Advanced Studies of International Environmental Law Prof. Dr. Eike Albrecht Department for Civil and...

Advanced Studies of International Environmental Law

Prof. Dr. Eike AlbrechtDepartment for Civil and Public Law with References to the Law of Europe and the Environment

BTU Cottbus•Lecture No. 410 495•Thursdays, 11.30-13.00•LG 4 B 3.22

Prof. Dr. E. Albrecht, BTU Cottbus2

Semester Schedule

Date Topic Date Topic Date Topic

18.10.12 Schedule; Module Structure; Exam Requirements; Introduction to IEL

22.11.12 Climate Change (Overview)

10.01.13 Transboundary Water Pollution

25.10.12 Introduction to IEL 29.11.12 (to be shifted)

Ozone Depletion (Overview)

17.01.13 World Trade and the Environment

01.11.12 Introduction to IEL (to be shifted)

06.12.12 Toxic and Hazardous Substances

24.01.13 EMS; Outlook

08.11.12 Introduction to IEL 13.12.12 Land and Vessel-Based Pollution

31.01.13 Exam

15.11.12 Biodiversity (Overview)

20.12.12 Marine Resources 07.02.12 Discussion of the exam


Literature

Literature:• Albrecht/Hoffmann/Knopp: Selected Conventions and

Treaties on International Environmental Law (IEL), 3rd ed. 2007

• Guruswamy: International Environmental Law in a Nutshell, 3rd ed. 2007

• Hunter/Salzman/Zaelke: International Environmental Law and Policy, 3rd ed. 2007


Major global environmental problems (excerpts)• climate change• ozone depletion• species extinction• pollution from toxic chemicals and hazardous

waste

I. Introduction


Major global environmental problems• climate change

– rise of atmospheric concentration of CO2 by 31% from 1750-2000

– rise of methane increasing by 150% from 1750-2000– Increase of extreme weather events– increase of the global average surface temperature over the

20th century by ca. 0,6 Celsius and it is very likely (90-99 % chance) that the warming in the 20th century has contributed significantly to the observed sea level rise

I. Introduction


Climate Change – continue– global average surface temperature is projected to increase

by 1,4-5,8°Celsius by 2100 relative to 1990, with a corresponding rise in sea level of 0,09-0,88 m.

– expected severe human health impacts (increased summer deaths, increased risk of drowning, diseases, e.g. malaria, dengue and hunger from flooding

– small Island states, e.g. the Maldives or the Seychelles, and highly urbanised low-lying coastal areas are particularly vulnerable

I. Introduction


• ozone depletion– from the 1940s the use of Chlorofluorocarbons

(CFCs) expanded – increase of atmospheric chlorine and bromine – in Antarctica up to 60% of the stratospheric (12-50

km high) ozone is depleted in September; the “ozone hole” is larger than the area of the USA

– a similar hole exists above the Arctic

I. Introduction


ozone depletion (continue)– loss of ozone in the stratosphere not limited to the poles (-

10% over northern middle latitudes and 35% over Siberia)– the increased amounts of UV-B radiation endangers

• human health (e.g. skin cancer is estimated to increase by 2% for every 1% loss in ozone coverage); a 10% reduction of atmospheric ozone could result in additional 300.000 cases of skin cancer and up to 1,75 Mio additional cases of cataracts each year

• UV-B radiation damages the immune system

I. Introduction


ozone depletion (continue)• UV-B radiation may inhibit the growth of plants, inclusive such

important commercial species, e.g. soybeans, cotton and certain trees

• UV-B radiation causes developmental abnormalities in fish, shellfish and amphibians (e.g. the decline of frogs is partly a result of increased UV-B exposure

• reduction of the productivity of phytoplankton potential threat of the marine food chain

– but: first successes could be recognised: the ozone hole is not increasing

I. Introduction


• species extinction and loss of biodiversity– species extinction is a normal evolutionary process, mass

extinction is not– in three billion years of life on earth, only 5 mass extinction

are known, the last one 65 Mio years ago– now: 6th mass extinction (27.000 species lost per year)

• all tiger species

• most of the rhino species

• both gorilla species

• two of five freshwater dolphins

• all seven sea turtle species

I. Introduction


species extinction and loss of biodiversity (continue)– reason: human behaviour on the planet– effects of extinction are unknown, but humanity depends for

its existence on the “ecosystem’s services” provided by nature (cycling of oxygen, carbon and nitrogen; decomposition of waste; stabilisation of the climate; water purification etc.)

– ethical and moral reasons for measures against species extinction

– Reaction: Biodiversity Convention, CITES, UNCLOS, ..., and a number of regional treaties

I. Introduction

Prof. Dr. E. Albrecht, BTU Cottbus

0

10.000.000.000.000

20.000.000.000.000

30.000.000.000.000

40.000.000.000.000

50.000.000.000.000

60.000.000.000.000

$ yearly (1997)

ecoservices min.ecoservices maxeconomy worldwide

Value of Ecological Services in Comparison with Economical Output

12

I. Introduction


• pollution from toxic chemicals and hazardous waste– in the 1950s and 1960s it was found out, that certain

synthetic chemicals have substantial impacts on human health and the environment

– examples: DDT, PCBs– Many of these chemicals persist for decades and longer – These chemicals dissolve in fat (not water) and thus are

absorbed and concentrated in the body, fat and milk of animals (and humans)

– concentration of persistent chemicals increase at the top of a food chain

I. Introduction


• pollution from toxic chemicals and hazardous waste (continue)– more than 100.000 synthetic chemicals are now on the market– only in a few countries there is an obligation to test (certain)

chemicals before bringing them into the market– the number of new chemicals even exceed the testing

capacities of the most developed countries – more than 250 are now found in our body regardless where we

live– the impact of persistent chemicals is not clear; (surprising) lack

of knowledge about the effects of chemicals to human health and the environment

– long time exposure to DDT have been shown to cause cancer

I. Introduction


• pollution from toxic chemicals and hazardous waste (continue)– there are some standards for the exposure

to hazardous substances, but there are often standards without difference between adults and children, women and man, workers or non-workers

– in a “famous” German criminal case (wood preservative case), it was suspected (but not finally proven) that DDT and similar substances ruin the human immune system

a fantastic description (a thriller) you find in: Erich Schöndorf, “Von Menschen und Ratten”, ISBN: 3-89533-251-8 (in German)

I. Introduction


production of hazardous waste in tons:

0

100.000.000

200.000.000

300.000.000

400.000.000

World 1945 World 1990 OECD 1990

hazardouswaste in tons

16

I. Introduction


• pollution from toxic chemicals and hazardous waste (continue)– generation of large amounts of hazardous substances

places economical and political pressure to export the waste

– lot of countries do not have the technical abilities and capacities to handle the waste safely

– this practice has been criticised as “toxic colonialism”– disposal cost for hazardous waste

• in developed countries: 2.000 $ per ton• in Africa: ~ 40 $ per ton

– Reaction: Basel Convention; Bamako Convention

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I. Introduction


International Environmental Law• Environmental Law Law about/against pollution

and depletion of natural resources• International Law Law created by nation states for

nation states, to govern problems that arise between nation states

• IEL has been shaped primarily by bio-physical (or ecological) not geo-political forces IEL used to be sheltered from political dissension and games

• Already 200 international environmental agreements (+ uncountable bilateral agreements)

18

I. Introduction


History of IEL1. First Treaties

2. Stockholm Conference

3. UNCLOS

4. World Commission on Environment and Development

5. United Nations Conference on Environment and Development in Rio de Janeiro 1992

6. World Summit on Sustainable Development in Johannesburg 2002

7. Further Development

I. Introduction


1. First Treaties• 1794: Jay-Treaty (USA – UK) on the Great Lakes• 1867: Treaty on Fishery Rights (France – UK) • 1891: Agreement on the modus vivendi on Seals in the Bering-

Sea (USA – UK)• 1902: Convention to Protect Birds Useful to Agriculture (USA –

Canada)• 1909: Boundary Waters Treaty (Canada – UK)• 1931: International Convention on the Regulation on Whaling

But: these treaties were mainly agreed to balance economical interests and not because of ecological reasons

I. Introduction


1. First Treaties – continue • 1900: “Convention destinée á assurer la conservation des

diverses espèces animales vivant à l’état sauvage en Afrique qui sont utiles à l’homme ou inoffensives”

• 1933: Convention Relative to the Preservation of Fauna and Flora in the Natural State

• 1940: Convention on Nature Protection and Wild Life Protection in the Western Hemisphere

These are some conventions with a more ecological target, but they regulate only special subject matters and have therefore limited effects

I. Introduction


1. First Treaties – continue • 1941: Trail-Smelter Arbitration (USA –

Canada):

CASE:between USA and Canada because of damages at agri- and silviculture in Washington/USA by air pollution caused by a Canadian installation for the melting of tin and lead.

I. Introduction

23

Location of Trail (circle) in British Columbia, Canada*

I. Introduction


• The arbitration ruled: “that under the principles of international law (...) 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 of the properties or persons therein, when the case is of serious consequences and the injury is established clear and convincing evidence.”

I. Introduction


• 1945 – 1972– UN-Charter does not mention environmental subject matters– 1949: ECOSOC-Conference UNCCUR (United Nation’s

Conference on Conservation and Use of Resources– 1949 – 1969 a number of agreements on the use of the high seas (

fishery) were agreed– 1954 – 1970 a number of agreements on the protection of the high

seas against pollution by oil and nuclear wastes– 1950 – 1960 a number of mainly bilateral agreements on the use of

international rivers and waters (e.g. Agreement on the protection of the Moselle, the Saar, the Rhine, the Lake of Constance and the Lake Geneva against pollution 1960 – 1962)

I. Introduction


1945 – 1972 – 1949: Corfu-Channel-Case:

CASE: 22nd of October 1946 in Albanian Waters the destroyer “Saumarez” and the destroyer “Volage“ were damaged by explosions from a minefield, laid in 1946 with knowledge of the Albanian government in an international highway; naval personnel were killed (44 people) or hurt (42). The total damage was estimated £ 843.947.

I. Introduction


– The International Court of Justice (ICJ) stated that there is:

“... every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.”

I. Introduction


1945 – 1972 – 1957: Lac Lanoux*-Case (Spain – France):

28

© http://gigapan.com/gigapans?tags=Lanoux

I. Introduction


1945 – 1972 – 1957: Lac Lanoux-Case (Spain – France):

CASE: The French Government proposed to carry out certain works for the utilization of the waters of Lake Lanoux, in the Pyrenees, and the Spanish Government feared that these works would adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne of May 26, 1866, between France and Spain and the Additional Act of the same date. In any event, it was claimed that, under the Treaty, such works could not be undertaken without the previous agreement of both parties.

29

I. Introduction


– International arbitration stated that there is an obligation of one state in respect to international water courses, to take the interests of the another into consideration (“Harmon”-principle)

(Arbitral Tribunal November 16, 1957)

I. Introduction


– 1968: African Convention on the Conservation of Nature and Natural Resources

– 1971: Ramsar-Convention on Wetlands of International Importance Especially as Waterfowl Habitat

• first environmental Conventions for the protection of certain habitats and not for the protection of certain species

I. Introduction


• Summary: before 1972 the field of international environmental law was not much developed

• important parts of IEL for today (e.g. hazardous chemicals and waste, transboundary air pollution, climate change, ozone depletion) were no subject matter of any international treaty

I. Introduction


2. Stockholm Conference• Stockholm Conference was influenced by

discussion about the environmental situation, mainly in the USA and later in Europe also

• landmark in 1972: Study, paid by the Club of Rome “The Limits to Growth” by Donella H. Meadows, Dennis L. Meadows, Jörgen Randers, and William W. Behrens which painted an apocalyptic picture of the world

I. Introduction


The Club of Rome, founded in April 1968, is a global think tank and centre of innovation and initiative. As a non-profit NGO, it brings together scientists, economists, businessmen, international high civil servants, heads of state and former heads of state from all five continents who are convinced that the future of humankind is not determined once and for all and that each human being can contribute to the improvement of our societies.

Co-Presidents: Ashok Khosla (left) and Eberhard von Koerber (right)

34

Source: http://www.clubofrome.atSource: http://www.iucn.org

I. Introduction


2. Stockholm Conference• 1972: Sweden hosted a special international conference to

discuss the human environment• is regarded as the best organised and best documented UN

conference at this time• attended with 114 of the then 131 UN members• divided perception about the problem:

– developed countries: environmental degradation is one of the most serious problems

I. Introduction


– less developed countries: had different priorities (Group of 77)• poverty which causes pollution• resentment over the fact that the developed countries had

consumed a great part of the earth’s resources were now asking the less developed countries to remain poor and to pay for the remediation and conservation of the Earth

• new environmental standards block goods from less developed countries from the markets of the developed countries

I. Introduction


• with this background the text of the Stockholm Declaration (prepared in Founex near Geneva/CH) therefore is a masterpiece of diplomacy

• compromise: – economic development is not necessarily incompatible with

environmental protection– development could proceed provided it avoided damaging

the environment

I. Introduction


• Stockholm Declaration has 26 principles which deal with the rights and obligations of citizens and governments with regard to the preservation and the improvement of the environment

– responsibility to future generations (Principles 1, 2, 5)– nascent right to a quality environment (Principle 1)– right of states to exploit its resources pursuant to their

environmental (not: developmental) policies (Principle 21)– states shall cooperate to develop international law regarding liability

and compensation for extra-territorial harm (Principle 22)– these Principles can be found in many later treaties– Over 150 post-Stockholm environmental treaties are counted– plan to create UNEP, the first international organisation with an

exclusively environmental mandate

I. Introduction


3. UNCLOS• negotiations on a Law of the Seas were made even

before the Stockholm Conference• opened for signature 1982, entry into force: 16. Nov.

