Public International Law: Chapter XVI - International Environmental Law

International Environmental Law

Environmental concerns.

• Concern about the environment is expressed by the Philippine Constitution in Article II, Section 16 thus: 
• “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” 
• The discussions in the 1986 Constitutional Commission manifested a clear desire to make environmental protection and ecological balance conscious objects of police power.
• Oposa v. Factoran, Jr.
• On the basis of Section 16 linked with the right to health, recognized a constitutional “right to a balanced and healthful ecology” and “the correlative duty to refrain from impairing the environment.”
• Laguna Lake Development Authority (LLDA) v. Court of Appeals
• The Supreme Court, relying on Section 16, as also bolstered by the right to health in Section 15 as well as by the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978, upheld the authority of LLDA to protect the inhabitants of the Laguna Lake Area from the deleterious effects of pollutants coming from garbage dumping and the discharge of wastes in the area.
• Laguna Lake upheld the exclusive authority of the Laguna Lake Development Authority to regulate the exploitation of Laguna Lake, as against the claim of municipalities around the lake, in order to effectively address the environmental and ecological stress on Laguna Lake,
• Social Justice Society vs. Atienza
• The Supreme Court upheld the validity of an ordinance of the City of Manila requiring the oil companies to close and transfer the Pandacan Terminals to another location within a specified period.
• Metropolitan Manila Development Authority v. Residents of Manila Bay
• The Supreme Court ordered various government agencies to clean up Manila Bay. 
• The protection of the environment is now also a concern of international law. 
• It is in fact a challenge to the development of international law because its demands cannot be met without intrusion into the domestic jurisdiction and sovereignty of states. 
• The nature and magnitude of the challenge are such that they require not only the joint action of states but also the involvement of non-state actors.

Environmental concerns 

• The concern of environmental protection:
• atmosphere
• sea
• land
• flora and fauna
• preservation of the cultural heritage of mankind as found in archeological and artistic remains
• The goal of environmental protectionists is the rational use of the elements that make up the environment through control, reduction and, wherever possible, elimination of the causes of environmental degradation. 
• Inseparably related with environmental concerns are human rights issues. 
• Thus the long delay of Gorbachev before issuing a statement about the danger posed by the Chernobyl nuclear disaster was a violation of the human rights of those affected by the leak. 
• To a lesser degree it can be said that the failure of the government to prevent pollution of the Pasig and the failure of the Traffic Bureau to check offending vehicles and factories are a violations of the the people’s right to a healthy environment. 
• Danube Dam Case (ICJ Rep. 1997): 
• “The protection of the environment is a ... vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health, and the right to life itself.” 
• What make the task difficult are various competing interests. 
• In a world of so much poverty and exploding population, it is not possible to ignore the need for poverty alleviation.
• Added to these are the issues of sovereignty and the still controversial issue of state responsibility.

Who have environmental rights? 

• In protecting the environment, the real objects of protection are persons capable of having rights. 
• Trees and others can be said to have rights only in a metaphorical sense. T
• Oposa v. Factoran, Jr.
• The approach was to have minors plead for “intergenerational protection,” and the right asserted was not of the inanimate world but of generations of people. 
• The case involved thirty-four minors who went to Court represented by their parents pleading the cause of “intergenerational responsibility” and “inter-generational justice” and asking the Supreme Court to order the Secretary of Natural Resources to cancel all existing timber license agreements and to “cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements.” 
• The minors filed the action for themselves as representing “their generation as well as generations yet unborn.” 
• The Supreme Court recognized the existence of the right. 
• Although Oposa, Jr. did not order the Secretary outright to cancel licenses and desist from issuing new ones, the Court affirmed the justiciability of the issue raised and remanded the case to the lower court for further proceedings. 
• Trail Smelter Case
• The Arbitral Tribunal also said that “no state has the right to use or permit the use of its territory in such manner as to cause injury by fumes in or to the territory of another or the properties or persons therein ...” 
• Nuclear Test Cases,
• It was based on the claim that atmospheric nuclear testing was a breach of customary international law and would also infringe Australia’s sovereignty over its territory.

“Sustainable Development.”

• An important concept in the field both of economics and environmental rights is the concept of sustainable development. 
• It is a concept adopted by the World Commission on Environment and Development in recognition of competing claims of states in the areas of the preservation of the environment and the right to development. 
• The concept encourages development in a manner and according to methods which do not compromise the ability of future generation and other states to meet their needs. 
• Sierra Club v. Morton: 
• The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the management functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.

Emerging principles. 

Stockholm Declaration

• Various principles of environmental protection are gradually being developed and are coming out from various conferences. 
• Notable is the Stockholm Declaration of 1972 formulated in a UN Conference on the Human Environment by 113 states. 
• The Conference calls upon Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity. 

Principles 

States the common conviction that: 

Principle 1 

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.

Principle 2 

The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. 

Principle 3 

The capacity of the earth to produce vital renewable resources must be maintained and, wherever practicable, restored or improved. 

Principle 4 

Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development. 

Principle 5 

The non-renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind. 

Principle 6 

The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against pollution should be supported. 

Principle 7 

States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea. 

