International Environmental Law: Fairness, Effectiveness, and World Order 0521868122, 9780511249679

Citation preview

This page intentionally left blank

International Environmental Law This book analyzes the law and policy for the management of global common resources. As competing demands on the global commons are increasing, the protection of the environment and the pursuit of growth give rise to all sorts of conflicts. The book analyzes issues in the protection of the global commons from fairness, effectiveness, and world order perspectives. The author examines whether current policy making and future trends point to a fair allocation of global common resources that will be effective in protecting the environment and in the pursuit of sustainable development. The author looks at the cost effectiveness of international environmental law and applies theories of national environmental law to international environmental problems. Chapters include analysis of areas such as marine pollution, air pollution, fisheries management, transboundary water resources, biodiversity, hazardous and radioactive waste management, state responsibility, and liability. Elli Louka is the founder of Alphabetics Development & Investment (ADI), a company devoted to environment and development. Louka was a Senior Fellow at the Orville H. Schell Center for International Human Rights at Yale Law School and a Ford Foundation Fellow at New York University School of Law. Dr. Louka is currently the recipient of a Marie Curie Fellowship provided by the European Commission of the European Union. Other selected publications by Dr. Louka include Conflicting Integration: The Environmental Law of the European Union (2004), Biodiversity and Human Rights (2002), and Overcoming National Barriers to International Waste Trade (1994).

International Environmental Law Fairness, Effectiveness, and World Order

Elli Louka

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521868129 © Elli Louka 2006 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2006 isbn-13 isbn-10

978-0-511-24967-9 eBook (EBL) 0-511-24967-5 eBook (EBL)

isbn-13 isbn-10

978-0-521-86812-9 hardback 0-521-86812-2 hardback

isbn-13 isbn-10

978-0-521-68759-1paperback 0-521-68759-4 paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Foreword by W. Michael Reisman Abbreviations

page xi xiii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Chapter 1. Introduction to International Environmental Law . . . . . . . . . . . . . . . . . . . . 5 1 The World Community and International Law

5

1.1 International Law 1.2 States 1.2.1 Sovereignty 1.2.2 Wealth 1.2.3 Cooperation 1.3 International Organizations 1.4 Nongovernmental Actors 2 International Lawmaking Process

5 6

2.1 Treaties 2.2 Custom

11 16 20 21 23

2.3 Principles of Law 2.4 Other Sources 2.5 Content 3 Perspectives

24 25 25 27

3.1 Developed Countries 3.2 Developing Countries 4 Historical Evolution 4.1 Stockholm 4.2 Rio 4.3 Johannesburg 4.4 From Stockholm to Johannesburg 4.5 Case Law 5 Globalization and International Law

27 28 30 30 32 35 38 39 47 v

vi

Contents

6 Principles 6.1 Sovereignty over Natural Resources 6.2 Obligation Not to Cause Damage

49 49 50

6.3 Principles of Preventive Action and Precaution 6.4 Polluter Pays Principle and Equitable Sharing of Cost 6.5 Sustainable Development 6.6 Equitable Utilization 6.7 Common but Differentiated Responsibilities 6.8 Human Rights 7 Settlement of Disputes

50 51 52 53 54 54 55

8 Monitoring and Enforcement

57

Chapter 2. Foundations of International Environmental Law . . . . . . . . . . . . . . . . . . . 59 1 Functions of Law

59

2 Foundations 2.1 Minimum Order 2.2 Equity

65 66 67

2.3 Effectiveness as Equity 2.4 Cost-Effectiveness 3 Regulation of Natural Resources

70 73 75

4 Enclosure of National Commons 5 Enclosure of Global Commons 5.1 Fisheries

78 80 81

5.2 Deep Sea-Bed Resources 5.3 Germplasm and Related Knowledge 5.4 Freshwater Resources

83 86 88

5.5 Air 5.6 Seas 5.7 Waste Management

89 91 92

5.8 National Biodiversity Resources 6 Enclosure of Global Commons and Global Welfare 7 International Instruments 8 Conclusion

93 95 108 111

Chapter 3. Compliance and Governance Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . 114 1 Environmental and Strategic Impact Assessment

114

2 State Obligations 2.1 Exchange of Information 2.2 Notification 2.3 Consultation 2.4 Reporting/Monitoring

120 121 122 123 124

Contents

vii

3 Verification and Compliance 4 Right to Information and Participation and Access to Justice 4.1 International Instruments

126 129 129

4.2 Application of Right to Information 5 Conclusion

136 140

Chapter 4. Marine Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 1 State of Marine Environment

141

2 Integrated Coastal Zone Management 3 Evolution of International Instruments 3.1 Law of the Sea Convention 3.2 Pollution from Dumping 3.3 Regional Management

144 146 146 148 153

3.4 Pollution from Ships 3.5 Emergency Situations

154 159

3.6 Safety Regulations 4 Selected Regional Instruments 4.1 Protection of the Northeast Atlantic 4.2 Protection of the Baltic Sea

