CHAPTER 18

ENVIRONMENTAL PROTECTION

18.1 Introduction

The development of modern international environmental law, starting essentially in the 1960s, has been one of the most remarkable exercises in international lawmaking, comparable only to the law of human rights in the scale and form it has taken. The system which has emerged from this process is neither primitive nor wholly without effect, though equally it has many weaknesses ... It is, of course, possible to argue that other approaches to environmental management may be more desirable, and more efficacious. But to say that economic models of control and assistance have as much or more to offer than international law is merely to observe that protecting the environmental is not exclusively a problem for lawyers. Similarly, it would be naive to expect international law to remedy problems of the complexity the world’s environment now faces without an underlying political, scientific, and technical commitment on the part of states, and a corresponding response in national legal and political systems. It has not been the purpose of this book to explore the place of international law within this broader context; it will be sufficient to observe the reality that international environmental law has provided the framework for much political and scientific co-operation, for measures of economic assistance and distributive equity, fair resolution of international disputes, and for the adoption and harmonization of a great deal of national environmental law. These developments have clearly not been without considerable significance, and have laid the foundations of a new system of global environmental order.1

As Boyle and Birnie indicate, international environmental law is a comparatively new area of international law. This, of course, reflects changes in the general level of interest in protection and conservation of the environment. Although there is some early evidence of international concern with specific environmental matters2 there was no general system of international environmental regulation until well into the second half of the 20th century. The sovereign equality of states has tended to mean that states are free to act as they chose, even if this is detrimental to the environment. The sovereignty possessed by states over their own territory, however, has long been limited by the obligation not to interfere in the rights of other states. States are under a duty not to act within their own territory in such a way as to cause harm in the territory of other states. The classic example of this point is provided by the

Trail Smelter Arbitration (USA v Canada).3

The Consolidated Mining and Smelting Company owned a smelting works at Trail, which is about 10 miles north of the Canadian-United States border on the Colombia River. As a result of the smelting process a large amount of sulphur dioxide was emitted, some of which was being carried down the Columbia River valley and across the border into the state of Washington where considerable

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1Boyle and Birnie, International Law and the Environment, 1992, Oxford: Oxford University Press at p 549.

2See, for example, the 1885 Convention for the Uniform Regulation of Fishing in the Rhine and the Paris Convention for the protection of Birds Useful to Agriculture of 19 March 1902.

3(1941) 3 RIAA 1905, 1965–66 (Arbitral Tribunal).

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damage was caused. Canada and the United States agreed to refer the dispute to the International Joint Commission established by the Canadian-USA Boundary Waters Treaty 1909. In 1931 the Commission assessed the damage caused by the smelter at $350,000 and Canada agreed to pay the full amount. However, the pollution continued and the matter was referred to arbitration. Question 2 submitted to the arbitral tribunal was ‘whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future and, if so, to what extent?’ The findings of the Tribunal are of general relevance to the question of liability and responsibility for pollution.

The Tribunal ... finds that ... under the principles of international law, as well as of the law of the United States,4 no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.

The decisions of the Supreme Court of the United States which are the basis of these conclusions are decisions in equity and a solution inspired by them, together with the regime hereinafter prescribed, will, in the opinion of the Tribunal, be ‘just to all parties concerned’, as long, at least, as the present conditions in the Columbia River Valley continue to prevail.

Considering the circumstances of the case, the Tribunal holds that the Dominion of Canada is responsible in international law for the conduct of the Trail Smelter. Apart from the undertaking in the Convention, it is, therefore, the duty of the government of the Dominion of Canada to see to it that this conduct should be in conformity with the obligation of the Dominion under international law as herein determined.

The Tribunal, therefore, answers Question No 2 as follows: (2) So long as the present conditions in the Columbia River Valley prevail, the Trail Smelter shall be required to refrain from causing any damage through fumes in the state of Washington; the damage herein referred to and its extent being such as would be recoverable under the decision of the courts of the United states in suits between private individuals. The indemnity for such damage should be fixed in such manner as the governments, acting under Article XI of the Convention, should agree upon.

Since World War Two there has been a growing realisation that the world’s resources are not infinite and that the nature of industrial and agricultural practices adopted can have serious implications for future generations. The international community has come to accept that there is a need for common action to help sustain life, in all its forms, on this planet and that this need is incompatible with an absolute notion of state sovereignty.

