The author concludes the volume by reflecting on the interface between philosophy and law, arguing that they are both complementary and interdependent. He shows examples of the legal translation of philosophical principles and stresses the necessity to establish a system of responsibility – that is, a clear system of sanctions – so that philosophical and legal norms do not remain mere gratuitous statements. The chapter reflects on the philosophical foundations of legal responsibility, the historical movement of gradual individualization of responsibility and the shift to joint obligation to respond to collective threats and challenges. It ultimately argues that classical responsibility reduced to an essentially inter-individual relationship is technically very sophisticated, both philosophically and legally, but insufficient to face collective challenges (in particular the environmental crisis).

The invitation to reconsider the principles of the Charter listed in the Friendly Relations Declaration obviously raises a fundamental question. Fifty years after their adoption, are these principles still valid or already obsolete in view of the radical changes affecting the political, technological, economic and social environment in which they had previously been reiterated? Here, we can see all the interest of the constitutionalist theses developed with regard to the Charter of the United Nations, despite the exaggerations to which they may have led. From this point of view, and even if the Charter can in no way be reduced to the content of the Declaration itself, the reconsideration of the latter already raises the question of whether the world should radically change its global political constitution. We can see that it is difficult to respond lightly in a positive way! On the contrary, everything points to a response on the basis of two proposals: on the one hand, the nature and scale of the problems facing not only the society of States but also humanity as a whole provides a strong encouragement to reaffirm the need to respect, in particular, the seven principles enshrined in the Declaration as well as in the Charter as a whole; on the other hand, we are no longer in 1970 and each of these principles must be completed and reinterpreted in the light of the new challenges facing the entire international community, which is composed not only of States but also of the different components of civil society.

Introduction

In the preceding chapters, we have discussed the substantive regulation of environmental problems at the international level. In particular, we have analysed the obligations imposed on States in relation to the protection of the hydrosphere, the atmosphere, the biosphere and dangerous substances and activities. We now turn to the processes through which these obligations are implemented.

The traditional approach in this area assumed that compliance with international obligations only depended upon a State's will to comply. From a substantive law perspective, the main mechanism to encourage compliance was to make any violation costly for the State, notably through the application of secondary norms of State responsibility. From a procedural standpoint, breaching a norm could have several consequences, ranging from the first allegations of non-compliance, often followed by negotiations and consultations between the States concerned, to judicial mechanisms of dispute settlement and, where appropriate, alternative dispute settlement, such as mediation, conciliation or inquiry.

However, the transition from compliance to non-compliance with the requirements of a norm is better understood as a process, which admits degrees. Such degrees provide a useful basis for the discussion in this chapter because they help to locate the different implementation mechanisms at the stage where they are most likely to intervene. Four ‘stages’ may be distinguished along the compliance spectrum. Figure 8.1 summarises this understanding graphically.

Some mechanisms only play a role ‘upstream’ before allegations of noncompliance emerge (Stage 1). The main mechanism at this stage is the monitoring and reporting of information showing a State's behaviour in relation to its international obligations (section 8.2). By contrast, ‘downstream’ (Stage 4), we find the more formal mechanisms for the characterisation of a breach by third parties (adjudicatory or quasi-adjudicatory mechanisms) and the determination of the ensuing consequences attached by the law of State responsibility (section 8.3) or other secondary norms. Between these two extremes lies a grey area where the level of compliance is unclear. This area has traditionally been the province of so-called diplomatic or political mechanisms for the peaceful settlement of disputes. However, we will see in Chapter 9 that in international environmental law, this area has been populated by new methods of facilitating compliance (Stage 2) and managing non-compliance (Stage 3) with environmental standards.

Introduction

The heading of this chapter might suggest that the Earth's atmosphere is protected as a single object in international law. However, regulation is generally built around specific problems, rather than in relation to the atmosphere as such. The atmospheric issues tackled are as diverse as fumes emissions with transboundary effects, climate change, the acidification of the environment or the depletion of the ozone layer. This is not to say that a small number of overarching principles cannot be identified, as does Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) for the marine environment. But the on-going process in the context of the International Law Commission (ILC) to chart the principles of a ‘law of the atmosphere’ have been subject to important and controversial limitations since the very beginning, thus raising some uncertainty as to the prospects of such an endeavour.

This said, referring to the protection of the atmosphere remains convenient for pedagogical purposes, as the different problems addressed by the instruments discussed in this chapter all relate to the composition of the gaseous envelope that extends from the Earth's surface outward into space, retained by gravitational attraction, in particular, that of the two layers closest to the Earth's surface, namely the troposphere (up to about 12 km altitude) and the stratosphere (approximately between 12 and 50 km altitude).

