INTERNATIONAL ENVIRONMENTAL LAW (IEL)

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ICJ, Nuclear Weapons Advisory Opinions (Legality of the Threat or Use of Nuclear Weaponsi), Advisory Opinion - 1996

‘*T]he environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.’

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Historical Development of International Environmental Law 19th century – (bilateral) investment agreements concerning the management/conservation of natural resources • 1941 - Trail Smelter Arbitration (US-Canada) • 1967 - Torrey Canyon incident

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UN Conference on the Human Environment (UNCHE) – Stockholm (Sweden) - 5–16 June 1972 • Action Plan for the Human Environment – 109 recommendations grouped into three types of actions: • environmental assessment • environmental management • supporting measures, ie education, public information, financing, and technical cooperation

• Stockholm Declaration of the United Nations Conference on the Human Environment – 26 ‘principles’ 4

1972 Stockholm Declaration • Principle 21 – No harm rule

• Principle 22 – Concept of liability and right to compensation for the victims of environmental damages

Cornstore principles of modern IEL 5

World Commission on Environment and Development (‘Brundtland’ Commission) • 1983 (UNGA) • Report ‘Our Common Future’ (1987) – sustainable development = development that ‘meets the needs of the present without compromising the ability of future generations to meet their own needs’ 6

UN Conference on Environment and Development (UNCED) - Rio de Janeiro (Brazil) - 3–14 June 1992 • Rio Declaration on Environment and Development (27 ‘principles’) • Agenda 21 (40 chapters) • ECOSOC created the Commission for Sustainable Development (CSD) (1993) • Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (‘Forest Principles’) • UN Framework Convention on Climate Change and Convention on Biological Diversity opened for signature7

Post-Rio process • Multilateral Environmental Agreements (MEAs) – 1994 Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa – 1995 Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks – 1997 Kyoto Protocol to the UN Framework Convention on Climate Change – 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity

• Millennium Declaration (UNGA Res 55/2 of 8 September 2000) 8

World Summit for Sustainable Development (WSSD) – Johannesburg (South Africa) – 26 August–4 September 2002

• Johannesburg Declaration on Sustainable Development • Johannesburg Plan of Implementation

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Key Concepts of IEL • ‘no harm’ rule • environmental impact assessment (‘EIA’)

• precautionary action • ‘Polluter pays’

• common but differentiated responsibilities • sustainable development • intergenerational equity

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The prohibition of causing transboundary environmental damage (‘no harm’ rule) • Trail Smelter Arbitration (1941): ‘no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’ • 1972 Stockholm Declaration - Principle 21: ‘States have … 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’ 11

Environmental impact assessment (‘EIA’) • 1992 Rio Declaration - Principle 17: the duty of States to nationally undertake an EIA ‘for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority’ • 1991 Convention on Environmental Impact Assessment in a Transboundary Context (‘Espoo Convention’) 12

‘Precautionary action’ • 1992 Rio Declaration - Principle 15: ‘*w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.’

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‘Polluter pays’ principle • 1992 Rio Declaration - Principle 16: ‘National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the costs of pollution’

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‘Common but differentiated responsibilities’ • 1992 Rio Declaration - Principle 7: ‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities’ 15

The concept of sustainable development and intergenerational equity • 1972 Stockholm Declaration - Principles 9, 10, and 11  environmental protection and economic development must be understood as compatible and mutually reinforcing goals

• 1987 - Report ‘Our Common Future’  intra-generational and inter-generational dimension of sustainable development • 1992 Rio Conference  sustainable development has become a crucial precept that governs all activities in international environmental and developmental relations

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The structure of Contemporary MEAs 1) the traditional convention-annex approach: technical details are relegated to annexes

2) the newer and more common convention-protocol approach a) broad framework agreements which set out the treaty aims and general obligations and establish procedural and institutional structures b) These agreements are subsequently implemented by protocols providing for concrete commitments 17

Cooperation and public participation • 1991 Convention on Environmental Impact Assessment in a Transboundary Context (‘Espoo Convention’) – notification and consultation between the concerned parties – opportunities for public participation in EIA procedures

• 1992 Rio Declaration - Principle 10 – access to information – opportunity to participate in decision-making processes – effective access to judicial and administrative proceedings for individuals at the national level