One particular question that has been raised about international environmental law concerns the nature of the obligations imposed. Several writers have argued that the general obligation to preserve the environment constitutes a norm of jus cogens and that it is binding erga omnes. In the Nuclear Tests cases5 the International Court of Justice doubted whether rights relating to

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4The parties to the dispute had instructed the tribunal to apply the relevant law and practice of the United States as well as international law.

5[1974[ ICJ Rep at p 253.

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the high seas could be enforced as erga omnes obligations although the reasoning of the court has been criticised by some writers and conflicts with the ILC Draft Articles on State Responsibility 1980. Article 19(3)(d) provides that:

... a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas ...

constitutes an international crime and therefore is the concern of all states and not just those suffering injury. The repetition of the obligation on states to safeguard and preserve the human environment in numerous international resolutions including the declaration made at the Rio Conference on the Environment and Development 1992 would seem to support the view that the obligation is indeed now one of jus cogens. The full extent of the obligation, however, remains to be clearly enunciated.

18.2 Sources

The bulk of international environmental law is contained in multilateral treaties and the important ones will be discussed in the subsequent sections. Such treaties may be designed to apply globally, such as the Convention on LongRange Transboundary Air Pollution 1979 or may be concerned with protection of a specific region, for example the Antarctic Treaty 1959 and the Convention on Protection of the Mediterranean Sea 1976. In addition there are a number of treaties which, while not concerned exclusively with environmental matters, nevertheless contain provisions which have significance for the environment, for example the Law of the Sea Convention 1982.

Besides treaty law, there are also some important rules of customary international law affecting the environment. For example, reference has already been made to the prohibition on causing harm in or to the territory of another state. However, although states often make statements in support of environmental protection these statements are not always adhered to in practice. Furthermore it has often been difficult to prove the necessary accompanying opinio juris to be able to assert a binding rule of customary international law. Therefore, writers on international environmental law have made considerable use of the concept of soft law. It is often the case that states are unwilling to agree to legally binding obligations in particular areas of environmental protection because of the unavailability of relevant scientific information or knowledge. The concept of soft law allows there to be a statement of principle and intention and the soft law can gradually harden as scientific knowledge expands. Many of the international conventions dealing with environmental matters have been developed from broad statements of principle expressed in resolutions and declarations of the United Nations. Arguably, the declarations themselves could be considered soft law. A considerable amount of soft environmental law is to be found in the resolutions of various international organisations concerned with environmental matters such as the World Health Organisation, the International Atomic Energy Agency, the International Maritime Organisation and the Food and Agriculture Organisation.

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If international protection of environmental resources requires an increasingly high degree of adaptability and responsiveness of the legal system to rapid and frequent change, a traditional, ad hoc, treaty-based approach to international environmental standard-setting, is evidently ill suited to meet the task. The disadvantages of the classic treaty approach are obvious: the drafting, adoption, and putting into effect of treaties as well as revisions or amendments involve elaborate and time-consuming exercises in diplomacy. In the aggregate, transaction costs of this approach become unacceptably high because, as legislative international intervention will be repeatedly required to respond to an evolving international environmental problem, this approach offers simply too many opportunities to states for ‘opportunistic’ behaviour.

The need to facilitate international environmental decision-making of a less cumbersome and time-consuming nature without sacrificing at the same time on the objective of broad state adherence to adequate environmental standards, has prompted the restructuring of multilateral legislative processes: diplomatic ‘ad hocracy’ is being abandoned for institutionalised, periodic, and informal review of international regulatory regimes with simplified amendment procedures.

While there are other indications of this development in international environmental standard-setting (note, for example, the simplified amendment procedures of Article 313 of UNCLOS) it is only in the context of more recent environmental framework conventions and implementing Protocols that the trend has become conspicuous. For example, the Montreal Protocol on Substance that Deplete the Ozone Layer expressly provides for the periodic review and assessment of control measures taken and their adjustment or supplementation whenever deemed necessary ...

The resulting intrinsic flexibility or adaptability of the legislative process comes, as some might be apt to object, with a substantial price-tag. The framework-cum- implementation Protocols approach necessarily entails a significant degree of indeterminacy of the normative landscape thus being created: states tend to settle first broad policy outlines through the device of framework conventions and leave nettlesome international lawmaking within the individual environmental context as defined by the framework convention. By necessity, this approach also signals a certain open-endedness of the legislative enterprise.