1994• UNCLOS is a kind of an umbrella-convention;

function as a framework for other international rules, regulations and implementing bodies; lot of the provisions are very general and need to be specified by additional agreements

I. Introduction


• UNCLOS is estimated to be the strongest environmental treaty; it possesses the fundamental and over-arching character of a constitution for the oceans

• 320 provisions in total and 59 with environmental background

• UNCLOS is seen as the codification of customary law in regard to the use of the oceans is applicable to signatory states and to non signatory parties

I. Introduction


4. World Commission on Environment and Development• better known as “Brundtland Commission”• created by the General Assembly in 1983 to develop a long-term

environmental strategy for sustainable development• Result: Brundtland report “Our Common Future” in 1987 economic growth is desirable and possible within a context of

sustainable development sustainability means: use the environmental resources in a

manner that meets the needs of the present generation without compromising the ability of future generations to meet their own needs

I. Introduction


Sustainable Development (1987)

economic develop-

ment

environ-mental

develop-ment

social develop-ment ?

42

I. Introduction


Gro Harlem Brundtland• born in Oslo, Norway, on 20 April 1939. • 1974 Minister of the Environment in Norway• 1981 Prime Minister as the youngest person

and the first woman ever to hold the office of Prime Minister in Norway.

• 1983 Chairperson of the World Commission on Environment and Development; report „Our Common Future“ published in April 1987

• 1986-1989 PM of Norway• 1990-1996 PM of Norway• 1998-2003 Director-General of the World

Health Organization• Now works for Pepsi (an American

multinational corporation) as a consultant

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I. Introduction


5. UNCED• Full name: United Nations Conference on

Environment and Development • Took place 1992 in Rio de Janeiro/Brazil• better known as “Earth Summit”• ~ 30.000 delegates from 176 countries and 103 head

of states• more than 700 NGOs as official observers at the

conference• more than 8.000 NGOs at the parallel conference

“Global Forum 92”• biggest summit level conference ever

I. Introduction


UNCED – continue:• four institutional results:

1. Rio Declaration on Environment and Development

2. Agenda 21

3. World Forest Declaration

4. ceremonial signing of the Climate Change Convention and the Biodiversity Convention

I. Introduction


UNCED – continue:Resume:• Agenda 21 “allows” a lot of exceptions in respect to

environmental issues when developmental issues have priority

• Rio Declaration replaced the “Earth Charter” as successor of the Stockholm Declaration

• some steps back in the Rio Declaration in respect to the Stockholm Declaration

– the nascent right to a wholesome environment was abandoned in favour of a right to development

I. Introduction


UNCED; Resume – continue:– the obligation to avoid transboundary damage (Principle 21 of the

Stockholm Declaration) was weakened in Principle 2 of the Rio Declaration by adding an authorisation for states “to exploit their own environmental and developmental policies”.

– obligation to protect the environment for the benefit of future generations is replaced by a right to consume or develop (Principle 3)

– Rio Declaration states that unilateral action in respect to environmental challenges should be avoided weakens possibilities of states to react to certain problems (example: prohibiting the import of tuna caught without a dolphin extruding technique, should be avoided)

I. Introduction


• Johannesburg Summit was intended primarily to stimulate implementation of Agenda 21

• ~ 10.000 delegates from governments and ~ 8.000 delegates from NGOs

• new level of dialogue between NGOs, social groups and state representatives

• Output: two documents1. Political Declaration2. Implementation Plan

6. World Summit on Sustainable Development Johannesburg/South Africa 2002

48

I. Introduction


World Summit on Sustainable Development Johannesburg/South Africa 2002 – continue

• Political Declaration– Art. 5: affirmation of a collective responsibility to advance and

strengthen the interdependent and mutually reinforcing pillars of sustainable development

– at the local, national, regional and global levels– introduction of a third element into sustainable development with

the term “social development” this means a loss of importance of environmental protection,

because it is now one out of three subject matters

49

I. Introduction


The Johannesburg Declaration on Sustainable Development

Principle 5

Accordingly, we assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels.

I. Introduction


Sustainable Development (2002)

economic develop-

ment

environ-mental

develop-ment

social develop-

ment

51

I. Introduction


World Summit on Sustainable Development Johannesburg/South Africa 2002 – continue

• Implementation Plan– goals to be met until 2022:

• meeting people’s basic sanitation needs• production and use of non harmful chemicals• restoration of the world’s fish stocks• reduction in the rate of loss of biological diversity

– Widening of Agenda 21 on non-state actors, stating the importance and role of NGOs in the implementation progress of environmental policies

I. Introduction


Types of International (Environmental) Law:

53

I. Introduction


soft law hard law

declarations of principle, codes of practice, recommendations, guidelines, resolutions, standards

treaties, customs

legally not binding legally binding

no judicial control judicial control, if agreed as compliance mechanism political situation allows

often lack of precision and specifity often precise and specified provisions

politically easier to agree often difficult to obtain consensus

often preparing hard law

I. Introduction


Sources of IEL1. Treaties

2. Custom

3. General Principles of Law

4. Judicial Decisions

5. Other Sources

55

I. Introduction


Sources and Forms of IEL• Treaties, Custom, General Principles of Law, Judicial

Decisions are mentioned in Art. 38 para 1 of ICJ-Statutes

• the different sources and forms have different weight, e.g.

– treaty is written and agreed within the parties– customary law and general principles are usually unwritten– judicial decisions are directly binding only between the

parties

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I. Introduction


Art. 38 ICJ-Statute

(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:a) international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as

law; c) the general principles of law recognized by civilized nations;d) subject to the provisions of Article 59 judicial decisions and the

teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

I. Introduction


1. TreatiesAn international treaty is:• a written agreement• governed by international law• between two or more states• creating or restating legal rights and duties• other names:

– conventions– protocols– covenants– pacts, etc.

I. Introduction


A treaty is the principle source of International Environmental Law, because

• nature of environmental problems range over a wide spectrum of future contingencies

• demand of continuous observation and monitoring• demand quick (relatively) legal action and

implementation in response to ongoing and relatively rapid change in scientific knowledge and conclusions

• necessity to react with a mixture of generality, specificity and adaptability

I. Introduction


But: even a written treaty could be unclear or could easily be misunderstood:

The Vienna Convention on the Law of Treaties

Vienna Treaty Convention consists provisions about:• entry into force or date when the treaty binds the

parties officially– stipulated minimum member of states which have deposited

their ratification document– sometimes additional conditions (e.g. Kyoto Protocol)

I. Introduction


Entry into Force – Procedure

Signature by representative of the state

Ratification/ Acceptance/ Approval

by legislatory or other competent organ

Deposition of the Ratification Document

by representative of the state

Entry into Force no further act necessary

I. Introduction


Vienna Treaty Convention comprises provisions about:• Reservations

– Reservations allows parties to agree to all of the provisions of a treaty except those specified in the reservation

– Some treaties do not allow reservations (e.g. Climate Change Convention, Montreal Protocol or Biodiversity Convention)

I. Introduction


Vienna Treaty Convention comprises provisions about:• Amendments

– amendments do not enter into force unless ratified or accepted by all parties this procedure is complicated and time consuming could block any progress

– solution: framework treaty

+ protocols

+ technical and scientific annexes/appendices

I. Introduction


Treaties• Interpretation

– (even) treaties are often vague or unclear– parties are not able to anticipate and provide for

future developments or changes abstractions are necessary when novel cases arise, they could be solved with

abstract provisions

I. Introduction


– During conferences, state parties often resort to drafting aspirational and hortatory expressions when they are unable to agree upon specific obligations

– when parties want to move beyond aspirational to the obligatory norms, sometimes the form and extent of such obligations are subject to interpretation

– treaties consist of • aspirational norms (endeavour-obligations)• general norms

– containing inchoate and open-textured obligations

• rules and principles that codify contentious or competing rules

I. Introduction


– treaties consist of • norms which could compete with norms in other treaties;

if two norms with a different content rule the same subject, the question which norm should be relevant is subject to interpretation

– Additional question in regard of the interpretation of treaties• Who is empowered to interpret a treaty• How, or according to what rules, is the provision

interpreted

I. Introduction


– Interpretation in international treaties by• International Court of Justice ?

Problem: ICJ depend on the acquiescence of the parties for his jurisdiction

• judicial or arbitral tribunals created by the respective treaty

• by Declarations, e.g. Stockholm Declaration• by institutions created by treaties• by (annual) conferences of parties (COPs)• by expert groups/organisations, e.g. mentioned

in an annex

I. Introduction


– Interpretation in international treaties by the rules of the Vienna Treaty Convention (Part 2, Section 3, Art. 31 ff.)

Art. 31:

General Rule of Interpretation

interpretation in good faith use the context, e.g. preamble, annexes use of subsequent agreements or practice

Art. 32

Supplementary Means of Interpretation

use of preparatory work use of the circumstances of its conclusion historical interpretation

Art. 33

Interpretation of Treaties Authenticated in Two or More Languages principle: the text is authoritative in each language (except other rule is agreed) if unclear, the meaning which best reconciles the text is adopted

68

I. Introduction


Treaties• Conflict with other Treaties, e.g. „Trade“

– some treaties mandate trade restrictions

• Help by Vienna Treaty Convention, how to handle diverging treaties (Art. 30)

– if all parties are parties to both treaties, the treaty that is later in time prevails

– if one treaty is not agreed to all parties and the other is, the treaty which is agreed by all parties prevail

I. Introduction


2. Customary Law• usually unwritten, uncodified principles that are

established by evidence of practice and opinio juris• Art. 38 para 1 b): ICJ Statute: evidence of a general

practice accepted as law• Regional general practice is sufficient, if the parties

come from the same region• Customary law is partly codified by the ILC and others

Problem: Difficult decision, if that what has been codified is exactly what has been a custom

I. Introduction


Sources of customary law:• national legislation• diplomatic notes and correspondence• statements and votes by governments in international

organisations and forums• ratification of treaties containing the obligations in

question• opinions of legal advisers• restatement of the law by scholars and jurists like the

ILC

I. Introduction


Customary Law• could be agreed in a treaty• can often be found in treaties as „principles“, rarely

as „rules“• only a few principles are accepted as customs

– obligation to prohibiting transboundary harm ( comes from the more general principle: „sic utere tuo ut alienum non laedus“); codified as • Principle 21 of the Stockholm Declaration,

• Art. 3 of the Biodiversity Convention

• Principle 2 of the Rio Declaration

I. Introduction


Customary Law – continue:– duty to preserve and protect the marine environment and its

national resources (Art. 192-196 UNCLOS)– Principle of notification and consultation before embarking on

potentially damaging environmental activities transboundary water pollution

– Principle of Sustainable Development

I. Introduction


• not (yet) customary law are the following:– principle of common but differentiated responsibility– polluter pays principle– preventive and precautionary principle– principle of good neighbourliness and cooperation they all might become customary law in the future

I. Introduction


3. General Principles of Law– the systematic in Art. 38 para 1 c) ICJ Statutes indicate that

the “general principles of law” have a parity status in respect to customs and treaties (arg. Art. 38 para 1 d) judicial decisions are subsidiary source)

– what are the “general principles of law”?• common principles of all major legal systems

I. Introduction


3. General Principles of Law (continue)• problem: how to find out which general principles exist?

– search, discover and distil such principles– not limited to “civilised nations”– this task was attempted but by no means finished– worldwide general principles are found rarely

– ICJ and other juridical bodies: almost no principles accepted• mainly procedural (no substantive) rights

I. Introduction


4. Judicial Decisions• subsidiary meaning (Art. 38 para 1 d) ICJ Statutes)

binding only between the parties and in respect to the particular case

important in respect to identify customary law necessary to avoid duplication (repeated investigation,

interpretation) earlier decisions could influence later decisions, but it is

possible to change the decision• in the meantime a number of judicial decisions on IEL

are existing and the number is growing more relevance of IEL

I. Introduction


4. Judicial Decisions• Trail Smelter Arbitration (USA vs. Canada, 1938)• Corfu Channel Case (U.K. vs. Albania, 1949)• Lake Lanoux Arbitration (Spain vs. France, 1957)• Nuclear Test Case (New Zealand vs. France)• Case concerning the Gabčíkovo-Nagymaros project

