Table of Contents
Concept and Scope
- The exploitation of natural resources and the environment has been especially prominent since the Industrial Revolution, with the primary concern by industrialists and developers being profit and little to no regard for environmental consequences.
- Global environmental protection requires an interdisciplinary approach involving science, international politics, and diplomacy, social justice, economic reforms and changes in national and international priorities.
- Ensuring that the planet’s capacity to support its inhabitants can be maintained indefinitely will require a global coordinated and holistic approach.
Case Study - Bradford Corporation v Pickles (1895)
Edward Pickles owned the land through which the Bradford town’s water supply ran. He wanted to sell his land to the council at an inflated price. To ‘encourage’ this sale Pickles diverted the water flowing through his land away from the town by sinking shafts into the water supply and draining the water away. The House of Lords ruled under the ‘nuisance’ common law that, since nobody has a right to uninterrupted supplies of water percolating through from adjoining property, Pickles was not committing a legal wrong.
- Over time, however, communities began experiencing the consequences of rampant environmental degradation, manifesting itself through phenomenon such as
- Depletion of natural resources
- Climate change (unconventional and rapid temperature shifts)
- The increase and ramifications of toxic waste (e.g. soil salinity impacting ecosystems)
- Pollution and acid rain
- Impacts on biodiversity
- An example of this would be English citizens falling ill from hydrochloric acid in local factories, and the government responded the 1863 Alkali Act to set dilution standards and appoint inspectors for enforcement.
- These reforms in England, and throughout the world, were restricted to localities and regions, targeting specific issues, a microcosm of environmental laws.
- Multinational cooperation and approaches were only catalysed in the latter half of the 20th century, with greater recognition and understanding of global environmental issues.
Definitions of “Environment”
The law defines and perceives the environment, which subsequently allows these dictional parameters to guide the limits and nature of legislation.
In a legal sense, the environment can be considered in terms of the natural environment and/or the built environment.
Natural environment refers to all the elements that surround and influence life on earth (natural elements such as geological/biological processes and organisms)
Built environment refers to all of the buildings, transport routes, infrastructure and surroundings constructed by humans and constitute settings for human activity.
A change in social attitudes has brought about consequent changes in Australian international law, whereby laws are designed to take a more holistic view of components, causes and effects with regards to the environment.
The term “environment” is defined in Section 528 of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (also known as the EPBC Act).
(a) ecosystems and their constituent parts, including people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas; and
(d) heritage values of places; and
(e) the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c) or (d).
Standings and Interest
Locus standi - ‘a place for standing’; a requirement that a person or group have a sufficient interest in the subject matter in order to be permitted to bring an action.
Australian Conservation Foundation v Commonwealth (1980)
The ACF is an organisation aiming to protect the environment, bringing the case to court when challenging the statutory validity of federal ministers’ decisions to approve a development proposal for a tourist area and resort near Rockhampton, Queensland. It sought declarations that the decisions did not comply with the requirements of the relevant Act, which was at that time the Environment Protection (Impact of Proposals) Act 1974 (Cth). The ACF was denied locus standi because it was held to lack a ‘special interest’ in the subject matter. Individual or special interest in the subject matter was the test of standing to seek a declaration or injunction. The party would have to be affected to a greater degree or in a significantly different way than the public at large. In other words, a party must be ‘likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds, or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails’. Instead, the ACF was held to have ‘a mere intellectual or emotional concern’ about the environment.
- Since the decision, a more liberal approach to standing has been taken by the legal system, evidence by s123 of the Environmental Planning and Assessment Act 1979 (NSW), which grants ‘open standing’ to anyone.
Section 123: Any person may bring proceedings in the Court for an order to remedy to restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
- Sections 252 and 253 of the Protection of the Environment Operations Act 1997 (NSW) similarly grant open standing where the breach in question involves harm to the environment.
- Although there are still restrictions on standing at federal level, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) extends standing to people who have been involved in conservation activities for the past two years or more, and to organisations established with the purpose of protecting the environment which have been similarly involved for the past two years or more (s 475(6) and (7); s 528).
