INTRODUCTION

In the first three editions of this book, the problem of climate change and the international legal arrangements developed to address it, were included in the chapter on atmospheric protection. Today, however, international law on climate change constitutes a vast field in its own right. It incorporates not only regulation of atmospheric pollution resulting from the release of greenhouse gases from human activities, but also a range of other issues, including impacts and adaptation, loss and damage, finance, deforestation and forest degradation (REDD+), carbon markets, and linkages with other areas of international law, such as human rights and trade. Moreover, with the conclusion and entry into force of the 2015 Paris Agreement, the structures and processes of rules relating to climate change differ significantly from certain other areas of international environmental law. The Paris Agreement signals a tectonic shift, away from a top-down international standard-setting approach (as in the ozone regime), to a bottom-up regulatory model by which states determine their national contributions to the global response to climate change.

This chapter provides an introduction to the field of international climate change law, with a focus on the requirements of the Paris Agreement. It begins with a discussion of the climate change problem, summarising the latest scientific findings and highlighting some of the complexities of the issue that have precipitated a substantially different international legal response to that seen in other environmental areas. A brief overview is then provided of the two treaty instruments that preceded, and underpin, the 2015 Paris Agreement: the 1992 Framework Convention on Climate Change and the 1997 Kyoto Protocol. While important in putting climate change on the international agenda, and effecting a shift in consciousness, these treaties failed to slow emissions growth sufficiently or bring about the substantial reorientation in states’ economic policies concerned with energy production, industrial activity, transportation and forestry, necessary to achieve a sustainable climate future.

INTRODUCTION

The terms ‘biological diversity’ or ‘biodiversity’ are of relatively recent usage in international law. Until the 1980s, international instruments tended to address ‘wildlife’ or ‘wild fauna and flora’, and focused on species and habitats. ‘Biodiversity’ is a more inclusive term and can be considered in relation to three hierarchical categories which describe different aspects of living systems measured in different ways: genetic diversity; species diversity; and ecosystem diversity.

However measured, there is a scientific consensus that biodiversity is being lost. The 2015 Global Forest Resources Assessment indicated that 129 million hectares of forest have been lost since 1990, although the net rate of global deforestation slowed in that period. The 2010 third Global Biodiversity Assessment (GBO 3) recorded that more than 95 per cent of North American grasslands have been lost, and that savannah and grassland have suffered severe declines elsewhere. The GBO 3 also noted that terrestrial habitats have become highly fragmented, threatening the viability of many species and ecosystem services. The Millennium Ecosystem Assessment reported that about 20 per cent of the world's coral reefs have been destroyed and another 20 per cent degraded. In relation to species populations, the GBO 3 suggested that the population of wild vertebrate species fell by an average of 31 per cent globally between 1970 and 2006, with particularly severe declines in the tropics and in freshwater ecosystems. Much remains unknown about biodiversity – only a fraction of the species thought to exist have been described, and, as the Millennium Ecosystem Assessment acknowledged, ‘the extent of extinctions of undescribed taxa is unknown, the status of many described species is poorly known, it is difficult to document the final disappearance of very rare species, and there are time lags between the impact of a threatening process and the resulting extinction’.

Reasons for conserving nature and biodiversity are essentially threefold. First, biodiversity provides an actual and potential source of biological resources including, for example, for use as food and feed, as well as for pharmaceutical, industrial and other applications. Second, biodiversity contributes to the maintenance of the biosphere in a condition that supports human and other life. This concept of ‘ecosystem services’ provided by biodiversity has become central to contemporary policy debates on the issue. Third, biodiversity conservation may be based on ethical, intrinsic, aesthetic and cultural considerations.

INTRODUCTION: THE ENVIRONMENTAL CHALLENGE

It is widely recognised that the planet faces serious environmental challenges that can only be addressed through international cooperation. Climate change and ozone depletion, loss of biodiversity, toxic and hazardous pollution of air and sea, pollution of rivers and depletion of freshwater resources are among the issues that international law is called upon to address. Since the mid 1980s, the subject of international environmental law has emerged as a discrete field of public international law, although one that is closely related to many other areas. The conditions that have contributed to the emergence of international environmental law are easily identified: environmental threats are accompanied by a recognition that ecological interdependence does not respect national boundaries and that issues once considered to be matters of national concern have international implications – at the bilateral, subregional, regional or global levels – that can often only be addressed by international cooperation, including by law and regulation.

The growing number of international environmental issues is evidenced by the large body of principles and rules of international environmental law that apply bilaterally, regionally and globally, and reflects international interdependence in a ‘globalised’ world. Progress in developing international legal control of activities has been gradual and piecemeal, and too reactive to particular incidents or the availability of new scientific evidence (such as the Chernobyl accident or the discovery of the ‘hole’ in the ozone layer). It was not until the late nineteenth century that communities and states began to recognise the transboundary consequences of activities affecting shared rivers or leading to the destruction of wildlife, such as fur seals, in areas beyond national jurisdiction. In the 1930s, the transboundary consequences of air pollution were acknowledged in the litigation leading to the award of the arbitral tribunal in the Trail Smelter case. In the 1950s, the international community legislated on international oil pollution of the oceans. By the 1970s, the regional consequences of pollution and the destruction of flora and fauna were obvious, and by the late 1980s global environmental threats had become a part of the international community's agenda as scientific evidence identified the potential consequences of ozone depletion, climate change and loss of biodiversity.

