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The development of international environmental law

Published online by Cambridge University Press:  26 October 2009

Patricia Birnie
Patricia Birnie
Affiliation:
Lecturer in Public International Law, University of Edinburgh
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Extract

The first principle adopted by the United Nations Stockholm Conference on the Human Environment in 1972 (hereafter referred to as UNCHE) proclaimed that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality which permits a life of dignity and well-being and bears a solemn responsibility to protect and improve the environment for present and future generations”.

If international society sets as its objective the protection, preservation and even the enhancement of the existing global environment then the development of laws and standards ensuring the acceptance of the necessary obligations and their enforcement is the sine qua non of their achievement.

Type
Research Article
Information
Review of International Studies , Volume 3 , Issue 2 , July 1977 , pp. 169 - 190
Copyright
Copyright © British International Studies Association 1977

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References

page 169 note 1. Report of the UN Conference on the Human Environment, Stockholm, 1972, A/CONF. 48/14/Rev. i, p. 4.

page 170 note 1. Goldie, L. F. E., ‘International Impact Reports and the Conservation of the Ocean Environment’, Natural Resources Journal, xiii (1973), pp. 261–81, at p. 268Google Scholar.

page 170 note 2. UNCHE, op. cit. Principles 2–7, p. 4.

page 170 note 3. Chambers Twentieth Century Dictionary, revised edn.

page 171 note 1. Koget's Thesaurus (London, 1975)Google Scholar.

page 171 note 2. Ward, B. and Dubos, R. in Only One Earth (London, 1972), particularly stressed the “new and unexpected vision of the total unity, continuity and interdependence of the entire cosmos” now revealed by scientific workGoogle Scholar.

page 172 note 1. Schneider, Jan, ‘New Perspectives in International Environmental Law’, Yale Law Journal, lxxxii (1973), pp. 1659–73Google Scholar; see also Schneider, J. and McDougal, M. S., ‘The Protection of Environment and World Public Order’, Mississippi Law Journal, xxxxiv (1974), pp. 1085–124Google Scholar.

page 172 note 2. E.g. ‘Blue Print for Survival’, special issue of The Ecologist, (ii) (1972); Meadows, D., etc., Limits to Growth (London, 1972)Google Scholar; 1st Report of Club of Rome; Taylor, G. Rattray, The Doomsday Book (London, 1972)Google Scholar; Falk, R., This Endangered Planet (New York, 1972)Google Scholar; Schumacher, E., Small is Beautiful (London, 1973)Google Scholar; Mesarovic, and Pestel, , Mankind at the Turning Point, 2nd Report of the Club of Rome (London, 1975)Google Scholar.

page 175 note 1. E.g. A. C. Kiss, ‘Survey of Current Development in International Environmental Law’, IUCN, Environmental Policy and Law Paper, no. 10; Johnson, Bo, ‘International Environmental Law’ (Stockholm, 1976)Google Scholar; Ruster, and Simma, , ‘International Protection of the Environment’ (London, 1975)Google Scholar.

page 175 note 2. 3 UNRIAA, 1905 (1938); 35 AJIL (1941), p. 684.

page 175 note 3. 12 UNRIAA, 281 (1957).

page 175 note 4. 1949 ICJ Rep., p. 4.

page 176 note 1. For a detailed discussion of the application of this case in a wider context see Kirgis, F. L. Jr., ‘Technological Challenge to the Shared Environment: U.S. Practice’, American Journal of International Law, lxvi (1972), pp. 290–320, at pp. 291–4CrossRefGoogle Scholar; he proposes a “reasonableness” test, potentially greater harm requiring potentially less convincing evidence.

page 177 note 1. Nuclear Test Case (Australia v. France) Order Concerning Interim Measures of Protection, 1973,1.C.J. Rep.; XII I.L.M., vol. 4; pp. 749–73. The Court issued a similar order in the case brought by New Zealand, on similar, but not identical grounds. France had withdrawn its general acceptance of the Court's jurisdiction; Australia and New Zealand alleged that the 1928 General Act for Pacific Settlement of Disputes to which France was a party, still applied.

page 177 note 2. The French government said that “if the infraction in law was alleged to consist in a violation of a legal norm concerning the threshold of atomic pollution which should not be crossed, it was hard to see what was the precise rule on which Australia relied”.