- The role of state, federal, and international law in protecting environmental interests is not clear-cut and is often shaped by values, ethics, and varying perspectives.
- GEP requires an interdisciplinary approach involving science, international politics and diplomacy, social justice, economic reforms, and changes in national and international priorities.
The Development of Global Environment Law
Legal Activism and Domestic Legislation
- There has been significant encouragement to facilitate grassroots level environmental initiatives, which can contribute to global efforts (e.g. recycling programs, solar power, etc).
- Growing awareness of environmental degradation and issues have led to the formation of lobby groups to educate and pressure governments to take action.
- Pollution is any environmental damage caused by the discharge or emission of solid, liquid, or gaseous materials into the environment.
- Domestic legislation emerged in the 1970s to focus on pollution prevention and control. Australian environmental legislation mostly falls into two general categories:
- Environmental impact assessment - examining and evaluating the environmental of proposed activities that can have significant environmental impacts.
- Pollution control - legislation setting standards for air, water, and soil quality, identifying and restricting activities that could cause pollution (e.g. requiring a permit or imposing conditions).
International Conferences and Treaties
- Social changes with regards to the environment have led to the emergence of international conferences and multilateral treaties.
- For example, UNCLOS was the result of the third UN Conference on the Law of the Sea, taking place from 1973 to 1982.
- It was significant for dealing comprehensively with a plethora of issues and global in its reach, unlike previous conventions. Additionally, Part IV of UNCLOS deals specifically with environmental protection.
- The UN Conference on the Human Environment, held in 1972 in Stockholm, was the first major conference to address broadly defined environmental.
- It was motivated by regional pollution that crossed national boundaries, and acid rain in Northern Europe.
- It consisted of 113 states, and was significant because it adopted the Declaration on the Human Environment which includes 26 principles of international environmental law.
States have, in accordance with the Charter of the UN and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of natural jurisdiction.
- Every 10 years since there has been an attempt to hold a conference with a GEP focus:
- 1982: Nairobi
- 1992: Rio Earth Summit
- 2002: Johannesburg Summit
- 2012: Rio + 20 Earth Summit
The Need for Global Environmental Protection
Environmental Impact of Consumption and Development
- Human activities have global implications, and often developing countries rich in natural resources are exploited for economic gain, and these countries agree in an effort to stimulate their own growth.
- Deforestation, illegal logging, and the establishment of palm oil plantations are examples.
- A globalised economy can also result in countries with less stringent environmental regulation enjoy a competitive advantage over countries with higher levels of regulation, and as a result, factories are often relocated here.
- Businesses and governments are reluctant to introduce measures to impede economic growth and development in any way.
- The primary conflict is between environmental regulation and economic growth. International and domestic laws need to by dynamic and holistic to take into account new issues.
- The Intergovernmental Panel on Climate Change estimated that by 2050 there could be 150 million “environmental refugees” - people forced to relocate because of environmental disasters - yet there is no recognition for such people under the UN Convention Relating to the Status of Refugees of 1951, as they are not ‘fleeing persecution’.
Interdependence and Cooperation
- The actions of one sovereign nation can severely affect other nations - for GEP there is a need for ‘mutual dependence’.
- For example, the oceans, part of ‘global commons’ (part of Earth’s shared natural resources). By the early 1990s, 13 out of 17 global fisheries were in serious decline.
- A decision by a group of countries to limit fishing in a certain fish breeding ground would have a negligible effect if even one country continued to exploit that area.
- The oceans contributed to $44 billion of Australia’s GDP in 2013, and does so to every other country, demonstrating the pursuit of self-interest and global cooperation.
- The UN Convention on International Trade in Endangered Species of Wild Fauna and Flora (1975) halts commercial trae of certain fish by listing them endangered.
- It may be the case that measures such as ‘plans of implementation’ need to be supplemented by additional agreements, and by binding, enforceable prohibitions as any cooperation with regards to combating an environmental issue can vanish at the advent of ‘economic imperative’.
The Importance of Ecologically Sustainable Development
Ecologically sustainable development is development which aims to meet the needs of today’s society, while maintaining and conserving ecological processes for the benefit of future generations.