More significantly still, states may leave the definition of key legal parameters regarding the scope and very nature of conventional obligations to which they contract to be settled at a later date ... international legislation under this guise is no longer a single well-defined product carried by expectations of stability for a foreseeable future. It is rather a fragile, temporary legal sign-post in an institutionalised process in which legal positions are subject to constant review and susceptible to frequent and speedy alteration ...

Some aspects of this development may be undesirable. For example, the institutional dynamics of multilateral regimes (with regard to both the setting and implementation of standards), may be such as to de-couple decision-making within the regime from traditional national processes of control and supervision. In this sense, the new type of environmental regime may signal an emerging ‘democratic deficit’. Other implications of such regimes might be merely inconvenient. However, on balance, there can be little doubt that the evolving international legislative process represents progress towards better international legal management of increasingly demanding global environmental problems.

It is against the background of the special regulationary exigencies of international environmental problems, that so-called ‘soft law’ plays an important role in the evolution of international environmental law. ‘Soft law’

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denotes international prescriptions that are deemed to lack the requisite characteristics of international legal norms proper, but which, notwithstanding this fact, are capable of producing certain effects. ‘Soft law’, of course, travels in tandem with ‘hard law’, its counterpart on the other side of the threshold of legal normativity.

There are international lawyers who harbour serious reservations about usage of the term, defining it as a ‘pathological phenomenon’ of international law; as introducing a graduated scale of normativity; as a practice that lends itself to legal pretension. The concept, so the argument goes, tends to blur the line between law and non-law, be that because merely aspirational norms are accorded ‘legal’ status, albeit of a secondary nature; be that because the effect of the usage of the term may be to undermine the status of an established legal norm.

On the other hand, ‘soft law’ can be a valuable instrument for enhancing or supplementing international law proper. In fact, frequently ‘soft law’ will capture emerging notions of international public order and thus help extend the realm of legitimate international concern to matters of previously exclusive national jurisdiction. This is especially true of the use of soft law with regard to the protection of the environment. In this sense, soft law is the thin end of the normative wedge of international environmental law, perhaps the ‘Trojan Horse of environmentalists’.

There is, of course, abundant and well-known evidence of the effectiveness of soft law declarations as catalysts in the evolution of international environmental law proper. The so-called Helsinki Rules on the Uses of Waters of International Rivers, the 1972 Stockholm Declaration on the Human Environment, or the 1982 General Assembly Resolution entitled ‘World Charter for Nature’, to name only a few, all have proved to be agents in the ‘legalisation of international environmental protection’.

In the final analysis, though, soft law concepts pose both a challenge for and an obligation on international lawyers. First, the declining reliability of formal criteria as guide-posts to what actually constitutes international law – a phenomenon that, as intimated, may be prevalent in the context of international environmental decision-making – requires an adequate theory about international law, namely as a process of communication, and thus sensitivity to those signals indicating international normativity and those that do not. Second, international environmental lawyers must heed the normative dividing line and avoid misrepresenting aspirational norms for ‘hard law’ and thereby rendering a disservice to the very cause that they purport to serve, namely the strengthening of the legal protection of the environment.’6

18.3 The Stockholm Conference

During the 1960s concern grew about the state of the human environment and manifested itself in Resolution 2398 (XXIII) which was passed by the General Assembly of the United Nations on 3 December 1968. The resolution noted that there was ‘an urgent need for intensified action at national and international level to limit and, where possible, to eliminate the impairment of the human

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6Gunther Handl, ‘Environmental Security and Global Change: The Challenge to International Law’, in Lang, Neuhold and Zemanek (eds), Environmental Protection and International Law, 1991, London: Graham and Trotman at pp 61–64.

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environment’ and convened an international conference on the human environment to be held under the auspices of the United Nations. The Conference met in June 1972 in Stockholm and was attended by 113 states.7 At the end of the conference agreement had been reached on four major areas of policy:

1an Action Plan for environmental policy was agreed consisting of 106 recommendations, including the establishment of Earthwatch, which was charged with monitoring and providing information on the state of the environment;

2an Environment Fund would be created, funded by voluntary contributions from states;8

3the establishment of the UN Environment Programme (UNEP) with a Governing Council and Secretariat. UNEP is based in Nairobi, Kenya and has adopted a number of codes of practice and recommendations, many of which could be considered soft law;

4a Declaration of principles on the human environment which would provide a focus for future binding rules of international law in a manner analogous to the Universal Declaration of Human Rights.

