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Published by Enhelion, 2019-11-24 05:21:54

Module_10 (Pubic International Law)

Module_10 (Pubic International Law)




The attention paid by the international community to the dangers posed to international
environment has ensured that the law dealing with the dangers posed to the international
environment has evolved at a staggering rate as a sub-section of the international law
framework.1 This has led to atmospheric pollution, marine pollution, global warming and ozone
depletion, the dangers of nuclear and other extra-hazardous substances and threatened wildlife
species being considered as vital subjects of international concern by the stakeholders involved.2
There are two reasons for the internationalized aspect of issues such as this – first, the pollution
generated from within a particular state often has a serious impact upon other countries.3 Take
the phenomenon of acid rain, for instance, where chemicals emitted from factories rise in the
atmosphere and react with water and sunlight to form acids, which are then carried through the
wind and eventually fall down to Earth in blistering rain, often several thousands of kilometers
away from the initial place where the pollution of the environment actually took place. Secondly,
it has become abundantly clear that complex problems such as this require coordinated resolution
efforts to be dealt with effectively, as unilateral acts will more often than not fail to make a
substantial impact.4 To these two ‘factors’ that lend the protection of environment an
‘international aspect’, one may state that the only thing required is cooperation between states
where the pollution originates and the one where it occurs. However, this cannot deal with more
complicated situations where the cross-border ramifications of environmental dangers and
changes cannot be contained by a bilateral agreement. It can also be extremely difficult to

1 Patricia Birnie, Alan Boyle, Catherine Redgwell, INTERNATIONAL LAW AND THE ENVIRONMENT (4th edn, Oxford
University Press, 2009)
LATV (Cambridge, 1985); See also the Convention on International Trade in Endangered Species, 1973 covering
animals and plants, and the Convention on Biological Diversity, 1992, which inter alia calls upon parties to promote
priority access on a fair and equitable basis by all parties, especially developing countries, to the results and benefits
arising from biotechnologies based upon genetic resources provided by contracting parties.
3 David Briggs, Environmental Pollution and the global burden of disease, (2003) 68 BRITISH MEDICAL BULLETIN
4 David Briggs, Environmental Pollution and the global burden of disease, (2003) 68 BRITISH MEDICAL BULLETIN

attribute the originating country for a particular type of environmental pollution, which means
that issues in this area generally require an international, well-coordinated response.

The very nature of International Environmental Law is such that any form of environmental
protection and conservation of natural resources necessarily competes with commercial interests
– giving any environmental dispute a commercial flavor due to this. Neither industry nor
commerce is ipso facto a threat to the environment.5 Since we live in an industrialised world,
multi-lateral environmental treaties represent a compromise between the interests of industry and
commerce and the protection of the environment, and therefore never entirely satisfy everyone.
What is important is that the treaties are properly implemented, not only in law but also in fact.
As with human rights treaties, implementation can vary greatly in practice.

The development of the subject has produced certain new concepts, such as the ‘precautionary
principle’, ‘polluter pays’, and ‘sustainable development’.6 Some of these phrases have entered
everyday speech, ‘sustainability’ in particular being a mantra much loved by politicians. One
must be careful to distinguish such concepts from principles of international law, such as the
binding nature of treaties. Whether the concepts represent legal obligations depends on the extent
to which they have been translated into treaty rules or applied by international courts and

Environmental issues pose challenges for the traditional international legal order, in at least three
ways.8 They pose challenges, first, for the legislative, administrative and adjudicative functions
of international law; secondly, for the manner in which international legal arrangements are
currently organized (i.e. along territorial lines); and, thirdly, for the various actors who are
considered to be members of the international community and participants in the various

5 Nicholas A Robinson and Lal Kurukulasuriya, Training Manual on International Environmental Law, (2006)



6 Rowena Maguire, Incorporating International Environmental Legal Principles into Future Climate Change

Instruments, (2012) 6 CARBON AND CLIMATE LAW REVIEW 101-113

7 Anthony Aust, HANDBOOK OF INTERNATIONAL LAW (Cambridge University Press, 2010); Cedric M J Ryngaert ad

Duco W Hora Siccama, Ascertaining Customary International Law: An Inquiry into the Methods Used by Domestic

Courts, (2018) 65 NED. INTL LAW REV 1-25 <available at:


8 P. Sands, ‘International Courts and the Application of the Concept of “Sustainable Development”’, (1999) 3 MAX


processes and practices of the international legal order.9 The ability of the international legal
order to address these three aspects, in the context of environmental issues, will determine
whether international law is up to the task of taking on these new global challenges, or whether it
will become ‘the faithful friend of a family overtaken by time’.10 It remains to be seen whether a
diminishing conception of sovereignty in the face of a more assertive international judiciary,
together with a more inclusive, accessible and diverse international legal order, leads to any
greater protection of the environment.