In 1983, the UN asked a commission to study the consequences of environmental degradation on economic and social development.
The World Commission on Environment and Development (WCED) produced an influential report in 1987 titled Our Common Future, also known as the Brundtland Report.
It concluded that environmental destruction could be combatted while still maintaining economic interests, but to achieve ecologically sustainable development (ESD), both individuals’ lifestyles and governments’ policies regarding humans’ environmental impact would have to change.
The 1992 Rio Conference generated five separate agreements which elaborate on ESD and commit the parties to taking steps.
The Rio Declaration - 27 principles to guide states in environmental behaviour.
Agenda 21 - a ‘blueprint’ setting out actions that can be taken at local, national and
international level to achieve ESD
The UN Framework Convention on Climate Change
The UN Convention on Biological Diversity
The Principles of Forest Management
Central Principles of Ecologically Sustainable Development
There are four central principles of ESD, and many bodies have elaborated and built upon them, such as the Australian Government (Department of the Environment), state governments; local councils, and organisations such as state and territory Environmental Defender’s Offices.
Biodiversity is the variety of life forms on Earth; the complete range of types that are possible within an ecosystem, biome or species.
Biodiversity is important for ensuring that ecosystems are diverse and productive, especially for agriculture. Additionally, they can withstand and recover from natural disasters, while also contributing to long term health.
The UN Convention on Biological Diversity (‘Biodiversity Convention’) sets out three main goals:
- Conservation of biological diversity.
- Sustainable use of resources
- Fair and equitable sharing of benefits from genetic resources.
- The fair and just behaviour of one generation towards subsequent generations; in terms of environmental issues, a concept that centres on preserving Earth’s resources for future generations.
- This is referred to in Principle 3 of the Rio Declaration.
- The fair and just treatment of people and groups within a generation; in terms of environmental issues, a concept that focuses on fair management and use of Earth’s resources among different groups of the same generation.
- Principle 5 of the Rio Declaration enjoins states and individuals to eradicating poverty, and Principle 8 articulates their duty to reduce and eliminate wasteful patterns of production and consumption.
- Principle 6 states that international actions involving development and the environment should address the interests and needs of all countries, with specific to developing countries.
- Principle 22 deals with indigenous communities, placing importance on cultural knowledge and traditional practices.
The Precautionary Principle
- The principle that if an action or policy may cause serious harm to people or to the environment, the best course is to halt or modify that activity or policy, even when there is no proof of the probability of the risk of the seriousness of the harm.
“where there are threats of serious or irreversible damage (to the environment), lack of full scientific certainty shall not be used as a reason for postponing… measures to prevent environmental degradation.”
- Principle 15 of the Rio Declaration
ESD in Domestic Law
- Australia has incorporated principles of ESD into legislation, best exemplified by the National Strategy of Ecologically Sustainable Development adopted by all levels of government in 1992.
- In 1997, the Council of Australia’s Governments produced an agreement on ‘Commonwealth - State Roles and Responsibilities for the Environment’, which led to the enactment of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
- It aimed to address fragmentation of authorities and aimed for a collective effort for environmental sustainability.
- Section 136(2)(a) of the legislation states that the relevant minister must consider the principles of ESD before deciding whether or not approve a project, development, undertaking or activity, or a change to any of these things.
- Section 391(1) requires the minister to take account of the precautionary principle when making such a decision, and defined the precautionary principle in nearly identical terms to Principle 15 of the Rio Declaration.
- State laws also include principles of ESD. Fisheries Management Act 1994 (NSW) and Local Government Act 1993 (NSW), for instance.
- Australia adopted the National Strategy for Ecologically Sustainable Development, which was adopted by all levels of government in 1992.
- Australia’s National Strategy for Ecologically Sustainable Development (1992) defines ecologically sustainable development as: ‘using, conserving and enhancing the community’s resources so that ecological processes, on which life depends, are maintained, and the total quality of life, now and in the future, can be increased’.
- Under Section 516A of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act**)** Commonwealth organisations have a statutory requirement to report on their environmental performance and how they accord with and advance the principles of ecologically sustainable development (ESD).
