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  • Print publication year: 2018
  • Online publication date: April 2019

11 - International environmental law

Summary

Introduction: trends in international law-making for the environment

International environmental law provides a useful example of a rapidly developing field of international law, and demonstrates some of the difficulties involved in resolving modern global problems within the traditional legal framework.

International environmental law is a relatively recent development. The environment did not feature in the Charter of the United Nations (UN Charter) and none of the constituent bodies of the United Nations (UN) was expressly given an environmental mandate. Since the 1960s, however, we can trace a steady growth in international law concerned with environmental problems. This growth of law at the international level is mirrored by Australia's domestic environmental law experience. Both reflect the growing public awareness of environmental issues and the demand for a legal response.

Various trends in the development of international environmental law may be recognised. Historically, this area of law developed as a reaction to particular instances of harm, resulting in international agreements that deal with a single issue: for example, prevention of one type of pollution or protection of a particular species of wildlife. As truly global problems became apparent – for example, depletion of the ozone layer, and global warming – the response of the international community has been to develop agreements that are broader and more strategic in their approach.

The principle of territorial sovereignty, which holds that nations have the right to use their own territory and resources as they please, presents a particular challenge for international laws seeking to protect the environment. Full support for traditional notions of sovereignty cannot be maintained if global environmental issues are to be effectively dealt with. This tension is clearly reflected in the debates, both national and international, over appropriate responses to issues such as climate change.

International environmental law has responded to this challenge by developing new principles to guide decision-making and resolve disputes, including the precautionary principle, intergenerational equity, common but differentiated responsibility, and the common concern of humankind. New methods of law-making have emerged, in particular the use of ‘soft law’ for the development of environmental law. There is a growing use of ‘guiding principles’ and economic incentives, rather than strict legal ‘rules’, to encourage changes in behaviour.

International environmental law must address the different viewpoints of developing and developed nations.

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