DECLARATION OF THE UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT – THE STOCKHOLM DECLARATION9

The United Nations Conference on the Human Environment, Having met at Stockholm from 5 to 16 June 1972,

Having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment,

I

Proclaims that:

1 Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his

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7Significant absentees from the Conference were the USSR and a number of other Easternbloc states. This was due more to the fact that West Germany had been invited whilst East Germany (excluded from membership of the United Nations at that time) was not rather than any disagreement about the general aims of the Conference. Subsequently the USSR participated fully in the work of UNEP.

8Unsurprisingly, states have proved extremely reluctant to contribute to the Fund and it has consequently not had the impact that might have been hoped in June 1972.

9UN Doc A/Conf 48/14, Stockholm, 1972; (1972) 11 ILM 1416; Report on the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972.

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environment in countless ways and on an unprecedented scale. Both aspects of man’s environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights – even the right to life itself.

2 The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all governments ...

II

Principles

States the common conviction that:

Principle 1

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.

Principle 2

The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Principle 3

The capacity of the earth to produce vital renewable resources must be maintained and, wherever practicable, restored or improved.

Principle 4

Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development.

Principle 5

The non-renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind.

Principle 6

The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of all countries against pollution should be supported.

Principle 7

States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

Principle 8

Economic and social development is essential for ensuring a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.

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Principle 9

Environmental deficiencies generated by the conditions of underdevelopment and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required.

Principle 10

For the developing countries, stability of prices and adequate earnings for primary commodities and raw materials are essential to environmental management since economic factors as well as ecological processes must be taken into account.

Principle 11

The environmental policies of all states should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by states and international organisations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.

Principle 12

Resources should be made available to preserve and improve the environment, taking into account the circumstances and particular requirements of developing countries and any costs which may emanate from their incorporating environmental safeguards into their development planning and the need for making available to them, upon their request, additional international technical and financial assistance for this purpose.

Principle 13

In order to achieve a more rational management of resources and thus to improve the environment, states should adopt an integrated and co-ordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the environment for the benefit of their population.

Principle 14

Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment.

Principle 15

Planning must be applied to human settlements and urbanisation with a view to avoiding adverse effects on the environment and obtaining maximum social, economic and environmental benefits for all. In this respect, projects which are designed for colonialist and racist domination must be abandoned.

Principle 16

Demographic policies which are without prejudice to basic human rights and which are deemed appropriate by governments concerned should be applied in those regions where the rate of population growth or excessive population concentrations are likely to have adverse effects on the environment or development, or where low population density may prevent improvement of the human environment and impede development.

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Principle 17

Appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of states with a view to enhancing environmental quality.

Principle 18

Science and technology, as part of their contribution to economic and social development, must be applied to the identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind.

Principle 19

Education in environmental matters, for the younger generation as well as adults, giving due consideration to the underprivileged, is essential in order to broaden the basis for an enlightened opinion and responsible conduct by individuals, enterprises and communities in protecting and improving the environment in its full human dimension. It is also essential that mass media of communications avoid contributing to the deterioration of the environment, but, on the contrary, disseminate information of an educational nature on the need to protect and improve the environment in order to enable man to develop in every respect.

Principle 20

Scientific research and development in the context of environmental problems, both national and multinational, must be promoted in all countries, especially the developing countries. In this connection, the free flow of up-to-date scientific information and transfer of experience must be supported and assisted, to facilitate the solution of environmental problems; environmental technologies should be made available to developing countries on terms which would encourage their wide dissemination without constituting an economic burden on the developing countries.

Principle 21

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 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 national jurisdiction.

Principle 22

States shall co-operate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction.

Principle 23

Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.

Principle 24

International matters concerning the protection and improvement of the environment should be handled in a co-operative spirit by all countries, big and

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small, on an equal footing. Co-operation through multilateral or bilateral arrangements or other appropriate means is essential 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.

Principle 25

States shall ensure that international organisations play a co-ordinated, efficient and dynamic role for the protection and improvement of the environment.

Principle 26

Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant organs, on the elimination and complete destruction of such weapons.