The legal definition of the ‘environment’ and related concepts is important at two levels. At a
general level, it defines the scope of the legal subject and the competence of, say, international
organizations. Thus, the failure of the 1946 International Whaling Convention to define the term
‘whale’ has led to protracted disputes over whether the International Whaling Commission has
competence over dolphins11; and the text of CITES was unclear as to whether its provisions
applied to artificially propagated plants grown under controlled conditions in a ‘non-natural
environment’.12 More specifically, the definition of the ‘environment’ assumes particular
significance in relation to efforts to establish rules governing liability for damage to the
environment.13 Legal definitions of the ‘environment’ reflect scientific categorizations and
groupings, as well as political acts, which incorporate cultural and economic considerations. A
scientific approach will divide environmental issues into ‘compartments’. These include the
atmosphere, atmospheric deposition, soils and sediments, water quality, biology and humans.14
Scientific definitions are transformed by the political process into the legal definitions found in
treaties; although ‘environment’ does not have a generally accepted usage as a term of art under

9 Philippe Sands, Jacqueline Peel and Ruth MacKenzie, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (4th
edn, Cambridge University Press, 2018)
10 Philip Allott, EUNOMIA: NEW ORDER FOR A NEW WORLD (Oxford University Press, 1990)
12 Philippe Sands, Jacqueline Peel and Ruth MacKenzie, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (4th
edn, Cambridge University Press, 2018) at p. 21
13 D. Pearce et al. (eds.), BLUEPRINT FOR A GREEN ECONOMY (1989)
14 United Nations Environment Programme, Environmental Data Report (1992), 3

international law, recent agreements have consistently identified the various media included in
the term.15

International Environmental Law, though does not have a set definition, it may be defined as a

set of legal principles developed by national, international and transnational environment

regulatory systems to protect the environment and manage natural resources. As a body of law, it

is made up of a distinct set of substantive principles and procedural methods that are specifically
important or unique to governance of the environment across the world.16 Sands defines

international environmental law as one that comprises substantive, procedural and institutional

rules of international law which have as the primary objective the protection of the

It is impossible to find a single, all-encompassing definition of the environment or the laws that
govern it. The approaches to defining the ‘environment’ do, therefore, vary immensely. Early
treaties tended to refer to ‘flora and fauna’ rather than the environment,18 thus restricting the

scope of their application. Article XX (b) and (g) of the General Agreement on Tariffs and Trade
(GATT) refers not to the environment but to ‘human, animal or plant life or health’ and to the
‘conservation of exhaustible natural resources’, and these terms are considered by some to have

limited the scope of permissible exceptions to the rules of free trade, particularly in the context
of the narrow construction given to the terms used by GATT Dispute Settlement Panels.19

Although the 1972 Stockholm Declaration does not include a definition of the environment,
Principle 2 refers to the natural resources of the earth as including ‘air, water, land, flora and
fauna and . . . natural ecosystems’. The Stockholm Declaration also recognizes, as the Preamble

makes clear, that the environment of natural resources should be distinguished from the man-

made environment, which includes in particular the living and working environment. The 1982
World Charter for Nature similarly does not define the ‘environment’, but addresses the need to

15 Louis J Kotze and Duncan French, A critique of the Global Pact for the environment: a stillborn initiative or the
foundation for Lex Anthropocenae, (2018) 18(6) INTERNATIONAL ENVIRONMENTAL AGREEMENTS: POLITICS, LAW
AND ECONOMICS, p. 811-838
16 Tseming Yang and Robert V Percival, The emergence of Global Environmental Law (2009) 36 ECOLOGY LAW
QUARTERLY 615, at 616
17 Phillippe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2nd edn, Cambridge University Press,
2003) p. 15
19 Phillippe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2nd edn, Cambridge University Press,
2003) p. 945

respect nature through principles, which are applicable to all life forms, habitats, all areas of the
earth, ecosystems and organisms, and land, and marine and atmospheric resources.20 Those

treaties, which do refer to the environment and seek to include some form of working definition,

tend to adopt broad definitions. For instance, under the 1974 Nordic Convention,
‘environmentally harmful activities’ are those, which result in discharges ‘into water courses,
lakes or the sea, and the use of land, the sea bed, buildings or installations’.21 Under the 1977
Environmental Modification (ENMOD Convention), ‘environmental modification’ refers to
changing the ‘dynamics, composition or structure of the earth, including its biota, lithosphere,
hydrosphere and atmosphere, or of outer space’.22 As used in the 1979 Long-Range Trans
boundary Air Pollution (LRTAP )Convention, the environment includes ‘agriculture, forestry,
materials, aquatic and other natural ecosystems and visibility’.23 Under the 1991 Espoo
Convention and the 1992 Watercourses Convention, the ‘environment’, which is defined in terms
of impacts, includes ‘human health and safety, flora, fauna, soil, air, water, climate, landscape
and historical monuments or other physical structures or the interaction among these factors’.24

In similar terms, the 1991 Antarctic Environment Protocol protects the climate and weather

patterns; air and water quality; atmospheric, terrestrial (including aquatic), glacial or marine

environments; fauna and flora; and areas of biological, scientific, historic, aesthetic or wilderness
significance.25 Under EC law, the environment comprises ‘the relationship of human beings with
water, air, land and all biological forms’.26 EC Council Directive 85/337 (as amended by

Directive 97/11), on environmental impact assessment, includes in the scope of information to be

provided the likely effect of projects on human beings, fauna and flora, soil, water, air, climate
and the landscape, and material assets and cultural heritage.27 The 1990 EC Directive on freedom
of access to information on the environment includes information on the state of ‘water, air, soil,
fauna, flora, land and natural sites’,28 and the 2000 Directive on eco-labelling establishes an
‘Indicative Environmental Matrix’ which requires pollution and contamination in eleven

