The publicity surrounding the UN Conference on Environment and Development (UNCED), which took place in Rio de Janeiro in June 1992, confirmed the central place that global environmental concerns over issues such as global warming and loss of biological diversity have on the world political agenda. In fact, in the twenty years between the 1972 Stockholm Conference on the Human Environment and the 1992 UNCED there has been not only a major increase in awareness of the threats to the environment from human activities on both a local and global scale, but also a massive increase in the number of international legal instruments governing environmental issues. (There are large numbers of collections of environmental treaties: see, e.g., Burhenne 1974a, 1974b,1974c; Hohmann 1992; Molitor 1991. For a contemporary qualitative assessment see Sand 1992.)
It will be recalled that the two main sources of international law (as defined by the 1945 Statute of the International Court of Justice) are international conventions and international customary law (Article 38(1) of the Statute). International customary law derives from state practice repeated over time in the belief that it represents legal obligation. Although it is possible for new rules of custom to emerge relatively swiftly, the speed with which awareness of global environmental problems has reached the international political agenda has meant that customary law has tended to take second place to treaty or conventional law in the evolution of legal norms. Although certain basic principles, such as the equitable utilization of shared resources (Lac Lanoux Arbitration 1957) or the obligation not to allow activities which damage the environment of neighbouring states (Trail Smelter Arbitration 1939, 1941) can be attributed to judicial decisions derived from customary law, treaties have without doubt been the main method by which the international community has responded to the need to regulate activities which threaten the environment. Another important aspect of international environmental regulation is the development of “soft law”: non-binding instruments which lay down guidelines or desiderata for future action, or through which states commit themselves politically to meeting certain objectives. These soft law instruments sometimes develop into formal legal instruments or become linked to binding instruments as, for example, through decisions of the parties to a Convention. (On the significance of soft law in relation to international environmental law see Freestone 1994.) Many of the collections of international environmental law documents cited above include soft law instruments.
This article will give a brief overview of the main international environmental conventions. Although such a review inevitably concentrates on the main global conventions, the significant and growing web of regional and bilateral agreements should also be borne in mind. (For a systematic exposition of the whole body of international environmental law, see Kiss and Shelton 1991; Birnie and Boyle 1992. See also Churchill and Freestone 1991.)
Prior to the 1972 Stockholm Conference the majority of environmental conventions related to the conservation of wildlife. Of historical interest only are the very early bird protection conventions (e.g., the 1902 Convention for the Protection of Birds Useful to Agriculture; see further Lyster 1985). More significant in the longer term are the general nature conservation conventions, although the 1946 Washington Convention for the Regulation of Whaling (and its 1956 Protocol) is particularly noteworthy in this period—over time it has of course changed its focus from exploitation to conservation. A pioneering convention in conservation terms was the 1968 African Convention on Conservation of Nature and Natural Resources, Algiers, which despite its comprehensive and innovative approach to conservation made the mistake of many other conventions in not establishing an administrative structure to oversee its supervision. Also notable and considerably more successful is the 1971 Ramsar Convention on Wetlands of International Importance, especially as Waterfowl Habitat, which establishes a network of protected wetland areas in the territories of member states.
Other noteworthy developments in this period are the first global Oil Pollution Conventions. The 1954 International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) (amended 1962 and 1969) broke new ground by developing a regulatory framework for the carriage of oil by sea, but the first conventions to provide for emergency action and for compensation for oil pollution damage were developed directly in response to the world’s first major oil-tanker casualty—the wreck of the Liberian oil tanker Torrey Canyon off the coast of southwest England in 1967. The 1969 International Convention relating to Intervention on the High Seas in cases of Oil Pollution Damage authorized emergency action by coastal states outside territorial waters, and its fellows, the 1969 International Convention on Civil Liability for Oil Pollution Damage and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of Brussels, provided a basis for compensation claims against the owners and operators of oil tankers supplemented by an international compensation fund. (Note also the significant industry voluntary compensation schemes such as TOVALOP and CRISTAL; see further Abecassis and Jarashow 1985.)