159 161 161 162

4.3 UNEP Regional Seas Program 5 Conclusion

163 167

Chapter 5. Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 1 State of Water Resources 2 Issues in Water Management 2.1 Allocation and Equity 2.1.1 Substantive Equity 2.1.2 Procedural Equity and Institutional Development 2.1.3 Principled Equitable Utilization or Ad Hoc Regionalism? 2.2 Efficiency and Quality 2.3 Integrated Water Resources Management 2.3.1 National 2.3.2 International 3 Case Law 4 International Instruments 5 Regional Instruments 5.1 Africa 5.2 Asia 5.3 Middle East 5.4 Europe 5.4.1 Suprabasin Instruments 5.4.2 Basin-Specific Instruments

169 172 172

179 182

185 188 192 193 209 218 223

viii

Contents

5.5 American Region 5.5.1 United States–Canada 5.5.2 United States–Mexico 6 Conclusion

239

243

Chapter 6. Fisheries Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 1 State of World Fisheries 2 National Management of Fisheries Resources 2.1 Regulation 2.2 Privatization 3 International Management of Fisheries Resources 3.1 Law of the Sea Convention 3.2 Case Law 3.3 International Instruments 3.3.1 Agreement on Fisheries Management 3.3.2 FAO Code of Conduct for Responsible Fisheries 3.4 Regional Agreements 3.5 Case Studies 3.5.1 South East Atlantic Fisheries Organization (SEAFO) 3.5.2 South Pacific Forum Fisheries Agency (SPFFA) and Western and Central Pacific Commission (WCPC) 3.5.3 North East Atlantic Fisheries Commission (NEAFC) 3.5.4 Northwest Atlantic Fisheries Organization (NAFO) 3.5.5 International Commission for the Conservation of Atlantic Tuna (ICCAT) 3.5.6 General Fisheries Commission of the Mediterranean (GFCM) 3.5.7 Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) 4 Conclusion

244 245 245 247 250 250 251 258

264 268

286

Chapter 7. Biodiversity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .288 1 Biodiversity Management

288

1.1 State of Biodiversity Resources 1.2 National and Transnational Protected Areas 1.3 Gene Banks 2 International Instruments 2.1 Biodiversity Convention 2.1.1 Biodiversity Protection 2.1.2 Resource Allocation 2.1.2.1 Market Value of Biodiversity 2.1.2.2 Bilateral Redistribution 2.1.2.3 Transnational Redistribution 2.1.2.4 Institutionalized Redistribution 2.2 Trade and Biodiversity 3 Protection of Habitats 3.1 World Heritage Sites

288 289 296 299 299

314 316 316

Contents

ix

3.2 Forests 3.3 Wetlands 4 Regional Instruments

318 322 323

4.1 Europe 4.2 Africa 4.3 South East Asia 4.4 Antarctica 4.5 Other Regional Instruments 5 Protection of Species 5.1 Protection of Migratory Species 5.2 Protection of Whales

323 326 330 332 333 335 335 337

5.3 Protection of Seals 5.4 Other Agreements 6 Conclusion

339 340 342

Chapter 8. Air Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 1 Ozone Depletion

344

1.1 Negotiating Process 1.2 Legislative Instruments 1.2.1 Protection of Ozone Layer 1.2.2 Regulation of Ozone-Depleting Substances 1.3 Conclusion 2 Climate Change 2.1 Negotiating Process

344 346

2.2 Legislative Instruments 2.2.1 Convention on Climate Change 2.2.2 Regulation of Greenhouse Gases 2.2.3 Market-Based Regulation of Greenhouse Gases 2.3 Conclusion 3 Transfrontier Air Pollution 3.1 Legislative Instruments 3.1.1 Convention on Transboundary Air Pollution 3.1.2 Regulation of Air Pollutants 3.2 Conclusion

355 356 357 361

373 374 376

382

Chapter 9. Trade and Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 1 World Trade Institutions 2 The Treaties 3 Dispute Settlement 3.1 General Agreement on Tariffs and Trade 3.2 Sanitary and Phytosanitary Measures 4 Intellectual Property Rights and Trade 4.1 Intellectual Property Rights Institutions and Trade

383 384 385 386 394 399 401

x

Contents

4.2 Intellectual Property Rights and Pharmaceuticals 4.3 Intellectual Property Rights and Genetic Resources 4.3.1 Letter of TRIPs 4.3.2 State Practice 4.3.3 Seed Wars 4.3.4 TRIPs and Traditional Knowledge 4.3.5 TRIPs and Farmers’ Rights 5 Conclusion

409 412

420

Chapter 10. Hazardous and Radioactive Wastes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 1 State of International Waste Trade 2 State of Waste Management 2.1 Landfill/Geologic Disposal 2.2 Marine Disposal 2.3 Treatment 2.4 Incineration

424 425 425 426 426 426

2.5 Recycling and Reprocessing 3 International Instruments

427 428

3.1 Hazardous Wastes 3.2 Radioactive Wastes 4 National Regulatory Dilemmas

428 434 437

4.1 The United States 4.1.1 Management of Hazardous Wastes 4.1.2 Management of Radioactive Wastes 4.1.3 Management of Waste Trade 4.2 European Union 4.2.1 Management of Hazardous Wastes 4.2.2 Management of Radioactive Wastes 4.2.3 Management of Waste Trade 5 Conclusion