20 Ibid
21 Article 1, The Nordic Environmental Protection Convention 1974
22 Article 2, The Environmental Modification Convention 1977
23 Article 7(d), The Convention on Long-range Transboundary Air Pollution 1979
24 Article 1(vii) of the 1991 Espoo Convention; and Article 1(2) of the 1997 Watercourses Convention
25 Article 3(2), 1991 Antarctic Environment Protocol
26 Article 2(10), EC Council Directive 79/117
27 Article 3, EC Council Directive 85/337
28 Article 2(a), 1990 EC Directive on Freedom of Access to Information on the Environment

environmental fields to be taken into account (air, water, soil, waste, energy savings, natural

resources consumption, global warming prevention, ozone layer protection, environmental

safety, noise, and biodiversity) when deciding whether to grant an eco-label to a particular
product.29 Other agreements, which use the term ‘environment’ do not define it. The 1982 United
Nations Convention on the Law of the Sea does not define ‘marine environment’, although it

appears to include ecosystems, habitats, threatened or endangered species and other forms of
marine life, and atmospheric pollution.30

More specific international legal terms are being used and are subject to carefully negotiated
definition. Recent examples include definitions of biological resources,31 the climate system32,
and the ozone layer.33 Other terms frequently used in international agreements relating to

environmental matters and for which specific legal definitions have been established include
‘pollution’34, ‘conservation’35, ‘damage’36, adverse effects’37 and ‘sustainable use’ or


From the early nineteenth century, considerable advances in scientific knowledge began to make

national regulation of the environment grossly inadequate. Although most of the early

international legal regimes of the environment had emerged in response to developments in the

marine environment, it was in respect of an incident that occurred within Canada, with effects in
the USA, that the international regulation of the environment commenced its development – this
was the landmark Trail Smelter case.39

29 Chapter XVII at page 861, 2000 EC Directive on Eco-Labelling
30 Article 194(3)(a) and 194(5) of UNCLOS
31 Article 2, 1992 Genetic Biodiversity Convention
32 Article 1(3), 1992 Climate Change Convention
33 Article 1(1), 1985 Vienna Convention
34 UNEP, Environmental Data Report (1991) pages 10-12
35 Phillippe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2nd edn, Cambridge University Press,
2003) p. 260
36 Article 1(15), 1988 Convention on the Regulation of Antarctic Mineral Resource Activities; 1993 Council of
Europe Convention on Liability for Environmental Damage (1993 Lugano Convention);
37 Article 1(2), 1985 Vienna Convention
38 R Churchill, G Kutting and L Warren, The 1994 UNECE Sulphur Protocol (1995) 7 J OF ENV. LAW 169; J.
Wettestad Acid Lessons? Assessing and Explaining LRTAP Implementation and Effectiveness (1996 IIASA Working
39 United States v Canada, Preliminary Decision, (1938) 3 RIAA 1911 (Trail Smelter Case)

The Trail Smelter Case is of particular relevance to this chapter, because it summed up the
international approach towards regulation of the environment in the first half of the twentieth
century—that is, the prevention of environmental pollution, and the requirement of ‘clear and
convincing’ evidence of injury caused by an action to warrant restriction.40 While the Trail
Smelter Case was pioneering, it had limited utility as a precedent for the development of
international environmental regulation for two principal reasons.41 First, there was the need to
prove that a culpable State had been negligent, which can prove difficult, especially since non-
negligent or diligent use of one’s environment may still cause serious harm or environmental
damage to another.42 Secondly, there was the requirement of ‘clear and convincing evidence’ of
injury resulting to the other party before it could seek remedies against the culpable State. This
requirement is particularly unsuitable for the purposes of protecting the environment.43

The second half of the twentieth century saw the evolution of several attempts to regulate certain
aspects of the environment—especially the marine environment. The 1958 Geneva Convention
on the High Seas, enjoins States, in Article 25(1), to ‘take measures to prevent pollution of the
seas from the dumping of radioactive waste’, while the 1961 World Health Organization (WHO)
Resolution WHA/14.56 required all members to prohibit all discharge of radioactive waste into
watercourses or the sea, to the extent that the safety of such discharge has not been proved.44

Similar efforts pursued at this time included the adoption of the 1954 International Convention
for the Prevention of Pollution of the Sea by Oil. This convention was aimed at preventing
environmental disasters, such as the Santa Barbara oil spill of 1969 in the USA. Although the
huge oil spillage in Santa Barbara did not affect other countries, the international response to this
disaster addressed the possibility of preventing such an occurrence. In the 1970 United Nations

40 Thomas W Merrill, Golden Rules for Transboundary Pollution (1997) 46 DUKE L J 931 <available at:>
41 Ibid
42 Thomas W Merrill, Golden Rules for Transboundary Pollution (1997) 46 DUKE L J 931 <available at:> at 976
43 Ibid
44 Philippe Sands, Jacqueline Peel and Ruth MacKenzie, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (4th
edn, Cambridge University Press, 2018) at p. 876

General Assembly Declaration of Principles Governing the Seabed and the Ocean Floor, and the
Subsoil thereof, beyond the Limits of National Jurisdiction, adopted under Resolution 2749.45

There was also some development in the area of space environment during the first half of the
twentieth century. The USA’s attempt to create a ‘space mirror’ through the implantation of 350
million tiny needles into orbit in 1963 provoked a series of international reactions leading to the
adoption, in 1967, of the Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space (the Outer Space Treaty), which prescribes certain standards
for environmental conduct that is to be carried out in space. Obviously, the various international
efforts restated previously were, much like the Trail Smelter Case, geared towards preventing
environmental pollution.46 What makes the Outer Space Treaty pivotal is its reference to the fact
that State parties shall undertake ‘international consultation’ before embarking on any space
exploration that might affect the rights of other States.47

