INTRODUCTION

A wide range of actors participate in those aspects of the international legal order which address environmental issues, including the negotiation, implementation and enforcement of international environmental agreements. Apart from the state delegations that play a central role, a visitor to climate change or other negotiations would find international organisations and non-state actors actively involved. International environmental law is characterised by this phenomenon that, with the possible exception of the human rights field, renders it unique. Various reasons explain this state of affairs. States are involved because they are still the pre-eminent international legal persons. International organisations participate because they have been created by states to address particular environmental or related issues. Of the various non-state participants, the scientific community is involved because, to a great extent, international environmental law is driven by scientific considerations; the corporate sector is involved because of the significant implications which decisions taken at the global level have even for individual companies; and environmental non-governmental organisations (NGOs) are involved because they advocate for concerns often not pursued by states and see the need for active participation at the international level as the lines dividing local, national and global issues disintegrate. The participation of non-state actors in international environmental law has an established history, and is widely accepted.

The various actors have different roles and functions, both as subjects and as objects of international environmental law, including: participating in the lawmaking process; monitoring implementation, including reporting; and ensuring implementation and enforcement of obligations. The role of each actor turns upon its international legal personality and upon the rights and obligations granted to it by general international law and the rules established by particular treaties and other rules. The Rio Declaration and Agenda 21, as well as an increasing number of international environmental agreements, confirm the central role of international organisations and non-state actors in all aspects of the international legal process.

The second edition of Principles of International Environmental Law indicates that the legal aspects of international environmental issues are of growing intellectual and political interest, and that they have moved beyond the situation I described nearly ten years ago as reflecting ‘an early phase of development’. It is apparent from the new material which this edition treats – new conventions, new secondary instruments, new (or newly recognised) norms of customary law, and a raft of new judicial decisions – that international environmental law is now well established and is a central part of the international legal order. It is also clear that international environmental law has reached new levels of complexity, in particular as it has become increasingly integrated into other social objectives and subject areas, particularly in the economic field. The burgeoning case law, and the increased involvement of practitioners, suggests that it can no longer be said that international environmental law is, as a branch of general public international law, at an early stage of practical development.

Like the first edition, this edition (together with the accompanying volume of international documents for students) is intended to provide a comprehensive overview of those rules of public international law which have as their object the protection of the environment. Those rules have become more numerous and complex, but also more accessible: the advent of the Internet often means that material which was previously difficult to track down – for example, information as to the status, signature and ratification of treaties, and acts and decisions of Conferences of the Parties and subsidiary bodies – is now relatively easy to obtain. But the Internet also increases the danger of becoming overwhelmed by the sheer quantity of material that is now available, a risk which is exacerbated by the very extensive (and growing) secondary literature which is produced every year, only a small proportion of which may really be said to indicate real insights into new developments. This background necessarily means that what is gained on breadth may be lost – at least in some areas – on depth. This comprehensive account cannot address all of the details that now dominate specific areas – trade, fisheries and climate change spring immediately to mind – and the reader will need to refer to more detailed accounts of particular sectors, and the websites of various conventions, to obtain many of the details.

In its fourth edition, Principles of International Environmental Law affirms the consolidation of international environmental law as a central part of the international legal order. Major treaty regimes cover virtually all environmental issues, with new treaties now in place for mercury pollution (2013 Minamata Mercury Convention) and climate change (2015 Paris Agreement). Case law on environmental and natural resource issues continues to grow, and there is considerable evidence that practitioners and judges are engaging more fully with questions regarding science and expert evidence in factually complex and technical disputes. In the period since the third edition, linkages between international environmental law and other areas of international law have deepened and broadened. This is also reflected in policy instruments, such as the 2015 United Nations Sustainable Development Goals, which bring together issues of development, poverty eradication and disaster management with environmental protection in an international sustainable development agenda for the period up to 2030. However, as we noted in the third edition preface, extensive legal development in the field has not satisfactorily addressed the most pressing environmental problems. With the exception of the ozone treaty regime – hailed as a success for its role in reversing ozone depletion – international environmental law has not provided a solution in the key areas of climate change, marine pollution and biodiversity loss. More than ever, the subject of international environmental law is approaching a critical point: can it deliver real protections, or will its impact be merely marginal or cosmetic?

Like the previous editions, this edition is intended to provide a comprehensive overview of those rules of public international law that have as their object the protection of the environment. We have sought to state the law as of March 2017. Necessarily, given the vast breadth of the subject and the level of detail now available on some specific topics (climate change, oceans, trade, biodiversity are leading examples here), the book's account of the subject area cannot be exhaustive. In this edition, we have sought to improve the book's coverage of important areas such as climate change (with a new chapter which incorporates the latest developments under the Paris Agreement), oceans and fisheries, and biodiversity.