437

441

446

Chapter 11. Liability and State Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .448 1 Oil Pollution 2 Hazardous Materials Trade 2.1 CRTD Convention 2.2 HNS Convention 2.3 Liability for Waste Trade 3 Nuclear Energy 4 Liability for Damage to the Environment

451 456 456 459 461 462 466

5 State Responsibility 6 International Liability 7 Conclusion

468 475 481

International Treaties and Other Instruments List of Cases

482 491

Index

495

Foreword

Law, as Dr. Elli Louka vividly demonstrates in this extraordinary book, is most usefully conceived as a process of clarifying and implementing the common interests of politically relevant actors. This conception is indispensable for understanding the development of international environmental law. The spread of industrialization, with its ever more intensive uses of the resources of the planet, followed by the evolution of a global civilization of science and technology and, in part as a consequence of those developments, the explosion of the population of the planet from 1.6 billion people in 1900 to 2.5 billion in 1950 and to more than 6 billion in 2000, have combined to put unprecedented and unrelenting stress on the ecological systems on which the life of our species depends. No other area of lawmaking and law-applying makes so clearly and vividly manifest the indispensable functions of all law: the maintenance of minimum order, the allocation and regulation of the use of scarce resources, and the conservation and allocation of the benefits and burdens of the world’s resources in ways consistent with shared conceptions of equity. Approaching this subject as if it could be studied as a body of static rules would be sterile. Instead, Dr. Louka presents a dynamic picture, in which the diverse actors in the international lawmaking process clarify key principles such as sovereignty over national resources, precautionary principles with respect to equitable cost-sharing of environmental externalities, principles of sustainable development, and common as well as differentiated responsibilities. Dr. Louka then shows how those principles are being applied in each of the major areas of international environmental law. Nor can general international law be excluded from such an examination, for the legal focus on the environment also has driven major changes in general international law, which has acknowledged the “tragedy of commons” and in response has authorized an increasing enclosure and nationalization of resources that for centuries had been part of the res communis omnium. Using as a framework this dynamic process in which international environmental law is clarified, prescribed, and implemented, Dr. Louka reviews and synthesizes past trends and projections of probable future trends with respect to (1) the marine environment; (2) shared water resources; (3) fisheries resources; (4) the conservation of biodiversity; (5) air; (6) trade and environment; and (7) the disposal of hazardous and radioactive waste. Cutting across all of these trends and projection studies are the international efforts to establish and police reporting and information-sharing xi

xii

Foreword

regimes, many now driven by the daunting challenge of prescribing for some measure of liability in circumstances in which acts with the potential for causing significant transnational damage are not prohibited by international law. One of the many strengths of Dr. Louka’s book is that it presents in extraordinarily rich detail the entire spectrum of the modern process of international environmental law. Much of the writing in contemporary international environmental law is passionately and uncritically advocative. Although Dr. Louka’s book is plainly animated by a deep concern for the preservation of the environment of the planet and the realization that in the context of a global civilization of science and technology, it can be protected only by effective international efforts, the stance adopted is not uncritical and Dr. Louka never surrenders the scholarly role. Precisely because some of the areas that Louka treats are – good intentions notwithstanding – marked by missteps or – serious efforts notwithstanding – have registered no significant successes, Dr. Louka’s book will be important for the practitioner in the vineyard of international environmental law no less than for the political leaders who are charged with its development. Dr. Louka has produced a remarkable book that will be of great value to the profession. W. Michael Reisman Yale Law School New Haven, Connecticut December 2005

Abbreviations

AAUs/assigned amount units (of emissions) ACCOBAMS/Agreement on the Conservation of Cetaceans of the Mediterranean and the Black Seas ACP/African, Caribbean and Pacific (countries) ACTO/Amazon Cooperation Treaty Organization AIA/Advanced Informed Agreement (procedure) APFIC/Asia Pacific Fishery Commission ASCIs/Areas of Special Conservation Interest ASCOBANS/Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas ASEAN/Association of South East Asian Nations ATS/Antarctic Treaty System BAT/best available technique BATNEEC/best available technology not entailing excessive costs BEP/best environmental practice CAMPs/Coastal Areas Management Programmes CBD/Convention on Biological Diversity CBNRM/community-based natural resource management

CCAMLR/Convention for the Conservation of Antarctic Marine Living Resources CCAS/Convention on the Conservation of Antarctic Seals CCRF/Code of Conduct for Responsible Fisheries CDM/Clean Development Mechanism CDS/Catch Documentation Scheme CECAF/Committee of the Eastern Central Atlantic Fisheries CERCLA/Comprehensive Environmental Response, Compensation and Liability Act CERs/certified emissions reductions CFCs/chlorofluorocarbons CGIAR/Consultative Group on International Agricultural Research CIAT/International Center for Tropical Agriculture CIFOR/Center for International Forestry Research CIMMYT/Center for the Improvement of Maize and Wheat CIP/International Potato Center CITES/Convention on International Trade in Endangered Species of Wild Flora and Fauna CLRTAP/Convention on Long-Range Transboundary Air Pollution COP/Conference of the Parties xiii