From Stockholm to Rio
The years 1972 to 1992 witnessed an astonishing increase in the number and variety of international environmental law instruments. Much of this activity is directly attributable to the Stockholm Conference. Not only did the famous Conference Declaration (Declaration of the United Nations Conference on the Human Environment 1972) lay down certain principles, the majority of which were de lege ferenda (i.e., they stated what the law ought to be rather than what it was), but it also developed a 109-point Environmental Action Plan and a Resolution recommending institutional and financial implementation by the UN. The result of these recommendations was the establishment of the United Nations Environment Programme (UNEP), established by UN General Assembly Resolution (UNGA 1972) and based eventually in Nairobi. UNEP was directly responsible for the sponsoring of a number of key global environmental treaties and for the development of the important Regional Seas Programme, which has resulted in a network of some eight regional framework conventions protecting the marine environment, each with protocols developed to meet the special requirements of the region. A number of new regional programmes are still in the pipeline.
In order to provide an overview of the large number of environmental conventions developed during this period, they are divided into a number of groups: nature conservation; protection of the marine environment; and regulation of transboundary environmental impacts.
Conservation of nature and natural resources
This period saw the conclusion of a number of nature conservation treaties both at a global and regional level. At the global level, particularly noteworthy are the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, the 1973 Washington Convention on International Trade in Endangered Species (CITES) and the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals. At a regional level the large number of treaties include the 1974 Nordic Convention on the Protection of the Environment, the 1976 Convention on Conservation of Nature in the South Pacific (Apia Convention, in Burhenne 1974a) and the 1979 Berne Convention on the Conservation of European Wildlife and Natural Habitats (European Treaty Series). Note also the 1979 EC Directive 79/409 on the conservation of wild birds (OJ 1979), now amended and supplemented by Directive 92/43 on the conservation of natural habitats and of wild flora and fauna (OJ 1992), the 1979 Convention for the Conservation and Management of the Vicuna and the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources (reproduced in Kiss and Shelton 1991). (Also of note are the treaties relating to the Antarctic—an area of global commons outside the jurisdiction of any state: the 1980 Canberra Convention on the Conservation of Antarctic Marine Living Resources, the 1988 Wellington Convention on the Regulation of Antarctic Mineral Resource Activities and the 1991 Protocol to the Antarctic Treaty on Environmental Protection, signed in Madrid.)
Protection of the marine environment
In 1973 the negotiations began of the Third UN Conference on the Law of the Sea (UNCLOS III). The nine years of UNCLOS negotiations culminated in the 1982 Montego Bay Convention on the Law of the Sea (LOSC), which included in its Part XII a general framework for the regulation of marine environmental issues including vessel and land-based sources of pollution and dumping, as well as laying down certain general duties regarding protection of the marine environment.
At a more detailed level, the International Maritime Organization (IMO) was responsible for the development of two major global conventions: the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and the 1973 International Convention for the Prevention of Pollution from Ships, as amended in 1978 (MARPOL 1973/78), and a third relating to oil spills entitled the International Convention on Oil Pollution Preparedness, Response and Cooperation in 1990, establishes a global legal framework for collaboration and assistance in response to major oil spills. (Other Maritime Conventions which are not primarily environmental but are of relevance include the 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREG); the 1974 International Convention for the Safety of Life at Sea (SOLAS); the 1976 ILO Merchant Shipping (Minimum Standards) Convention (No. 147) and the 1978 Convention on Standards of Training, Certification and Watch Keeping for Sea Farers).
The 1972 London Convention adopted what has now become a common approach by listing substances (Annex I) which could not be dumped in the ocean; Annex II listed substances which could be dumped only with a permit. The regulatory structure, which requires signatory states to enforce these obligations against any vessels loading in their ports or their flag vessels anywhere in the world, has progressively tightened its regime to the extent that parties have now effectively ended the ocean dumping of industrial waste. The 1973/78 MARPOL Convention replaces the 1954 OILPOL Convention (above) and provides the main regulatory regime for pollution from vessels of all sorts, including oil tankers. MARPOL requires flag states to impose controls on the “operational discharges” of all controlled substances. The MARPOL regime was amended in 1978 so that it would progressively extend its regime over different forms of vessel sources pollution contained in the five Annexes. All the Annexes are now in force covering oil (Annex I), noxious liquid substances (Annex II), packaged waste (Annex III), sewage (Annex IV) and garbage (Annex V). Stricter standards are enforced within Special Areas agreed by the Parties.
