Part II International Environmental Law and Law-making Ed couzens Individuals and Disasters: The Past and the Future of International Environmental Law 1 Ed Couzens2 International Environmental Law It is not easy to pinpoint when and where international environmental law began. While it is possible to look back at historical events – and occasionally curiosities – and label them examples of international environmental law, they would not at the time have been seen as such in the sense that we understand environmental law today. Examples of early multilateral environmental agreements, as we un- derstand them today, can perhaps be seen in certain examples from the late 19th Century. In 1881, for example, an international convention was agreed concerning measures to be taken against Phylloxera vastatrix;3 this was supplemented by an additional convention in 1889.4 Phylloxera vastatrix is a species of root louse native to Mississippi in the United States. Devastating to non-resistant European vines and so small as to be almost impossible to detect, in the twenty years from 1865 the species devastated 70 percent of European vineyards. Feeding on vine roots and leaves, the louse quickly causes a vine to rot and die.5 From these early begin- nings, international environmental law today consists of detailed regimes cover- ing a broad range of environmental issues. These regimes develop and emanate from treaties, general principles, judicial decisions and custom. 1 This paper is based on a lecture given by the author on 23 August 2005. 2 Attorney; Senior Lecturer, Faculty of Law, University of KwaZulu-Natal, Durban, South Africa. 3 Convention on Measures to be Taken against the Phylloxera Vastatrix, Bern, 3 November 1881, IPE 1571. 4 Additional Convention on Measures to be Taken against the Phylloxera Vastatrix, Berne, 15 April 1889. See also International Plant Protection Convention (New Revised Text), 17 November 1997, in force 2 October 2005, www.fao.org/Legal/TREATIES/004t-e.htm. 5 For a description of Phylloxera vastatrix, see www.winepros.org/wine101/vincyc-phylloxera.htm. 71 Individuals and Disasters A multilateral environmental agreement usually comes into existence by way of a treaty or convention. This does of course have its own inherent problems. The dif- fi culty of achieving a fi rm commitment to change from large gatherings of states can be seen in one of the most important Principles in the Stockholm Declaration, in which acknowledgement is made of state sovereignty. Principle 21 states that States have, in accordance with the Charter of the United Nations and the princi- ples 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.6 Echoes of the Behring Sea Fur Seals,7 the Trail Smelter8 and the Lac Lanoux9 arbitra- tions can be seen in this formulation. The principle, sovereignty, can be seen as an attempt to accommodate the interests of individual states – after the decolonization of many African states in the 1960s sovereignty was a concept guarded especially jealously by the newly independent states – while at the same time attempting to entrench as binding a commitment to environmental protection as possible. With no international environmental court enjoying jurisdiction, faced with an en- vironmental dispute, states sometimes agree to place the matter before arbitration. Although binding only on the states parties to, and in the context of, the respective disputes, certain of these arbitral decisions have come to be recognized as authori- tative and infl uential. An important arbitration, the Lac Lanoux Arbitration, took place in 1957. France had within its own territory diverted a watercourse, there- by affecting Spain. The arbitral tribunal confi rmed as a principle of international customary law that states are required to co-operate with each other in order to mitigate transboundary environmental risks.10 The tribunal held that France had indeed complied with its obligations – in terms of treaty and customary law – to negotiate with Spain, in good faith, before diverting the watercourse. However, the tribunal noted that France’s obligation extended to informing and consulting with Spain in regard to the proposed diversion, but that Spain did not have a right to prevent France from going ahead with the project.11 Arguably, the Lac Lanoux principles have been extended to the management of other transboundary risks. 6 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, 11 International Legal Materials (1972) 1416, www.unep.org/Documents/Default.asp?Docume ntID=97&ArticleID=1503. 7 See infra, footnote 69. 8 See infra, footnote 88. 9 Affaire du Lac Lanoux, XII United Nations Reports of International Arbitral Awards at 285-317, Lake Lanoux Arbitration (English Translation), 24 International Law Reports (1957) at 105-142. 10 Patricia Birnie and Alan E. Boyle, International Law and the Environment (2nd ed., Oxford University Press, 2002) at 126. 