xiv

Abbreviations

CRTD/Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels CSC/Convention on Supplementary Compensation for Nuclear Damage CSD/Commission on Sustainable Development CTE/Committee on Trade and Environment DSB/Dispute Settlement Body DWFS/distant water fishing states EBRD/European Bank for Reconstruction and Development EC/European Community ECE/Economic Commission for Europe ECJ/European Court of Justice ECOSOC/Economic and Social Council of the United Nations EEA/European Environment Agency EEC/European Economic Community EEZ/Exclusive Economic Zone EIA/Environmental Impact Assessment EMEP/Cooperative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe EPA/Environmental Protection Agency ERUs/Emission Reduction Units ESCWA/Economic and Social Commission for Western Asia ETS/European Treaties Series EU/European Union EUROBATS/Agreement on the Conservation of Bats in Europe FAO/Food and Agriculture Organization FFA/Forum Fisheries Agency FFVs/foreign fishing vessels FOC/flag of convenience GAO/General Accounting Office GATS/General Agreement on Trade in Services

GATT/General Agreement on Tariffs and Trade GEF/Global Environment Facility GESAMP/Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection GFCM/General Fisheries Council of the Mediterranean GPA/Global Programme of Action HELCOM/Helsinki Convention for the Protection of the Baltic Sea IAEA/International Atomic Energy Agency IARCs/International Agricultural Research Centers IATP/Institute for Agriculture and Trade Policy IATTC/Inter-American Tropical Tuna Commission IBPGR/International Board for Plant Genetic Resources IBRD/International Bank for Reconstruction and Development ICARDA/International Center for Agricultural Research in Dry Areas ICARM/Integrated Coastal and River Basin Management ICCAT/International Convention for the Conservation of Atlantic Tunas ICDM/Integrated Conservation and Development Management ICJ/International Court of Justice ICNAF/International Convention for the Northwest Atlantic Fisheries ICPDR/International Commission for the Protection of the Danube River ICPR/International Commission for the Protection of the Rhine ICRAF/International Center for Research in Agroforestry ICRISAT/International Crops Research Institute for the Semi-Arid Tropics ICZM/Integrated Coastal Zone Management

Abbreviations

IDPs/internally displaced persons IFPRI/International Food Policy Research Institute IITA/International Institute for Tropical Agriculture ILC/International Law Commission ILO/International Labor Organization ILRI/International Livestock Research Institute IMDG/International Maritime Dangerous Goods (Code) IMF/International Monetary Fund IMO/International Maritime Organization INBO/International Network of Basin Organizations IOFC/Indian Ocean Fishery Commission IOTC/Indian Ocean Tuna Commission IPCC/Intergovernmental Panel on Climate Change IPF/Intergovernmental Panel on Forests IPGRI/International Plant Genetic Resources Institute IRBM/Integrated River Basin Management IRBO/International River Basin Organizations IRRI/International Rice Research Institute ISA/International Seabed Authority ISNAR/International Service for National Agricultural Research ITLOS/International Tribunal for the Law of the Sea ITP/individual tradable permit ITQs/individual transferable quotas ITTA/International Tropical Timber Agreement ITTO/International Tropical Timber Organization IUCN/International Union for the Conservation of Nature IUU/illegal, unreported, and unregulated fishing IWC/International Whaling Commission

xv

IWIC/International Waste Identification Code IWRM/Integrated Water Resources Management LDC/London Dumping Convention LLRWA/Low-Level Radioactive Waste Act LULUCF/land-use, land-use change, and forest MAP/Mediterranean Action Plan MDBC/Murray-Darling Basin Commission MPAs/Marine Protected Areas MTAs/Material Transfer Agreements NAFC/Northwest Atlantic Fisheries Convention NAFO/Northwest Atlantic Fisheries Organization NAFTA/North American Free Trade Agreement NAMMCO/North Atlantic Marine Mammals Commission NASCO/North Atlantic Salmon Conservation Organization NATO/North Atlantic Treaty Organization NEA/OECD/Nuclear Energy Agency of the Organization for Economic Co-operation and Development NEAFC/North East Atlantic Fisheries Commission NEPA/National Environmental Policy Act NGOs/nongovernmental organizations NIMBY/not in my backyard NPAFC/North Pacific Anadromous Stocks Commission NPFSC/North Pacific Fur Seals Commission NWPA/Nuclear Waste Policy Act OAS/Organization of American States OAU/Organization of African Unity ODA/Official Development Assistance ODS/Ozone Depleting Substances

xvi

Abbreviations

OECD/Organization for Economic Co-operation and Development OPRC/Oil Pollution Preparedness, Response, and Co-operation OSPAR/Convention for the Protection of the Marine Environment of the North East Atlantic

TACs/total allowable catches TBNRM/transboundary natural resource management TDPs/tradable discharge permits TRIPs/Trade-Related Intellectual Property Rights TURFs/Territorial Use Rights in Fishing TVA/Tennessee Valley Authority