page 178 note 1. 450 UNTS, p. 82.

page 178 note 2. G.A. Res. 1721 (XVI), 20 Dec. 1961.

page 178 note 3. G.A. Res. 2749 (XXIV), 17 Dec. 1970; 10 ILM (197), p. 220.

page 178 note 4. American journal of International Law, lxi (1969), p. 644Google Scholar. This treaty and the Declaration of Principles Governing the Seabed are more fully discussed as sources of customary law in Kirgis, op. cit. pp. 304–11.

page 179 note 1. Convention for the Prevention of Pollution of the Seas by Oil 1954, 327 UNTS 3 (as amended 1962; 1969). 1969 amendments 9 ILM (1970), p. 1; 1969 Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 9 ILM (1970), p. 25; 1969 International Convention on Civil Liability for Oil Pollution Damage 9 ILM (1970), p. 45; 1969 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 11 ILM (1972), p. 284; 1973 Convention for the Prevention of Pollution from Ships 12 ILM (1973), p. 1319.

page 179 note 2. North East Atlantic Fisheries Convention, 1959; Basic Documents in the Law of the Sea, vol. i, p. 395Google Scholar.

page 179 note 3. 402 UNTS, p. 71; American Journal of International Law, liv (1960), p. 477Google Scholar.

page 180 note 1. Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971; ratified by U.K., 5 Jan. 1976; in force for U.K. 5 May 1976, Cmnd. 6465.

page 180 note 2. 480 UNTS, p. 43.

page 180 note 3. Declaration of Santiago, 1952 in Basic Documents in the Law of the Sea, op. cit. p. 231.

page 180 note 4. 9 ILM (1970), p. 543.

page 181 note 1. ‘Future World Trends’, U.K. Cabinet Office H.M.S.O. (1976).

page 181 note 2. See UNCHE report, op. cit.

page 182 note 1. These are: (i) human settlements and habitats; (ii) health of people and their environment; (iii) terrestrial ecosystems, their management and control; (iv) environment and development; (v) oceans: (vi) energy; (vii) natural disasters.

page 182 note 2. Executive Director's Note on Proposed Programme, UNEP/GC/31, 11 Feb. 1975, p. 2, para. 10–14.

page 182 note 3. Ibid. pp. 54–56.

page 182 note 4. Convention for the Protection of the Mediterranean Sea 1976, XV ILM 1976, p, 290.

page 183 note 1. There are problems concerning the eventual use of such studies. See Report of I.L.A. Committee on “Legal Aspects of the Conservation of the Environment”, Madrid Conference, 1976. Lord Wilberforce (U.K.) suggested at the 55th Conference that the Association's part in advancing environmental standards lay “in the study of legal techniques – those which are effective and those which are not … lawyers by comparative study can draw out the lessons from municipal legislation” and form “an opinion as to which is the most effective legal technique to use in the international legal sphere”. Professor Khalfina (U.S.S.R.) suggested that the I.L.A. should seek out the general common lines of approach and implied that the most generally used technique should be adopted – not necessarily the same thing.

page 183 note 2. Round up of World Population Conference, Bucharest, 19–20 Aug. 1974; U.N. Info. Bulletin BR/74/41, 14 Sept. 1974.

page 183 note 3. World Food Conference; U.N. Info. Bulletin, 23 Nov. 1974, BR/74/51.

page 184 note 1. Conference on Human Settlements, U.N. Info. Bulletin, 24 June 1976, BR/76/26.

page 184 note 2. 11–25 March 1977, at Mar del Plata, Argentina; see The Times, 28 Mar. 1977, p. 5, col. ii.

page 184 note 3. 13 ILM (1974), p. 715.

page 184 note 4. Res. 3362 (XVII) of 7th Spec. Session: U.N. Info. Bulletin, BR/75/36, 16 Sept. 1975. The objective is to examine the state of world development and international economic cooperation in face of “the ever-accelerating evolution of the concept of international coresponsibility and interdependence”. A seven-part resolution called inter alia for co-operation in science and technology, an action plan for industrialization, changes in food production and agriculture, expansion of trade, international monetary reforms and transfer of real resources for financing development of developing countries, restructuring of the economic and social structure of the UN.

