting: Striking the balance (2004)

30 November 2006 Cambridge Massachusetts

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