PCA/Permanent Court of Arbitration PCIJ/Permanent Court of International UNCED/United Nations Conference Justice on the Environment and PGR/Plant Genetic Resources Development PIC/prior informed consent UNCLOS/United Nations Convention POPs/persistent organic pollutants on the Law of the Sea PRTRs/pollutant release and transfer UNCTAD/United Nations Conference registers on Trade and Development RAC/Regional Activity Centre UNDP/United Nations Development RBAs/River Basin Authorities Program RBMP/River Basin Management Plan UN/ECE/United Nations Economic RBOs/River Basin Organizations Commission for Europe RCRA/Resource Conservation and UNESCAP/United Nations Economic Recovery Act and Social Commission for Asia and RFOs/Regional Fisheries the Pacific Organizations UNESCO/United Nations Educational, Scientific, and Cultural SAARC/South Asian Association for Organization Regional Cooperation SADC/Southern African Development UNFF/United Nations Forum on Forests Community UPOV/Union for the Protection of SARA/Superfund Amendment and New Varieties of Plants Reauthorization Act SBSTA/Subsidiary Body for Scientific VMS/Vessel Monitoring System and Technological Advice VOCs/volatile organic compounds SEAFO/South East Atlantic Fisheries WCPFC/Western and Central Pacific Organization Fisheries Convention SEA/Strategic Environmental WECAFC/Western Central Atlantic Assessment Fishery Commission SOLAS/International Convention for WFD/Water Framework Directive the Safety of Life at Sea WHO/World Health Organization SPFFA/South Pacific Forum Fisheries WIPO/World Intellectual Property Agency Rights Organization SPREP/South Pacific Regional WSSD/World Summit on Sustainable Environment Program Development SPS/Sanitary and Phytosanitary WTO/World Trade Organization Measures

Introduction

This study examines the rules of international law governing the global commons. Because global common resources are shared among states, competition for the use of such resources and the sharing of externalities from resource use are bound to increase in the future. The book examines how the quest for a minimum order, fairness, and effectiveness has guided the development of international environmental law and policy making. Chapter 1 provides an introduction to international law and international environmental law. It provides an overview of the actors of international lawmaking, the international lawmaking process, and the historical evolution of international environmental law. Concepts of international environmental law, such as sovereignty over national resources, the “polluter pays” principle, the precautionary principle, equitable cost-sharing of environmental externalities, sustainable development, and common but differentiated responsibilities are explored. The chapter examines human rights as the threshold principles of international environmental lawmaking. Issues of monitoring and enforcement in international law are also introduced. Chapter 2 examines the foundations of international environmental law. The pursuit of minimum order, equity, and effectiveness in international law is analyzed and the interconnection among the foundations of international environmental law is explored. The chapter examines how issues of distributive equity often determine the effectiveness of international environmental lawmaking. Issues of cost-effectiveness as they influence the success of international environmental regimes are also examined. The enclosure of national common pool resources is introduced and analyzed. More specifically, it is examined how many national/local common pool resource systems could acquire differing forms of governance ranging from common property and state property to private property. The “Tragedy of Commons” rationale that precipitated the enclosure of common pool resources in national systems is driving the enclosure of global common resources. The gradual enclosure of global common resources – as it is taking place in fisheries, germplasm resources and related knowledge, freshwater resources, air, sea, waste management, and national biodiversity resources – is analyzed. Chapter 2 examines the interrelationship between the nature of different enclosures and the effectiveness of international environmental regimes. The inclusionary or exclusionary nature of enclosures as they affect perceptions of distributive equity is analyzed. 1

2

Introduction

Chapter 3 examines the compliance and governance mechanisms of international environmental lawmaking such as environmental impact assessment, strategic environmental assessment, exchange of information, notification, consultation, the right to participation, and the right to information. The chapter examines whether such instruments have been effective in the pursuit of international environmental law objectives. The application of these instruments by international institutions and states is particularly emphasized. Reporting, monitoring, and compliance procedures as they are developing in different international environmental law regimes are scrutinized. The seas are a common pool resource that has become an open-access resource in terms of pollution that states are putting into the seas. Chapter 4 examines the different regulatory efforts that states have engaged in so as to diminish the openaccess character of the resource including the Law of the Sea Convention, the MARPOL Convention, various regional conventions, and safety regulations. The chapter concludes that – despite the efforts of states to enclose the global resources of the seas under national or international regulatory regimes – the seas have remained more or less an open-access resource in terms of pollution inputs. Chapter 5 examines the problems associated with the management of shared water resources. Water resources are not global resources like the seas but often are shared among a number of states. As such, they are common pool resources that present the collective action problems encountered in other common pool resource systems. The chapter examines in detail the UN Watercourses Convention and its influence on the articulation of regional instruments on the allocation and protection of freshwater resources. Issues of equity in water allocation, efficiency, demand-led management, and water quality are examined as they have been elaborated in different regional fora, namely – Africa, Asia, Europe, the Middle East, and the American region. Integrated water management, as it incorporates issues of water quantity and quality at the river basin level, the establishment of Regional Basin Organizations (RBOs), and their role in equitable and sound water management are explored in depth. Fisheries are a typical example of global common resources. Fisheries are by nature mobile resources, as they straddle sea areas under national jurisdiction and the high seas. The management of fisheries has been a highly contentious issue in international fora. Chapter 6 provides an overview of national regulatory systems for fisheries resources ranging from the typical command-and-control measures to privatization through Individual Transferable Quotas (ITQs). The enclosure of national fisheries resources has reverberated in international fora where states have been eager to enclose global fisheries resources. The enclosure movement with regard to fisheries resources has been mostly exclusionary because the establishment of Regional Fisheries Organizations, which increasingly assume rights beyond the Exclusive Economic Zone (EEZ) of states, is rarely accommodating to new entrants. There are even disputes among the states that are regime-insiders as they vie for the apportionment of fisheries resources. Chapter 6 examines the international instruments for the regulation of fisheries resources, including the 1995 Fisheries Agreement. Regional efforts for the enclosure of fisheries resources are examined for the purposes of revealing the degree of effectiveness of regional enclosure movements. Most biodiversity resources, especially terrestrial biodiversity resources, are under a state’s jurisdiction or are shared among a number of states in a region. Therefore,