This third edition of Principles of International Environmental Law provides further confirmation that international environmental law is ‘well established’ and ‘a central part of the international legal order’, as the second edition already recognised. In the intervening decade, our appreciation of the complexity of environmental problems, and their deep interlinkages with other issue areas, particularly in the economic field, has grown. In response, international environmental law has also developed increasing complexity, although largely through the consolidation and expansion of existing regimes rather than through the creation of new instruments. Case law on environmental and natural resource issues continues to be a burgeoning area of international litigation, confronting practitioners and judges with difficult new questions such as how to approach science and expert evidence in factually complex and technical disputes. Despite the myriad of legal developments, the most complex environmental problems facing international law remain some of the most pressing, particularly, climate change, marine pollution and biodiversity loss. In a certain sense, the subject of international environmental law is about to meet the point at which the rubber hits the road: can it deliver real protections, or will its impact be only marginal and 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 July 2011. Necessarily, given the vast breadth of the subject and the level of detail now available on some specific topics (climate change, fisheries, trade, biodiversity are leading examples here), the book's account of the subject area cannot be exhaustive. We have, however, sought to improve the book's coverage of key areas such as atmospheric protection and climate change, oceans and fisheries and biodiversity. In respect of the latter two topics, the book has benefited enormously from the serious contributions made by the expert and experienced authors of these revised chapters, Adriana Fabra (Chapter 9) and Ruth MacKenzie (Chapter 10), to whom we extend our deep appreciation. We have also introduced a more critical dimension to our analysis of developments in international environmental law, including the case law, and sought to tie this analysis to central themes or challenges for the field, detailed in Chapter 1.

INTRODUCTION

Environmental impact assessments emerged internationally after the 1972 Stockholm Conference and are now an established international and domestic legal technique for integrating environmental considerations into socio-economic development and decision-making processes. An environmental impact assessment (EIA) describes a process that produces a written statement to be used to guide decision-making, with several related functions. First, it should provide decision-makers with information on the environmental consequences of proposed activities and, in some cases, programmes and policies, and their alternatives. Second, it requires decisions to be influenced by that information. And, third, it provides a mechanism for ensuring the participation of potentially affected persons in the decision-making process.

Since environmental impact assessments were first established in the domestic law of the United States under the 1969 National Environmental Policy Act, they have been progressively adopted in a very large number of national legal systems. Internationally, environmental impact assessments are required under numerous international conventions, in the requirements of various multilateral development banks, and in various non-binding instruments adopted at the regional and global levels. Principle 17 of the Rio Declaration states that:

The mandatory language of Principle 17 confirmed that environmental impact assessments are required by general international law, particularly in respect of environmentally harmful activities which may have transboundary consequences, in order to meet a state's obligation to ensure that activities within its jurisdiction and control ‘respect the environment of other States or of areas beyond national control’. The language of Principle 17, however, is general, and does not provide the detail as to the minimum requirements that states need to satisfy.

To a certain extent the details relating to common approaches are reflected in the instruments described in this chapter and in the international cases which have arisen since Principle 17 was adopted: New Zealand's application to the ICJ concerning the resumption by France of underground nuclear testing (1995), the case concerning the Gabčíkovo–Nagymaros project (1997), the dispute between Ireland and the United Kingdom concerning the MOX plant (2001), the Pulp Mills case (2010), the ITLOS advisory opinion on Responsibilities and Obligations in the Area (2011), the ICJ decision in the Costa Rica v. Nicaragua cases (2015) and the recent South China Sea arbitration (2016).

INTRODUCTION

General principles of international law imposing liability on actors for their illegal acts, or for the adverse consequences of their lawful activities, are relatively well developed at a general level, and are also reflected in the Articles on State Responsibility adopted by the International Law Commission (ILC) in 2001. In relation to environmental damage, however, the liability rules are still evolving and are in need of further development. Environmental damage refers here to damage to the ‘environment’, which has generally been defined in treaties and other international acts to include four possible elements: (1) fauna, flora, soil, water and climatic factors; (2) material assets (including archaeological and cultural heritage); (3) the landscape and environmental amenity; and (4) the interrelationship between the above factors. Most legal definitions of environment do not, therefore, include people and their property, although this is changing as a result of the increasing intersection of international environmental law with the area of human rights protection.

Liability rules at the domestic or international level serve a variety of purposes. They may be a form of economic instrument that provides an incentive to encourage compliance with environmental obligations. They may also be used to impose sanctions for wrongful conduct, or to require corrective measures to restore a given environmental asset to its pre-damage condition. Finally, they may provide a technique for internalising environmental and other social costs into production processes and other activities in implementation of the polluter pays principle.

States have long recognised the role of liability for environmental damage, as well as the inadequacies that exist. Principle 22 of the Stockholm Declaration recognised gaps and called on states to ‘co-operate to develop further the international law regarding liability and compensation for victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction’. The 1982 World Charter for Nature did not directly address liability, although it called for degraded areas to be rehabilitated and for individuals to have access to means of redress when ‘their environment has suffered damage or degradation’.