11 Ibid. 72 Ed couzens In other words, prior notifi cation and consultation are called for when states per- form acts of a hazardous or potentially harmful nature.12 Custom is of course an important source of international law. An important at- tempt at the codifi cation of customary international law came in 1982 with the adoption of the United Nations Convention on the Law of the Sea (UNCLOS).13 The Convention had taken nearly a decade of negotiation before adoption, and eventually entered into force in 1994. The Convention contains comprehensive provisions on the marine environment. A signifi cant step is taken, for example, in Article 206 of the Convention, which reads: When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or signifi cant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall commu- nicate reports of the results of such assessments in the manner provided in article 205.14 It is important to note the precautionary element of the phrase: ‘may cause substan- tial pollution’. The article effectively requires that states undertake assessments before carrying out planned activities, even without substantive proof that the proposed activities will cause substantial damage. UNCLOS also created a Law of the Sea Tribunal, for resolving disputes under the Convention. In many cases, international environmental law takes the form of statements of intent, declarations, guidelines or principles. In other words so-called soft law, which does not impose binding obligations on states. The hope of the international environmental lawyer or analyst must be that over time, as principles are repeated in more international conventions, this soft law will harden and environmental principles come to be seen as hard law. This paper will look at some of the ways individuals and environmental disasters have had an effect on the development of international environmental law through its various sources. 12 Ibid., at 127. 13 United Nations Convention on the Law of the Sea, 10 December 1982, in force 16 November 1994, 21 International Legal Materials (1982) 1261, www.un.org/Depts/los/convention_agreements/ texts/unclos/unclos_e.pdf. 14 Article 206, ibid. 73 Individuals and Disasters The Role of Intergovernmental Organizations and Non-governmental Organizations The period between the two World Wars was not marked by great concern for the environment, but it is important for the founding of a number of bodies which were later to become signifi cant. In 1922, for example, the International Commit- tee for Bird Protection was founded in England; it later became the International Council for Bird Preservation. Eventually in the 1990s the organization trans- formed into Birdlife International, a ‘global conservation federation with a world- wide network of partner organizations.’15 In 1929, the Dutch Government funded the establishment of an International Offi ce for Documentation for the Protection of Nature (IOPN). This was subsequently restructured in 1948, under the wing of UNESCO, as the International Union for the Protection of Nature (IUPN). In 1956, the organization became the International Union for Conservation of Nature and Natural Resources: the IUCN. From 1990, the name World Conservation Un- ion has been used, although the organization is still probably better known as the IUCN. The World Conservation Union is, according to its own website, the world’s largest and most important conservation network. The Union comprises 82 States, 111 government agencies, more than 800 non-governmental organizations (NGOs) and some 10,000 scientists and experts from 181 countries in a worldwide partner- ship.16 The Union’s mission is ‘to infl uence, encourage and assist societies through- out the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable.’17 These two bodies, Birdlife International and the IUCN, show how individuals responding to perceived problems can create organizations which ultimately become extremely infl uential. The IUCN today is partly funded by the United Nations. In 1945 the United Nations (UN) was established, followed by the Food and Ag- riculture Organization (FAO) and the United Nations Educational, Scientifi c and Cultural Organization (UNESCO). The signifi cance of these organizations for the history of international environmental law can obviously not be overstated. It is from the UN that the vast majority of multilateral environmental agreements cur- rently in force derive their authority, and under the banner of which the future of such agreements is likely to be decided. Despite certain problems of legitimacy, consensus and credibility, the UN remains the world’s leading intergovernmental and norm-determining body. An important non-governmental organization was created in 1961: the World Wildlife Fund (WWF), today called the Worldwide Fund for Nature. This organi- 15 See, for example, www.birdlife.org/ and www.americanbirding.org/abalinks/linkspage1a.htm. 16 See, for example, www.iucn.org/en/about/. 