6
Introduction.
International Law is a branch of law that encompasses different areas.
It can address topics such as the cooperation among States, in order to enhance
commerce or political activities, as well as other emerging issues that need to be
faced under an over-state ruling.
In the last Century, mainly due to the rapid technological as well as the economic
and political progress, International Law found itself frequently requested to find
out solution to new and emerging issues, related to goods of life never taken in
consideration before.
The Environment certainly falls into this category, as a good of particular
importance, subject to an extreme exploitation by the humankind and likely close
to a destruction process in absence of protection measures.
As it has been said: “It is widely recognized that the planet faces serious
environmental challenges that can only be addressed through international
cooperation. Acid rain, ozone depletion, climate change, loss of biodiversity, toxic
and hazardous products and wastes, pollution of rivers and depletion of freshwaters
resources. These are amongst the issues that international law is being called upon
to address and 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 contributing to the emergence
of international environmental law are easily identified: environmental issues are
accompanied by a recognition that ecological interdependence does not respect
national boundaries and that issues previously considered to be matters of domestic
concern have international implications, that frequently can only be addressed by
international law and regulation”.
1
1
P.SANDS and J.PEEL, Principles of International Environmental Law, 2012, p.3.
7
Therefore, at a starting point, the main issue to focus on, relating environmental
problems was the so called: “transboundary consequences of air pollution”.
Various litigations and disputes on the matter arose, in the first Fifties of the last
Century, linked to the respect of bilateral agreements (e.g., Convention of Ottawa,
1935) finding resolution by means of arbitral tribunal decisions
2
, but they seemed
to remain limited to the States which signed the regulation, without taking a wider
and international shape.
Only some years later, as it has been said above, it was possible to trace a proper
evolution of international bodies of norms concerning the environment, norms
confirmed to be part of the international ground as the International Court of justice
said in 1996
3
.
This evolution lasted almost half of a century and concerned the passage from a
perspective based on the respect of the State’s own sovereignty to a much more
global perspective. Indeed, moving from the assumption that the environment as
such has to be seen as a universal good to be protected and not only as a State own
property to be saved, the problems of the environment protection overcame the
respect of boundaries. Thus, it started to include the risky consequences that a
hazardous action could provoke in the atmosphere itself, in the future generations
and in the so-called “global commons”, areas not falling under the jurisdiction of
any State
4
2
“Trail Smelter Case”, U.S. vs Canada, International Arbitration, 1938-1941
3
International Court of Justice Report, 1996
4
R.JENNINGS and A.WATTS, Oppenheim’s International Law, 1992, pp.650-61
8
The concept of Environment.
Before tracing a chronological as well as juridical development of the topic, it is
fundamental to figure out a common definition of the meaning of the
“Environment” concept under the law’s categories and under the international law
as such.
Environment does not have a generally accepted usage as a term of art under
international law. The political process transforms the scientific definitions into
the legal definitions found in treaties and those ones reflect scientific
categorisations and groupings, leading to environmental issues split into
compartments like the atmosphere, deposition, soils and sediments, water quality,
biology and humans
5
.
The approaches to defining the environment do nevertheless vary. They have seen
an evolution within the international juridical instruments over the matter. Early
treaties, indeed, tended to refer to “flora and fauna” rather than environment
6
. One
can find examples of this type of nomination in the early Whaling Conventions
7
,
where the signers States still tried to restrict the scope of the Regulations’
application.
Some years later, differently, article XX paragraphs b and g of the General
Agreement on Tariffs and Trade (GATT) referred not to environment but to
“human, animal or planet life or health and to the conservation of exhaustible
natural resources
8
”.
Under the same perspective, one of the most important international instrument
that signed the passage toward a conception of International Environmental Law
(IEL), the Stockholm Declaration of 1972, did not define the environment as
5
UNEP, Environmental Data Report, 1992, 3
6
Convention between France and Great Britain Relative to Fisheries, Art. XI, Paris, 1867, related to the
protection of oysters by prohibiting fishing outside certain dates.
7
Convention for the Regulation of Whaling, Geneva, 1931, 155 LNTS 351.
8
30 October 1947, 55 UNTS 194, GATT.
9
whole. In Principle 2 of the mentioned declaration, one can read a reference to the
“natural resources of the Earth as including air, water, land, flora, fauna and natural
ecosystems
9
.
Other broad and various definitions can be found in further both binding and non-
binding international instruments, as the “World Charter for Nature” of 1982, the
1992 “Watercourses Convention”, where the object of protection is always
identified in a specific way: human health and safety, flora, fauna, soil, air, water,
climate, landscape etc.