At a regional level, the UNEP Regional Seas Programme provides a wide, although not comprehensive, network of marine protection treaties covering: the Mediterranean (Convention for the Protection of the Mediterranean Sea against Pollution, Barcelona, 16 February, 1976; protocols in 1976 (2), 1980 and 1982); Gulf (Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution, Kuwait, 24 April 1978; protocols in 1978, 1989 and 1990); West Africa (Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (Abidjan, 23 March 1981), with a 1981 protocol); South East Pacific (Convention for the Protection of the Marine Environment and Coastal Areas of the South-East Pacific (Lima, 12 November 1981); protocols in 1981, 1983 (2) and 1989); Red Sea (Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (Jeddah, 14 February 1982); protocol in 1982); Caribbean (Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, (Cartagena des Indias, 24 March 1983); protocols in 1983 and 1990); East Africa (Convention for the Protection, Management and Development of the Marine and Coastal Environment of the East African Region (Nairobi, 21 June 1985); 2 protocols in 1985); and the South Pacific (Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, (Noumea, 24 November 1986); 2 protocols in 1986)—with another six or so in various stages of planning. (For texts of all the above Conventions and their protocols, as well as details of developing programmes, see Sand 1987.) These treaties are supplemented by protocols covering a wide range of issues including regulation of land-based sources of pollution, ocean dumping, pollution from (and decommissioning of) off-shore oil rigs, specially protected areas and protection of wildlife.
Other regional regimes have been developed outside the UNEP framework, notably in the North East Atlantic, where a highly comprehensive network of regional instruments covers regulation of ocean dumping (1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft; protocols in 1983 and 1989), land-based sources of pollution (1974 Paris Convention for the Prevention of Marine Pollution from Land Based Sources; protocol in 1986), oil pollution monitoring and cooperation (1983 Bonn Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil and other Harmful Substances: Amending Decision 1989), inspection of vessels for safety and protection of the marine environment (1982 Paris Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment, as well as nature conservation and fisheries. (See generally Freestone and IJlstra 1991. Note also the new 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic, which will replace the Oslo and Paris Conventions; text and analysis in Hey, IJlstra and Nollkaemper 1993.) In the Baltic the 1974 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area has recently been revised (for text and analysis of 1992 Convention see Ehlers 1993)), and a new Convention developed for the Black Sea Region (1992 Bucharest Convention on the Protection of the Black Sea; see also 1993 Odessa Ministerial Declaration on the Protection of the Black Sea.)
Principle 21 of the Stockholm Declaration provided that States had “the responsibility to ensure that activities under their jurisdiction and control do not cause damage to the environment of other States or of areas beyond national jurisdiction”. Although this principle is now widely regarded as having become part of customary international law, the principle grosso modo requires considerable fine tuning to provide the basis for regulation of such activities. Addressing these issues, and largely in response to well publicized crises, international conventions have been developed to address issues such as long-range transboundary air pollution, protection of the ozone layer, notification and cooperation in response to nuclear accidents, transboundary movement of hazardous waste and global climate change.
Long-range transboundary air pollution
Long-range air pollution in Europe was first addressed by the 1979 Geneva Convention (Convention on Long-Range Transboundary Air Pollution). This, however, was a framework convention whose modestly expressed aims were “to limit and, as far as possible, gradually to reduce and prevent air pollution including long range transboundary pollution”. Substantive progress in regulating emissions of specific substances was made only with the development of the protocols, of which there are now four: the 1984 Geneva Protocol (Geneva Protocol on Long-term Financing of the Co-operative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollution in Europe) established a network of air quality monitoring stations; the 1985 Helsinki Protocol (on the Reduction of Sulphur Emissions) aimed to reduce sulphur emissions by 30% by 1993; the 1988 Sofia Protocol (Concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes), now replaced by the Second Sulphur Protocol, Oslo, 1994, provided for a freeze on national emissions of nitrogen oxides at 1987 levels by 1994; and the 1991 Geneva Protocol (Concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes) provided a range of options for emission abatement of volatile organic compounds and fluxes.
Transboundary implications of nuclear accidents
World attention had been brought to the transboundary implications of nuclear accidents after the 1986 Chernobyl accident, but even prior to that, previous conventions had addressed a number of the issues relating to the risks from nuclear devices, including the 1961 Convention on Third Party Liability in the Field of Nuclear Energy (1960), and the Vienna Convention on Civil Liability for Nuclear Damage (1963). Note also the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water. The 1980 Vienna Convention on the Physical Protection of Nuclear Material had attempted to establish standards for the protection of nuclear material from a number of threats, including terrorism. In the wake of Chernobyl two further conventions were agreed upon in 1986, on early notification of accidents (Vienna Convention on the Early Notification of a Nuclear Accident) and international cooperation in the event of such accidents (Vienna Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency).