(Hungary vs. Slovakia)

ICJ installed a Chamber for Environmental Law (1993)

Source: www.wikimedia.org

I. Introduction


5. Other Sources• teachings of the most highly qualified publicists of the

various nations– also subsidiary meaning ( Art. 38 para 1 d) ICJ Statutes– work of the ILC

• resolutions, declarations, action plans, agendas of the UN or other inter-governmental organisations (e.g. Stockholm Conference or UNCED)

I. Introduction


• Decision ex aequo et bono– Possibility of the ICJ to decide by reasons of equity

(= fairness) ICJ is more an arbiter

– Aim: Closing of loopholes in IEL– Until now: no decision ex aequo et bono – Reason: most of the parties (states !) accept the

law, but no party wants to depend on the decision made by a few judges only

I. Introduction


Implementation1. Institutions and Organisations

2. Compliance Mechanisms

3. Diplomatic Possibilities

4. Judicial Remedies

5. Relationship between IEL and National Law

I. Introduction


Problem:– in international law we have coequal sovereign states– one state, one vote principally all states have the same

importance– no overarching pyramid of authority consisting of law-

making, law-interpretating, law-implementating or law-enforcing institutions

– difficulty for sovereign states to accept international jurisdiction loss of sovereignty

I. Introduction


I. Introduction

Organisation in a state and international (Example)

Federal, district and local Courts

Constitutional Court

Fede

ral C

onst

itutio

nal C

ourt


1. Nature of the Problem

2. Environmental Impacts

3. Causes

4. Remedial Objectives

5. Legal Response

II. Biodiversity


1. Nature of the Problem• Life on Earth is supported by communities of plants,

animals, and micro organisms interacting with each other within ecosystems, and with physical environment

• Biodiversity encompasses three concepts:– genetic diversity within each species– diversity of species– diversity of ecosystems within a region

II. Biodiversity


• Value of Biodiversity is the– maintaining atmospheric quality– regulating local climates– absorbing pollutants– protecting watersheds– generating and maintaining soils

the greater an ecosystem’s diversity is, the greater is its capacity to support life and adapt to changing conditions

II. Biodiversity


Protecting Biodiversity has• an economic value as

– food, medicines, chemicals, fibres, structural materials, fuel etc.– benefit-cost figure for known species could be calculated, for

unknown estimated• an ecological value

– the weaker the species, the more vulnerable the ecosystem– loss of genetic diversity leads to uniformity to higher susceptibility to diseases and pests

• an aesthetic value– as a source for recreation and beauty

II. Biodiversity



richest remaining areas of biodiversity are• rain forests• coral reefs• coastal wetlands

II. Biodiversity


3. Legal Response• Ramsar Convention (a.)• World Heritage Convention (b.)• Convention on Biodiversity (c.)• Cartagena Protocol on Biosafety (d.)• CITES (e.)• Bonn Convention (f.)

II. Biodiversity


a. Ramsar Convention • Convention on Wetlands of International Importance

Especially as Waterfowl Habitat• concluded at Ramsar (Iran), 2nd Feb. 1971 • amended by Protocol of 3rd Dec. 1982 and 28th May 1987• 160 Contracting Parties (May 2012)• oldest international treaty created solely for the protection of

ecosystems• attempts to safeguard wetlands• COP has created a Record of Ramsar Sites• at the present: 2,006 sites totalling 192,822,023 hectares,

designated for inclusion in the Ramsar List of Wetlands of International Importance

II. Biodiversity


a. Ramsar Sites – examples

Mühlenberger Loch near Hamburg

(1992)

91

II. Biodiversity



Peitzer Teiche (1978)

92

II. Biodiversity



Everglades(1987)

93

II. Biodiversity


a. Ramsar Sites – examples Karakul Lake

Tajikistan(2001)

94

II. Biodiversity


a. Ramsar Sites – examples Okavango Delta Botswana (1996)

95

II. Biodiversity



Waituna Lagoon New Zealand

(1992)

96

II. Biodiversity



Bañados del Río Dulce y Laguna de Mar Chiquita

Argentina (2002)

97

II. Biodiversity


II. Biodiversity


b. World Heritage Convention• Convention concerning the Protection of the World

Cultural and Natural Heritage • signed in Paris 16 Nov. 1972• recognition and protection of “ cultural” and

“natural” heritage• 936 sites in 153 State Parties (March 2012)• 725 cultural, 183 natural and 28 mixed sites

importance for biodiversity because of the protection of “natural sites” or mixed “cultural/natural sites”

II. Biodiversity


b. World Heritage – Examples

Wartburg Near Eisenach

(1999)

100

II. Biodiversity



Muskauer Park (2004)

101

II. Biodiversity



Speyer Cathedral

(1981)

102

II. Biodiversity


b. World Heritage – Examples Middle Rhine Valley (2002)

103

II. Biodiversity



Limes (2005)

104

II. Biodiversity



Völklingen Ironworks

(1994)

105

II. Biodiversity



Castel del Monte (1996)

106

II. Biodiversity



Siena (1995)

107

II. Biodiversity



Venice Lagoon (1987)

108

II. Biodiversity



Uluru-Kata Tjuta National

Park (1987/1994)

109

II. Biodiversity


b. World Heritage – Examples Yellowstone National Park (1978)

110

II. Biodiversity


b. World Heritage – Examples Galapagos

Islands/Ecuador(1978/2001)

111

II. Biodiversity



Old Walled City of

Shibam/Yemen(1982)

112

II. Biodiversity


b. World Heritage – Examples Victoria Falls (1989)

113

II. Biodiversity



Ilulissat Icefjord/

Greenland(2004)

114

II. Biodiversity


c. Biodiversity Convention• 1987 ad hoc working group, installed by UNEP, to

“explore the desirability and possible form of an umbrella convention to rationalize current activities” in the field of biodiversity

• target: – consolidate existing treaties– eliminate jurisdictional overlap– fill perceived gaps

II. Biodiversity


c. Biodiversity Convention• politically not attainable

result: Art. 22 para 1 and Art. 23 para 4 h) of the current Biodiversity Convention

– seek only “appropriate forms of cooperation” with the executive bodies of other biodiversity conventions

• framework treaty mainly aspirational norms• two overriding principles

1. Equity and Resource Transfer2. Sustainable Development (Conservation and sustainable use)

both principles linked by the third principle known as

3. Common But Differentiated Responsibility

II. Biodiversity


c. Biodiversity Convention1. Principles of Equity and Resource Transfers• basic facts: most of the biological diversity’s resources exist in the

South/developing countriesarguments:• preservation measures supported by the North/developed countries

threat to sovereignty, also in respect to financial transfers• use of land for internal development preservation of biodiversity • North has already consumed a substantial degree of its own resources

restrictions for the South to preserve resources reduce developmental possibilities

• North views the problem less from a historic point, more as a present global problem which needs shared sacrifice, every country has the duty to protect and preserve resources and biospheres

II. Biodiversity


c. Biodiversity Convention• Common Concern of Humankind

– one outcome of this conflict– UNCLOS – earlier proposals:

• “common heritage” (formulation during negotiations, rejected)• “plant genetic resources are a heritage of mankind” (FAO formulation,

rejected)– in other treaties (UNCLOS, Outer Space Treaty) such formulations

were agreed !!!– but: biodiversity resources are resources (mainly) within the borders

of the developing countries– formulation “common concern of humankind” recognises that the

loss of biodiversity is a global environmental problem

II. Biodiversity


c. Biodiversity Convention• Relationship to other Conventions

CBD

(for terrestrial biodiversity)

UNCLOS

(for marine biodiversity)

international/regional treatieseven WTO/GATT: exercise of rights and obligations “would cause

serious damage or a threat to biological diversity” (Art. 22 para 1 WTO/GATT)

119

II. Biodiversity


c. Biodiversity Convention• Relationship to other Conventions

– CBD directs Secretariat to seek “appropriate forms of cooperation” with the executive bodies of other biodiversity treaties to • facilitate the exchange of information

• harmonise reporting procedures

• coordinate respective programmes of work

• consult on how such conventions can contribute to the implementation of the CBD

120

II. Biodiversity


c. Biodiversity Convention• Relationship to other Conventions (continue)

– Memoranda of Cooperation with a number of executive bodies of other treaties, e.g.• Ramsar Convention

• CITES

• Bonn Convention

• World Heritage Convention

– similar Memoranda of Cooperation with international organisations ( www.cbd.int/cooperation/partnership.shtml)

121

II. Biodiversity


1. Facts

2. Human Responsibility

3. Possible Impacts


5. Legal Response

III. Climate Change


1. Facts (IPPC – Intergovernmental Panel on Climate Change, 2007)

• rise of atmospheric concentration of CO2 by 31% between 1750 and 2000, and by 80% between 1970 and 2004

• rise of methane increasing by 150% from 1750-2000• increase of extreme weather events• eleven of the years between 1995 and 2006 rank among the warmest

years in the instrumental record of global surface temperature (since 1850) • increase of the global average surface temperature over the 20th century

by ca. 0,74° Celsius and it is very likely (90-99 % chance) that the warming in the 20th century has contributed significantly to the observed sea level rise

• The temperature increase is widespread over the globe and is greater at higher northern latitudes.

III. Climate Change


1. Facts (continue)• Global average sea level has risen since 1961 at an average rate of 1.8

[1.3 to 2.3] mm/yr and since 1993 at 3.1 [2.4 to 3.8] mm/yr • global average surface temperature is projected to increase by 1,1-6,4°

Celsius at 2019-2099 relative to 1980-1990, with a corresponding rise in sea level of 0,18-0,59 m

• since 1978 the annual average Arctic sea ice extent has shrunk by 2.7 [2.1 to 3.3]% per decade, with larger decreases in summer of 7.4 [5.0 to 9.8]% per decade

• expected severe human health impacts (increased summer deaths, increased risk of drowning, diseases, e.g. malaria, dengue and hunger from flooding)

• small Island states, e.g. the Maldives or the Seychelles, and highly urbanised low-lying coastal areas are particularly vulnerable

III. Climate Change


Glaciers of the Alps – Pasterze near Großglockner/Austria

1938 2003

125

III. Climate Change


Glaciers of the Alps – Rhone Glacier, Furka, Switzerland

1906 2003

126

III. Climate Change


Glaciers of the Alps – Zugspitze/Germany

1910 2003

127

III. Climate Change


Glaciers of the Alps – Blaueis/Germany

128

III. Climate Change

Source: www.gletscherarchiv.de


III. Climate Change

2. Human Responsibility• IPPC (2007): most of the observed warming over the last 50

years is very likely to have been caused by the increase in GHG concentrations

• Almost no doubts in scientific community about human responsibility

130

UNFCCC and Kyoto Protocol

Canada: Withdrawal to 15 December 2012

USA

III. Climate Change

131

Emissions per capita

III. Climate Change

Source: www.wordpress.com

132

False GHG-reports of China?

• Alone 2010, there is a gap between the sum of GHG emissions of the provinces in China and the official report for China as a whole of 1,4 billon tons of CO2 (= 5 % of the annual global emissions of CO2)

(The gigatonne gap in China’s carbon dioxide inventories, Dabo Guan, Zhu Liu, Yong Geng, Sören Lindner & Klaus Hubacek), Nature Climate Change, 2012)

III. Climate Change

133

EU Burden Sharing

• European Community (now: European Union) is party to UNFCCC and Kyoto Protocol

• collective fulfilling of the 8 %-reduction target, in relation to the economical capacity

• Followed by numerous activities (directives, decisions, programmes, etc.)

III. Climate Change

134

EU Burden Sharing• collective fulfilling of the 8 %-reduction target, in relation to

the economical capacity

III. Climate Change

135

All Kyoto Protocol Annex B- parties (including EU burden sharing) 1990-2009

Withdrawal to 15 December 2015

III. Climate Change

136

EU Burden Sharing

Decision no. 406/2009/EC of the European Parlia-ment and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020

OJ L 140, p. 136

III. Climate Change


Jacqueline McGlade, EEA Executive Director

(Press release from 24 Oct. 2012)

“The European Union as a whole will over-deliver on its Kyoto target... Considerable progress has been made since 1997 but all Member States need to deliver on their plans.”

III. Climate Change



2. Causes of the Problem



5. Legal Response

6. The Impact of the Regime

IV. Ozone Depletion


1. Nature of the Problem• increase in reactive halogen gases in the stratosphere is considered to

be the primary cause of the average depletion • Observed ozone depletion varies significantly with latitude on the

globe. The largest losses occur at the highest southern latitudes as a result of the severe ozone loss over Antarctica each late winter/early spring period. The next largest losses are observed in the Northern Hemisphere, caused in part by late winter/early spring losses over the Arctic.