An alternative but complementary way of approaching the protection of the atmosphere is to distinguish the various problems according to the geographical scope of their regulation. From this standpoint, the different regulatory regimes can be organised according to whether they address local, regional or global problems. It is worth recalling that even when dealing with a ‘local’ problem in international law, we refer to a situation that, due to its transboundary effects, involves two or more States. As for the specific threshold between the categories ‘local’, ‘regional’ and ‘global’, the determination depends, strictly speaking, upon the spatial scope specified in the regulation. Such scope normally coincides with the spatial dimension of the environmental problem tackled by the regulation. However, there is no necessary link between the two. Global issues, such as certain aspects of climate change or land-based pollution of the marine environment, may be tackled at a local or regional level.

Introduction

In the preceding chapter, we identified four stages in the process of compliance with a primary environmental norm. We saw that the traditional approaches used in international law to implement international obligations focus on the first (information) and the fourth stages (reparation). The techniques dealing with information gathering/reporting as well as with the characterisation of a breach (through adjudication) and the determination of the ensuing legal consequences (responsibility/liability) play a significant role in environmental protection, but they also raise significant challenges. We identified in the process going from compliance to non-compliance, a grey area characterised by uncertainty as to the level of compliance (information without breach characterisation). This area, which one might call the ‘soft belly’ of the compliance process, is important for our discussion because it is the main target of the implementation system of many environmental treaties.

This strategic choice is based on two main considerations. On the one hand, in an environmental protection context, prevention is much more important than the reparation of environmental damage, which is often very difficult. On the other hand, the techniques relevant for the first and fourth stages assume that non-compliance with an obligation is a matter of willingness rather than one of financial and technological capacity. This assumption is not necessarily accurate for all States. The costs and technical expertise involved in complying with environmental treaties sometimes make their implementation difficult for States that do not have the necessary resources. Moreover, even when a State has the resources, minimising the costs associated with the implementation of measures remains important to make compliance more efficient. These two factors have led to the development of new approaches to implementation. Figure 9.1 identifies the stages where these approaches intervene.

The main techniques to facilitate compliance with environmental obligations (Stage 2) seek to provide ‘assistance’ and ‘efficiency’ gains (9.2). Technical and financial assistance are intended to give developing States the means to create the necessary infrastructure for the implementation of their environmental obligations. Other techniques aim to increase efficiency to reduce the cost of compliance with environmental obligations. The latter are relevant for both developed and developing countries and they are usually structured as market mechanisms. Regarding techniques to manage cases of noncompliance (Stage 3), their purpose is to maintain the effectiveness of the regime within reasonable bounds through a combination of renewed assistance, diplomatic pressure and sanctions (9.3).

Introduction

In the preceding chapter, we left open the question of the principles and concepts that underlie international environmental law and define its contours. This chapter can therefore be regarded as a continuation of Chapter 2, as it further develops the characterisation of international environmental law outlined there. In addition, the analysis of the principles and concepts of international environmental law is an important step in the study of its substantive aspects, which will be discussed in the second part of this book.

To understand the importance of the principles and concepts of international environmental law, as well as the difference between these two categories, it is helpful to first introduce some analytical distinctions (3.2). These distinctions will allow us to present the fundamental principles and concepts that conform the structure of international environmental law in the light of the two main values advanced by this body of law, namely prevention (3.3) and balance (3.4). The last section will link these principles and concepts to the environmental regimes examined in the second part of this book (3.5).

Some Analytical Distinctions

The elements that form the subject matter of this chapter have already been discussed in some detail by legal commentators, although they are often presented in different ways depending on the criteria employed by each author. To facilitate a useful comparison with these other views, distinctions that are sometimes implicit in these analyses should first be made explicit to prepare the ground for an introductory discussion of the material.

First, we must distinguish between the use of the term ‘principle’ to refer to a type of statement or formulation of a norm, and its use to describe the legal foundation of a norm, whether it is a treaty, customary international law or, subsidiarily, a general principle of law. These are two different questions because the formulation of a norm as a principle, for example in a soft-law instrument, says little about its legal grounding in one formal source of international law. The assessment of whether a given principle has a certain legal character is an exercise that must be performed on a case-by-case basis, as will become evident later.

Second, it is useful to classify environmental norms using three categories (concepts, principles, rules), according to their degree of generality/particularity.