• 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’) – States Parties are required to establish the necessary legislative, regulatory, and enforcement framework to ensure public participation in environmental decision-making and access to environmental information and judicial review 18

Enforcement • Arts 42 and 48 ILC Draft Articles on State Responsibility – when a State has breached an international obligation owed to the international community as a whole, the injured State and any other State can invoke the responsibility of the infringer State • obligations erga omnes • obligations erga omnes partes (from an MEA)

• Liability for injurious consequences of conduct not prohibited by international law – 2006 ILC Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities

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Compliance Control • MEAs generally provide for mechanisms of compliance control aimed at avoiding, or responding to, compliance deficits in a nonadversarial manner – 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (Vienna Convention for the Protection of the Ozone Layer)

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Environmental Dispute Settlement 1) Diplomatic methods of peaceful dispute settlement 2) Judicial dispute settlement a) ICJ  eg 1997 Gabčíkovo-Nagymaros Case; 2006 Pulp Mills Case (Argentina v Uruguay) [2006]; 1996 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) b) 1982 UN Convention on the Law of the Sea - Part XV  disputes concerning the marine environment and living resources  arbitration, ICJ, or the International Tribunal for the Law of the Sea (ITLOS). c) WTO  eg 1998 US–Shrimp Case

3) Ad hoc Arbitration

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Legal sources of IEL • Soft-law instruments (i.g. 1972 Stockholm Declaration) • Treaties – Problem of effectiveness of IEL treaties

• Customary law and general principles

• IEL = ‘an aggregate, rather than a system, of multiple environmental regimes’ (SAND)

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INTERNATIONAL INVESTMENT LAW

--------------------------------------------------ENVIRONMENTAL CONCERNS

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1. Investment-related treaty-based provisions on the protection of the environment Hungary-Russian Federation BIT (1996) Article 2. Promotion and reciprocal protection of investments 3. This Agreement shall not preclude the application of either Contracting Party of measures, necessary for the maintenance of defence, national security and public order, protection of the environment, morality and public health. 24

US-Uruguay BIT (2006) Preamble The United States of America and the Oriental Republic of Uruguay *…+ Recognizing that agreement upon the treatment to be accorded *…+ to investment will stimulate *…+ the economic development of the Parties; Desiring to achieve these objectives in a manner consistent with the protection of health, safety, and the environment, and the promotion of consumer protection and internationally recognized labor rights. *…+ Article 12. Investment and Environment 1. The Parties recognize that it is inappropriate to encourage investment by weakening or reducing the protections afforded in domestic environmental laws. *…+. 2. Nothing in this Treaty shall be construed to prevent a Party from adopting, maintaining, or enforcing any measure otherwise consistent with this Treaty that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns. 25

NAFTA (1994) Article 1114. Environmental Measures 1. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns. 2. The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that another Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement. 26

2. Soft-law instruments bearing on investment and environment UN Global Compact, July 2000 Environment Principle 7. Businesses should support a precautionary approach to environmental challenges; Principle 8. Undertake initiatives to promote greater environmental responsibility; and Principle 9. Encourage the development and diffusion of environmentally friendly technologies. *…+”

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Johannesburg Plan of Implementation, report of the World Summit on Sustainable Development 4 September 2002 84. Facilitate greater flows of foreign direct investment so as to support the sustainable development activities, including the development of infrastructure, of developing countries, and enhance the benefits that developing countries can draw from foreign direct investment, with particular actions to: (a) Create the necessary domestic and international conditions to facilitate significant increases in the flow of foreign direct investment to developing countries, in particular the least developed countries, which is critical to sustainable development, particularly foreign direct investment flows for infrastructure development and other priority areas in developing countries to supplement the domestic resources mobilized by them; (b) Encourage foreign direct investment in developing countries and countries with economies in transition through export credits that could be instrumental to sustainable development *…+.” 28