• Ozone is destroyed completely between 14 and 20 km (8 to 12 miles) in the Antarctic in spring. Average October values in the ozone layer now are reduced by 90% from pre-1980 values (as for 2 October 2001); the “ozone hole” is larger than the area of the USA (a similar hole exists above the Arctic)

• The formation of the Antarctic ozone hole requires abundant reactive halogen gases, temperatures low enough to form polar stratospheric clouds (PSCs), isolation of air from other stratospheric regions, and sunlight.

IV. Ozone Depletion


1. Nature of the Problem (continue)• loss of ozone in the stratosphere not limited to the poles (- 10% over

northern middle latitudes and 35% over Siberia)• global ozone is about 4% below the 1964-to-1980 average.• Stratospheric ozone is considered good for humans and other life

forms because it absorbs ultraviolet (UV)-B radiation from the Sun and also because it initiates the chemical removal of many pollutants, such as carbon monoxide and nitrogen oxides, as well as greenhouse gases such as methane.

• the increased amounts of UV-B radiation endangers – human health (e.g. skin cancer is estimated to increase by 2%

for every 1% loss in ozone coverage); a 10% reduction of atmospheric ozone could result in additional 300.000 cases of skin cancer and up to 1,75 Mio additional cases of cataracts each year

– UV-B radiation damages the immune system

IV. Ozone Depletion


Nature of the Problem (continue)– UV-B radiation may inhibit the growth of plants, inclusive such

important commercial species, e.g. soybeans, cotton and certain trees

– UV-B radiation causes developmental abnormalities in fish, shellfish and amphibians (e.g. the decline of frogs is partly a result of increased UV-B exposure

– reduction of the productivity of phytoplankton potential threat of the marine food chain

• but: first successes could be recognised: the ozone hole is not increasing

IV. Ozone Depletion


2. Causes of the Problem and3. Environmental Impacts

See slight show from:

http://www.unep.ch/ozone/slideshow/ozone-story.pdf

IV. Ozone Depletion


The ozone layer is a thin layer of ozone in the atmosphere, 10 – 50 kilometres above the earth

143

IV. Ozone Depletion


Ozone (O3) has three atoms. It is very rare, only three out of 10 million molecules in the air are ozone. Ninety per cent of ozone is in the upper atmosphere

IV. Ozone Depletion


The ozone layer absorbs most of the harmful ultraviolet-B (UV-B) radiation from the sun

145

IV. Ozone Depletion


“Wonder gas” CFCs were invented in 1928 for commercial applications

146

IV. Ozone Depletion


...use of CFCs increases rapidly...

147

IV. Ozone Depletion


Scientists discover a link between CFCsand ozone layer depletion

148

IV. Ozone Depletion


If the ozone layer depletes, more harmful UV-B radiation will reach the earth through the damaged ozone layer

149

IV. Ozone Depletion


More UV-B radiation means more skin cancers, more diseases and eye cataracts, less yield from plants, less productivity from oceans, damage to plastics...

150

IV. Ozone Depletion


In 1977, UNEP sets up a co-ordinating committee to study the ozone layer

151

IV. Ozone Depletion


In 1978, the United States of America, Canada, Sweden and Norway ban the use of CFCs in aerosols

152

IV. Ozone Depletion


In 1981, UNEP starts inter-governmental negotiations to protect the ozone layer

153

IV. Ozone Depletion


After 1982, in the absence of other moves, the consumption of CFCs increases again. Industry demands proof of ozone depletion due to CFCs

IV. Ozone Depletion


Governments agree to study, exchange information and protect the ozone layer – through the Vienna Convention for the Protection of the Ozone Layer (1985). Scientists continue to find proof of ozone depletion

IV. Ozone Depletion


The British Antarctic Team discovers severe thinning in the ozone layer over Antarctica – the ozone hole

IV. Ozone Depletion


In 1987, 46 governments agree to a fifty per cent cut in the production and consumption of CFCs by the year 2000; a freeze in production and consumption of halons by 1992; further controls linked to assessments by experts Montreal Protocol on Substances that Deplete the ozone Layer – 1987

IV. Ozone Depletion


4. Remedial Objectives• In order to restore the ozone shield, prohibition of

the production and use of CFCs was agreed• Institution of control mechanism• Most striking success of IEL• Factors:

– Growing scientific consensus about the causes and effects

– Relative small number of producing nations– Powerful „leader states“, e.g. USA which banned CFC

before any international agreement– Development of an innovative institutional mechanism that

attracted reluctant parties

IV. Ozone Depletion


5. Legal Response• Vienna Convention for the Protection of the Ozone

Layer – agreed 22nd March 1985 in Vienna– Entry into force: 22nd Sept. 1988– took four years to prepare and agree Vienna Convention – 20 nations signed it in Vienna, including all relevant

producer nations (except Japan), but ratification took some time

– Actual: 191 nations ratified the Convention– Convention stresses cooperation and research (instead of

control COP empowered to adopt protocols on control mechanism)

IV. Ozone Depletion


Vienna Ozone Convention• to take "appropriate measures...to protect human

health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the Ozone Layer“

• to encourage research and overall cooperation among countries and exchange of information

• took four years to prepare and agree• provided for future protocols and specified procedures

for amendments and dispute settlement

IV. Ozone Depletion


Vienna Ozone Convention (continue)• set an important precedent: For the first time nations agreed in

principle to tackle a global environmental problem before its effects were felt, or even scientifically proven

• As the experts began to explore for specific measures to be taken, the journal 'Nature' published a paper in May 1985 by British scientists – led by Dr. Joe Farman – about severe ozone depletion in the Antarctic. The paper's findings were confirmed by American satellite observations and offered the first proof of severe ozone depletion and making the need for definite measures more urgent.

• As a result, in September 1987, an agreement was reached on specific measures to be taken and the Montreal Protocol on Substances that Deplete the Ozone Layer was signed.

IV. Ozone Depletion


Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)

• Adopted 16th Sept. 1987, Entry into Force: 1st Jan. 1989• Amendments by two-thirds majority, but: not binding for

non ratifying party (Art. 9 para 3 and 4 Vienna Ozone Convention !!!) different mechanism in comparison to other protocols traditional rule of consent in IEL (Art. 9 para 5 Vienna Ozone Convention)

• Once an amendment is adopted, “adjustments” (Art. 2 para 9a Montreal Protocol: about changes in the reduction or the phase-out schedules, or the ozone-depleting potential) are possible two-thirds majority, representing separate majorities between developed and developing countries; adjustment then is binding (Art 2 para 9c)

IV. Ozone Depletion


Protocol from Entry into force Ratifications

Montreal 1987 1 Jan. 1989 191

Amendments and Adjustments from Entry into force Ratifications

London 1990 10 Aug. 1992 186

Copenhagen 1992 14 June 1994 179

Montreal 1997 10 Nov. 1999 159

Beijing 1999 25 Feb. 2002 135

Adjustments from Entry into force Ratifications

Vienna 1995 5 August 1996 –163

IV. Ozone Depletion


• Consumption and production controls for seven types of chemicals (additional information in Annexes A – E)

Substance Provision

CFCs Art. 2 A, 2 C

Halons Art. 2 B

Carbon tetracloride Art. 2 D

Methyl chloroform (1,1,1-Trichloroethane) Art. 2 E

Hydrochlorofluorocarbons (HCFCs) Art. 2 F

Hydrobromofluorocarbons (HBFCs) Art. 2 G

Methyl bromide Art. 2 H164

IV. Ozone Depletion


Montreal Protocol

• Phase-out schedules– Different obligations between developed and developing

countries– Exceptions for “basic domestic needs” for developing

countries– Exceptions for “essential use” (pesticides, asthma sprays

… ) for all countries not unilateral, but decision of the Technology and Economic Assessment Panel (example for 1997: USA – 331 tons; EU – 1.991 tons)

– Problem: danger of abuse or creation of loopholes in the Convention/Protocol

IV. Ozone Depletion


Bush Wants continue Use of Ozone-Depleting Pesticide in Agriculture ANDREW C. REVKIN, New York Times, 29th Jan 2003

U.S. to Seek Waiver on Weed Killer Harmful to Ozone LayerThe Bush administration is considering seeking scores of exemptions for industries that want to keep using an ozone-depleting pesticide that is to be banned by 2005 under an international treaty.Environmental campaigners say the result, should all the exemptions be granted, would be years of further delay in undoing damage to the ozone layer from decades of emissions of the pesticide, methyl bromide, and other similar compounds. Experts said that the exemptions from the ban would undermine the Montreal Protocol, a 15-year-old pact protecting the ozone layer and widely perceived as the most effective environmental treaty ever negotiated.…

IV. Ozone Depletion


The Chemical That Must Not Be Named Stephen Leahy, published on Friday, 21st Sept. 2007 by Inter Press Service

.. the use of methyl bromide in developed countries was supposed to have been completely phased out by Jan. 1, 2005 under the Montreal Protocol. Methyl bromide is a highly toxic fumigant pesticide which is injected into soil to sterilise it before planting crops. It is also used as a post-harvest decontaminant of products and storage areas. While alternatives exist for more than 93 percent of the applications of methyl bromide, some countries such as the U.S., Japan and Israel claimed that because of regulatory restrictions, availability, cost and local conditions, they had little choice but to continue its use as a pest control. And so despite the ban, the Montreal Protocol allows ‘critical use exemptions’ for countries to continue to use banned substances for a short period of time until they can find a substitute.In 2006, the United States received an exemption to use 8,000 tonnes of methyl bromide, compared to 5,000 tonnes for the rest of the developed world combined.At the 19th Meeting of the Parties here in Montreal, the committee reporting on methyl bromide use reported ‘excellent progress’ in the continuing phase-out of the chemical and that not many applications for critical use exemptions had been received. The notable exception continues to be the U.S., which has applied for 6,500 tonnes for 2008 and 5,000 tonnes for 2009, even as the rest of the developed world has dropped significantly to just 1,900 and 1,400 tonnes, respectively. … 40 percent of the stocks were not being used for critical uses…

IV. Ozone Depletion


Montreal Protocol• Transfer and receiving of production

– Originally in the Montreal Protocol only for small producing parties as far as the combined levels of the exchanging parties did not exceed production level

– Widening to all parties by London Amendment (1990) and for all controlled substances except HBFCs ( Art. 2 para 5 Montreal Protocol)

– With regard to HCFCs transfer between developed countries is allowed under certain conditions (Art. 2 para 5 bis Montreal Protocol, amended by Copenhagen Amendment, 1992)

– Joint fulfilment is allowed (Art. 2 para 8 Montreal Protocol)

IV. Ozone Depletion


• Trade Restrictions– Ban of all imports of controlled substances from non-parties

(except HCFCs and methyl bromide – Art. 4 para 1, para 1 bis, para 1 ter Montreal Protocol)

– Ban of all exports to non parties (Art 4 para 2, para 2 bis, para 2 ter Montreal Protocol)

– Discouraging the export of technology for the production or utilisation of such substances (Art. 4 para 5 Montreal Protocol)

possible violation of WTO-rules !!!

IV. Ozone Depletion


• Technological and Financial Assistance– Linking between compliance of developing countries and

provision of technological and financial assistance by developed countries by London Amendment (1990)

– Creation of a Multilateral Fund (Art. 10 Montreal Protocol) • Controlled by the COP• Administered by World Bank, UNEP and UNDP

IV. Ozone Depletion


Ozone Secretariat • Secretariat for the Vienna

Ozone Convention and for the Montreal Protocol Seat in Nairobi (Kenya)

• Executive Secretary: Marco Gonzalez (right)

• Deputy Executive Secretary: Paul Horwitz

Vienna Ozone Convention/Montreal Protocol – Institutions

171

IV. Ozone Depletion


IV. Ozone Depletion

Montreal Protocol – Institutions• Secretariat: main duties

– Arranging for and servicing the COP, MOP, their Committees, the Bureaux, Working Groups and Assessment Panels;

– Arranging for the implementation of decisions resulting from these meetings;

– Monitoring the implementation of the Convention and the Protocol;

– Report to the MOP and to the Implementation Committee;– Receiving and analysing data and information from the Parties

on the production and consumption of Ozone Depleting Substances (ODSs);

– Providing information


IV. Ozone Depletion

• Technology and Economic Assessment Panel (TEAP) – provides, at the request of Parties, technical information

related to the alternative technologies that have been investigated and employed to make it possible to virtually eliminate use of Ozone Depleting Substances

– provides reports and documents produced by itself and its specific Technical Options Committees and Task Forces

– TEAP Co-chairs (2007)• Stephen O. Andersen, Environmental Protection Agency, USA

• Lambert Kuijpers, Technical University Eindhoven, Netherlands

• Jose Pons Pons, Spray Quimica, Venezuela


V. Toxic and Hazardous Substances


2. Sources and Environmental Impacts


4. Legal Response



1. Nature of the Problem• in the 1950s and 1960s it was found out, that certain

synthetic chemicals have substantial impacts on human health and the environment

• examples: DDT, PCBs• Many of these chemicals persist for decades and

longer • These chemicals dissolve in fat (not water) and thus

are absorbed and concentrated in the body fat and milk of animals (and humans)