Introduction

In the preceding chapter, we studied the various milestones that shaped the development of international environmental law. Before discussing the technical aspects of this area of international law, it is useful to consider its most salient features. Some comments on these features appear useful at this stage for three main reasons. First, to clarify the contours of what is usually understood by international environmental law, it is necessary to identify its specific object, namely the environment. Second, the systematic presentation of a number of distinctive features that emerge from the comparative analysis of the main Multilateral Environmental Agreements (MEAs) will help us to understand their operation, in the same way as grammar facilitates the understanding of a language. Third, the features of international environmental law provide much information about its dynamics as a legal and social phenomenon, and therefore also about its future evolution.

In other words, understanding the main features of international environmental law is useful both from a theoretical standpoint – to circumscribe international environmental law as a discipline – and from a practical one – to understand its sources, methods and operation. Regarding the theoretical aspects, the relative unity of international environmental law as a discipline comes to some extent from its object, the environment, as well as, above all, from the common principles underlying most environmental agreements. In this chapter, we analyse the difficulties in the conceptualisation of a reality as broad and multifaceted as the environment (2.2), leaving the study of the unifying principles for Chapter 3. The practical aspects of international environmental law, its distinguishing features as regards its main actors (2.3), sources (2.4) and regulatory techniques (2.5) can, to a large extent, be understood as responses to the political, economic and scientific challenges that this body of law has faced over time. Finally, the last section is devoted to the place of international environmental law within the international legal order (2.6).

The ‘Environment’ as a Legal Object

Overview

A first question that arises when we attempt to understand the object of international environmental law is whether the term ‘environment’ refers to a single reality or has a specific legal or at least operational meaning. The term ‘environment’ pervades scientific, political and media discourse, and yet its meaning remains unclear.

Introduction

In Chapter 10, we analysed the relationship between human rights and environmental protection, as an expression of the interactions between the social and environmental pillars of sustainable development. This chapter follows a similar approach with respect to the connection between environmental protection and economic development. The latter finds expression in an increasingly important body of norms regulating investment, trade and technology at the international level.

Unlike the link between human rights and the environment, which has been approached mostly from a synergistic perspective, the connection between environmental protection and international economic law has been largely understood as conflicting. Environmental protection measures have been considered as covert protectionism or, alternatively, as a luxury of industrialised countries that no longer have serious development concerns. Conversely, the international protection of foreign investment, trade transactions and intellectual property rights (IPRs) has come under criticism because of the constraints it places on States’ regulatory powers, including for environmental protection.

In reality, environmental protection and international economic law may entertain both synergistic and conflicting relations, depending on the specific issue at stake and the context where it arises. This chapter discusses these two dimensions focusing tour-à-tour on investment, trade and intellectual property regulation. This presentation order is suggested by the production cycle, which begins with investment to develop certain products (12.2), then involves (in addition to domestic sales) the export of the intermediary/final goods to foreign markets (12.3) and, for technologyintensive goods, it seeks to ensure a certain level of protection of IPRs abroad, through the regulation of trade-related aspects of IPRs (12.4). A different presentation order could, of course, be followed, taking into account the fact that a significant proportion of production processes use goods imported from abroad, including from other companies within the same multinational group (intra-firm trade) or that, as drivers of innovation, IPRs intervene at the earlier stage of research and development, which entails investment. These are important issues, and they will be integrated in the presentation order of investment, trade and IPRs regulation followed in this chapter.

Foreign Investment and the Environment in International Law

Overview

Foreign investment is much needed for the ‘development’ (economic and social) component of ‘sustainable development’, but it entertains an ambiguous relationship with the other component of this concept, i.e. ‘environmental protection’.

Introduction

The protection of wildlife was one of the first concerns of international environmental regulation. Although the focus of this regulation has changed significantly over time, from primarily economic considerations to conservation per se and increasingly to a combination of both (through ‘natural capital’ and ‘ecosystem services’ approaches), this body of norms – tackling issues as diverse as the exploitation of fur seals, whaling, trade in endangered species, the preservation of ecologically, culturally or aesthetically valuable sites or, more recently, the transboundary movement of genetically modified organisms or the access to genetic resources and the sharing of related benefits – has profoundly influenced the development of international environmental law.