10
.
In this almost unclear scenario, the 1992 UN Conference on Environment and
Development (UNCED), one of the most important conferences held by the UN
institutions under the task of IEL, provided an opportunity for the international
community to prioritise environmental issues and consolidate a vast patchwork of
international legal commitments
11
. UNCED agreed that environmental priorities
were divided into two categories: those relating to the protection of various
environmental media and those relating to the regulation of particular activities or
products
12
.
The first category identified the following priorities:
- Protection of the atmosphere by combating climate change, ozone depletion and
ground-level and transboundary air pollution;
- Protection of land resources;
- Halting deforestation;
- Conservation of biological diversity;
- Protection of freshwater resources;
- Protection of oceans, seas, and marine living resources
13
.
9
Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972, UNEP.
10
1997 Watercourses Convention, Art. 1(2).
11
ICJ Reports, 1996, pp.226-242.
12
UN Conference on Environment and Development, UNCED, Rio de Janeiro, 1992: The Earth Summit.
13
P.SANDS and J.PEEL, Principles of International Environmental Law, Cambridge, 2012, pp.4-5.
10
The second category of major issues identified the products of human
technological and industrial innovation, which require international regulation due
to their particular dangerousness for the environment. These include:
- Biotechnology;
- Toxic chemicals, including their international trade;
- Agricultural practices;
- Hazardous wastes, including their international trade;
- Solid wastes and sewage-related issues;
- Radioactive wastes
14
.
Once the object of protection is defined, it is opportune to analyse briefly the
process of evolution of the IEL, its remedies and means of protection and, above
all, its principles, with their growth, their recognized status and their application.
The development of an International Environmental Law (IEL).
Modern international environmental law can be traced in the international legal
developments that took place in the second half of the nineteenth century. Even
though the current form and structure emerged in the 1980s, it has its roots in the
period immediately following the WWII and, from this point, one can say that IEL
has seen four distinct periods of evolution
15
, of whom the fourth has only very
recently started to put its base. This concerns the fact that issues of international
environmental law have become a regular subject of international adjudication and
that international courts have begun to contribute to the definition and application
of the subject
16
. Notwithstanding, it is useful to trace the evolution of the legal
environmental concern in its main periods of development.
14
P.SANDS and J.PEEL, Principles of International Environmental Law, Cambridge, 2012, pp.4-5.
15
D.BODANSKY, the Art and Craft of International Environmental Law, Harvard, 2010, Chapt.2.
16
P.SANDS and J.PEEL, Ibid.
11
A first period began with bilateral fisheries treaties in the nineteenth century and
concluded with the creation of the new international organizations in 1945. During
this period, the nations started to understand that development and industrialisation
required limitations on the exploitation of natural resources (referred as flora and
fauna until this point) and the adoption of legal international instrument to stem
this risks
17
.
The second period started with the birth of the United Nations and ended with the
UN Stockholm Conference on the Human Environment of 1972. Although the UN
Charter did not include provisions on environmental protection, but only the
“achievement of international co-operation in solving international problems of an
economic, social, cultural or humanitarian character
18
”, this provision has
represented the base for the setting out of different agencies whose goal, among
others, was the protection of environment and natural resources. In this example,
one can consider agencies as the FAO, UNESCO, the GATT, the International
Union for Conservation of Nature, known as IUCN (former IUPN) and the
important Convention of 1949 named ad UNCCUR (United Nations Conference
on the Conservation and Utilisation of Resources)
19
. During this phase, the
environmental protection aimed to become more concrete, through the creation of
this range of international organisations with competence in environmental matters
and the adoption of legal instruments, which aimed to face particular types of
pollution such as oil pollution, nuclear testing, wetlands, freshwaters and the
dumping of wastes in the seas
20
. The importance of the Stockholm Conference was
represented by the adoption of a “Declaration of Principles for the Preservation
and Enhancement of the Human Environment”, which included 26 Principles
whose aim was to stimulate public awareness of environmental issue and provide
17
L.K.CALDWELL, << International Environmental Policy: from the Twentieth to the Twenty-First
Century>>, in Indiana Journal of Global Legal Studies, 1998, pp. 761 ss.
18
UN Charter, San Francisco, 26 June 1945, 1 UNTS xvi, art.1 par.3.
19
L.K.CALDWELL, << International Environmental Policy: from the Twentieth to the Twenty-First
Century>>, in Indiana Journal of Global Legal Studies, 1998, pp. 761 ss.