• concentration of persistent chemicals increase at the top of a food chain



1. Nature of the Problem (continue)• > 100.000 synthetic chemicals are now on the market• only in a few countries there is an obligation to test

(certain) chemicals before bringing them into the market• the number of new chemicals even exceed the testing

capacities of the most developed countries • more than 250 are now found in our body regardless

where we live• the impact of persistent chemicals is not clear; surprising

lack of knowledge about the effects of chemicals to human health and the environment



1. Nature of the Problem (continue)• long time exposure to DDT have been shown to cause

cancer• there are some standards for the exposure to hazardous

substances, but there are often standards without difference between adults and children, women and man, workers or non-workers

• in a “famous” German criminal case (wood preservative case), it was suspected (but not finally proven) that DDT and similar substances ruin the human immune system a fantastic description (a thriller) you find in:

Erich Schöndorf, “Von Menschen und Ratten”, ISBN: 3-89533-251-8 (in German)


1. Nature of the Problem (continue)production of hazardous waste in tons:

0

100.000.000

200.000.000

300.000.000

400.000.000

World 1945 World 1990 OECD 1990

hazardouswaste in tons

178



1. Nature of the Problem (continue)

Burning Cables to get Copper in Ghana(Source: Spiegel Online, 7.4.2008)

melting leadfrom computercircuit boardsin India(Source: Spiegel Online, 7.4.2008)

179




1. Nature of the Problem (continue)• generation of large amounts of hazardous

substances places economical and political pressure to export the waste

• lot of countries do not have the technical abilities and capacities to handle the waste safely

• this practice has been criticised as “toxic colonialism”• disposal cost for hazardous waste

– in developed countries: 2.000 $ per ton– in Africa: ~ 40 $ per ton

• Reaction: Basel Convention; Bamako Convention



1. Nature of the Problem (continue)

“toxic” and “hazardous” – definition• toxicity of a substance is identified by a number of

factors including– the length of time it will persist in the environment– how it tends to bioaccumulate– the extent to which it reacts with other substances to form a

more harmful contaminant – whether it produces carcinogenic (cancer-causing),

mutagenic (gene-altering) or teratogenic (birth defect-causing) effects in humans


1. Nature of the Problem (continue)“toxic” and “hazardous” – definition • “hazardous” is defined

1. by national legislation2. in IEL Conventions, e.g. Basel Convention ( waste):

explosive, flammable, oxidising, poisonous, infectious, corrosive, toxic, ecotoxic ... ( Annex 3 Basel Convention)

3. in IEL Conventions in lists • Basel Convention ( waste): Art. 1 in conjunction with Annex I• Bamako Convention ( waste): Art. 2 in conjunction with Annex I

• if a substance is defined as hazardous in at least one of the three categories, it is “hazardous” in the sense of the conventions



2. Sources and Environmental Impactsgroup of chemicals substances included

toxic metals mercury, cadmium, lead, zinc, copper, iron

petrochemicals organic: based on carbon atoms with hydrogen, ethylene, methylene chloride, formaldehyde, benzene, DDT and polychlorinated biphenyls (PCBs)

inorganic: not based on carbon, include sulphuric acid, aluminium, chromium

pesticides* 1. organochlorines (DDT, lindane ...), 2. organos-phosphates, 3. carbamates, 4. botanicals

radioactive materials radiation from: uranium, plutonium

* counted separately because of importance (mainly products of group 1+2-substances)

183




group of chemicals used for

toxic metals different product, colours, batteries, pesticides, fertilizers

petrochemicals food, medicine, cosmetics, lumber, household appliances, fuels, plastics, papers ...

pesticides pesticides (50.000 different products!!!)

radioactive materials weapons, medical treatment, scientific research, power generation

184



2. Sources and Environmental Impactsgroup of chemicals entrance to the environment (soil and water)

toxic metals natural processes, dumping, use of metals in pesticides and fertilizers

petrochemicals liquid discharges, waste disposal, accidental spills

pesticides intentional use

radioactive materials nuclear waste, fallout from accidents; sources: natural resources: 78% medical treatment: 14% fallout, discharges, exposure (nuclear weapons and power generation: < 1%

185




group of chemicals entrance to the environment (air)

toxic metals natural processes, volcanism, burning of coal and oil, refining, incineration, cement production

petrochemicals gaseous emission during production and use

pesticides spraying

radioactive materials accidents (Chernobyl/Ukraine; Fukushima/Japan ...), natural radiation

186




3. Remedial Objectives• hazardous chemicals and wastes are consequences of

modern living• almost all products involve the use of chemicals• control of the dangers:

1. reduce of the demand of products that entail the use of such substances

2. adoption of a comprehensive view of the problem by regulating and managing local, regional and global material and energy flows in products, processes and industrial sectors

3. integrated pollution control (to avoid shifting the problem from one media to another fragmented control)



4. Legal Response a) hazardous substances• before 1998 no international agreement existed

regarding the distribution and the use of hazardous substances across all media to fill this gap, FAO and UNEP launched two sets of (voluntary) guidelines (FAO: 1985/1989, revised 2002; UNEP: 1987)

– focused on “obligations” of developed and developing nations in respect to trade

– allowing transfer of substances banned in another country under the principle of “Prior Informed Consent” (PIC)



a) hazardous substances (continue)• 2002: (revised) FAO International Code of Conduct

on the Distribution and Use of Pesticides– regulation of principle of “Prior Informed Consent”– requires governments to develop necessary legislation on

• control and registration of pesticides

• rules on availability and safe use

– supports the use of generalised pictograms and symbols for the industry

– clear labelling of pesticide containers ( FAO Guidelines on Good Labelling Practice, 1985)


a) hazardous substances (continue)• 1987: UNEP London Guidelines for the Exchange

of Information on Chemicals in International Trade

– close to the FAO Code of Conduct– not relevant for pesticides ( FAO Code of Conduct is

primary source)– regulation of principle of “Prior Informed Consent” and

establishment of a formalized procedure– Establishment of the “International Register of Potentially

Toxic Chemical” as general information clearing house– require all states to provide the clearing house with

information about ban and restriction of chemicals



a) hazardous substances (continue)• 1994: Code of Ethics on the International Trade in Chemicals

– complement to the UNEP London Guidelines– furthermore voluntary instrument for private sector parties, i.e.

corporations– increase of chemical safety through

providing education and training for safe purpose clear and concise labelling reduction of the use of hazardous chemicals exchange of information in international trade

testing and assessment, quality assurance, safety information developing safer packaging ending production and trade with unacceptable risks steps to promote chemical safety

191




a) hazardous substances (continue)• 1998: Rotterdam Convention

– Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade

– Adopted 10th Sept. 1998, entry into force 24th Feb. 2004 – Signatories: 73, Parties: 120 (June 2008)– Provisions to make PIC-principle legally binding– Import of toxic and hazardous substances is still possible, but

only if they have been notified of the potential hazards and the reasons for its ban in the exporting country



a) hazardous substances (continue)• International Convention on Liability and Compensation for

Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention)

– agreed 3rd May 1996, – entry into force: 18 months after the following conditions have been

fulfilled: 12 States and four of them have not less than two million units of gross tonnage

– Actual: only 8 ratifications– owner of HNS is liable for any damage caused by the carrying of

such substances by sea (Art. 7 para 1 HNS Convention)– if owner is not liable or cannot compensate the injured for the entire

amount, the HNS Fund will provide for compensation (Art. 14 para 1 HNS Convention)

– each owner must have financial security (insurance, bank guarantee etc.)



a) hazardous substances (continue)• Stockholm Convention on Persistent Organic Pollutants

(POPs)– agreed 22nd May 2001, entry into force: 17th May 2004,

Signatories: 152, Parties: 154 – for elimination and reduction at the source– obligation for development of a strategy to identify, reduce and

eliminate releases of chemicals, listed in Annex A, B and C, from stockpiles and wastes

– obligation for submitting an “implementation plan” within two years after entry into force• evaluation of the current and projected releases of Annex C

chemicals• evaluation of laws and policies of the parties



a) hazardous substances (continue)• Doha Declaration 2003

• EU REACH Regulation– Xxx

please include dates, full names and official source!



b) hazardous wastes• Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and Their Disposal• adopted 22nd March 1989• Entry into Force: 5th May 1992• primarily about transboundary movement of wastes• also: general provisions about “environmentally sound

management”



b) hazardous wastes (continue)• “environmentally sound management”

= taking all practicable steps to ensure that hazardous wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from wastes” (Art. 2 para 8 Basel Convention)

all parties must reduce the generation of hazardous and other wastes to a minimum generally strong obligation but limited by “taking into account social, technological and economic aspects (Art. 4 para 2a. Basel Convention)



b) hazardous wastes (continue)• general obligations

– each parties has to organise adequate disposal facilities within its boundaries (Art. 4 para 2b. Basel Convention)

– each party has to take necessary steps to prevent pollution (Art. 4 para 2c. Basel Convention)

– parties have to cooperate in exchange of information, monitoring of effects and in the development of environmentally sound technology and its transfer



b) hazardous wastes (continue)• transboundary movement

– reduction as far as possible ( sound and efficient management of wastes, Art. 4 para 2d. Basel Convention)

– prohibition of export to parties which have prohibited all imports

– prohibition of any transfer to non-parties (except: environmentally sound management is provided, Art. 4 para 5 Basel Convention)



b) hazardous wastes (continue) transfers between parties in the following circumstances:

1. state of export cannot dispose the waste adequately2. wastes in question are required as raw materials for

recycling or recovery industries3. transfer is in accordance with other criteria to be decided by

the parties (Art. 4 para 9 Basel Convention) all movements of wastes not designated for recycling

between from all OECD and EU states to all non-OECD and non-EU states (Art. 4 A para 1 Basel Convention) are prohibited



b) hazardous wastes (continue)provisions on information (Art. 6 para 1 Basel Convention & Annex V

• hazardous wastes:– Annex I: Categories of wastes to be controlled– Annex III: List of hazardous characteristics (see slide 315

above)– Wastes that are defined as hazardous by domestic law of the

party of export, import or transit (Art. 1 para 1 Basel Convention)



b) hazardous wastes (continue)• 1999 amendment of the convention by

“Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and their Disposal”

• Signatories 13, Parties 10 (May 2012); entry into force pending on the ratification of 20 parties

– financial responsibility in relation to each phase of a transboundary movement



b) hazardous wastes (continue)• Convention on the Ban of Imports Into Africa and the

Control of Transboundary Movement and Management of Hazardous Wastes Within Africa – Bamako Convention

– signed in Bamako/Mali 30th Jan. 1991, entry into force 22nd April 1998 – signatories: 33, ratifications: 24 (February 2010)

– similar provisions and approach as Basel Convention– main difference: ban of all hazardous wastes from non-parties

(Art. 4 para 1 Bamako Convention) Lomé Convention bans import of all wastes from EU to African,

Caribbean and Pacific States




3. Causes of Vessel-Based Oil Pollution


5. Legal Response

VI. Land and Vessel-Based Pollution


1. Nature of the Problem – Land based pollution• ~ 80% of marine pollution comes from sources

located on land• environmental pathways

– atmosphere, outfalls– rivers, canals, underground watercourses

• urban expansion close to the oceans– 22 of the world’s 35 largest cities are situated on coasts, 17

in developing countries

• dumping


please check, if this information is correct!


1. Nature of the Problem – Vessel based pollution• different sources of marine pollution

– release of oil in the course of routine shipping– oil spills caused by accidents– air emissions from ships– accidental release of chemicals transported by ships– discharge of garbage

• only 1/10000 of all oil trades by ships is lost at sea• ships are responsible for 11,5% of oil in the oceans (Study of US

National Academy of Sciences, 2001) visual effects are much more threatening large oil release in a small area

• dumping threat for marine resources and ecosystems



2. Environmental Impacts – land based pollution• 8 groups of pollutants:

chemical nutrients sewage and bacterial agents oil organic chemicals metals sediments and litter heat radioactive substances

207



2. Environmental Impacts – vessel based pollution• harm caused by the physical properties of oil

– destruction of plant life– clog to bodies of seabirds, sea otters and other small marine

animals for example: destroys the water repellence of seabird’s plumage ( drowning or freezing; 30.000 seabirds died as a result of the Exxon Valdez Accident in 1989)

• harm caused by the toxic properties of oil– hydrocarbons reduced hatching and early death

• discharging of garbage non-biodegradable plastic debris is a serious problem (also: fishing nets ...)

208



2. Environmental Impacts – dumping• dumping of sewage, industrial effluents, sludge,

radioactive wastes and polluted dredged spoils– serious environmental problems

• drowning of oil-platforms (Brent Spar-Case) • construction waste, wreckage, sand excavation

debris– minor environmental problems

209



3. Remedial Objectives – Land-Based Pollution • problems:

– pollution takes place in the territories of nations sovereignty !!