Protection of the ozone layer
The 1985 Vienna Convention for the Protection of the Ozone Layer imposes general obligations on each party “in accordance with the means at their disposal and their capabilities” to:
a) cooperate by means of systematic observation, research and information exchange in order to better understand and assess the effects of human activities on the ozone layer and the effects on human health and the environment from modification of the ozone layer; (b) adopt appropriate legislative or administrative measures and cooperate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer; (c) cooperate in the formulation of agreed measures, procedures and standards for the implementation of the Convention, with a view to the adoption of protocols and annexes; (d) cooperate with competent international bodies to implement effectively the Convention and protocols to which they are party.
The Vienna Convention was supplemented by the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, itself adjusted and amended by the London Meeting of 1990 and most recently by the Copenhagen Meeting of November 1992. Article 2 of the Protocol requires parties to impose controls on ozone-depleting chemicals, namely CFCs, halons, other fully halogenated CFCs, carbon tetrachloride and 1,1,1-tri-chloroethane (methyl chloroform).
Article 5 provides an exemption from emissions restrictions for certain developing countries, “to meet (Their) basic domestic needs” for up to ten years, subject to certain provisos set out in Article 5(2) (3). The Protocol also provides for technical and financial cooperation for developing country parties claiming exemption under Article 5. A Multilateral Fund was agreed upon to assist such parties to research and meet their obligations (Article 10). In Copenhagen in November 1992, in the light of the 1991 Scientific Assessment of Ozone Depletion, which found that there was new evidence of ozone decreases in both hemispheres at middle and high latitudes, a number of new measures were agreed upon, subject of course to the general regime outlined above; delays under Article 5 are still possible for developing states. All parties were required to cease using halons by 1994, and CFCs, HBFCs, carbon tetrachloride and methyl chloroform by 1996. The use of HCFCs should be frozen by 1996, reduced 90% by 2015 and eliminated by 2030. Methyl bromide, still used as a fruit and grain preservative, was subjected to voluntary controls. Contracting parties agreed to “make every effort” to freeze its use by 1995 at 1991 levels. The overall aim was to stabilize atmospheric chlorine loading by the year 2000 and then reduce it to below critical levels by about 2060.
Transboundary movement of hazardous wastes
Following a series of notorious incidents in which shipments of hazardous waste from developed countries were found in uncontrolled and hazardous conditions in developing countries, the transboundary movement of hazardous wastes was made the subject of international regulation by the 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal (see also Kummer 1992). This Convention is premised upon the principle of prior informed consent on a state to state basis before the movement of such waste can take place. The Organization of African Unity has however gone further than this with its 1991 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, which seeks to ban entirely the import of hazardous waste into Africa.
Environmental impact assessment (EIA) in a transboundary context
The 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context sets out a framework for neighbourly relations. It extends the EIA concept, developed to date exclusively in the context of national planning laws and procedures, to the transboundary impacts of development projects and related procedures and decisions.
1992 and Post-Rio Conventions
The Rio UNCED prompted, or coincided with, a large number of new global and regional environment conventions, as well as a major declaration of principles for the future in the Rio Declaration on Environment and Development. In addition to the two conventions concluded at Rio—the Framework Convention on Climate Change and the Convention on Biological Diver-sity—new environmental conventions signed in 1992 included those regulating the use of international watercourses as well as the transboundary effects of industrial accidents. At a regional level 1992 saw the Helsinki Convention on the Protection and Use of the Baltic Sea Area (text and analysis in Ehlers 1993) and the Bucharest Convention on the Protection of the Black Sea against Pollution. Note also the 1993 Ministerial Declaration on the Protection of the Black Sea, which advocates a precautionary and holistic approach, and the Paris Convention for the Protection of the Marine Environment of the North East Atlantic (text and analysis in Hey, IJlstra and Nollkaemper 1993).