page 185 note 1. 12 ILM (1973), p. 1085.

page 185 note 2. 13 ILM (1974), p. 13.

page 185 note 3. 11 ILM (1972), p. 1358.

page 185 note 4. See p. 179 n. 1.

page 185 note 5. UNCLOS III Official Records, vols i-iv.

page 185 note 6. E.g. the Land-locked and Geographically Disadvantaged Group; the Marti time States; the Straits States; the Archipelagic States; Island States etc., which cut across existing groupings such as the EEC, the Comecon; the Commonwealth; the OAU and OAS. The LLGDS group seek to maximize the common heritage area and international control and supervision of it; the other groups strive to extend the jurisdiction of coastal states into hitherto international areas. The implications for environmentally sound laws are not good without international overview, responsibility and accountability.

page 186 note 1. RSNT A/CONF. 62. WP.8/Rev.i Pts. I, II and III.

page 186 note 2. 12 ILM (1973), p. 1319.

page 186 note 3. 13 ILM (1974), p. 352.

page 186 note 4. Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area XIII ILM (1974), p. 544.

page 186 note 5. See p. 182, n. 4.

page 186 note 6. Paris Convention for the Prevention of Marine Pollution from Land-based Sources, 1974, XIII ILM (1974), p. 352.

page 186 note 7. Convention on Civil Liability for Oil Pollution Damage from Offshore Operations London, 17 Dec. 1976.

page 187 note 1. See H. Smets, ‘OECD Approach to the Solution of Trans-Frontier Pollution Problems’ in Environmental Law: A. Symposium; British Institute of International and Comparative Law (1976), pp. 3–4.

page 187 note 2. See NATO, CCMS Pilot Studies on e.g. Environment and Regional Planning (no. 17), Coastal Water Pollution (no. 1).

page 187 note 3. See e.g. Golsong, H., ‘Draft European Convention for the Protection of International Watercourses Against Polution’, in Environmental Law …, op. cit. pp. 28–37Google Scholar; Report on Environment Policy in Europe, 1973–4, Docs. 3530, 3958, 3603, 3338 (1975); Proceedings of 2nd Ministerial Conference on Environment, Brussels, 1976.

page 187 note 4. OJ no, C112, 20. 12–73, pp. i, 13, 16, 17; see also Close, G. L., ‘EEC Action to Protect Fresh Waters’ in Environmental Law …, op. cit. pp. 38–52Google Scholar.

page 188 note 1. The U.S.S.R. and Eastern Bloc States do not recognize the international personality of the EEC and refuse to negotiate with it as such; NEAFC was therefore unable to promulgate any further regulations. Moreover most of the area it covers is now within the 200 nautical miles Fisheries Zones of EEC and other N. Atlantic States.

page 188 note 2. An agreement in principle was reached in the Council Meeting of 8 Dec. 1975; Bull. E.C. 12–1975. The Dept. of the Environment's Central Unit on Environmental Pollution, Pollution Paper no. 6, 1976 on ‘The Separation of Oil from Water for North Sea Operations’ typifies the U.K. approach, based on use of “best practicable means” allowing socio-economic factors to be taken into account. See p. 22, “Discharges from shore-based and offshore facilities should be strictly controlled and reduced as far as economic considerations permit to meet the environmental requirements within the area of discharge. Consents to discharge must be considered on an individual basis and take account of environmental circumstances and sensitivity in the area of discharge.”

page 188 note 3. In Oct. 1976 the Community agreed that, on the basis of the consensus crystallizing round parts of Articles 46 and 5 o of the RSNT relating to fisheries jurisdiction all coastal member states would from 1 Jan. 1977, declare a 200 mile fisheries jurisdiction. The U.K. zone contains about 60 per cent of the stocks of the “Community pond”, to which, under EEC Regulations, all member states must be granted “common conditions of access”, without discrimination.

page 189 note 1. COM (75) 394 (Final), Brussels, 22 July 1975. ‘Proposal for a Council Directive relating to the quality of Water for Human Consumption.’

page 190 note 1. Johnson, H. G., Man and His Environment, British North American Committee pamphlet, 1973, p. 28Google Scholar.

page 190 note 2. Bavarian Constitution.