– difficulty to prove the pathways of pollution– environmental control in this field requires extremely

expensive measures



3. Remedial Objectives – Vessel-Based Pollution • ship design changes to avoid littering and spilled oil

and bilge-waters• accident prevention, especially in respect to coastal

areas (higher ship traffic; rocks and reefs ...)• double hull construction of tankers• improvement of shore-cleaning techniques• “ex ante”-provisions to provide injured parties with

compensation rights



3. Legal Response – Land-Based Pollution• UNCLOS

– Provides only a general scheme for reduction of land based pollution

– States should adopt measures to prevent, reduce and control pollution

• Regional Treaties– Convention for the Prevention of Marine Pollution from Land-

Based Sources (1974 Paris-Convention) about North Sea and North-East Atlantic

– Protocols to the UNEP Regional Seas Conventions • Mediterranean Sea• South-East Pacific• Black Sea• Caribbean Sea



3. Legal Response – Dumping• UNCLOS

– Art. 210 mandates all states “to prevent, reduce and control pollution of the marine environment by dumping” ( London Convention, see above)

– Within own territorial sea, exclusive economic zone or continental shelf, stricter rules are allowed (Art. 210 para 5)



• Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London Convention)

– adopted 13th Nov. 1972; entry into force: 30th Aug. 1975– Dumping does not include

• Discharge of oil and other harmful substances ( generally covered by MARPOL)

– Dumping includes • disposal of wastes or other matter

• From vessel, aircraft and platforms

• Deliberate sinking of such structures ( Brent Spar)



• London Convention (continue)– Listing and permit system– Black list for certain substances (listed in Annex I)

• E.g. mercury and crude oil and: netting and ropes (!!)– Grey List (Annex II): dumping allowed with a special permit

• Trace amounts of Annex I-substances; chromium, nickel– Dumping of all other waste allowed when a “general permit”

exists responsible national authority



• 1996 Protocol to the London Convention– Entry into force: 24th March 2006, actually 34 parties– Total ban of

• incineration • Dumping of most of substances• Exporting waste to non-parties for the purpose of dumping or

incineration at sea

• Regional Treaties– Baltic Sea– Black Sea– South Pacific Region



3. Legal Response – Vessel-Based Pollution• MARPOL

– 1973/1978 International Convention for the Prevention of Pollution from Ships

– most important treaty for the prevention of pollution from the operation of ships

– governs the design and equipment of ships– establishes a system of certificates and inspections– requires the states to provide reception facilities for the

disposal of oily waste and chemicals– covers all technical aspects of pollution by ships except

dumping



• MARPOL (continue)– MARPOL and Protocols supply general duties for parties

(details in the Annexes)– duties for the flag state:

• certification that ship complies with MARPOL’s construction and readiness guidelines by issuing an “International Oil Pollution Prevention Certificate”

• In case of objections of port states, flag states have to institute appropriate actions against the violating ship (+ notification to port state and IMO)

– duties/rights for the port state:• inspection of ships within its ports in order to verify “that there is

on board a valid certificate” (Art. 5 MARPOL)



3. Legal Response – Vessel-Based Pollution• UNCLOS

– problem: what, if a coastal state requires stricter rules than agreed in MARPOL

– not possible in respect to MARPOL– possible in respect to UNCLOS (codification of a customary

rule that coastal states may adopt more stringent discharge rules in internal waters and in territorial sea – Art. 211 para 3 and 4 UNCLOS)

– but: only as far as innocent passage is not hindered (Art. 24 UNCLOS)

– in respect to accidental pollution: • notification and cooperation in case of emergency (Art. 198, 199

UNCLOS)



3. Legal Response – Vessel-Based Pollution• International Convention on Oil Pollution

Preparedness, Response and Co-operation– agreed in London, 30th Nov. 1990; Entry into force: 13th May

1995 – obligation to carry “an oil pollution emergency plan”– “national contingency plan for the preparedness and

response” on national level



3. Legal Response – Vessel-Based Pollution (continue)

• International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969 Intervention Convention and 1973 Protocol)

– agreed 29th Nov. 1969, entry into force 6th May 1975– requirements for a coastal state’s intervention during high

seas accidents (Art. I para 1)– mandatory notification and consultation procedures, except

in the case of extreme urgency (Art. III)




3. Legal Response – Vessel-Based Pollution (continue)• Protocol on the Preparedness, Response and Cooperation

for Pollution Incidents by Hazardous and Noxious Substances, 2000 (HNS Protocol)

– agreed 15th March 2000, – Entry into Force: 14th June 2007 – contracting parties actual: 25 (February 2010) – parties are required to establish measures for dealing with pollution

incidents– ships are required to carry a “shipboard emergency plan” in respect

to HNS


VII. Conservation of Marine Living Recourses


2. Sources and Impacts


4. Legal Response


VII. Conservation of Marine Living Resources

1. Nature of the Problem• 90% of the marine life exists in shallow waters above the

continental shelf• Growth of population and economy especially in coastal areas

with all negative effects• Protection of marine ecosystems for itself and for food needs



2. Sources and Impacts• Biodiversity decline by over-exploitation of fish stocks• Ecological damage resulting from human pollutants• Effect of development and soil erosion on estuarine and coastal

habitats



3. Remedial Objectives• Marine living resources are integral part of the biodiversity of the

world protection has to be approached together with the preservation of terrestrial biodiversity

• Integrated approach of managing natural resources within the framework of Sustainable Development



4. Legal Response• Ancient Law of the Sea

– 1702 van Bynkershoek (De Dominio Maris)– 1793 US Proclamation of Neutrality

• 1958 Conventions on the Law of the Sea, Geneva (LOS Conventions)

– Convention on the Territorial Sea and the Contiguous Zone– Convention on the High Seas– Convention on the Fishing and Conservation of the Living

Resources of the High Seas– Convention on the Continental Shelf

• 1982 United Nations Convention for the Law of the Sea



4. Legal Response (continue)a) UNCLOS• Agreed 10th Dec 1982 Montego Bay, entry into force: 16th Nov

1996• Adoption of subsequent agreement on amending Part XI of

UNCLOS on 28th July 1994 (entry into force: 28th July 1996)• Actually: 155 states have ratified UNCLOS (June 2008)• Institutions:

– Institutional Settlement of Disputes

• International Seabed Authority (“the Authority”) – Art. 156 UNCLOS

– Organs: Assembly, Council and Secretariat – Art. 158 ff. UNCLOS– The Enterprise (Art. 170 UNCLOS)



• Settlement of Disputes– Comprehensive system for the settlement of disputes (Part

XV UNCLOS) – States Parties are required o settle their disputes concerning

the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations

– If parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the Convention



• Settlement of Disputes (continue)– Mechanism: four alternative means for the settlement of disputes:

• ICJ ( Art. 287 para 1a. UNCLOS)• Arbitral Tribunal (Art. 287 para 1c. UNCLOS)• Special Arbitral Tribunal (Art. 287 para 1d. UNCLOS)• International Tribunal on the Law of the Seas (ITLOS – Art. 287 para 1b.

UNCLOS)

– State Party is free to choose one or more of these means by a written declaration to be made under Art. 287 of the Convention and deposited with the Secretary-General of the United Nations

– If parties to a dispute have not accepted the same settlement procedure, the dispute can be submitted only to arbitration in accordance with Annex VII, unless the parties agree otherwise



• Settlement of Disputes – examples: (continue)– Germany

1. the International Tribunal for the Law of the Sea established in accordance with Annex VI;

2. an arbitral tribunal constituted in accordance with Annex VII; 3. the International Court of Justice.

– Canadaa) the International Tribunal for the Law of the Sea established in accordance

with Annex VI of the Convention; andb) an arbitral tribunal constituted in accordance with Annex VII of the

Convention – Austria

1. the International Tribunal for the Law of the Sea established in accordance with Annex VI;

2. a special arbitral tribunal constituted in accordance with Annex VIII;3. the International Court of Justice



• Settlement of Disputes – examples: (continue)– USA (-) – United Kingdom of Great Britain and Northern Ireland

Declaration made on 12 January 1998"In accordance with article 287, paragraph 1, of the United Nations Convention on the Law of the Sea, the United Kingdom of Great Britain and Northern Ireland chooses the International Court of Justice for the settlement of disputes concerning the interpretation or application of the Convention. The International Tribunal for the Law of the Sea is a new institution, which the United Kingdom hopes will make an important contribution to the peaceful settlement of disputes concerning the law of the sea. In addition to those cases where the Convention itself provides for the compulsory jurisdiction of the Tribunal, the United Kingdom remains ready to consider the submission of disputes to the Tribunal as may be agreed upon on a case-by-case basis."


• ITLOS– Seat: Hamburg– President: Rüdiger Wolfrum (Germany), Vice-President: Joseph Akl

(Lebanon) for the period 2005-2008, 21 judges – Chamber of Summary Procedure– Chamber for Fisheries Disputes– Chamber for Marine Environment Disputes – special chamber to deal with the Cases concerning the Conservation

and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community)

– Seabed Disputes Chamber and Ad Hoc Chambers of the Seabed Disputes Chamber • President: Hugo Caminos (Argentina) – period ending 30 September 2008

233


bitte alles aktualisieren!!!


From left to right:Wolfrum, Akl, Caminos, Nelson

234



• Cases:– Bluefin Tuna Case (New Zealand-Japan; Australia-Japan)– Problem: relation between UNCLOS and other Conventions: here:

trilateral regional fisheries agreement, called Convention for the Conservation for the Bluefin Tuna, agreed 10th May 1993, entry into force: 10th May 1994. This convention ruled only consensual arbitration.

– Convention allocated a certain quota to each party, and Japan was accused of having exceeded its quota by “research fishing”

– Resolving the case under the Tuna-Convention failed New Zealand and Australia brought the case before the ITLOS charging Japan with the violation of UNCLOS

– August 1999: ITLOS asked Japan to stop the “research fishing programme” until the UNCLOS arbitration panel would decide the issue

– Decision of the Arbitral tribunal: consensual arbitration in the Tuna Convention displaces the Provisions of UNCLOS no jurisdiction of UNCLOS institutions, if one party does not agree




• Jurisdiction Zones – Territorial Sea– Exclusive Economic Zone (EEZ)– Continental Shelf– High Seas

See as follows



• Structure of the Ocean (before 1958) – (Internal Waters)– Territorial Sea

• 1702 (van Bynkershoek) within the range of one cannon-shot

• 1793 US proclamation: cannon-shot rule accepted as 3 nautical miles (nm)

• 19th century: Scandinavia 4 nm; Spain and Portugal 6 nm



• Structure of the Ocean (before 1958 – continue) • 20th century: colliding interests

– fishing» States with local fisheries try to extent their territorial sea to

exclude foreign fishing vessels» States with large and technological advanced fishing fleets

favoured a narrow territorial sea– Security

» Psychological pressure in times of crisis by display of naval force just beyond the 3 nm limit

» Restriction of the freedom of movement at their fleets (innocent passage for warships) and the strategic disadvantage

– High Seas



• Structure of the Ocean (LOS Conventions) – (Internal Waters)– Territorial Sea

• Belt of sea adjacent to its coast

– Contiguous Zone• Not beyond 12 miles from the territorial sea

– Continental Shelf• Seabed and subsoil adjacent to the coast but outside the

area of the territorial sea

– High Seas• All parts of the sea that are not included in the territorial sea

or in the internal waters of a State



• Structure of the Ocean (UNCLOS) – (Internal Waters)– Territorial Sea: Establishment possible up to a limit of 12 nm

measured from the baseline (low water line along the coast)– Contiguous Zone: Not beyond 24 miles from baselines from

which the breadth of the territorial sea is measured– Exclusive Economic Zone: Not beyond 200 nm– Continental Shelf– High Seas: All parts of the sea that are not included in the

economic exclusive zone, in the territorial sea or in the internal waters of a State

– The Area: Means seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction



UNCLOS (continue)• Species Approach

– In combination with the general obligations laid down for the different juridical zones, UNCLOS provides specific groups of species with additional rules

– Unless not otherwise regulated, the general rules concerning the EEZ and the High Seas still remain valid, e.g. allowable catches or management measures



UNCLOS – Species Approach (continue)• Straddling Stocks

– Fish, located both in a coastal state’s EEZ and an adjacent area of the High Seas

– In theory: management measures of coastal state and other states should be agreed, in practice, no real control is possible

– Regulation by the 1995 Agreement for the Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks from 4 Dec 1995 (SFSA)



UNCLOS – Species Approach (continue)• Highly Migratory Species (HMS)

– Species listed in Annex I– Includes some mammals, but focuses on non-mammals, like

swordfish, marlin or tuna– Coastal and other fishing states must cooperate, either

directly or through organisations– SFSA is applicable



UNCLOS – Species Approach (continue)• Marine Mammals

– Allowance for any coastal state or any appropriate international organisation “to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for” in the general articles dealing with the EEZ (Art. 65 UNCLOS)

– Broadening by Art. 120 UNCLOS to the area of the High Seas

– Problem: identification of the “appropriate international organisation”: Example: Canada wanted to manage small cetaceans (whales and porpoises) by itself and not through the North-West Atlantic Fisheries Organization (NAFO next two slides !)