The United Nations Framework Convention on Climate Change (UNFCCC)
The UNFCCC, signed at Rio de Janeiro in June 1992 by some 155 states, is loosely modelled on the 1985 Vienna Convention. As its name suggests, it provides a framework within which more detailed obligations will be negotiated by the means of detailed protocols. The basic objective of the Convention is to achieve
stabilization of greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous anthropogenic interference with the climate system ...hin a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure food production is not threatened and to enable economic development to proceed in a sustainable manner. (Article 2)
Two primary duties are imposed on all Parties by Article 4: (a) to develop, periodically update, publish and make available a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases using comparable (and yet to be agreed upon) methodologies; and (b) to formulate, implement, publish and regularly update national and regional programmes of measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases and measures to facilitate adequate adaptation to climate change. In addition developed country parties agree to a number of general obligations which will be made specific by more detailed protocols.
For example, to undertake to promote, and cooperate in, the development of technologies; to control, prevent or reduce anthropogenic emissions of greenhouse gases; to promote sustainable development and the conservation and enhancement of sinks and reservoirs including biomass, forests, oceans and other terrestrial, coastal and marine ecosystems; to cooperate in adaptation to impacts of climate change, by elaboration of plans for integrated coastal zone management, water resources and agriculture and for protection and rehabilitation of areas affected by, inter alia, floods; to promote and cooperate in the exchange of scientific, technological, socioeconomic and legal information relevant to climate, climate change and response strategies; and to promote and cooperate in relevant education, training and public awareness.
The Biological Diversity Convention
The objectives of the Convention on Biological Diversity, also approved at the 1992 UNCED in Rio de Janeiro, are to conserve biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (Article 1) (for a useful critique, see Boyle 1993). Like the UNFCCC this convention too will be supplemented by protocols, but it establishes general obligations regarding conservation and sustainable use of natural resources, for identification and monitoring of biological diversity, for in situ and ex situ conservation, research and training as well as public education and awareness and EIA of activities likely to affect biodiversity. There are also general provisions relating to access to genetic resources and access to, and transfer of, relevant technology, including biotechnology, as well as international exchange of information and cooperation.
Regulation of the use of international watercourses
The 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes seeks to establish cooperative frameworks for joint monitoring and assessment, common research and development and information exchange between riparian states. It imposes basic duties on such states to prevent control and reduce transboundary impacts on such shared resources, particularly regarding water pollution, through proper management techniques, including EIA and contingency planning as well as through the adoption of low- or non-waste technology and reduction of pollution from point and diffuse sources.
The transboundary effects of industrial accidents
The Convention on the Transboundary Effects of Industrial Accidents, also signed in Helsinki in March 1992, covers the prevention of, preparedness for and response to industrial accidents capable of having a transboundary effect. The primary obligations are to cooperate and exchange information with other parties. The detailed system of thirteen annexes establishes systems to identify hazardous activities with transboundary implications, for the development of EIA with a transboundary dimension (in accordance with the 1991 Espoo Convention, above) for decisions on siting of potentially hazardous activities. It also provides for emergency preparedness and for access to information for the public as well as the other parties.
As this brief review should have demonstrated, over the last two decades there has been a major change in the attitude of the world community to environmental conservation and management. Part of that change has been a substantial increase in the numbers and the scope of international instruments addressing environmental concerns. The sheer number of instruments has been matched by new principles and institutions. The polluter pays principle, the precautionary principle (Churchill and Freestone 1991; Freestone and Hey 1996) and concern for the rights of future generations (Kiss, in Freestone and Hey 1996) are all reflected in the international conventions reviewed above. The role of the UN Environment Programme and the treaty secretariats established to service and monitor the burgeoning number of treaty regimes lead commentators to suggest that international environmental law, like, for example, the international law of human rights, has emerged as a new discrete branch of international law (Freestone 1994). UNCED played an important role in this, it has established a major agenda—much of which remains unfinished. Detailed protocols are still needed to add substance to the framework of the Climate Change Convention and, arguably, also to the Convention on Biological Diversity. Concern with the environmental impact of fishing in high seas areas led to the conclusion of the UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks was in 1995. Also held in 1995 was another UN Conference on Land Based Sources of Marine Pollution—now agreed to be the cause of more than 70% of all pollution of the oceans. The environmental dimensions of world trade as well as deforestation and desertification are also issues to be addressed for the future at a global level while progress continues to enhance our awareness of impacts of human activities on world eco-systems. The challenge for this emerging international environmental law is not simply to respond with an increase in the numbers of environmental instruments, but also to enhance their impact and effectiveness.