- Examples of references in domestic legislation include s 136(2)(a) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which states that the relevant minister must consider the principles of ESD before deciding whether or not to approve a project, development, undertaking or activity, or a change to any of these things. Section 391(1) requires the minister to take account of the precautionary principle when making such a decision, and defines the precautionary principle in nearly identical terms to Principle.
- ESD is referenced in numerous treaties at the international level, and UNESCO develops and distributes materials on ESD that can be used by organisations and individuals.
- The development and application of ESD correspond with an evolution in society’s values.
- The precautionary principle allows for consideration of environmental consequences of projects and activities, rather than only financial impacts.
- The recognition of biodiversity also reflects a greater understanding and concern of environmental impacts on flora and fauna.
- Intragenerational and intergenerational also improves equality while focusing on long-term sustainability, and also recognising indigenous people.
- ESD is a beneficial step in outlining guidelines for developing legislation, but is often vague and relies on compliance (enforceability is weak and based on consent and ratification).
The Role of State and State Sovereignty in Global Environmental Protection
- The tension between a consistent global approach to environmental protection and national sovereignty is clear, as national and economic interests can often be in conflict with environmental protection.
- Some argue that environmental health is crucial to long-term wellbeing that economic prosperity without it is ephemeral.
- The ‘consensual theory’ and doctrine of state sovereignty have undermined a global, holistic response to sustainable development.
- Every sovereign state has the right to modify or even reject international law even if it’s a signatory to the treaty in question.
Bradley v The Commonwealth (1973) 128 CLR 557
The UNSC passed resolutions condemning Rhodesia, whose white minority party, the Rhodesian Front, had declared independence from Britain and formed a government opposed to majority rule, complete with apartheid policies. Sanctions were imposed and Australian companies couldn’t trade with Rhodesia. In Sydney, the Postmaster-General issued a direction that all communication services with Rhodesia be withdrawn, in particular to the ‘Rhodesia Information Centre’, which purported to be an official body of the Government of Rhodesia. Although Australia didn’t recognise the Rhodesian regime as legitimate, the High Court held that the Postmaster-General direction was ultra vires (beyond executive power), as it was unauthorised by domestic legislation. This case proves that international law and resolutions have no effect in Australia until enacted into domestic legislation.
State sovereignty enables nations to implement international agreements, but also to reject them if they so choose.
The role of the United Nations in response to Global Environmental Protection
The UN was established in 1945 with international peace and security as its main objective, along with developing international relations, promoting and maintaining human rights.
GEP was of little significance in the UN’s early years, but not is one of the most dominant aspects of UN affairs.
Other than the five principal organs and bodies of the UN, there are 15 specialised agencies and related bodies, secretariats of conventions and many programs and funds.
Examples include the UN Framework Convention on Climate Change and the UN Convention to Combat Desertification.
These programs and funds are subsidiary bodies of the GA and are linked to the UN by agreements, reporting to either ECOSOC and/or GA.
Related bodies e.g. International Atomic Energy Agency and World Trade Organisation address particular areas, with their own governing bodies and budgets.
There are some more bodies as well:
Food and Agriculture Organisation (FAO)
- Specialised agency aiming to defeat hunger and achieve sustainable agricultural, forestry and fishing practices.
- Focus areas include using bioenergy and biofuels and examining climate change challenges.
United Nations Development Programme (UNDP)
- Established by GA
- Helps developing countries obtain and use aid effectively
- Also focuses on sustainable development
International Maritime Organisation
Autonomous specialised agency - works through ECOSOC
Develops international shipping and safety standards
Concerned with prevention and control of marine pollution from ships
United Nations Environment Program
- UNEP was established by GA in 1972, following the UN Conference on the Human Environment (Stockholm Conference).
- It is a ‘programme’ (subsidiary body of GA) and its work, in accordance to its ‘Post-2015’ sustainable development agenda, aims to address the interlinkages between economic, social and environmental dimensions to ensure a sustainable future.
- Its work includes
- Assessing global, regional and national environmental conditions and trends
- Developing international and national instruments and guidelines
- Advocating and educating within the UN, IGOs, governments, NGOs, corporations and society on behalf of the environment
- Assisting transfer of knowledge and technology for sustainable development
- Hosting environmental convention secretariats, including CITES, the Biodiversity Convention, and the Convention on the Conservation of Migratory Species of Wild Animals.