245



NAFO Member States

Canada

Cuba

Denmark ( Faroer Islands + Greenland)

European Union (EU)

France ( Saint Pierre et Miquelon)

Iceland

Japan

Korea

Norway

Russian Federation

Ukraine

USA

246




UNCLOS – Species Approach (continue)• Seals

– Nearly all seals live within the EEZ– Expired Convention

• Convention on Conservation of North Pacific Fur Seals• Treaty for the Conservation of Seals in the Wadden Sea

(entry into force 1991) between Denmark, Germany and the Netherlands

• Ecosystem approach– Habitat protection and pollution control– Prohibition of taking of seals

– fur seals, sea lions, seals, golden seals now in CITES – Bonn Convention Appendix II comprises: South American fur

seal, South American Sea lion, Common seal (only Baltic and Wadden Sea populations), Grey Seal (only Baltic Sea populations), Mediterranean monk seal Agreement on the conservation of seal in the Wadden Sea 1990 and Memoranda of Understanding aiming to conserve Mediterranean Monk Seals



UNCLOS – Species Approach (continue)• Anadromous Species

– Species, which spawn in freshwater rivers, migrate to the high seas and finally return to the same river to reproduce (e.g. salmon)

– State of origin sets an allowable catch after negotiations with other interested states

– State of origin obtains the first right to exploit these species, as far as this takes place in the EEZ

– In return to this right, the state of origin has the duty to ensure their conservation by proper regulatory measures



UNCLOS – Species Approach (continue)• Catadromous Species

– Species spawned on the high seas, then migrate to freshwater rivers and lakes (e.g. eels)

– Right for the coastal state, “in whose waters catadromous species spend the greater part of their life cycle” the responsibility for management (Art. 67 para 1 UNCLOS)

– Harvesting at the high seas is prohibited– In the EEZ the respective state has the right to exploit



b) UNEP Regional Seas Programme• Umbrella programme of UNCLOS• Often functions as the primary means for coordination

environmental action with the respective geographic area

• Flexible instrument, even though– Nearly all under-funded– Not ratified or poorly implemented

• Procedure:1. Development of an Action Plan by UNEP2. Parties create a framework treaty3. Parties negotiate protocols to the treaty to deal specific

concerns



c) International Convention for the Regulation of Whaling

• Signed 2nd Dec. 1946• Entry into force 10th Nov. 1948• At the moment 89 member states (No. 2012)• Created more as an exploitation rather than a conservation treaty• Supervising Body: International Whaling Commission



c) International Convention for the Regulation of Whaling (continue)

• Institutions– Secretariat

• Seated in Cambridge, England; Secretary: Dr. Nicola Grandy– Scientific Committee

• For scientific advice• comprises up to 200 of the World's leading whale biologists• subject matters

– encourage, recommend, or, if necessary, organise studies and investigations relating to whales and whaling;

– collect and analyse statistical information concerning the current condition and trend of the whale stocks and the effects of whaling activities thereon;

– study, appraise and disseminate information concerning methods of maintaining and increasing the populations of whale stocks.




• Simple institutional system:– Protected and unprotected species– Open and closed seasons– Open and closed waters, including the designation of sanctuary

areas– Size limits for each species– Time, methods and intensity of whaling (including a maximum catch

of whales to be taken in one season)– Types and specifications of gear and apparatus and appliances

which may be used – Catch returns and statistical and biological records– Methods of measurements




• Possibility of the IWC to amend the schedule at any time, if necessary to carry out the objectives and purpose of the convention and if based on scientific findings

• 1982 decision about a moratorium on commercial whaling, beginning in 1985– Loopholes:

• parties can simply object to the moratorium then it is not binding (Example: Norway)

• Whaling for scientific research is allowed (Examples: Japan, Iceland and Norway)

• 1991 Scientific Committee recommended partial lifting of the moratorium because of its success, but IWC refused




• Objection Procedure (Art. 5 para 3)– Any government can “object” to any decision which it considers to

seriously affect its national interest, provided it is done within 90 days of notification of the decision

– Should this happen, further time is allowed for other governments to object. The government or governments that object are subsequently not bound by that particular decision

– Problematic mechanism: Commission seems to be “toothless”, but without it the Convention would probably have never been signed.

– In addition a government would still have been able to withdraw from the Convention and thus not be bound by any of the regulations



d) Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific

• Agreed 23rd Nov. 1989, entry into force 17th May 1991• General prohibition of driftnet fishing in the EEZ of all state

parties



2. Causes and Sources


4. Legal Response

VIII. Transboundary Water Pollution


1. Nature of the Problem• Migration of air pollutants has created major global

problems– Climate change– Ozone depletion– Nuclear fallout– Toxic and hazardous substances

• additional problems– Acid rain– Air pollution



2. Causes and Sources• Pollutants emitted from industrial and commercial sources, from

cars and private households • In form of gases or suspensions of small liquids or solid particles• If bound in the air, transport over hundreds of kilometres is

possible



3. Environmental Impacts• Acid rain or acid deposition• USA, Midwest: coal and oil fired electric plants

release gases containing sulphur oxide Eastern states and Canada

• UK/France: industries were the major source of sulphur as a source for the acid rain in Scandinavia

• Trail-Smelter-Case as a very early example of IEL-arbitration



4. Legal Response• Custom – Trail Smelter Arbitration ruled:

“that under the principles of international law (...) 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 of the properties or persons therein, when the case is of serious consequences and the injury is established clear and convincing evidence.”



• Geneva Convention for the Control of Long-Range Transboundary Air Pollution (LRTAP)

– Created under the support of UN ECE– Agreed 13th Nov. 1979, entry into force: 16th March 1983– 51 Parties – most of the countries of the Northern

hemisphere (including USA, Canada and Russia)– In the meantime: 8 Protocols:



Year Protocol Entry into force

1999 to Abate Acidification, Eutrophication and Ground-level Ozone 17 May 2005

1998 on Persistent Organic Pollutants (POPs) 23 Oct. 2003

1998 on Heavy Metals 29 Dec. 2003

1994 on Further Reduction of Sulphur Emissions 5 Aug. 1998

1991 concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes

29 Sep. 1997

1988 concerning the Control of Nitrogen Oxides or their Transboundary Fluxes

14 Feb. 1991

1985 on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30 per cent

2 Sep. 1987

1984 on Long-term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe (EMEP)

28 Jan. 1988

264





2. Sources of Environmental Harm



5. Legal Response



1. Nature of the Problem• Rivers and streams constitute only 0,5% of all water

resources, but are essential for human habitation• Abuse of trans- or international rivers do not cause

global problems, but can cause harm to the states sharing this river

• Over 200 large river basins are shared by more than one state

possible conflicts because of water, i.e. water quality and quantity (examples: Nile, Euphrates and Tigris, Jordan)



Map about availability of freshwater in 2025

(Klett-Perthes, 2003)



2. Sources of Environmental Harm• Discharge of chemicals (pulp and paper mills, iron and steelworks,

refineries, petrochemical and kali industries, fertilizer factories• Modern agriculture (pesticides, insecticides, nutrients, sediments• Sewage (organic materials• Improper storage of hazardous waste, chemicals (leaks and

accidents)• Introduction of toxic metals and gases to the water course by air• Overuse of water by an upper riparian state• Flood regulation (no natural nutrients for the lower riparian state)• Straightening of rivers/deforestation (danger of floods for the lower

riparian state)



3. Environmental Impacts• Chemical and biological damage• Physical damage to the riverbed and harbours• Economic loss

– For agriculture– For tourism– For drinking water supply

National utilisation of the benefits, externalisation of the damages



4. Remedial Objectives• Control of water pollution• Clarification of the rights and duties of upper and

lower riparian owners of international rivers– Considerations of the ILC– Lake Lanoux Case

• Ex ante approach and ex post grievance remedial mechanisms



5. Legal Responsea) Convention on the Law of the Non-Navigational

Uses of International Watercourses– 1970 (!!!) ILC was asked to develop a draft framework convention– Broad based rules of customary law ILC formed a Draft of the

Convention– Adopted: 21st May 1997; by 103 votes in favour to 3 against (Turkey,

China, Burundi) with 27 abstentions– entry into force when 35 ratification reached (Art. 36 para 1) -

currently 16 signatories and 15 parties (Jan. 2008) Not yet in force



– Main problems• will to cooperate in some upper riparian states not well developed

• Turkey: Convention is more than a framework convention

• Procedural and formal problems ( abstention of France)

– Contents• General obligation to cooperation (Art. 8)

– Communication, notification, consultation, negotiation

» Lace Lanoux Arbitration (obligation to examine the needs of the lower riparian state in good faith)

» Hungary – Slovakia Case by the ICJ ( “good faith negotiations”)

– Watercourse agreements should be reached (Art. 4 para 1)



– Contents (continue)• Equitable utilisation

– Fundamental norm of international water law (ICJ in the Hungary – Slovakia Case)

• Obligation not to cause transboundary harm– Early principles of

» Rio Declaration (Principle 2) and

» Stockholm Declaration (Principle 21)

• Groundwater – Definition of watercourse includes groundwater (Art. 2a)



– Contents (continue)• Further obligations: Duty to

– protect and preserve ecosystems of international watercourses (Art. 20)

– harmonise pollution prevention policies (Art. 21 para 2)– Take all appropriate measures to prevent or mitigate conditions

that may be harmful to other watercourse states (Art. 21 para 3)» “Where appropriate” limitation » Relevant for (see Art. 27)

- Flood or ice-conditions- Water-borne diseases- Erosion- Salt-water intrusion- …



b) Regional and Bilateral Agreements– 1992 UN ECE Convention on the Protection and Use of

Transboundary Watercourses and Lakes • Agreed 17th March 1992

• Entry into Force: 6th Oct. 1996

• Comprises

– most of the existing customary water law

– Precautionary principle

– Polluter pays principle

– Environmental impact assessments

– Mutual assistance in critical situations



– Protocol on Water and Health

• Adopted 17th June 1999 in London

• Ratified by 21 countries (Feb. 2008) entry into force: 4th Aug. 2005

• Objectives: – Protection of human health and well being by better water

management

– protection of water ecosystems,

– by preventing, controlling and reducing water-related diseases

Protocol is the first international agreement adopted to attain an adequate supply of safe drinking water and adequate sanitation for everyone, and effectively protect water used as a source of drinking water



– Protocol on Civil Liability• Adopted in Kiev 2003 at the Ministerial Conference “Environment

for Europe” on 21st May 2003

• 24 signatures, entry into force when 16 ratifications reached (actually 1 – Hungary) The Protocol will give individuals affected by the transboundary impact of industrial accidents on international watercourses (e.g. fishermen or operators of downstream waterworks) a legal claim for adequate and prompt compensation

• Companies will be liable for accidents at industrial installations, including tailing dams, as well as during transport via pipelines



– Protocol on Civil Liability (continue)Damages covered:

– physical damage– damage to property– loss of income– the cost of reinstatement– response measures

• financial limits of liability depending on the risk of the activity

• to cover this liability, companies have to establish financial securities (insurance or other guarantees)

• non-discrimination of victims: victims of the transboundary effects cannot be treated less favourably than victims from the country where the accident has occurred



– Protocol on Civil Liability (continue)• solves the problem of uncompensated damage in neighbouring

countries filling of major gaps in IEL• encouraging companies to take measures to prevent damage

they will henceforth be liable for help to prevent accidents from happening in the first place

• financial limits of liability and the minimum amount of financial securities have been agreed by all the actors of the negotiation, including the insurance sector, and are therefore realistic and appropriate.

negotiators have drafted the agreement in such a way as to reduce the obstacles to ratification, taking into account the experience with other international civil liability instruments which failed to enter into force



– River basin related treaties• Rhine• Moselle• Saar• Elbe• Odra• Danube• Lake Constance• Lake Geneva• Great Lakes• Colorado


IX. World Trade and the Environment




4. Legal Response



1. Nature of the Problem• In GATT the term „environment“ does not exist• From the early 70‘s the Secretary and the Council of GATT

discuss ecological aspects of the international trade • The „Tokyo-Round“ (9th) some agreements to support

environmental aspects were concluded– Art. 2 para 2 of the Agreement on technical trade barriers (o.ä.)

from 1979 allows the parties to use different rules for the protection of human health, life, the health of animals and plants and of the environment

• The “Uruguay-Round” (started 1986) was originally free from environmental topics, but the Earth-Summit led to a certain ecological paint of the Uruguay-Round which led to the creation of the WTO



Trade Restrictions in: Import Restrictions in:

Montreal Protocol Basel Convention

CITES Cartagena Protocol

Basel Convention Convention on the Management of Straddling Fish Stocks and Highly Migratory Fish

Free Trade283



1. Nature of the ProblemWTO• Agreement Establishing the World Trade

Organization• Entered into Force: 1st Jan. 1995• Foundation Members: all Members of

GATT + European Communities (now EU, beside their Member States)

• At the moment: 157 members• 3 organs:

– Ministerial Conference– General Council– Secretary

284




Green: members; blue: observing parties; grey: non-members

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WTO (continue)

General Council: current chairman: H.E. Mrs. Elin Østebø Johansen.