INTRODUCTION

The Antarctic and the Arctic polar regions are subject to special regional rules of environmental protection, which are discussed in this chapter. These rules reflect the unique physical conditions of these areas and the important role they play in maintaining regional and global environmental conditions. They also provide useful models for the development of international environmental law in other regions and globally. For the Antarctic, the environmental rules have developed in the context of complex legal issues arising from claims made by some states to sovereign rights over Antarctic territory, and the opposing view of most other states that the Antarctic is part of the global commons and not subject to the exclusive jurisdiction of any state. These differences have not prevented the adoption of innovative and potentially far-reaching rules for the protection of the Antarctic environment and its ecosystem. The Arctic region, on the other hand, is subject to the undisputed jurisdiction of certain states, and for the most part environmental protection in that area is based on national environment laws, although these may implement international environmental obligations. In 1991, Arctic states recognised the need for international cooperation to address threats to the Arctic environment and its ecosystem in the knowledge that it too plays an important role in maintaining the global environmental balance. In 1996, they established the Arctic Council, a high-level intergovernmental forum designed to provide a mechanism to address the common concerns and challenges faced by the Arctic governments and the peoples of the Arctic. During the past twenty years, the Arctic Council has focused much of its work on sustainable development and environmental protection, and has provided the forum for the negotiation of two binding agreements among the eight Arctic states on search-and-rescue (2011) and oil pollution preparedness (2013).

The Antarctic

The Antarctic continental region extends over 14 million square kilometres and comprises 26 per cent of the world's wilderness area, representing 90 per cent of all terrestrial ice and 70 per cent of planetary freshwater. The Antarctic also extends to a further 36 million square kilometres of ocean. It has a limited terrestrial life and a highly productive marine ecosystem, comprising a few plants (e.g. microscopic algae, fungi and lichen), marine mammals, fish and hordes of birds adapted to the harsh conditions, as well as the krill, which is central to the marine food chain and upon which other animals are dependent.

Principles of International Environmental Law marks the culmination of that aspect of my professional activities which was triggered by the accident at the Chernobyl nuclear power plant, on 26 April 1986. At that time I was a research fellow at the Research Centre for International Law at Cambridge University, working on international legal aspects of contracts between states and non-state actors, and not involved in environmental issues. With the active support of the Research Centre's Director, Eli Lauterpacht, I began to examine the international legal implications of the Chernobyl accident, which indicated that the legal aspects of international environmental issues were of intellectual and political interest, and still in an early phase of development. This led to several research papers, a book and various matters involving the provision of legal advice on international environmental issues. My interest having been aroused, the implications of environmental issues for public international law provided a rich seam which has sustained me for several years, and resulted in my founding, with James Cameron, what is now the Foundation for International Environmental Law and Development (FIELD). That, in turn, has provided me with the fortunate opportunity to participate in a number of international negotiations, most notably those preparatory to UNCED and the Climate Change Convention, and to develop an international legal practice which is varied, unpredictable, entertaining, often challenging and occasionally frustrating.

This book, together with the accompanying volumes of international documents (Volumes IIA and IIB) and EC documents (Volume III), is intended to provide a comprehensive overview of those rules of public international law which have as their object the protection of the environment. I hope that it will be of some use to lawyer and non-lawyer alike, whether working for government, international organisations, non-governmental organisations and the private sector, or having an academic or other perspective. Its structure and approach reflect my belief that international environmental efforts will remain marginal unless they are addressed in an integrated manner with those international economic endeavours which retain a primary role in international lawmaking and institutional arrangements, and unless the range of actors participating in the development and application of international environmental law continues to expand.

INTRODUCTION

With the advent of sustainable development as a key principle of international law, no area of international law operates in ‘clinical isolation’ from any other. This is particularly the case for international environmental law as issues of environmental protection are strongly interconnected with questions around social and economic development. This chapter considers the interrelationship of the environment with international human rights law and the laws governing war and armed conflict (international humanitarian law). The linkage of the environment with human rights and international humanitarian law has been an issue for international environmental law since the earliest stages of its development in the 1960s and 1970s, but has achieved greater prominence with increasing recognition of the close relationship between environmental protection and the realisation of human rights and the achievement of human security, particularly in the face of climate change threats. Acknowledging these trends, the 2015 Paris Agreement included – for the first time in a climate treaty – language on human rights and the concept of ‘climate justice’.

The development of international human rights and international humanitarian law pre-dates international environmental law and provides a rich source of comparative experience. International environmental law equally raises many issues that will be familiar to human rights and international humanitarian lawyers. In the environmental context, questions related to minimum international standards and the role of individuals and other non-governmental organisations in the international legal process have raised analogous issues to those arising in international human rights and humanitarian law. The international legal issues are closely related, as is now reflected in the activities of human rights bodies. As UNCED highlighted, a key question at the interface of human rights and humanitarian law with the environment concerns the extent to which international environmental law should adopt an anthropocentric approach, based on the view that environmental protection is primarily justified as a means of protecting humans, rather than as an end in itself. The Rio Declaration endorses an anthropocentric approach, with Principle 1 stating that: ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ Legal developments in other fora and contexts, however, reflect a greater environmental consciousness and suggest that the protection of the environment is often recognised on its own terms, and not simply a means of protecting humans.