- In 1988, the UNEP and the World Meteorological Organisation (another specialised agency of the UN) established the Intergovernmental Panel on Climate Change (IPCC), the primary international source of scientific information about climate change.
- Since 1992 Rio Conference and new focuses on ESD, the scope of the UNEP’s activities have expanded.
Intergovernmental Panel on Climate Change
- The IPCC is open all members states of UN and World Maritime Organisation, participating in the government review stage of the process of preparing reports and assessments, and in sessions where decisions about the work of the panel are made.
- The IPCC reviews and addresses the most recent scientific information from around the world relating to the climate change.
- It doesn’t conduct research itself. Reviews are conducted by scientists all over the world on a voluntary basis.
- The IPCC doesn’t itself prescribe policy, but provides scientific information to governments for the purpose of formulating policy.
- There are some groups (dominated by those who lack critical thinking skills) who believe that climate change is a hoax.
United Nations Educational, Scientific, and Cultural Organisation
- UNESCO was founded in 1945, promoting international dialogue and cooperation in the fields of science, communication, education, and culture.
- While it focuses on Africa and gender equality, it also focuses on promoting sustainable development and biodiversity along with overcoming poverty and preserving cultural heritage.
International Responses to GEP
|Hard or Soft Law?
|Number of Parties
|Convention on International Trade in Endangered Specied of Wild Fauna and Flora
|Ensuring International trade in wild animals and plants don’t result in endangerment or extinction
|Convention on Wetlands of International Importance
|Provides a framework for national and international bodies to cooperate and initiate action on conservation and sustainable use of wetlands and their resources.
|Vienna Convention for the Protection of the Ozone Layer
|No legally binding targets.
|To protect human health and environment from human activities that alter the ozone layer.
|Montreal Protocol on Substances that Deplete the Ozone Layer
|Sets out a mandatory timetable for phasing out of ozone-depleting substances.
|To conserve biodiversity, and ensure that benefits from genetic resources are shared equitably and fairly.
|Sets out a plan to balance the capacity of Earth → sustainable population and consumption
|Outlines principles guiding sustainable development: defines responsibilities to safeguard common environment, and rights of people involved in economic development.
|UN Framework Convention on Climate Change
|No legally binding targets.
|To stabilise concentrations of greenhouse gases.
|First commitment period to reduce greenhouse gas emissions ended in 2012. Doha amendment (2012) saw 37 (Australia included) countries commit to binding targets. June 2015, Australia was singled out as a ‘climate change free rider’ by the Africa Progress Panel report in the lead up to the IPPC Paris Climate summit.
|Rio+20 Summit Outcome Document
|The common vision was to renew commitment to sustainable development, for a future sustainable at economic, social, and environmental levels.
- A Protocol is an instrument that supplements a treaty, containing specific provisions that the parties have committed to in order to fulfil the terms of the treaty.
- For example, the Montreal Protocol is an addition to the Vienna Convention for the Protection of the Ozone Layer (1985).
- The Cartagena Protocol Biosafety, which came into force in 2002, is a supplement to the Biodiversity Convention.
- It seems to protect biodiversity from risks posed by technological modifications to organisms, by governing their movement across national borders.
- Even international agreements deemed to be ‘hard law’ have relatively weak compliance mechanisms, with CITES and the Montreal Protocol being the main exceptions due to them being successful.
- It’s important that a treaty or protocol contain enforcement mechanisms but their effectiveness is questionable.
- State parties to the Statute of the International Court of Justice recognise its jurisdiction as compulsory in relation to any other state.
- However, its effectiveness is limited as states can refuse to appear before the court, reject decisions, or raise ‘preliminary objections’ to the court’s jurisdiction.
- There are several sources of international law that the ICJ can apply in its rulings, one of which is ex aequo et bono, “according to what’s right and good”.
- The UN recognised the importance of global environmental issues in 1993, establishing the Chamber of Environmental Disputes (a discrete section of the ICJ) to provide a forum for settling disputes in this area.