17 Ibid. 74 Ed couzens zation works closely with the IUCN and is involved in raising money and cam- paigning for the protection of wildlife in many countries.18 In 1970, a small group of environmental activists formed a NGO called Greenpeace International. In 1971 they began a campaign of courageous but non-violent activism in protest against United States’ nuclear testing north of Alaska. In 1973 this was expanded, under the leadership of the Canadian David McTaggart, to protest against French nuclear testing in the South Pacifi c. Greenpeace is today the most visible and well-known of environmental protest groups and provides an important example of how the actions of individuals co-ordinating themselves into a group can infl uence envi- ronmental change.19 Pressure from ornithological groups culminated in 1971 with the Convention on Wetlands of International Importance especially as Waterfowl Habitat.20 Non-gov- ernmental groups were prominent in the process; The Netherlands and the USSR backed the Convention strongly, as did groups such as the ICBP and the IWRB, now called Wetlands International. The Ramsar Convention was one of a cluster of international conventions, agreements and declarations on the environment which saw the light of day in the early 1970s. One of the most central was the Stockholm Declaration agreed at the 1972 United Nations Conference on the Human Envi- ronment (UNCHE).21 The Conference itself was, at the time, the largest gathering of states. The Declaration consisted of key environmental principles; the idea that ‘man bears a solemn responsibility to protect and improve the environment for present and future generations’ can be found in Principle 1. The Conference was chaired by Maurice Strong, who has played an active role in international envi- ronmental treaties over three decades. The early 1970s also saw the Convention concerning the Protection of the World Cultural and Natural Heritage, which was driven by UNESCO.22 At the time of writing, 812 sites (628 cultural, 160 natural and 24 mixed sites in 137 states parties) have been inscribed on the World Heritage List.23 Unlike the Ramsar Convention, which encourages states parties to designate their own sites, the World Heritage Convention has a World Heritage Committee, which approves nominated sites. 18 See www.worldwildlife.org/. 19 See www.greenpeace.org/international/. 20 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 January 1971, in force 21 December 1975 , 996 United Nations Treaty Series 245, www.ramsar.org/ key_conv_e.htm (Ramsar Convention). 21 Stockholm Declaration, supra note 6. 22 Convention for the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972, in force 17 December 1975, 11 International Legal Materials (1972) 1358, whc.unesco.org/ en/175/. 23 See whc.unesco.org/en/list/. 75 Individuals and Disasters Sovereignty and Environmental Thought A signifi cant treaty was signed in 1959: the Antarctic Treaty. A number of states had made claims to the area based on discovery, contiguity or signifi cance. The treaty froze all these claims, however, and designated Antarctica as a natural reserve and prohibited any mineral resource activity.24 Although dated – it would be extremely unusual to fi nd a more modern treaty requiring unanimity of states parties – the Antarctic Treaty shows how states can, if they so desire, form an agreement which benefi ts the environment and states generally, rather than the individual state it- self. In 1968 an extremely infl uential article, ‘The Tragedy of the Commons’, was published by Garrett Hardin in the journal Science.25 Hardin postulated a commons on which tribesmen grazed livestock at no cost to themselves. For each tribesman there would always be an incentive to add animals as they could also graze on the common area. If only one tribesman did this, carrying capacity would not be ex- ceeded. If all did, however, then the commons would collapse as a resource which was able to support all. As a metaphor for unsustainable use of the environment, the article has resonated in much future thinking. The 1972 Stockholm Conference (UNCHE) saw agreement on the founding of the United Nations Environment Programme (UNEP), the only United Nations pro- gramme based in a developing country and the only dedicated environmental pro- gramme.26 Non-governmental organizations played an unprecedented role in the founding of UNEP in December 1972.27 Also in 1972, Christopher Stone published an article entitled ‘Should trees have standing?’. In one of the seminal articles in environmental legal thinking,28 Stone argued that the history and process of law has been the gradual extension of legal rights to entities to whom it was at one time unthinkable that such rights should be granted. These include slaves, children or women, for example. Might it not be, he argued, that at some future time people will look back on today and claim that it was unthinkable that the environment – forests and trees even – should not have been given legal rights? 24 Antarctic Treaty, Washington D.C., 1 December 1959, in force 23 June 1961, 402 United Nations Treaty Series 71, www.ats.aq/uploaded/SIGNEDINWASHINGTON.pdf. Article 7 of the Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991, in force 14 Janu- ary 1998, 30 International Legal Materials (1991) 1461, www.ats.aq/protocol.php, provides that ‘[a]ny activity relating to mineral resources, other than scientifi c research, shall be prohibited’ and Article 25 provides that the operation of the Protocol cannot be reviewed until 50 years after date of entry into force. 25 Garret Hardin, ‘The Tragedy of the Commons’, 162 Science (1968) 1243-1248, www.sciencemag. org/cgi/content/full/162/3859/1243. 26 For a more detailed account of the birth of UNEP see the paper by Donald Kaniaru in the present Review. 27 See, for example, United Nations Environment Programme, ‘UNEP Policy on NGOs and Other Major Groups’, www.unep.ch/natcom/assets/about_natcom/about_ngos.doc. 28 C.D. Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’, in C.D. Stone, Should Trees Have Standing: And Other Essays on Law, Morals and the Environment (25th Anniver- sary Ed., Oceana Publications: New York, 1996). 