The number and diversity of international instruments for the protection of animal and plant life makes any attempt to capture the major axes of this area of regulation a challenging exercise. In the early 1980s, the UN General Assembly tried to provide an umbrella for this diverse array of instruments with the adoption of a ‘World Charter for Nature’. This instrument was not binding and its strong conservationist focus proved to be an obstacle rather than an advantage in reaching the initial goal. Other attempts with the same purpose were made in the course of the 1980s. The initiative taken by UNEP in 1987 to explore the feasibility of adopting a framework convention in this area deserves particular attention. In November 1988 the task was entrusted to an Expert Panel on Biological Diversity, which in February 1991 became the Intergovernmental Negotiating Committee leading to the adoption of the Convention on Biological Diversity (CBD) opened for signature at the Rio Summit in June 1992. Although the CBD is not, technically, a framework convention, it has helped to align some of the work of other major treaties and conventions in the ‘biodiversity cluster’.

The trajectory followed by international environmental law in this area since the early conventions on the protection of specific species until the adoption of the CBD and its aftermath can be analysed by reference to the degree of complexity of the regulatory objects. These objects were first species or, more generally, the fauna and/or flora of a particular region.

Introduction

The international regulation of environmental problems is not a recent phenomenon. One can find several precedents of what today would be called international environmental law dating back to the nineteenth and early twentieth century. What characterises modern international environmental law is a focus on protecting the environment per se (essentially for human purposes but not only as a useful resource), as well as the sophistication of the legal techniques developed to this effect.

The purpose of this chapter is to provide a concise introduction to the main developments that form the backbone of modern international environmental law. We will not dwell on the historical detail of these developments, nor do we intend to conduct a comprehensive analysis of the multiple reasons that led to them. Rather, we will discuss some key developments that, taken together, define an overall trend. From the late nineteenth century to the beginning of the 1970s, the regulation of environmental problems moved from either a conservation- or a resource-oriented logic to a more comprehensive one, whereby environmental protection was increasingly valued for a wider set of reasons, including resource preservation and nature conservation but also concerns about pollution, overpopulation or environmental security. Since the 1970s, the need to protect the environment has progressively become one of the most pressing policy issues in the international agenda. Yet, at the same time, newly independent and other developing States have struggled to ensure that environmental regulation does not impose a strait-jacket on their ability to pursue developmental policies as they see fit.

Overall, the trend analysed in this chapter can be represented graphically as a line oscillating between economic development and environmental protection considerations. The pull of developmental considerations has become stronger in the last decade, particularly after the move towards actual implementation following the 2002 Johannesburg Summit, the 2012 Rio Summit and, more recently, the adoption in 2015 of the 2030 Agenda for Sustainable Development, with its seventeen Sustainable Development Goals (SDGs). As we shall see, the ‘environment–development equation’ is currently in need of significant recalibration, to strike a proper balance between development/ growth and environmental protection.

Precedents

The initial approach to the international regulation of environmental problems was organised around essentially three issues, namely the rules governing the exploitation of certain resources, transboundary damage and the use of shared watercourses.

Writing a book is a way of collating and collecting experiences and memories the authors wish to hold on to. As the review of the manuscript of the second edition of this book was close to completion, the road took the two authors to Tuscany, where the last details were fine-tuned. The Tuscan hills provided a pleasant setting to write this Preface.

For most purposes, we can restate what we wrote in the Preface to the First Edition. The effort to provide a concise, conceptually clear and technically rigorous account of international environmental law, as part and parcel of international law, remains at the heart of the second edition. The need for a new edition was prompted by a number of normative developments, some of which are prominent enough to draw a line between a ‘before’ and an ‘after’, such as the adoption of the Sustainable Development Goals (SDGs) and of the Paris Agreement on Climate Change. But regular updates, every three to five years, were envisioned since the beginning of this project as a way of keeping up with the remarkably hectic pace of international environmental law.

This edition reflects developments until May of 2017. All chapters have been updated and in some cases significantly rewritten. Important additions include, aside from the SDGs and the Paris Agreement, the substantial body of judicial decisions that in just a few years have consolidated the understanding of the principles of international environmental law and their operation in connection with some treaties such as the UNCLOS, the adoption of the Kigali Amendment to the Montreal Protocol, the on-going negotiations on biodiversity beyond national jurisdiction, an expanded treatment of the international law of freshwater, the work of the International Law Commission on the atmosphere and on the environment in relation to armed conflict, a more detailed discussion of human rights and the environment with abundant reference to the relevant case-law, as well as the current trends in the integration of environmental considerations into investment, trade and intellectual property law.

All in all, the developments surveyed in this second edition suggest a growing – and genuine – presence of international environmental law in international legal practice. Lack of familiarity with the subject is now perceived as a major lacuna in the knowledge and/or the training of international lawyers.