18.4 The environment and development

Although concern about the environment was growing, during the 1960s the priority at the United Nations was economic development. The resolution on Permanent Sovereignty over Natural Resources10 adopted in 1962 made no reference to conservation of resources or other environmental concerns and during the 1960s there were few voices in support of linking economic development issues to the environment. In fact, among developing states there was a significant number of people who viewed environmental concern with suspicion fearing that measures taken to protect and conserve the environment were simply a Western capitalist plot to prevent Third World development. Patricia Birnie identifies the preparations for the Stockholm Conference as marking a change in attitudes:

A catalytic event, facilitating the success of UNCHE, was the convening of a meeting at Founex, Switzerland, in 1971, to consider a study (instigated by the UNCHE Prepcom) on environment and development. The study group brought together representatives of international development agencies and governments, including economists, bankers, planners, social scientists, and ecologists. Its conclusion that ‘the kind of environmental problems that are of importance in developing countries are those that can be overcome by the process of development itself’ reassured developing countries, which were wavering in their support for the conference. Twenty-five guidelines were laid down aimed at protecting their interests. This articulation of the symbiosis of environment and development was thus from the beginning central to the UN’s work in the environmental field.11

The Stockholm Declaration acknowledged the link between the protection and improvement of the human environment and economic development although the emphasis of the Charter of Economic Rights and Duties of States,12 adopted two years after the Stockholm Conference, was on optimum use of resources and full economic development with limited acknowledgment of environmental

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10GA Resolution 1803 (XVIII) of 14 December 1962.

11Patricia Birnie, ‘The UN and the Environment’ in Roberts and Kingsbury (eds), United Nations Divided World, 2nd edn, 1993, Oxford: Oxford University Press at p 338.

12GA Resolution 3202 (XXIX) of 1 May 1974.

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concerns. It was not until 1983 that the link between environment and development started to attain practical significance. In that year the World Commission on Environment and Development (WCED) was created as a consequence of General Assembly Resolution 38/161 adopted at the 38th session of the UN in December 1983. That resolution called upon the Secretary General to appoint the Chairman and Vice Chairman of the Commission and in turn directed them jointly to appoint the remaining members, at least half of whom were to be selected from the developing world. The Secretary General appointed Mrs Brundtland, then leader of the Norwegian Labour Party, as Chairman and Dr Mansour Khalid, the former minister of Foreign Affairs from Sudan, as Vice Chairman. The WCED functioned as an independent body and its members served the Commission in their individual capacities not as state representatives. Its brief was to investigate the major environmental and development problems that faced the world and to formulate realistic proposals for their solution. The WCED reported back to the 42nd session of the General Assembly in the autumn of 1987. In her forward to the report Mrs Brundtland wrote:

The environment does not exist as a sphere separate from human actions, ambitions, and needs, and attempts to defend it in isolation from human concerns have given the very word ‘environment’ a connotation of naiveté in some political circles. The word ‘development’ has also been narrowed by some into a very limited focus, along the lines of ‘what poor nations should do to become richer’, and thus again is automatically dismissed by many in the international arena as being a concern of specialists, of those involved in questions of ‘development’ assistance.

But the ‘environment’ is where we all live; and ‘development’ is what we all do in attempting to improve our lot within that abode. The two are inseparable.13

The report itself acknowledged the important role that international law needed to play in protecting the environment:

The international legal framework must also be significantly strengthened in support of sustainable development. Although international law related to environment has evolved rapidly since the 1972 Stockholm Conference, major gaps and deficiencies must still be overcome as part of the transition to sustainable development. Much of the evidence and conclusions presented in earlier chapters of this report calls into question not just the desirability but even the feasibility of maintaining an international system that cannot prevent one or several states from damaging the ecological basis for development and even the prospects for survival of any other or even all other states.14

National and international law has traditionally lagged behind events. Today, legal regimes are being rapidly outdistanced by the accelerating pace and expanding scale of impacts on the environmental base of development. Human laws must be reformulated to keep human activities in harmony with the unchanging and universal laws of nature. There is an urgent need:

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13Our Common Future, Report of the World Commission on Environment and Development, 1987, Oxford: Oxford University Press at p xi.

14Our Common Future, Report of the World Commission on Environment and Development, 1987, Oxford: Oxford University Press at pp 312–13.

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•to recognise and respect the reciprocal rights and responsibilities of individuals and states regarding sustainable development;

•to establish and apply new norms for state and inter-state behaviour to achieve sustainable development;

•to strengthen and extend the application of existing laws and international agreements in support of sustainable development; and

•to reinforce existing methods and develop new procedures for avoiding and resolving environmental disputes.15

To assist it in its work the Commission had established a group of international legal experts chaired by Robert Munro of Canada. The WCED recommended to the General Assembly that it commit itself to preparing a universal declaration on environmental protection and sustainable development which could subsequently form the basis for an international convention. As a starting point for discussion the Commission submitted a number of legal principles prepared by the group of legal experts.