- However, it has never been used, and in 2006, the UN stopped holding annual elections for the chamber’s membership.
- The ICJ’s enforceability is hindered by the consensual nature of the nation states, and additionally, corporations are responsible for a vast number of environmental issues but aren’t within the ICJ’s jurisdiction.
- A possible solution, proposed by academics and NGOs is to form a International Environmental Court (similar to ICC’s role) in settling disputes between private and public parties.
- It could deal with global issues, mediate, arbitrate, and institute investigations while also applying ESD principles and maintaining consistency.
- It could also be compulsory, but the creation of such an institution is unlikely due to its requirement of global will.
Case Study - Ecuador v Columbia
This case’s significance is that it was the first time in a generation that the ICJ was requested to resolve a case essentially centred on GEP. Ecuador’s biodiversity was at threat by Colombian aerial spraying of illegal coca and poppy plantations, highlighting the role of sovereignty in assisting and impeding GEP. Columbia instituted aerial spraying to eradicate illegal drug plantations (in line with 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances), and Ecuador claimed that Colombia isolated its obligations under international law by causing ‘damage to human health, property, and environment’. Ecuador instituted proceedings against Columbia in April 2008 and seeked indemnities, but in September 2013 the ICJ announced that the case had been consensually discontinued (settled out of court).
- During the 1960s it was recognised that a reactionary to GEP was insufficient to address threats to the environment.
- Under the guidance of the UN, the first international conferences to focus on GEP was organised for Stockholm in 1972.
- Since then, a mega-conference about GEP has been held every decade.
1972 Stockholm Conference
This conference, which also led to the formation of the UNEP, aimed to consider a common outlook and principles for environmental preservation.
It was the first gathering to consider the natural environment, human needs, and economic development holistically.
The Stockholm Declaration was produced, providing the impetus for sustainability becoming the focus of GEP.
Declarations have no binding legal effect, but have undeniable moral force and provide practical guidance with regards to state behaviour.
Key themes of the Stockholm Declaration include:
States have a responsibility to manage their environment and are accountable to their
All people have a right to an adequate environment
There is a need for intergenerational equity
There is a need for international cooperation
The Stockholm Conference produced nothing concrete, but resulted in the formation of the UNEP, which has been moderately successful.
Stockholm’s real success was in laying the foundation for all subsequent international environmental law, introducing the concept of ESD and non-binding guidelines open for interpretation.
Nairobi Conference 1982
- This was to mark the 10th anniversary of the Stockholm Conference and reaffirm commitment into the Stockholm Declaration and Action Plan.
- It didn’t generate worldwide interest due to political tensions between US and USSR, along with Kenya’s internal difficulties - thus not considered an official Earth Summit.
- The Nairobi Declaration urged environmental action.
Rio Conference 1992
- Formally called the UN Conference on Environment and Development (UNCED) and was held in Rio de Janeiro.
- It was hoped to produce several binding agreements, but the perspectives of 180 states of NGOs proved for a difficult arrival at consensuses.
- Rio produced a framework for domestic and international law aimed at GEP, with five key agreements coming out of it, including the UN Framework Convention on Climate Change, the Rio Declaration, and Agenda 21.
- The Rio Declaration contains 27 principles for sustainable environmental use.
- Agenda 21 is a comprehensive voluntary action plan to help all levels of government to work towards sustainable development.
- It covers resource management, equitability, global resource management, and increasing the input of disadvantaged groups.
- The main achievement of Agenda 21 is that it placed pressure on states to implement ESD.
Johannesburg Conference 2002
- The aim of the 2002 Earth Summit in Johannesburg was to put guidelines and frameworks established in previous conferences into practice.
- It focused on establishing timelines and enforcement mechanisms, and state sovereignty was the biggest obstacle. The main theme was ‘Building Partnerships for Sustainable Development’.
- Its most notable achievements were:
- Setting a target to reduce proportion of people without access to safe drinking water by half by 2015, and obtaining commitments from US, EU, Asian Development Bank, etc
- Commitments and funding for sustainable energy programs in developing countries
- Increased ratification of environmental agreements including the Kyoto Protocol - Thailand, India, Canada, and Russia announced their intention to ratify or that they had ratified Kyoto.