Introduction

3

many biodiversity resources could not be characterized as the classic example of global common resources. The biodiversity loss that is witnessed today worldwide, however, has put biodiversity on the international agenda with a new sense of urgency. The international management of biodiversity is characterized by two trends. One trend has to do with the assertion of state sovereignty over germplasm resources situated in nature or in gene banks. The other trend has to do with the attempts of the international community to regulate national and local biodiversity protection systems so as to implement an international enclosure of national commons. As many states do not have adequate resources to protect and manage their biodiversity resources, such resources often become open-access resources and are degraded. National and transnational protected areas and regional and international gene banks are methods that have been used for the protection of biodiversity. The international system has attempted to regulate the national management of biodiversity through trade mechanisms, which prohibit or restrict the trade in endangered species, and through a number of conventions that address regional biodiversity issues or species-specific conservation issues. The effectiveness and equity of national and international mechanisms for the protection of biodiversity resources are examined in Chapter 7. The Convention on Biological Diversity was the first convention to address biodiversity as a global common pool resource. The convention, in addition to dealing with issues of protection of biodiversity, addresses distributive issues with regard to the allocation of benefits from the exploitation of germplasm resources. Although “raw” germplasm resources have been, for all practical purposes, open-access resources, “worked” germplasm resources have been protected under various intellectual property rights systems, such as breeders’ rights and biotechnology patent rights. The disparity in the treatment of germplasm resources has led developing countries to assert their jurisdiction over “raw” germplasm resources located within their territory and to demand fees from legal entities wishing to access such resources. It was believed that the market value of biodiversity, as it is used in pharmaceuticals and other biotechnology devices, would lead developed countries and companies to share the benefits from the commercialization of germplasm resources with developing countries. Chapter 7 analyzes the bilateral redistribution, transnational redistribution, and institutionalized redistribution of germplasm resources. The effectiveness of distributional mechanisms in terms of bringing wealth to developing countries and indigenous peoples and farmers is scrutinized. Air quality is a global common pool resource as air pollution by some industries affects the quality of the air for the rest of users. The enclosure of global air resources has been inclusionary as countries quickly realized that control of air pollution by some states will not do much to improve air quality as long as other states continue to pollute. In the ozone and climate change regimes, developed countries have been willing to provide side-payments to developing countries for joining in for the outlawing of ozone-depleting substances and the reduction of greenhouse gases. Chapter 8 explores the regime for the protection of the ozone, the climate change regime, and transboundary air pollution regime. Issues of equity and effectiveness in the elaboration and possible future articulation of the regimes are further examined. Market-based instruments and their repercussions for the “privatization” of the air are addressed.

4

Introduction

Chapter 9 examines international environmental issues as they intersect with trade issues. The case law of the World Trade Organization (WTO) is examined in the various cases in which free trade stumbles over regulatory measures that states have enacted for the protection of species or of human health. Chapter 9 analyzes the Trade-Related Intellectual Property Rights (TRIPs) system and its interaction with the world intellectual property rights system. The development of the TRIPs Agreement and its influence on intellectual property rights over pharmaceuticals and germplasm resources are analyzed. The issue of intellectual property rights over germplasm resources, concerns regarding the “enclosure of intellectual commons,” and perceptions of fairness, as they have been articulated in related human rights instruments, are analyzed in depth. Waste is not prima facie a global common resource. Generally, wastes are looked on as a negative resource in the sense that no value is assigned to them. Wastes are generally viewed as an externality produced by industries and households, and the question has been how to assign the costs associated with such an externality. The transfer of wastes from developed to developing countries with no infrastructure and lenient environmental laws brought the waste issue to the international arena and made imperative the development of a transnational system for the management of wastes. States have dealt with the waste issue as a forced enclosure issue. Generators are forced to own their wastes and, thus, bear the costs of the externalities produced by their wastes. Because wastes are perceived as a negative resource, unless ownership is forced, they could be found disposed of on common pool resources polluting the land, water, and air. The international instruments that regulate international waste shipments have imposed state self-sufficiency and safeguards on waste transfers based primarily on the prior notification and informed consent of the importing country before a waste transfer is realized. Chapter 10 examines the effectiveness and fairness of arrangements for the management and transfer of hazardous and radioactive wastes. The question that is examined is whether the forced enclosure of wastes, a so-called negative resource, has worked and whether the equity principles implied in the notion of self-sufficiency are the only principles that should guide the future international management of hazardous and radioactive wastes. National regulatory systems are examined, as it is the management and often mismanagement of wastes in national fora that has led to transnational waste shipments. Chapter 11 explores the private liability regimes that have been developed to address issues of oil pollution, hazardous materials trade, nuclear energy, and liability for damage to the environment. The issue of state responsibility and associated case law are analyzed. The issue of international liability for acts not prohibited by international law (e.g., pollution that is not prohibited by international instruments), as it has been elaborated by the International Law Commission, is specifically scrutinized. A question addressed is whether state practice indicates liability of states for polluting activities originating within their territory or whether the principle that emerges is that of equitable sharing of costs of externalities caused by polluting activities.