However, it was not until the second half of the twentieth century that a decisive moment in the
international regulation of the environment commenced. The first major occurrence, at this time,
was the significant shift in States’ approach towards the environment. Whereas, at the early
stages, attention had been focused on the need to conserve the environment, the 1970s and later
years witnessed the emergence of a more proactive regime—especially in relation to the
protection of the ozone layer and the use of economic instruments, rather than direct legislative
control, to influence States’ behaviour. The end product of this rethinking led to a series of
international conferences, beginning in 1972 with the all-important conference in Stockholm.48


From the early 1970s, international efforts towards regulating the use of the environment grew
phenomenally. In particular, the period from 1972 to 2009 witnessed unprecedented efforts by
the international community to address increasing challenges to the environment. This

45 Philippe Sands, Jacqueline Peel and Ruth MacKenzie, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (4th
edn, Cambridge University Press, 2018) at p. 877
46 James R Wilson, Regulation of the Outer Space Environment Through International Accord: The 1979 Moon
Treaty, (2011) 2(2) FORDHAM INTL LAW REV 1
47 US Secretary of State, US Foreign Policy in a Technological Age (1971) 64 DEPT OF STATE BULLETIN 198 at 200-
48 Philippe Sands, Jacqueline Peel and Ruth MacKenzie, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (4th
edn, Cambridge University Press, 2018) at p. 23

momentum was due partly to the emergence, in this period, of scientific evidence to the effect
that there were more urgent and compelling threats to the environment other than traditional
environmental problems, such as pollution and the transboundary movement of hazardous waste.
Evidence emerged that certain chemical agents produced by industrial activities—that is,
chlorofluorocarbons (CFCs)—were causing serious damage to the ozone layer. There was also
increased awareness about the shrinking of the populations of certain species, both on land and at
sea. All of this evidence called for both conservationist and drastic efforts by the international

a. 1972 Stockholm Declaration on the Human Environment

In June 1972, the United Nations convened an international conference in Stockholm, Sweden,
with representatives of 113 countries in attendance. The Stockholm Conference, the first major
international conference to consider the relationship between the environment and development,
adopted three crucial instruments: the Action Plan for the Human Environment, with 109
recommendations; the Stockholm Declaration; and a Recommendation on Institutional and
Financial Arrangements. These instruments are non-binding and are generally referred to as ‘soft
law’, yet ‘the Stockholm Conference succeeded in putting the environment at the top of the
global agenda’.50

Of the three documents, the Stockholm Declaration was regarded as the most important. It
embodies twenty-six Principles, which together have considerably influenced international
environmental law.

It must be pointed out that, prior to the Stockholm Conference, there was no international
organization specifically responsible for regulating the environment. The Recommendation on
Institutional and Financial Arrangement proposed, among other things, the establishment of an
intergovernmental governing council for environmental programmes, an environmental
secretariat, and an environment fund, as well as an inter-agency environmental coordinating

49 D Mmereki, The Management of Hazardous Waste in Developing Countries <available at:
50 Dinah Shelton, Stockholm Declaration (1972) and the Rio Declaration (1992) in MAX PLANCK ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW (Oxford University Press, 2008) <available at:>

body. Consequently, the UN General Assembly adopted Resolution 2997 (XXVII) of 1972,
which established the United Nations Environmental Programme (UNEP) with its headquarters
in Nairobi, Kenya.51

The Principles that are contained in the Stockholm Declaration reflect the compromise between
those advocating for strict rules and procedures, on the one hand, and those who wished to use
the conference merely to increase awareness of environmental issues, on the other. Generally, the
Principles that are considered of importance from a legal stance are Principle 21 (sovereign right
to exploit a State’s own resources without damaging other States’ environments), Principle 22
(development of liability and compensation for victims), Principle 23 (considering a system of
values in determining standards that may be different between advanced and developing
countries), and Principle 24 (cooperation through multilateral and bilateral agreements). The rest
of the Principles contained in the Stockholm Declaration use non-legal language, casting doubt
over the possibility of legal enforcement. Principle 21 which stipulates that “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 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.”
that has become one of the most important principles used in international environmental law.52
Principle 21 incorporates international environmental norms, such as the principle laid down in
the Trail Smelter Case, into the UN system by linking such norms to the Charter on the United
Nations (the UN Charter), a move that was calculated to encourage many States to subscribe to
those norms.53

While the position of Principle 21 as the originator of international environmental law remains
contentious54, there is no doubt that the Stockholm Conference, which gave birth to that
principle, significantly contributed to the development of international environmental law as a

51 Ibid
53 Dinah Shelton, Stockholm Declaration (1972) and the Rio Declaration (1992) in MAX PLANCK ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW (Oxford University Press, 2008) <available at:>
54 Gunther Handl, Declaration of the UN Conference on the Human Environment and the Rio Declaration on
Environment and Development <available at:>

whole. Furthermore, it appears that the huge momentum created by the Stockholm Conference
was not matched with commensurate follow-up measures in the following years.55

b. The 1992 Rio Declaration on Environment and Development

In 1992, the United Nations held its second major environmental conference—the Conference on
Environment and Development (UNCED), also known as the ‘Earth Summit’, in Rio de Janeiro,
Brazil. The Rio Conference adopted the Declaration on Environment and Development (the Rio
Declaration), which brought ‘developmental’ issues and ‘management’ into global
environmental discourse and approaches. Up until this conference, there had been little or no
discussion about linking ‘environment’ and ‘development’, because both ideas were pursued
independently.56 There was a noticeable shift from international environmental law to an
international law of sustainable development after the Rio Declaration.57