I GENERAL PRINCIPLES, RIGHTS, AND RESPONSIBILITIES

Fundamental human right

1All human beings have the fundamental right to an environment adequate for their health and well-being.

Inter-generational equity

2States shall conserve and use the environment and natural resources for the benefit of present and future generations.

Conservation and sustainable use

3States shall maintain ecosystems and ecological processes essential for the functioning of the biosphere, shall preserve biological diversity, and shall observe the principles of optimum sustainable yield ion the use of living natural resources and ecosystems.

Environmental standards and monitoring

4States shall establish adequate environmental protection standards and monitor changes in and publish relevant data on environmental quality and resource use.

Prior environmental assessments

5States shall make or require prior environmental assessments of proposed activities which may significantly affect the environment or use of a natural resource.

Prior notification, access, and due process

6States shall inform in a timely manner all persons likely to be significantly affected by a planned activity and grant them equal access and due process in administrative and judicial proceedings.

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15Our Common Future, Report of the World Commission on Environment and Development, 1987, Oxford: Oxford University Press at p 330.

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Sustainable development and assistance

7States shall ensure that conservation is treated as an integral part of the planning and implementation of development activities and provide assistance to other states, especially to developing countries, in support of environmental protection and sustainable development.

General obligation to co-operate

8States shall co-operate in good faith with other states in implementing the preceding rights and obligations.

II PRINCIPLES, RIGHTS, AND OBLIGATIONS CONCERNING TRANSBOUNDARY NATURAL RESOURCES AND ENVIRONMENTAL INTERFERENCES

Reasonable and equitable use

9States shall use transboundary resources in a reasonable and equitable manner.

Prevention and abatement

10States shall prevent or abate any transboundary environmental interference which could cause or causes significant harm (but subject to certain exceptions provided for in Articles 11 and 12 below).

Strict liability

11States shall take all reasonable precautionary measures to limit the risk when carrying out or permitting certain dangerous but beneficial activities and shall ensure that compensation is provided should substantial transboundary harm occur even when the activities were not known to be harmful at the time they were undertaken.

Prior agreements when prevention costs greatly exceed harm

12States shall enter into negotiations with the affected state on the equitable conditions under which the activity could be carried out when planning to carry out or permit the activities causing transboundary harm which is substantial but far less than the cost of prevention. (If no agreement can be reached, see Article 22.)

Non-discrimination

13States shall apply as a minimum at least the same standards for environmental conduct and impacts regarding transboundary natural resources and environmental interferences as are applied domestically (ie, do not do to others what you would not do to your own citizens).

General obligation to co-operate on transboundary environmental problems

14States shall co-operate in good faith with other states to achieve optimal use of transboundary natural resources and effective prevention or abatement of transboundary natural resources or environmental interferences.

Exchange of information

15States of origin shall provide timely and relevant information to the other concerned states regarding transboundary natural resources or environmental interferences.

Prior assessment and notification

16States shall provide prior and timely notification and relevant information to the other concerned states and shall make or require an environmental assessment of planned activities which may have significant transboundary effects.

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Prior consultations

17States of origin shall consult at an early stage and in good faith with other concerned states regarding existing or potential transboundary interferences with their use of a natural resource or the environment.

Co-operation arrangements for environmental assessment and protection

18States shall co-operate with the concerned states in monitoring, scientific research and standard setting regarding transboundary natural resources and environmental interferences.

Emergency situations

19States shall develop contingency plans regarding emergency situations likely to cause transboundary environmental interferences and shall promptly warn, provide relevant information to and co-operate with concerned states when emergencies occur.

Equal access and treatment

20States shall grant equal access, due process and equal treatment in administrative and judicial proceedings to all person who are or may be affected by transboundary interferences with their use of a natural resource or the environment.

IIISTATE RESPONSIBILITY

21States shall cease activities which breach an international obligation regarding the environment and provide compensation for the harm caused.