Secretary: Director-general: Pascal Lamy. His appointment took effect on 1st Sep. 2005 for a four-year term.

Elin Østebø Johansen and Pascal LamySource: Kristian Skeie; www.ks-imaging.blogspot.com

286




1. Nature of the Problem• With membership the members accept all instruments

agreed in the WTO-Agreement• The instruments are:

– GATT 1994– Agreement on Technical Barriers to Trade– GATS – TRIPS-Agreement– Understandings on Rules and Procedures Governing the

Settlement of Disputes – Trade Policy Review Mechanisms– Plurilateral Trade Agreements



1. Nature of the Problem• Judicial organisation

– Panel, which decisions are binding without previous acceptance of the parties and possibility of appeal at the Appellate Body

– Number of judicial cases with environmental background1. Tuna and Tuna Products (USA-Canada, 1982)

2. Herring and Salmon (USA-Canada, 1988)

3. Tuna and Dolphin (Mexico-USA, 1991 – not decided)

4. Tuna and Dolphin (EC, Netherlands-USA, 1994)

5. Gasoline (Venezuela, Brazil-USA, 1996)

6. Shrimps-Turtle (India, Pakistan, Malaysia, Thailand-USA, 1998)



2. Environmental Impacts• Example: Biotechnology is a multi-billion-business for

foodstuffs and pharmaceuticals– argument: better harvests with the use of LMOs less

starvation

• Cartagena Protocol allows restrictions and even the ban of import of LMOs Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) of WTO addresses trade with LMOs

– argument: free trade is the best way for advanced economic growth and sustainable development



2. Environmental Impacts (continue)• decision to ban the import of LMOs obstructs free trade

SPS Agreement requires that such decision has to be justified on principles of “sound scientific knowledge” based on scientific risk assessments

• as seen before: CBD (and protocols) range higher than WTO/GATT: allowance to ban import even in case when no or poor knowledge is available ban of the import against free trade though

• but: any dispute over this issue falls into the jurisdiction of the Dispute Settlement bodies of the WTO !!! (no binding settlement procedures agreed in CBD or Cartagena Protocol) danger of judicial decisions to much in favour of trade issues



3. Remedial Objectives• Environmental aims could be used as a trade barrier

(e.g. hormone meat)• Environmental aims could be used to exclude certain

countries/regions from the trade • International trade provisions could be used to

counteract environmental aims• Regulation of the trade with environmental goods

Difficult decision when a state wants to protect its own environment

Much more difficult decision, if a state wants to protect the environment outside of its jurisdiction



3. Remedial Objectives (cont.)• Trade barriers for the protection of environmental, health and

other goods (example: hormone meat) In principal possible, if threat is proved

• Trade barriers because of process and production methods – PPMs (example: ban of tuna caught with certain nets; ban of timber from unsustainable logging, etc.) usually not in compliance with GATT-/WTO-rules, except, if specific agreement exists

• Trade barriers for the protection of the “global commons” In principal possible, if threat is proved for the state, or when convention for the protection exists

• In all other cases, no trade barriers possible under GATT-/WTO- rules



4. Legal Response• Actually no legal response besides the conventions

mentioned above• Action plans and negotiations for clarification of the

relationship between trade and environment• Steady improvement of environmental issues by

the Panel and Appellate Body by using environmental agreements as a basis for decisions

The WTO “does not live in clinical isolation” (Appellate Body Report, AB 1996-1, USA – Standards for Reformulated and Conventional Gasoline, 29 April 1996, WT/DS2/AB/R, p. 17)



4. Legal Response (cont.)Shrimps-Turtle Case USA: In total eight Requirements for unilateral protection measures(1) Trade restriction must serve legitimate public interests(2) Principle of Consistence: measures must be consistent to internal legal system(3) Trade restriction must be effective for the protection(4) Trade restriction must be necessary; no other, less burdening measures must be

possible(5) Principle of cooperation must be considered; before unilateral measures are

taken, “good-faith”-negotiations are required(6) Trade restriction must not be discriminating between different exporting nations(7) Principles of due process must be considered; equal treatment, transparency

procedures, open for assessment(8) Every arbitrarily discrimination or disguised trade restriction is prohibited In the Shrimps-Turtle Case, the USA lost the case only, because of different action

against different countries ( discrimination) and non-compliance to the cooperation principle, and not because of the environmental issue itself!


X. Environmental Management




4. Legal Response



1. Nature of the Problem• Private sector could be active for the environment

also, not only governments• Eco-dumping by states in favour to promote industry• International operating corporations often consume

environmental goods they are in the obligation to protect the environment

• International corporations prefer international standards



2. Environmental Impacts• Consume of the environment by production methods

(tropic forests etc.)• Negative environmental effects by transport of raw

materials, goods and products• Production of goods with negative environmental

effects• Use of energy, water; production of waste and waste

water etc.



3. Remedial Objectives• Reasons for governments to promote EMS

– Compliance of private corporations with environmental law (required by all EMS)

– Improvement of the ecological situation in the corporation– Privatisation of administrative control– “Cutting red tapes” (minimise bureaucracy) and improvement

of environmental procedures



• Most commonly cited benefits of an EMS are:– Improved perception of the key environmental issues by their

employees and a better (greener) public image of the organisation.

– An increase in the efficiency and use of energy and raw materials (less waste)

– Improved ability to meet compliance with environmental regulations

– Dependence on a system rather than just the experience and capabilities of an individual to manage the environmental function of an organisation



4. Legal Response• ISO 14.000 ff.

– Private norms of the International Standardization Organization ( quasi legal response)

– Combination with quality management series ISO 9.000 ff. And risk management series (ISO 31.000 ff.) possible

• EMAS– Eco-Management and Audit Scheme, based on EMAS-I-

Regulation (1993) and – improved – EMAS-II- and EMAS-III-Regulation (2001/2009)

• Regional and National EMS– British Standard, DIN, Öko-Profit etc.



4. Legal Response – ISO 9.000 and ISO 14.000 in brief• ISO 9001:2000 and ISO 14001 (1996 and 2004

versions) are implemented by over a million organizations in 161 countries.

• ISO 9.000 is an international reference for quality management requirements in business-to-business dealings, "quality management“– the customer's quality requirements, and– applicable regulatory requirements, while aiming to

• enhance customer satisfaction, and • achieve continual improvement of its performance in pursuit of

these objectives



4. Legal Response – ISO 14.000 • ISO 14.000 enables organizations to meet their

environmental challenges "environmental management"– minimize harmful effects on the environment caused by its

activities, and to– achieve continual improvement of its environmental

performance.

• The vast majority of ISO standards are highly specific to a particular product, material, or process



4. Legal Response – ISO 14.000 (continue)• ISO 14.000 are "generic management system standards“ (like ISO

9.000) same standards can be applied: – to any organisation, large or small, whatever its product– including whether its "product" is actually a service,– in any sector of activity, and – whether it is a business enterprise, a public administration, or a

government department

• "Management system" refers to the organisation's structure for managing its processes – or activities – that transform inputs of resources into a product or service which meet the organisation's objectives, such as satisfying the customer's quality requirements, complying to regulations, or meeting environmental objectives



4. Legal Response – ISO 14.000 (continue)• ISO/IEC Guide 66:1999: General requirements for bodies

operating assessment and certification/registration of environmental management systems (EMS)

• ISO 14001:1996: Environmental management systems – Specification with guidance for use

• ISO 14001:2004: Environmental management systems – Requirements with guidance for use

• ISO 14004:2004: Environmental management systems – General guidelines on principles, systems and support techniques

• ISO 14015:2001: Environmental management – Environmental assessment of sites and organizations (EASO)



4. Legal Response – ISO 14.000 (continue)• ISO 14031:1999: Environmental management – Environmental

performance evaluation – Guidelines • ISO/TR 14032:1999: Environmental management – Examples of

environmental performance evaluation (EPE) • ISO 14040:1997: Environmental management – Life cycle

assessment – Principles and framework • ISO/DIS 14040: Environmental management – Life cycle

assessment – Principles and framework • ISO 14041:1998: Environmental management – Life cycle

assessment – Goal and scope definition and inventory analysis



4. Legal Response – ISO 14.000 (continue)• ISO 14042:2000: Environmental management – Life cycle

assessment – Life cycle impact assessment • ISO 14043:2000: Environmental management – Life cycle

assessment – Life cycle interpretation • ISO/DIS 14044: Environmental management – Life cycle

assessment – Requirements and guidelines • ISO/TR 14047:2003: Environmental management – Life cycle

impact assessment – Examples of application of ISO 14042 • ISO/TR 14049:2000: Environmental management – Life cycle

assessment – Examples of application of ISO 14041 to goal and scope definition and inventory analysis



4. Legal Response – ISO 14.000 (continue)• ISO 14050:2002: Environmental management – Vocabulary • ISO/AWI 14050:Environmental management – Vocabulary • ISO/TR 14061:1998: Information to assist forestry organizations in

the use of Environmental Management System standards ISO 14001 and ISO 14004

• ISO/TR 14062:2002: Environmental management – Integrating environmental aspects into product design and development

• ISO/DIS 14063: Environmental management – Environmental communication – Guidelines and examples

• ISO 19011:2002: Guidelines for quality and/or environmental management systems auditing


4. Legal Response – EMAS II (2001)• is a management tool for companies and other organisations to

evaluate, report and improve their environmental performance• Since 2001 EMAS II has been open to all economic sectors

including public and private services • integration of EN/ISO 14001 as the environmental management

system required by EMAS• Voluntary participation, but sometimes required by business

partners (example: VW)• For public or private organisations operating in the European

Union and the European Economic Area (EEA)


stimmt das denn?

bitte für EMAS-III aktualisieren


4. Legal Response – main stages of EMAS(1) environmental review – considering all

environmental aspects of the organisation’s activities, products and services, methods to assess these, its legal and regulatory framework and existing environmental management practices and procedures

(2) environmental management system – aimed at achieving the organisation’s environmental policy defined by the top management. The management system needs to set responsibilities, objectives, means, operational procedures, training needs, monitoring and communication systems

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4. Legal Response – main stages of EMAS (continue)

(3) environmental audit – assessing in particular the management system in place and conformity with the organisation’s policy and programme as well as compliance with relevant environmental regulatory requirements

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4. Legal Response – main stages of EMAS (continue)

(4) statement – of its environmental performance which lays down the achievements and future steps to be undertaken in order to continuously improve the organisation’s environmental performance

• The environmental review, EMS, the audit procedure and the environmental statement must be approved by an accredited EMAS verifier

• the validated statement needs to be sent to the EMAS Competent Body for registration and made publicly available before an organisation can use the EMAS logo311


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aktuelle Übersicht einfügen!!!

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aktuelle Übersicht einfügen!!!


XI. Future of IEL

1. Foundational and Systemic Norms

2. Primary Rules and Principles

3. Secondary Rules und State Responsibility

4. The Actors in IEL


XI. Future of IEL

1. Foundational and Systemic Norms• Sustainable Development

– Concept of Rio: 2 Columns• Economical Development and• Environmental Protection

– Concept of Johannesburg: 3 Columns• Economical Development• Social Development and• Environmental Protection


XI. Future of IEL

1. Foundational and Systemic Norms (continue)• Common Law of Humankind

– Recognition of general legal principles• prohibition of the use of one’s territory to damage another

one’s• Non-discrimination in respect to access to courts• Provide NGOs with rights in environmental procedures etc.


XI. Future of IEL

2. Primary Rules and Principles• Principles

– Prohibition of transboundary pollution– Principle of Conservation equality of environmental

protection to development (not: subordination)– Common but differentiated responsibility and establishing

financial mechanisms


XI. Future of IEL

2. Primary Rules and Principles (continue)• Rules

– Example Climate Change: Primary rules in respect to reduction of CO2, but mitigation of developing countries not to prevent, but to adapt ( defensive action against the effects of climate changes, instead of direct reduction of GHGs) – very questionable

• Embryonic Principles and Rules– Precautionary Principle (on the way to a custom)– Polluter Pays Principle

• Clash of Primary Principles– Problem: Free trade environmental protection


XI. Future of IEL

3. Secondary Rules und State Responsibility• Status of State Responsibility

– Customary law– Treaty

• IEL Draft on State Responsibility fills the gap when states agree on certain obligations but do not comply Development of responsibilities and remedies


XI. Future of IEL

4. The Actors in IEL• Entry into civil society• Change of actors from states to NGOs, corporations

and other non-state actors Development of innovative strategies for

participation and consideration the interests of these actors

Infusion of people power into the law making process could reduce the “democratic deficit”

Advanced Studies of International Environmental Law

Thank you very much for your attention

Contact: [email protected]

Advanced Studies of International Environmental Law Prof. Dr. Eike Albrecht Department for Civil and...

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