The Rio Conference produced two sets of instruments. On the one hand are instruments that were
negotiated by intergovernmental committees and presented for signature at Rio. Examples
include the UN Framework Convention on Climate Change (the Climate Change Convention)
and the Convention on Biological Diversity (the Biodiversity Convention). These instruments are
classified as ‘hard’ law, because they were the product of bilateral or multilateral negotiation and
were formally signed up to by governments. On the other hand are soft law instruments, such as
the Rio Declaration on Environment and Development, consisting of twenty-one Principles,
which were merely adopted by the conference and later approved by the UN General Assembly
as unenforceable, declaratory principles.58 The Rio Declaration is a remarkable improvement on
its predecessor in many respects. In particular, Principle 2 of the Rio Declaration modified

55 Gill Seyfang, Environmental Mega-Conferences: From Stockholm to Johannesburg and Beyond (2003) 13
56 Gill Seyfang, Environmental Mega-Conferences: From Stockholm to Johannesburg and Beyond (2003) 13
57 Philippe Sands, Jacqueline Peel and Ruth MacKenzie, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (4th
edn, Cambridge University Press, 2018) 378
58 Dinah Shelton, Stockholm Declaration (1972) and the Rio Declaration (1992) in MAX PLANCK ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW (Oxford University Press, 2008) <available at:>

Principle 21 of the Stockholm Declaration by including in its focus ‘developmental policies’, in
addition to the environmental policies contained in the Stockholm Declaration.59

The significance of Rio, in providing a base for multilateral cooperation, is the universal
recognition that environmental quality as an essential life support system is a common concern
that is not more important than national interests, but that is an important factor to national
interests.60 Aside from the inclusion of developmental issues, another remarkable contribution of
the Rio Conference is it’s striking of a balance between the substantive requirements of
development and the procedural requirements for implementing environmental protection. This
balance is reflected in Principles 3 and 4 of the Rio Declaration.61

More than its Stockholm counterpart, the Rio Declaration provides for substantial measures. It
consists of several innovative principles that are envisaged eventually to lead to the creation of
binding legal obligations for State parties. Moreover, it is also expected that these principles will
contribute to the development not only of international environmental law but also to other
related areas.62

One of the earliest environmental challenges was how to ensure that States would not use their

environment in such a way as to affect the rights of others. This problem was manifested in the
Trail Smelter Case. The Rio Declaration provided a solution to this, as it required states to adopt
certain procedures to ensure the environmental considerations are integrated into the decision-
making process. For the first time in international environmental negotiations focusing on
economic issues, elements of international cooperation for sustainable development are also laid
out.63 Principle 13 of the Rio Declaration also provided for compensation for trans boundary
pollution. Additionally, the scope of claims covered by Principle 13 of the Rio Declaration is
much wider than those enunciated by the Trail Smelter Case, or which otherwise applied prior to
Rio. Principle 13 not only covers injuries to persons and property, but it also covers

59 Gunther Handl, Declaration of the UN Conference on the Human Environment and the Rio Declaration on
Environment and Development <available at:>
60 Mukul Sanwal, Sustainable Development, the Rio Declaration and Multilateral Cooperation (1993) 4 COLO J
61 Gunther Handl, Declaration of the UN Conference on the Human Environment and the Rio Declaration on
Environment and Development <available at:>
62 Ulrich Beyerlin, Bridging the North-South Divide in International Environmental Law <available at:>
63 Mukul Sanwal, Sustainable Development, the Rio Declaration and Multilateral Cooperation (1993) 4 COLO J
INTL ENV L & POLICY 45 at 50

environmental damage. Environmental damage may occur, for example, to the sea or the
atmosphere, etc. which, obviously, are not owned by individuals in the affected society. It is
generally believed that placing a price on pollution, as Principle 13 apparently does, will
encourage States to pursue more effective preventive measures in their dealings with the

Additionally, the Rio Declaration also placed greater responsibility on developed countries,
enshrining the principle of distinguished responsibility.65 The Rio Declaration demonstrates the
ability of developed and developing countries to reach agreement on the types of environmental
goal towards which they should be working through cooperation. This was particularly manifest
in the consensus found by these countries on crucial principles in the declaration, which are vital
to environmental progress.66

Principle 7, concerning ‘common but differentiated responsibilities’, is of particular significance.
This principle is vital for two reasons. First, it obligates States to cooperate in matters concerning
the protection and restoration of the ecosystem. This is remarkably different from the hortatory
pose of the Stockholm Declaration. Secondly, by virtue of this principle, developed countries
acknowledge the special responsibility that they bear towards their developing counterparts
concerning sustainable development. This is apparently due to the fact that the developed
countries are said to contribute more to environmental degradation.67 As a principle,
‘differentiated responsibility’ offers many benefits. These include an apparent equitable
allocation of responsibility for environmental damage and the lessening of the financial burden
of the developing countries, as well as discouraging the latter from adopting measures that might
seriously harm the environment. Nonetheless, the principle is fraught with problems. While the
problems of ‘differentiated responsibilities’ as an international environmental norm in general

64 Dinah Shelton, Stockholm Declaration (1972) and the Rio Declaration (1992) in MAX PLANCK ENCYCLOPEDIA OF

PUBLIC INTERNATIONAL LAW (Oxford University Press, 2008) <available at:>

65 Philip Wexler, Jan van der Kolk, Asish Mohapatra and Ravi Agarwal, CHEMICALS, ENVIRONMENT, HEALTH: A


66 Geoffrey Palmer, The Earth Summit: What Went Wrong at Rio? (1992) 70(2) WASH UNIV LAW REV 1005

<available at:


67 U Thiratangsathira, The Nature of Precautionary Principle <available at:


will be discussed fully later in this chapter, its specific application to the Rio Conference raises
particular concerns.68 To start with, it is not possible for differentiation always to be based on the
classification of countries into developed and developing, with the presumption that the former
will always be responsible for greater environmental degradation. Presently, certain developing
countries, such as China and India, have shown as high a (if not a higher) propensity to impact
on the environment through increased (and arguably unsustainable) use of environmental
resources as have their developed counterparts. The differentiation formula adopted in Principle
7 of the Rio Declaration has also made future negotiations among States more difficult, as was
the case with the Kyoto Conference.69

Despite the laudable contributions of the Rio Conference, it must be noted that the Rio
Declaration does not impose legal obligations on States as such, even if it consists of some
robust measures in contrast to the Stockholm Declaration. On the contrary, it can be said that the
Rio Conference actually increased the politicization of environmental issues.70

c. The 1992 UN Framework Convention on Climate Change (UNFCCC)

The UN Framework Convention on Climate Change (UNFCCC, or FCCC) was adopted during
the Rio Conference in 1992. Article 2 of the Convention, which entered into force on 21 March
1994, outlines its aims as: “to achieve in accordance with the relevant provisions of the
Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system”71

The UNFCCC was the first international treaty to deal specifically with greenhouse gases in an
attempt to stabilize the levels in the atmosphere. It aims to tackle the menace of greenhouse

68 S L Hsu, Fariness versus Efficiency in Environmental Law (2004) 31(2) ECOLOGY LAW QUART. 303

69 Geoffrey Palmer, The Earth Summit: What Went Wrong at Rio? (1992) 70(2) WASH UNIV LAW REV 1005

<available at:


70 Mukul Sanwal, Sustainable Development, the Rio Declaration and Multilateral Cooperation (1993) 4 COLO J

INTL ENV L & POLICY 45 at 67; Geoffrey Palmer, The Earth Summit: What Went Wrong at Rio? (1992) 70(2) WASH

UNIV LAW REV 1005 <available at:


71 Article 2, United Nations Framework Convention on Climate Change 1992

gases through many measures, starting with imposing the obligation on State parties to “develop,
periodically update, publish and make available to the Conference of the Parties, in accordance
with Article 12, national inventories of anthropogenic emissions by sources and removals by
sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable
methodologies to be agreed upon by the Conference of the Parties.”72 Under Article 4(2)(a), the
Convention obligates Annex I State parties—developed States and States from the former Soviet
Union that were, at the relevant time, undergoing market economy reforms to adopt national
policies and corresponding measures on mitigation of climate change by limiting the
anthropogenic emissions of greenhouse gases.73 This provision reflects the principle of
‘differentiated responsibility,’ which, like the Rio Declaration, the UNFCCC recognizes in
Article 3(1).74 The UNFCCC requires reporting and updates to the UN Conference of Parties,
established under Article 7 of the Convention, regarding their emissions.75 The UNFCCC also
established a secretariat to oversee the implementation and working of the UNFCCC. The
secretariat, which is based in Bonn, has the same name as the UNFCCC, and the Convention
established the mandate of the secretariat.

Despite the Convention establishing clear commitments and imposing obligations on State
parties, the fact that it does not provide for enforcement mechanisms greatly undermines its
efficiency.76 What the UNFCCC does call for, by way of implementing its provisions, is for the
Conference of Parties to adopt protocols, pursuant to Article 17, to address the issue of
anthropogenic emissions. These protocols will be applicable only to those States already party to
the Convention.77 The most well known protocol that the UNFCCC Conference of Parties has
adopted is the Kyoto Protocol.

d. The Kyoto Protocol

Adopted on 11 December 1997 in Kyoto, Japan, pursuant to Article 17 of the UNFCCC, the
Kyoto Protocol entered into force on 16 February 2005 and currently has 191 member States,

72 Article 4(1)(a), United Nations Framework Convention on Climate Change 1992
73 Article 4(2)(a), United Nations Framework Convention on Climate Change 1992
74 Article 3(1), United Nations Framework Convention on Climate Change 1992
75 Article 4(1)(a), United Nations Framework Convention on Climate Change 1992
76 Nina Hall and Asa Persson, Global Climate Adoption Governance: Why is it not legally binding? <available at:>
77 Article 17(4), United Nations Framework Convention on Climate Change 1992

thus making it one of the most widely ratified treaties. The Protocol was aimed at combating
global warming—an increase in the average temperature of the earth’s atmosphere, which itself
is a consequence of the relentless release of greenhouses gases (GHGs) into the atmosphere.78
The Kyoto Protocol is unarguably one of the most highly developed mechanisms in international
environmental law in terms of its objectives and its legal attributes.79 Parties are free to withdraw
from the Protocol pursuant to Article 27, although this cannot be earlier than three years after the
Protocol enters into force and can only be by written notification. Even then, the withdrawal is
effective only one year after the written request. Additionally, where a State withdraws from the
UNFCCC, it is also considered to have withdrawn from the Kyoto Protocol. It does seem that the
procedural hurdles placed in the way of a party intending to withdraw from the Kyoto Protocol
highlight the seriousness attached to the Protocol, because they serve to discourage parties from
actually taking such steps.80