UN Economic and Social Council Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, 26 August 2003 “14. Transnational corporations and other business enterprises shall carry out their activities in accordance with national laws, regulations, administrative practices and policies relating to the preservation of the environment of the countries in which they operate, as well as in accordance with relevant international agreements, principles, objectives, responsibilities and standards with regard to the environment as well as human rights *…+ and shall generally conduct their activities in a manner contributing to the wider goal of sustainable development. *…+ 17. States should establish and reinforce the necessary legal and administrative framework for ensuring that the Norms and other relevant national and international laws are implemented by transnational corporations and other business enterprises. *…+ 18. Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these norms *…+”

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OECD Guidelines for Multinational Enterprises, 2011 VI. Environment Enterprises should, within the framework of laws, regulations and administrative practices in the countries in which they operate, and in consideration of relevant international agreements, principles, objectives, and standards, take due account of the need to protect the environment, public health and safety, and generally to conduct their activities in a manner contributing to the wider goal of sustainable development. In particular, enterprises should: 1. Establish and maintain a system of environmental management appropriate to the enterprise, including: a) collection and evaluation of adequate and timely information regarding the environmental, health, and safety impacts of their activities; b) establishment of measurable objectives and, where appropriate, targets for improved environmental performance and resource utilisation, including periodically reviewing the continuing relevance of these objectives; where appropriate, targets should be consistent with relevant national policies and international environmental commitments; and c) regular monitoring and verification of progress toward environmental, health, and safety objectives or targets. 30

UNCTAD’S INVESTMENT POLICY FRAMEWORK FOR SUSTAINABLE DEVELOPMENT (IPFSD)

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3. Case law ICJ - Gabčikovo-Nagymaros Project, Hungary v. Slovakia, Judgment, 25 September 1997 “141. [...N]ew norms and standards have been developed, set forth in a great number of instruments over the last two decades. Such norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities 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 *…+.” 32

S.D. Myers Inc v Canada, NAFTA/UNCITRAL case, Partial Award, 13 November 2000 214. The drafters of the NAFTA evidentially considered which earlier environmental treaties would prevail over the specific rules of the NAFTA in case of conflict. *…+. 221. *…+ A logical corollary *…+ is that where a state can achieve its chosen level of environmental protection through a variety of equally effective and reasonable means, it is obliged to adopt the alternative that is most consistent with open trade. This corollary also is consistent with the language and the case law arising out of the WTO family of agreements.

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ICJ - Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment, 20 April 2010, “75. The Court notes that the object and purpose of the 1975 Statute, *…+ is for the Parties to achieve “the optimum and rational utilization of the River Uruguay” *…T+he Court has observed *…+ that such use should allow for sustainable development which takes account of “the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States” *…+ 77. The Court observes that it is by co-operating that the States concerned can jointly manage the risks of damage to the environment *…+ 34

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UN Framework Convention on Climate Change (UNFCC) • In Dec. 1990, the UN General Assembly approved the start of treaty negotiations on the UNFCCC • The UNFCCC was signed by 154 states at the 1992 Rio de Janeiro Earth Summit and entered into force on 21 March 1994 • In February 1995, the Conference of the Parties (COP) became the Convention’s ultimate authority/governing body. • UNFCC provides an overall framework for intergovernmental efforts to address climate change

– It establishes an objective and principles, commitments for different groups of countries + a set of institutions all of which work to enable continued talks as well as future action to address global climate change

• Ultimate objective: stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system • United States is a signatory 36

UNFCCC’s Principles • Principle of ‘common but differentiated responsibilities’ – It responds to the fundamental issue of fairness in terms of addressing the climate change problem – Historically, industrialized countries have contributed the most to the climate change problem (mainly by way of ghg emissions). Moreover, industrialized countries have more resources to address the deleterious effects of climate change. – Conversely, developing countries are both, more vulnerable to the predicted adverse effects of climate change and significantly less able to respond to them • 1 - UNFCCC puts the majority of the responsibility for battling climate change on the industrialized countries • 2 – UNFCCC recognizes that poorer nations have a right to economic development

• Precautionary principle  art. 3 of UNFCCC calls for “precautionary measures” to combat climate change even if there is a lack of “full scientific certainty” regarding a cause-effect relationship

• Art. 4 of UNFCCC recognizes that “*T+he parties have a right to, and should, promote sustainable development”

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UNFCC divides countries into three main groups: 1. Annex I countries – it is composed of 43 industrialized countries, which includes all the 1992 members of OECD + countries with economies in transition (the EIT Parties), including the Russian Federation, the Baltic States, and several Central and Eastern European States. – Annex I parties are subject to a specific commitment to adopt climate change policies and measures with the non-legally binding aim to return their GHG emissions to 1990 levels by the year 2000.