20
P.SANDS and J.PEEL, Principles of International Environmental Law, Cambridge, 2012, p.23-27.
12
guidelines for future governmental and intergovernmental action
21
. This can be
considered the first time when, at intergovernmental level, specific and in some
sense mandatory principles were adopted in order to “effectively control, prevent,
reduce and eliminate adverse environmental effects resulting from activities
conducted in all spheres, in such a way that due account is taken of the sovereignty
and interests of all states
22
”. Along with the mentioned Declaration, the Stockholm
Conference had the merit to give birth to one of the current principal international
non-state actor in environmental law: the UN agency called United Nations
Environment Programme (UNEP). It also had the merit to enunciate the well-
known Principle 21, relating transboundary damages, which affirmed the
“responsibility of States to ensure that activities within their jurisdiction or control
do not cause damage in another State or beyond national jurisdiction, such as in
outer space or on the high seas”
23
The third period, perhaps the most productive and effective, ran from the 1972
Stockholm Conference and concluded with the UN Conference on Environment
and Development (UNCED) in June 1992. During this period, the UN, now
principal actor ruling in the international field of the environmental area, tried to
put in place a system for co-ordinating responses to international environmental
issues. Regional and global conventions were adopted as a result of a complex
interplay between governments, non-state actors and international organisations
24
.
Treaties established new environmental norms, imposed obligations from acts of
those organizations and new techniques for implementing environmental standards
arose: such as the “environmental impact assessment” and the “access to
information”. Problems were addressed both at regional and international level.
21
L.K.CALDWELL, Ibid.
22
Declaration of Principles for the Preservation and Enhancement of the Human Environment, Stockholm,
1972, Principle 24.
23
P.SANDS and J.PEEL, Principles of International Environmental Law, Cambridge, 2012, pp. 32-33.
24
P.SANDS and J.PEEL, Principles of International Environmental Law, Cambridge, 2012, pp.34-45.
13
Thanks to the UNEP operate in 1978 was signed the “Regional Seas
Programme
25
”. Following that step, still in 1978 UNEP was next to lead into an
important non-binding principles formulation, but eventually this so-called
“UNEP draft Principles” was never submitted to the General Assembly
26
.
Furthermore, under these international organisations, in the Eighties, which can be
considered the years of establishment of a worldwide-recognized International
Environmental Law, various programmes and charters were signed. One of these
was the “Montevideo Programme of 1981
27
; another was the “World Chart for
Nature” of the 1982, a non-binding instrument
28
. A third example of these
measures occurred in 1991: “Caring for the Earth Strategy” prepared by IUCN,
UNEP, WWF and UNESCO, which gave currency to the term “sustainable
development” through strengthening of existing international agreements,
concluding new international agreements to achieve global sustainability and
preparing an Universal Declaration and Covenant on Sustainability
29
. Within this
wide scenario of subsequent acts, the UNCED Convention and the adopted Rio
Declaration of 1992 took a primary role. Indeed, in December 1989, the UN
General Assembly adopted the Resolution number 44/228 which convened a “UN
Conference in Environment and Development” for June 1992 in Rio de Janeiro.
The goal of the conference was to “elaborate strategies and measures to halt and
reverse the effects of environmental degradation in the context of strengthened
national and international efforts to promote sustainable and environmentally
sound development in all the countries”
30
. UNCED contribution to international
law includes the “Commission on Sustainable Development”, the endorsement of
a new topic area known as the “international law of sustainable development” and
25
L.M.ALEXANDER, << Regional Arrangements in the Oceans >>, American Journal of International Law,
1977, p.84.
26
UNEP Governing Council Decision 6/14, 1978.
27
Report UNEP, Add.2, Chapter II, 1981.
28
L.K.CALDWELL, << International Environmental Policy: from the Twentieth to the Twenty-First
Century>>, in Indiana Journal of Global Legal Studies, 1998, pp. 761 ss.
29
IUCN, UNEP and WWF, Caring for the Earth: A Strategy for Sustainable Living, 1991.
30
United Nations General Assembly (UNGA) Resolution n. 44/228, para.3.
14
a number of the Rio Declaration Principles which formed an international
framework known as “Agenda 21”
31
.
As an important remark, the Rio Declaration reaffirmed the principle contained in
Principle 21 of the Stockholm Declaration, with an addition. As amended, indeed,
Principle 2 of the Rio Declaration provided that: “States have, in accordance with
the Charter of the United Nations and the Principles of international law, the
sovereign right to exploit their own resources pursuant to their own environmental
and developmental policies. They also have 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 national jurisdiction
32
”.