1

Introduction to International Environmental Law

1. THE WORLD COMMUNITY AND INTERNATIONAL LAW

1.1. International Law Modern international law has emerged from the ruins of two world wars. Before World War I, public international law regulated the conduct of war. During that period, states had the freedom to choose between war and peace. States had the right to pursue their goals by war. The distinction between just wars and unjust wars was not legally pertinent.1 The reorientation of international law came with the establishment of the League of Nations following World War I. The League condemned external aggression against the territorial integrity and political independence of League members.2 Another important development during this period was the establishment of the Permanent Court of International Justice (PCIJ) and the International Labor Organization (ILO). However, these developments did not prevent the eruption of World War II. In the aftermath of World War II, one of the most important developments was the establishment of the United Nations. The United Nations Charter outlawed war as a general means for the resolution of disputes among states.3 After two world wars, states realized that some institutional framework must be established and some rules promulgated that would provide procedural and substantive safeguards to avert future wars. The United Nations was to serve primarily that purpose: preservation of peace among states. International law is the law that states make to regulate matters among them: first and foremost, war and peace and, after the attainment of a minimum peace order, other matters including economic development, exchange rates, trade, the 1

L. Oppenheim, International Law 177–78 (vol. 2, 7th ed., 1952). The issue of morality of war has preoccupied commentators, though. See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations 3–13 (1977). See also Clarence Wilfred Jenks, Law, Freedom and Welfare 52 (1963). 2 See also D.W. Bowett, The Law of International Institutions 15–16 (1963). 3 See infra notes 13–15.

5

Introduction to International Environmental Law

6

environment, and intellectual property rights. A number of organizations have been developed to deal with such matters, including the World Trade Organization (WTO) with regard to matters that affect trade and the United Nations Environment Program (UNEP) with regard to matters that affect the environment. It would be wrong, however, to perceive international law as only the regulatory instrument of interstate relations. In order to prevent future egregious atrocities against human beings – prevailing especially during war – the international system developed a number of instruments that focus on the protection of the rights of the individual. These human rights instruments launched by the Universal Declaration of Human Rights present the order that the international system aspires to achieve. In addition to what could be called traditional human rights4 (such as the right to life, the right to property, and the right to be free from discrimination), other rights have been proposed more or less persuasively. Such rights include the right to development,5 the right to a decent environment,6 and the right not to be forcibly displaced.7 Human rights articulate the demands for a maximum order of law. This order goes beyond the achievement of elementary peace and incorporates the aspiration for a better quality of life. Human rights shape the notion of human dignity, which gives direction for the future development of international law. The ultimate goal of the international law process is the protection of human dignity.8

1.2. States 1.2.1. Sovereignty The United Nations Charter is based on the principle of sovereignty of states. According to the Charter, each state is sovereign and no state is to violate the

4

5 6

7 8

The Universal Declaration of Human Rights, Dec. 10, 1948, reprinted in Basic Documents on Human Rights 106 (Ian Brownlie, ed., 1971). International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), reprinted in 999 UNTS 171, entered into force Mar. 23, 1976. International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), reprinted in 993 UNTS 3, entered into force Jan. 3, 1976. See also African Charter on Human and Peoples’ Rights (Banjul Charter), June 27, 1981, reprinted in 21 ILM 58 (1982); Bangkok Declaration on Human Rights, April 2, 1993, A/CONF.157/ASRM/8. Initially controversial, this right is now more or less accepted as a legitimate right. For an articulation of the right in the Rio Declaration, see infra note 149. The right to live in a decent or a healthy environment has been the subject of debate, see, e.g., Dinah Shelton, Human Rights, Environmental Rights and the Right to Environment, 28 Stanford Journal of International Law 103 (1991). See also G¨unther Handl, Human Rights and Protection of the Environment: A Mildly “Revisionist” View, in Human Rights, Sustainable Development and the Environment 117 (Antonio Augusto Cancado Trindade, ed., 1992). Maria Stavropoulou, The Right not to Be Displaced, 9 American University Journal of International Law & Policy 689 (1994). For the right not to be displaced, see also infra note 290. See Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 American Journal of International Law 1 (1959).