76 Ed couzens The 1987 release of Our Common Future, 29 the Report of the World Commission on Environment and Development, is signifi cant for introducing formally into international environmental discourse the phrase ‘sustainable development’. The Report, adopted by the General Assembly in 1987, provided a signifi cant stepping stone for future Conventions and laid the foundation for the convening of the 1992 United Nations Conference on Environment and Development. The Report sug- gested that: sustainable development, which implies meeting the needs of the present without compromising the ability of future generations to meet their own needs, should become a central guiding principle of the United Nations, Governments and private institutions, organizations and enterprises.30 In 1992, the United Nations Conference on Environment and Development (UNCED), or Rio Summit, was held. This was, at the time, the largest ever gather- ing of world leaders and non-governmental organizations and led to the adop- tion of several important declarations and agreements and the creation of several important entities. The Rio Declaration on Environment and Development was adopted.31 The Commission on Sustainable Development (CSD) was established by UNCED and the global action plan, Agenda 21,32 was adopted. Despite setbacks, such as the reluctance of the United States and certain other developed states to commit to binding agreements, the Conference sought not merely to issue non- binding principles, but to provide world states with a convincing blueprint for sustainable development, in order that real progress might be made. In 1993, a seven member Chamber of the International Court of Justice (ICJ) with a remit to deal with environmental issues was established. While the Chamber has not so far been particularly active, the potential now exists for environmental dis- putes to be adjudicated upon by this special body. Although the special chamber was not seized in the Gabcikovo-Nagymaros Case (Hungary/Slovakia) but was heard by the 15 judges presiding in plenum, the case is certainly the most important environmental case so far to have come before the ICJ.33 The court found that Hun- gary had been wrong to withdraw from a joint project but that Slovakia had been 29 World Commission on Environment and Development (WCED), Our Common Future (Oxford University Press, 1987), UN Doc. A/42/47 (1987)(The Brundtland Report). 30 Preamble, ibid. 31 Declaration of the United Nations Conference on Environment and Development, Rio de Ja- neiro, 3-14 June 1992, UN Doc. A/CONF.151/26 (Vol. I), www.un.org/documents/ga/conf151/ aconf15126-1annex1.htm. Although so called soft law and therefore not imposing fi rm obligations on states, the Declaration is signifi cant as an indication of the direction in which customary inter- national law is moving. 32 Agenda 21: Environment and Development Agenda, UN Doc. A/CONF.151/26, www.un.org/esa/ sustdev/documents/agenda21/index.htm. 33 Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports (1997) 7, Separate opinion of Vice- President Weeramantry, at 88, www.icj-cij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_ 970925_frame.htm. 77 Individuals and Disasters wrong in proceeding in any case to complete the project against Hungary’s wishes. The ICJ found, in fact, that each state had an obligation to compensate the other. From the environmental point of view, the case is important as the ICJ held that: in the fi eld of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly in- terfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientifi c insights and to a growing awareness of the risks for mankind – for present and future generations – of pur- suit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activi- ties but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment.34 The ICJ then held that it was not its role to dictate the result of such consideration of the effects on the environment. A nettle which needs to be grasped if the goals of sustainable development are to be successful, is that of human population growth. At the 1994 United Nations In- ternational Conference on Population and Development the States present agreed in the Programme of Action35 that [s]ustainable development as a means to ensure human well-being, equitably shared by all people today and in the future, requires that the interrelationships between population, resources, the environment and development should be fully recognized, properly managed and brought into a harmonious, dynamic balance. To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate policies, including population-related policies, in order to meet the needs of current generations without compromising the ability of future genera- tions to meet their own needs.36 The early years of the 21st Century saw a potentially important environmental de- velopment, which mirrored the increasing linkage of environment and develop- ment. The rise of an anti-globalization protest movement in the area of interna- 34 Para. 140, ibid. 35 Programme of Action of the United Nations International Conference on Population and Devel- opment, Cairo, 13 September 1994, www.iisd.ca/Cairo/program/p00000.html. 36 Principle 6, ibid. 78