- However, overall the conference was unsuccessful as not all of the commitments were sufficiently firm (e.g. no specific aims were set for one of the key aims: diversification of energy sources).
Rio +20 Conference 2012
- This summit was never going to achieve as much as its 1992 predecessor, 20 years later extinction rates remain high, marine and land ecosystems are being destroyed, carbon emissions are increasing and unsustainable use of natural resources continues unabated.
- The outcomes document provides only a superficial statement about the need for action but lacks any real commitment initiatives, being almost unanimously condemned by NGOs. Additionally, a plan to protect the high seas was blocked by the US, Nicaragua, Canada, and Russia and there was an ineffective replacement put in.
- One promising development from Rio +20 was the push towards the green economy involving a range of public-private partnerships.
- However, while the promotion of a green economy is commendable, the lack of will by individual nations and even groups like the G20 to take action limits its effectiveness.
- The objective here was to achieve a legally binding and universal agreement on climate change from all nations in the world.
- The UN Climate Change Conference in December 2015 adopted a historic accord for a new treaty to commence in 2020, aiming to limit global warming to below 2 C with an aspirational target of 1.5 C.
- It was formally adopted by 195 countries, the first universal climate deal aims to see fossil fuels gradually phased out and the growth of renewable energy.
- The agreement doesn’t mandate specific measures or targets, but instead instigates a legally binding five-yearly global stocktake combined with a review mechanism to assess each country’s performance.
- It acknowledges developing countries in having different responsibilities with regards to reducing emissions.
- While the accord was historic, the real challenge will be to exercise their sovereignty to implement the required domestic changes to reduce emissions while at the same time making energy affordable for their citizens.
- The EU developed an Environment section for implementing environmental policies for the 28 states now in the EU, also including an EU Sustainable Development Strategy that took effect in 2006.
- The Organisation for Economic Cooperation and Development (OECD) focuses on economic growth, employment, and living standards for member states but still recognises the need for the environment to be recognised.
- The rise of institutions that focus on economic matters recognising environmental frameworks shows that the world has changed.
- NGOs put pressure on governments to take into account environmental considerations, using action and advocacy.
- Examples of environmental NGOs are:
- World Wide Fund for Nature (WWF)
- Friends of the Earth (FOE)
- They research, publicise, and educate about environmental issues and aren’t subject to international law.
- However some have been recognised by governments, notably in Agenda 21.
- Some NGOs have observer status at the UN and they are often consulted for their views when international law on the environment is being drafted.
- Observer status is where in the UNGA, an organisation or other entity has been granted the right to speak at UNGA meetings, participate in procedural votes, and sponsor and sign resolutions, but not to vote on resolutions and other important matters.
Foundational Principles of International Environmental Law
- Primarily treaty based; relative recent addition to international law.
- There are eight such principles that have commanded wide acceptance and have been expressed in environmental treaties;
- The Principle of sovereignty and responsibility: states possess permanent sovereignty over their natural resources but have a responsibility to ensure that they do not cause transboundary damage.
- The Principle of preventative action: a ssociated with a duty to avoid or minimise appreciable environmental harm to other states or global commons areas through the implementation of preventative measures.
- The Principle of cooperation: an extension of the general principle of good neighbourliness to environmental matters.
- The Precautionary Principle/Approach
- The Principle of sustainable development: an overarching principle requiring states “to reconcile economic development with protection of the environment”
- The Polluter-Pays Principle: dictating that the costs of pollution should be borneby polluters.
- The Principle of Equity: both between generations (inter-generational equity) and within the present generation (intra-generational equity) as regard use of natural resources and enjoyment of an environment of a reasonable standard.
- The Principle of common but differentiated responsibility: another equitable principle playing special responsibility on developed countries in the pursuit of sustainable development.
- Linked to the UNFCCC, the Kyoto Protocol commits its PArties by setting internationally binding emission reduction targets. It was adopted in 1997 and came into force in 2005.
- Currently there are 192 parties. China and India and 98 other developing countries are exempt from the treaty.