In this new formulation of the Principle 21 of the Stockholm Declaration, made
in this Principle 2 of the Rio Declaration, many have seen a “skilfully masked step
backwards”. As a matter of fact, the addition of the words “and developmental
policies” reflect the central core of the UNCED conference and the Rio
Declaration: the search for a balance between the environmental protection and the
development process, two aspects that need to be considered together as mutual
faces of the same medal
33
. In order to reach this goal, the Rio Declaration enounced
general principles of the international law of sustainable development. A big
number of these, although being non-binding guidelines, was used in the following
years by international courts as a way to inhibit or refrain actions against the
environment taken by States or other actors
34
. As it has been remarkably noticed
(P. SANDS), some provisions of the Rio Declaration, although non-binding,
reflect rules of customary law, other reflect emerging rules and yet others provide
guidance for future legal developments. Among these fundamental Principles, the
most important as well as used ones can be found in the three Principles numbered
31
P.SANDS and J.PEEL, Principles of International Environmental Law, Cambridge, 2012, pg. 42-45.
32
Rio de Janeiro Declaration, UNCED Council, 1992, Principle 2.
33
M.PALLEMAERTS, << International Environmental Law, from Stockholm to Rio: back to the future? >>,
Review of European Community & International Environmental Law, 1992, pg. 256.
34
P.SANDS and K.PEEL, Principle of International Environmental Law, Cambridge, 2012, p.44.
15
as 15, 16 and 17. The last two represent the “Polluter Pays” principle and the
“Environmental Impact Evaluation”, two measures that, respectively, oblige the
actor to pay for the environmental damages provoked by his action or to take the
more precise evaluation of the environmental impact before to start a potentially
dangerous activity
35
.
The first of the three mentioned represents instead the definition of the
“Precautionary Principle”. The formulation contained in article 15 of the Rio
Declaration is not the first appearance of the principle on the international ground;
its first coming out, in fact, it was first used in the 1987 Conference on the
Protection of the North Sea
36
. Nonetheless, scholars generally consider the
inclusion in art.15 as the first episode that transformed the principle into an
“essential concept to international environmental policy” (FREESTONE, 1994).
Indeed, since its first appearances, it had been always used as an approach whom
with address specific problem connected to likely risky situation
37
. An approach
that, at the time of the UNCED Convention and the Rio Declaration, was already
known at national and regional level, used in various administrative decision-
making processes
38
.
Beside the article 15 of the Declaration, the Principle is mentioned in the other
main instrument, which came up from the UNCED Conference of 1992: the so-
called Agenda 21. In its Chapter 17, we can find a referral to the Precautionary
Principle formulated in that way: “A precautionary and anticipatory rather than a
reactive approach is necessary to prevent the degradation of the marine
environment. This requires, inter alia, the adoption of precautionary measures,
environmental impact assessments, clean production techniques, recycling, wastes
35
United Nations, Rio Declaration on Environment and Development, Principles 15-16-17.
36
“Accepting that in order to protect the North Sea from possibly damaging effects of the most dangerous
substances, a precautionary approach is necessary which may require action to control inputs of such
substances even before a causal link has been established by absolutely clear scientific evidence”. Second
North Sea Conference, 1987.
37
C.CASALONE, <<Principio di Precauzione>>, Aggiornamenti Sociali, 658-659.
38
S.ATAPATTU, <<Recent books on International Law>>, The American Journal of International Law, 1016-
1017.
16
audits and minimization, construction and/or improvement of sewage treatment
facilities, quality management criteria for handling of hazardous substances, and a
comprehensive approach to damaging impact from air, land and water
39
”.
The primary role that Rio Declaration gave to the Precautionary Principle and its
former use made by the single states (and by other regional organizations)
underline its importance in the international scenario. Besides that, its inclusion in
following other international instrument, as well as the numerous court decision
who recalled the principle at the base of their statements, make clear and evident
the vast and vague legal framework surrounding the Precautionary Principle,
whose nature, implication and legal status need a deeper and scientific analysis.
This analysis serves the scope to understand the effective weight, the central role
and the relation with the sources system that the Precautionary Principle (PP) plays
within the International Environmental Law.
39
Agenda 21, UNCED, Chapter 17.
Ricevi informazioni sui nostri servizi, sulle offerte e non perdere news e consigli su università e lavoro.