The World Community and International Law

7

sovereignty of another state.9 This principle of legal equality based on the sovereignty of states should not be confused with an assumption of equal power. In fact, the concept of sovereignty is fairly new in international affairs. Historically, sovereignty was not a given. Instead, states had to obtain the right to be called sovereign.10 Sovereignty denotes the ability to self-govern, and many states today do not really possess that ability. In fact, some states are weaker than corporations and nongovernmental organizations (NGOs) in their capacity to run their own affairs. As the reality of international politics indicates, certain states have more power, self-government, and control and, thus, yield more influence in the configuration of international relations than other states. The imbalance in the actual power of states is enshrined into the UN Charter. The Security Council of the United Nations, the body that makes decisions regarding war and peace, was formed by the victors of World War II.11 The structure of power in the Security Council may be anachronistic but, nevertheless, reflects that even the constitutive organs of the international system could not have afforded to be oblivious of the importance of power in the making of international relations. Sometimes this power is authoritative. In other cases, it lacks legitimacy but, nevertheless, could still be effective in shaping the future of international order.12 The principle of sovereignty implies that states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”13 But, as explored later in this book, this principle contains its own antinomy in the UN Charter, as well as in the way that the Charter has been interpreted including the cases of use of force, self-defense,14 or anticipatory self-defense.15 It is provided that the United Nations must not intervene “in matters which are essentially within the domestic jurisdiction of any state. . . . ”16 The International Court of Justice, however, in the Tunis-Morocco Nationality Decrees case,17 ruled that the scope of a state’s domestic jurisdiction is relative and depends on the development of international law. The mere inclusion of a matter in the agenda of the General Assembly or the Security Council does not in itself constitute intervention within the meaning of article 2(7). The United Nations has engaged in activities considered 9 10

11 12 13 14 15

16 17

Art. 2(1) & (4), United Nations Charter, June 26, 1945 available online at http://www.un.org/ aboutun/charter [hereinafter UN Charter]. B. Buzan, National Security in the Post Cold War Third World, Paper presented at the Conference on National Security in Developing Countries, Jan. 26, 1994, Institute for Strategic Studies, University of Pretoria, South Africa. Art. 23, UN Charter, supra note 9. Permanent members of the Security Council are China, France, Russia, the United Kingdom, and the United States. W. Michael Reisman, Law from the Policy Perspective, reprinted in International Law Essays 1, 7 (Myres S. McDougal & W. Michael Reisman, eds., 1982). Art. 2(4), UN Charter, supra note 9. Art. 51, id. Myres S. Mc Dougal & Florentino P. Feliciano, Law and the Minimum World Public Order: The Legal Regulation of Coercion 231–41 (1961). See also Philip C. Jessup, A Modern Law of Nations 166–67 (1948); Oscar Schachter, The Rights of States to Use Armed Force, 82 Michigan Law Review 1620, 1633–35 (1984). Art. 2(7), UN Charter, supra note 9. Tunis-Morocco Nationality Decrees, Feb. 2, 1923, (1923) PCIJ, Ser.B, no.4, at 24.

8

Introduction to International Environmental Law

traditionally to be the prerogative of a nation-state, for example, in cases of selfdetermination,18 racial discrimination,19 mass starvation,20 and environmental regulation. The unequal distribution of power is a constitutive element of international law from the creation of international regimes that formalize the division between haves and haves-not to the development of customary international law. The Nuclear Non-Proliferation Treaty is based on the presumption that it is legitimate for some countries to possess nuclear weapons, whereas for others it is not.21 And customary international law often is based on the practice of states that happen to be able to shape international developments in an area. Space law has been developed by states with the technology to explore space.22 The development of the Antarctic Treaty system is based on an alliance of states that were the first to be able to enunciate rights over the natural resources of Antarctica. The Antarctic Treaty regime could be characterized as a kind of trusteeship arrangement developed by the acquiescence of excluded states rather than by their willful consent.23 During the Cold War, the common reference to the United States and the Soviet Union as the world’s superpowers, which mutually constrained each other, is well known. In today’s world, a world in which one superpower has remained, the question for other states has been how to constrain that power. A potential contender – the European Union – has yet to acquire an independent voice and to amass military resources that would match its economic breakthroughs. There are regionally powerful states as well, such as India and China, which exert significant authority in regional circles and, as a consequence, in international circles. 1.2.2. Wealth After the wars of decolonization were fought, new states became members of the international community. There was, therefore, the danger of a potential clash between the new states and those states that are, so to speak, the founders of most international law. New states generally have not adopted an outlook of international law that fundamentally undermines the traditional view of such law by Western states. The new states, however, came into international fora with a new set of interests and demands. Developing states have pursued the right to development, for instance, as a fundamental human right that is a precursor of other human rights. 18 19 20 21

22 23

Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion), June 21, 1971, (1971) ICJ Reports 16. E.S. Reddy, United Nations and Apartheid: Forty Years (1987). The United Nations and Somalia – 1992–1996, Blue Book Series, Vol. VIII (UN Publication Sales No. E.96.1.8). Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, reprinted in 729 UNTS 161. See also Edward L. Miles, Nuclear Nonproliferation, 1945 to 1995, in Environmental Regime Effectiveness: Confronting Theory with Evidence 273 (Edward L. Miles et al., eds., 2002). Malcolm N. Shaw, International Law 66 (1986). Some view the Antarctic Treaty regime as a sectoral res communis, a property that is held in trust by the few for the benefit of many, something like an international trusteeship system. However, there have been skirmishes in the development of the regime as some excluded countries have sought to be included as Ant