Principle 8 

Economic and social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life. 

Principle 9 

Environmental deficiencies generated by the conditions of underdevelopment and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required. 

Principle 10 

For the developing countries, stability of prices and adequate earnings for primary commodities and raw materials are essential to environmental management, since economic factors as well as ecological processes must be taken into account. 

Principle 11 

The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures. 

Principle 12 

Resources should be made available to preserve and improve the environment, taking into account the circumstances and particular requirements of developing countries and any costs which may emanate from their incorporating environmental safeguards into their development planning and the need for making available to them, upon their request, additional international technical and financial assistance for this purpose. 

Principle 13 

In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population. 

Principle 14 

Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment. 

Principle 15 

Planning must be applied to human settlements and urbanization with a view to avoiding adverse effects on the environment and obtaining maximum social, economic and environmental benefits for all. In this respect, projects which are designed for colonialist and racist domination must be abandoned. 

Principle 16 

Demographic policies which are without prejudice to basic human rights and which are deemed appropriate by Governments concerned should be applied in those regions where the rate of population growth or excessive population concentrations are likely to have adverse effects on the environment of the human environment and impede development. 

Principle 17 

Appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of States with a view to enhancing environmental quality. 

Principle 18 

Science and technology, as part of their contribution to economic and social development, must be applied to the identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind.

Principle 19 

Education in environmental matters, for the younger generation as well as adults, giving due consideration to the underprivileged, is essential in order to broaden the basis for an enlightened opinion and responsible conduct by individuals, enterprises and communities in protecting and improving the environment in its full human dimension. It is also essential that mass media of communications avoid contributing to the deterioration of the environment, but, on the contrary, disseminates information of an educational nature on the need to project and improve the environment in order to enable man to develop in every respect. 

Principle 20 

Scientific research and development in the context of environmental problems, both national and multinational, must be promoted in all countries, especially the developing countries. In this connection, the free flow of up-to-date scientific information and transfer of experience must be supported and assisted, to facilitate the solution of environmental problems; environmental technologies should be made available to developing countries on terms which would encourage their wide dissemination without constituting an economic burden on the developing countries. 

Principle 21

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. 

Principle 22 

States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction. 

Principle 23 

Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.

Principle 24 

International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing. Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States. 

Principle 25 

States shall ensure that international organizations play a coordinated, efficient and dynamic role for the protection and improvement of the environment. 

Principle 26 

Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons. 

21st plenary meeting 16 June 1972

Rio Declaration

• In 1992, the United Nations Conference on Environment and Development sponsored another conference in Brazil It was attended by 170 states. 
• The Conference came out with the Rio Declaration. 

The following principles were enunciated:

Principle 1

Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. 

Principle 2 

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental 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. 

Principle 3 

The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. 

Principle 4 

In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. 

Principle 5 

All States and all people shall cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world. 

Principle 6 

The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries. 

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. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. 

Principle 8 

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 demographic policies. 

Principle 9 

States should cooperate to strengthen endogenous capacity building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies. 

Principle 10

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. 

Principle 11 

States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries. 

Principle 12 

States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing trans-boundary or global environmental problems should, as far as possible, be based on an international consensus. 

Principle 13 

States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction. 

Principle 14 

States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health. 

Principle 15 

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. 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 cost of pollution, with due regard to the public interest and without distorting international trade and investment. 

Principle 17 

Environmental impact assessment, as a national instrument, shall be undertaken 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. 

Principle 18 

States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted. 

Principle 19 

States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse trans-boundary environmental effect and shall consult with those States at an early stage and in good faith. 

Principle 20 

Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.

Principle 21 

The creativity, ideals and courage of the youth of the world should be mobilized to forge a global partnership in order to achieve sustainable development and ensure a better future for all. 

Principle 22 

Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. 

Principle 23 

The environment and natural resources of people under oppression, domination and occupation shall be protected. 

Principle 24 

Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary. 

Principle 25 

Peace, development and environmental protection are interdependent and indivisible. 

Principle 26 

States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations. 

Principle 27 

States and people shall cooperate in good faith and in a spirit of partnership in the fulfillment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.

Some treaties

• The Stockholm and the Rio Declarations are just that, declarations.  They do not have the force of law. 
• There exist, however, some conventions which are legally binding on the parties. Some of these are: 
• 1982 Law of the Sea Convention
• In Articles 192-194, there are prohibitions on marine pollution. 
• 1985 Vienna Convention for the Protection of the Ozone Layer 
• Adopted various measures for the protection of the “ozone layer,” the layer of atmospheric ozone above the planetary boundary layer. 
• 1992 United Nations Conference on Environment and Development
• Seeks to achieve “stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” 
• Kyoto Protocol
• Ratified by 84 States as of 1 November 1999
• Seeks to protect the atmosphere. 
• 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora
• 1992 Convention on Biological Diversity
• There are also regional conventions involving environmental matters such as the:
• 1957 Treaty of Rome (European Union)
• 1994 North American Agreement on Environmental Cooperation
• 1991 Protocol on Environmental Protection to the Antarctic Treaty
• 1989 Amazon Declaration