The scheme of the Kyoto Protocol is that it commits the thirty-seven Annex I countries (see
earlier) to take measures to reduce specific GHGs, adopting the 1990 emission level as
benchmarks—that is, as the acceptable emission targets. They agree to reduce GHG emissions
by 5 per cent from the 1990 level, although international aviation and shipping emissions are
excluded from this target. Several defining features mark the fundamental architecture of the
Kyoto Protocol. It provides legally binding emissions targets for Annex I countries, based on a
five-year budget period. It makes allowance for flexibility with respect to the parties’ national
implementation of their commitments. It also allows for flexibility in the international context by
providing for the use of emissions trading and other market-based mechanisms, including a
mechanism for cooperative projects between developed and developing countries. In addition, it
takes a comprehensive approach by covering both GHG emissions and sequestration by sinks,
and by including not only CO2, methane and N2O, but also the three synthetic GHGs.81

78 Ivana Zovko, International Law-Making for the Environment: A Question of Effectiveness <available at:>
79 Ibid
80 Kevin A Baumert, Odile Blanchard, Silvia Llosa and James F Perkaus (eds.), BUILDING ON THE KYOTO
PROTOCOL: OPTIONS FOR PROTECTING THE CLIMATE (World Resources Institute, 2002) <available at:>
81 Kevin A Baumert, Odile Blanchard, Silvia Llosa and James F Perkaus (eds.), BUILDING ON THE KYOTO
PROTOCOL: OPTIONS FOR PROTECTING THE CLIMATE (World Resources Institute, 2002) <available at:>

In practical terms, the Kyoto Protocol embodies five crucial strategies towards achieving its
aims: (a) it sets out clear targets for emissions (Article 3); (b) it stipulates measures to be taken
towards implementing the various commitments of State parties (Articles 2, 5, 6, and 7); (c) it
provides funds for developing countries to enable them to adapt to climate change (Article
11(2)(a)); (d) it establishes accountability, reporting, and review mechanisms for the Protocol
(Articles 8, 9, 10, and 17); and (e) it establishes a compliance regime (Article 18).

Unlike any efforts before it, the Kyoto Protocol established clear, legally binding emission
targets for Annex I States under Article 3(1). This singular achievement places the Protocol
above any other international environmental law regime.82 Under Article 3(1), the obligation is
clear and precise, objective assessment of compliance with targets is greatly facilitated and there
is a legal consequence for exceeding the targets’ non- compliance with the Protocol.83

The Kyoto Protocol was the first international environmental legal regime to address
comprehensively the issue of non-compliance.84 Non-compliance is often a serious problem of
international law, especially with multilateral agreements. The problem is addressed by a rather
awkward method: usually, when a State breaches an international obligation, non-breaching
parties are entitled to suspend performance of their obligations vis-à-vis the breaching State.
However, it is difficult to apply this method to environmental issues. This is because if, for
example, all State parties to the Kyoto Protocol were to decide to suspend their emissions
reduction obligation towards a State that was in breach, such steps could actually worsen the
emissions level, since it would mean, in fact, that all other States would be free to breach their
emissions level, just like the breaching State.85 Kyoto Protocol’s Article 18 gives the Conference
of the Parties (COP) the responsibility to “approve appropriate and effective procedures and

82 82 Scott Barrett, Carlo Carraro and Jaime de Melo (eds.), TOWARDS A WORKABLE AND EFFECTIVE CLIMATE

REGIME (CEPR Press, 2015) <available at:>

83 Scott Barrett, Carlo Carraro and Jaime de Melo (eds.), TOWARDS A WORKABLE AND EFFECTIVE CLIMATE REGIME

(CEPR Press, 2015) <available at:>

84 Scott Barrett, Carlo Carraro and Jaime de Melo (eds.), TOWARDS A WORKABLE AND EFFECTIVE CLIMATE REGIME

(CEPR Press, 2015) <available at:>

85 Christian Dominice, The International Responsibility of States for Breach of Multilateral Obligations (1999)

10(2) EJIL 353-363 <available at:>

mechanisms to determine and to address cases of non-compliance with the provisions of this

A unique provision of the Kyoto Protocol is its provision for an emissions trading system.
Simply put, this is a system that allows a State party to increase its emissions target by buying
emissions credits from other States. It has been noted that the emissions trading system may
actually be more attractive to States, since often buying credits from overseas may be cheaper as
opposed to making the needed emissions controls domestically.87 This is possible as the Kyoto
Protocol envisions three interrelated trading systems. One, known formally as emission trading,
would allow an industrialized country to increase its emission cap by purchasing part of another
industrialized nation’s Kyoto allocation. A second system, known as joint implementation (JI),
would allow industrialized countries to earn credits when they jointly implement specific
projects that reduce emissions. A third System, known as the Clean Development Mechanism
(CDM), allows industrialized nations to earn credits for projects implemented within developing

The Kyoto Protocol targets, and its provisions, impose different obligations on developed
countries from those imposed on developing countries. The principle of common, but
differentiated, responsibilities is firmly entrenched in the Protocol.89 The developed countries,
which are those considered to be industrialized, have been given specific targets, whereas less
stringent obligations have been set for developing countries.90 Annex I States (developed
countries) are obliged not to exceed the Kyoto Protocol assigned limits, whereas Non-Annex I
States (developing countries) are to reduce their overall emissions, without having a strict
obligation placed upon them. The Kyoto Protocol also makes it possible for regional

86 Scott Barrett, Carlo Carraro and Jaime de Melo (eds.), TOWARDS A WORKABLE AND EFFECTIVE CLIMATE REGIME

(CEPR Press, 2015) <available at:>


(Princeton University Press, 2001) at p. 4

88 Ibid

89 Kevin A Baumert, Odile Blanchard, Silvia Llosa and James F Perkaus (eds.), BUILDING ON THE KYOTO

PROTOCOL: OPTIONS FOR PROTECTING THE CLIMATE (World Resources Institute, 2002) <available at:>