- In 2017, China and USA had the largest fossil fuel emissions, however USA pulled out of the protocol in 2001.
- In 2011, Canada pulled out of he protocol indicating that their goals are unworkable because the USA and China are the largest emitters, yet aren’t parties to the agreement.
- At first the 37 industrialised countries committed to reduce GHG emissions to an average of five percent against 1990 levels. During the second commitment period, Partie committed to reduce GHG emissions by at least 18 percent below 1990 levels in the eight-year period from 2013 to 2020.
- Overall deemed a failure and replaced by the Paris Agreement.
The Ozone Layer
- Ozone is a naturally occurring molecule made up of three oxygen atoms
- About 90% of ozone in the atmosphere is concentrated between 15 km and 30 km above the earth’s surface (stratosphere ozone).
- The O.L is like a sunscreen which covers the planet and protect life on earth by absorbing harmful (UV-B) radiation from the sun.
- The hole in the ozone layer was first recognised as a global issue in 1978
- Ozone depleting substances are destroying ozone in the stratosphere and thinning the earth’s ozone layer
- Chlorofluorocarbons, a class of chemical compounds that are able to break the bonds between ozone molecules, were identified as the main culprit
- The only long-term solution to ozone depletion was to phase out the se of ozone depleting substances such as CFCs and HCFCs
- Agreement was reached in 1985 by 130 states and came into force in 1988.
- The objectives of the Convention were for parties to promote cooperation by observations, research and information exchange on the effects of human activities on the ozone layer and to adopt legislative or administrative measures against activities likely to have adverse effects on the ozone layer.
- The Vienna Convention did not require countries to take concrete actions to control ozone depleting substances.
- The accompanying Montreal Protocol came into force in 1989 and set out legally binding reduction targets for states.
- The Protocol is the only UN treaty to be ratified by all 197 UN member states
- A management plan for phasing out CFCs was introduced
- Amendments have been made to further strengthen the Protocol, by adding more chemicals to those covered by the Protocol and setting binding targets for countries to phase out or phase-down covered chemicals including phase down of HFCs in 2019. PG 38
- The Multilateral Fund, created under the Montreal Protocol, provides financial assistance to developing countries to help them achieve their phase out obligations.
- Evaluation: classic example of what can be achieved through global cooperation. Parties to the protocol have phased out 98% of ODS globally compared to 1990 levels.
- Since most of these substances are potent greenhouse gases, the Montreal Protocol is also contributing to protection of the global climate system.
- Responsible for less than 1 percent of emissions of ozone depleting substances, however still a strong supporter of the ozone regime.
- Ratification of the Vienna Convention and the Montreal Protocol and domestic implementation through the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth)
- There is also an Ozone Protection and Synthetic Greenhouse Gas Program.
- At COP 21 (UN Climate Change Conference) in PAris, on December 2015, Parties to the UNFCCC, reached a landmark agreement to combat climate change and to accelerate the actions. The agreement came into force in 2016 and commences in 2020 with 195 parties.
- The agreement requires all Parties to make ‘nationally determined contributions’. This includes requirements that all Parties report regularly on their emissions and on their implementation efforts.
- The aim is to keep a global temperature rise this century below 2 degrees Celsius with an aspirational target of 1.5 degrees Celsius.
- There is an agreement to deliver a minimum of $11 billion a year to help poorer countries to cope with the impacts of climate change.
Persistent Organic Pollutants
Persistent Organic Pollutants (POPs) are organic chemical substances.
They possess physical and chemical properties that remain intact for exceptionally long periods of time, become widely distributed throughout the environment as a result of natural processes involving soil, water and air, accumulate in the fatty tissue of living organisms including humans and are toxic to both humans and wildlife.
Human exposure - increased cancer risk, reproductive disorders, alteration of the immune system and increased birth defects
Biodiversity - abnormalities or decline detected in a number of wildlife species, including certain kinds of fish, birds and mammals.
People can be exposed to POPs through contaminated foods, exposure routes include drinking contaminated water and direct contact with the chemicals.
They can originate from pesticides, industrial chemicals, unintentional production, etc.