2. Annex II countries – Only the OECD members of Annex I – Annex II Parties are required to provide financial resources to enable developing countries to meet their obligations under the Convention.

3. Non-Annex I countries – All other countries not listed in Annex I – mostly developing countries – Subgroup of 48 countries  Least Developed Countries (LCDs).

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UNFCCC’s institutional framework 1. Conference of the Parties (COP)

– The supreme decision-making body of the Convention. – Is composed of all Parties to the Convention who have ratified the treaty as well as non-voting observers as are deemed appropriate.

2. Subsidiary Body for Scientific and Technological Advice (SBSTA)

– Is responsible for providing advice to the COP on scientific, technological and methodological issues. – Helps individual countries prepare their national communications accurately & on time

3. Subsidiary Body for Implementation (SBI) – Helps with the assessment & review of of the Convention’s implementation. – Analyses the national communications submitted by the Parties.

4. Convention Secretariat – Prepares background documents; organizes negotiating sessions; Compiles emissions data

5. Global Environment Facility (GEF) – The Convention’s financial mechanism, which channels funds from Annex II countries, as well as other (private) sources, to developing countries on a grant basis.

6. Intergovernmental Panel on Climate Change (IPCC) – Submits regular comprehensive assessments on the state of climate change science every 5 years.

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Kyoto Protocol to the United Nations Framework Convention on Climate Change negotiated in 1997 open for signature in 1998 came into force February 16, 2005

There are now 195 Parties to the Convention and 192 Parties to the Kyoto Protocol US signed in 1998 (Clinton) but withdrew in in 2001 (Bush)  WHY: emissions targets arbitrary and not based on science + protocol's binding limits on emissions could harm the U.S. economy 41

Kyoto Protocol • By 1995, countries realized that emission reductions provisions in the Convention were inadequate. They launched negotiations to strengthen the global response to climate change, and, two years later, adopted the Kyoto Protocol. • The Kyoto Protocol specifies a quantified emission limitation and reduction commitment for each developed country Party as well as related rules for accounting • Two commitment periods have been agreed so far – First commitment period  38 Parties agreed to reduce their overall emissions by at least 5% below 1990 levels between 2008 and 2012 – Second commitment period  the same number of Parties has agreed, by decision 1/CMP.8 (Doha Amendment to the Kyoto Protocol), to reduce their emissions by at least 18% below 1990 levels between 2013 and 2020.

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Kyoto Protocol compliance mechanism • Its objective is to facilitate, promote and enforce compliance with the commitments under the Kyoto Protocol. It is among the most comprehensive and rigorous systems of compliance for a multilateral environmental agreement. • Compliance Committee – Two branches (the enforcement and facilitative branches) • Each composed of 10 members  they meet as often as required and report to the plenary

– A plenary  it meets at least twice a year and reports annually to the CC

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The case • Applicable law – ILCSRA

• Attribution – Is the conduct attributable to the State? – Is the State responsible for any kind of omission?

• Is there a breach of an international obligation? • Who is entitled to invoke responsibility? – Who is the ‘injured’ State? – Is request for reparation possible? 45

Art. 2 ILCASR: ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission is: a) attributable to the State b) constitutes a breach of an international obligation’. Article 4 ILCASR: “1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State. “ 46

Hypothesis • Assumptions: – At least part of the increase in GHGs could conclusively be traced back to Othree’s factories – It could be clearly established that Othree had not enacted the necessary laws and had not exercised the required controls

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The case • Applicable law – ILCSRA

• Attribution  art. 4 ILCSAR • Is there a breach of an international obligation? • Who is entitled to invoke responsibility? – Who is the ‘injured’ State? – Is request for reparation possible? 48

Article 4 ILCASR: “1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.” Article 42 ILCASR: “A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the others (…)” Article 48 ILCASR: “1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with par. 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under par. 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition (…) and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation 49 breached.”