90 Ibid

organizations to sign up, and imposes obligations on these organizations and their member

e. 2002 World Summit on Sustainable Development

In 2002, the United Nations convened a World Summit on Sustainable Development (WSSD, or
the ‘Earth Summit’ as it is sometimes called) in Johannesburg, South Africa, principally to
discuss sustainable development. The notion of ‘sustainable development’ refers to the use of
natural resources in a manner that does not imperil their availability for future generations.
Simply put, the Summit was all about ensuring that the world’s natural resources are used in the
most judicious and conscionable manner with the utmost consideration for future generations.92

The Earth Summit adopted the Johannesburg Declaration on Sustainable Development on 4
September 2002. The Declaration consists of wide-ranging provisions touching on several vital
issues of concern to all peoples of the world. In paragraph 2 of the Declaration, participants
commit themselves ‘to building a humane, equitable and caring global society, cognizant of the
need for human dignity for all’, and assuming collective responsibility through its Article 5
provision.93 The Declaration also calls on developed nations to effectuate the realization of
‘internationally agreed levels of official development assistance’ to developing countries
(paragraph 22), and advocates paying special attention to the situation of small islands,
developing States, and least developed countries (paragraph 24), among others.

f. 2009 Copenhagen Accord

From 7 to 19 December 2009 at Copenhagen, Denmark, the United Nations convened yet
another summit, which, was meant to provide legal certainty and political guidance to the future
of international climate regime after 2012 in accordance with the Bali Roadmap set in 2007.94

Under the Accord, States are given the option to report periodically on the mitigation measures
that they take. One improvement is that where developing countries do provide reports, this will
be the first time that national reports will be provided by them under an international system

91 Ibid
92 Philippe Sands, Jacqueline Peel and Ruth MacKenzie, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (4th
edn, Cambridge University Press, 2018)
93 Ibid
94 Leonardo Massai, The Long Way to the Copenhagen Accord; Climate Change Negotiation in 2009 (2010) 19(1)

agreement. There is, however, no mention of non-compliance and oversight procedures.95 The
Copenhagen Accord establishes new institutions: the High Level Panel on Financing, the
Copenhagen Green Climate Fund (CGCF); and a technology mechanism. However, there is a
lack of elaboration on how these new institutions will interact with existing institutions.96

The Summit faced significant criticism, with a majority of it focusing on the fact that the end
result of the Copenhagen Summit has suffered from the lack of clarity on the mandate of the
solution identified by parties and by the COP Presidency at the final stage of negotiations when
the decision on how to unblock the process was not completely transparent and therefore did not
meet the expectations of some parties.97

Despite the Copenhagen Accord being an outcome of the Copenhagen Summit, it was not
adopted by the Conference of Parties and its meeting (CMP), when the Accord was presented to
it at the final plenary session.98 In a sense, the several challenges encountered by the Copenhagen
Summit – particularly the lack of consensus and the rabidly different positions of participating
States – underscore the view that climate change is ‘a diabolical policy problem...harder than any
other issue of high importance that has come before our polity in living memory’.99 Although,
The Copenhagen Summit was one of the most high profile, well-attended, and ambitious
international summits. However, it records one of the least encouraging outcomes ever and, more
than any effort before it, undermined the efforts of the international community at strengthening
international environmental regulation.100


There is a school of thought that canvasses the view that the best means of enforcing
international environmental law is through domestic mechanisms and institutions. This view
derives principally from the realization that, unlike typical State-to-State disputes, which are
responsive to international settlement mechanisms, most environmental disputes among States

95 Scott Barrett, Carlo Carraro and Jaime de Melo (eds.), TOWARDS A WORKABLE AND EFFECTIVE CLIMATE REGIME

(CEPR Press, 2015) <available at:>

96 Ibid

97 Benito Muller, Copenhagen 2009: Failure or Final Wake up Call for our leaders?, Oxford Institute for Energy

Studies EV 49 (2010 February) <available at:>

98 Adrian Macey, Climate Change: Governance Challenges for Copenhagen (2009) 15 GLOBAL GOVERNANCE 443

99 Ross Garnaut, Garnut Climate Change Review 2008 <available at:>

100 Ibid

usually occur through the activities of individuals and corporations within a State.101 Therefore it
makes more sense for such disputes to be addressed before domestic institutions such as courts.
Further, customary international environmental obligations automatically form part of the
domestic law of monist States, such as the USA, making the domestic implementation and
enforcement of such obligations much easier.102
In contrast, for dualist countries, it might not be so simple, because international obligations have
to be transformed into domestic law before they can become binding. It is to be expected that
most parliaments of such countries may want to ensure that they regulate the enforcement of
international environmental law before their domestic courts. But this prospect does not
undermine the merits of the domestic enforcement of international environmental law.103
One of the more popular means of pressuring States to comply with their international
obligations is ‘naming and shaming’. The role of the media in pressuring States to comply with
environmental obligations can be significant, as with, for example, the international media
scrutiny of US reluctance to conform to the several obligations of the Kyoto Protocol. However,
this particular method is also prone to irritating States and can actually be counterproductive if
not well managed. A State can easily become obstinate on a particular issue if it thinks that it has
received an unjustifiable level of media attack.104

101 Malgosia Fitzmaurice and Panos Merkouris, Environmental Compliance Mechanisms <available at:>
102 Ibid
103 Ibid
104 Robert Falkner, The Paris Agreement and the New Logic of International Climate Politics, (2016) 92(5) INTL

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