IV PEACEFUL SETTLEMENT OF DISPUTES

22States shall settle environmental disputes by peaceful means. If mutual agreement on a solution or on other dispute settlement arrangements is not reached within 18 months, the dispute shall be submitted to conciliation and ,

if unresolved, thereafter to arbitration or judicial settlement at the request of any of the concerned states.16

The immediate aim of establishing a universal declaration of economic rights was not realised but the recommendations of the WCED did have an impact on a number of specialised and regional environmental measures. The WCED Report also led directly to the General Assembly’s decision to convene a UN Conference on Environment and Development (UNCED).

18.5 The 1992 Earth Summit

In June 1992 176 states met in Rio de Janeiro for the United Nations Conference on Environment and Development. The preparatory debates for the Conference revealed that there was still considerable dispute as to where the emphasis was

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16Summary of proposed Legal Principles for Environmental Protection and Sustainable Development Adopted by the WCED Experts on Environmental Law reproduced in Annex 1 of Our Common Future, Oxford University Press, 1987. The full Report of an Experts Group on Environmental Law was published separately as Munro and Lammers, Environmental Protection and Sustainable Development, London, 1987.

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to be put: on environment or on development. Although the Conference had as its backdrop the ending of the Cold War, the recent successful international action against Iraq and President Bush’s calls for the establishment of a new international order, the divisions between North and South on environmental and developmental issues were still very much apparent. Nonetheless, the Conference succeeded in producing five major documents:

1Agenda 21 which is a 800-page document setting out an action plan for managing the various sectors of the environment in the 21st century;

2the Climate Change Convention;

3the Biological Diversity Convention;

4a non-binding Statement of Consensus on Forest Principles; and

5a Declaration on Environment and Development.

The Rio Declaration was adopted by consensus of those 176 states attending the Conference and, although not formally binding, is of major legal significance and can be seen as an example of soft law. In the preamble to the Declaration the Conference reaffirmed the Stockholm Declaration and expressed the desire to build upon it.

THE RIO DECLARATION ON ENVIRONMENT

AND DEVELOPMENT17

Principle 1

Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.

Principle 2

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, 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 national jurisdiction.

Principle 3

The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

Principle 4

In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

Principle 5

All states and all people shall co-operate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world.

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17 UN Doc A/CONF 151/5/Rev 1, 13 June 1992, reprinted at (1992) 31 ILM 874.

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Principle 6

The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.

Principle 7

States shall co-operate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

Principle 8

To achieve sustainable development and a higher quality of life for all people, states should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies.

Principle 9

States should co-operate to strengthen endogenous capacity-building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies.

Principle 10

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Principle 11

States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.

Principle 12

States should co-operate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.

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Principle 13

States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.

Principle 14

States should effectively co-operate to discourage or prevent the relocation and transfer to other states of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.

Principle 15

In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

Principle 16

National authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

Principle 17

Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

Principle 18

States shall immediately notify other states of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those states. Every effort shall be made by the international community to help states so afflicted.

Principle 19

States shall provide prior and timely notification and relevant information to potentially affected states on activities that may have a significant adverse transboundary environmental effect and shall consult with those states at an early stage and in good faith.

Principle 20

Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.

Principle 21

The creativity, ideas and courage of the youth of the world should be mobilised to forge a global partnership in order to achieve sustainable development and ensure a better future for all.

Principle 22

Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support

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their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

Principle 23

The environment and natural resources of people under oppression, domination and occupation shall be protected.

Principle 24

Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and co-operate in its further development, as necessary.18

Principle 25

Peace, development and environmental protection are interdependent and indivisible.

Principle 26

States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations.

Principle 27

States and people shall co-operate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.

Subsequently the United Nations established the Commission on Sustainable Development19 as a commission of ECOSOC. Its primary role is to monitor, review and consider progress in the implementation of international environmental policy and law. The following year, in acknowledgement of the seriousness attached now to environmental matters, the International Court of Justice established a ‘Chamber of the Court for Environmental Matters’ under the provisions of Article 26 of the Statute of the ICJ. The Constitution of a Chamber of the Court for Environmental Matters provides:

... in view of the developments in the field of environmental law and protection which have taken place in the last few years, and considering that it should be prepared to the fullest possible extent to deal with any environmental case falling within its jurisdiction, the Court has now deemed it appropriate to establish a seven-member Chamber for Environmental Matters.20

18.6 General principles

It should already be clear that it is not possible to maintain an absolute notion of territorial sovereignty. The freedom of states to act is necessarily constrained by the duty to have regard to the rights of other states and the environment in general. The principle of ‘good neighbourliness’ is a feature of international law.

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18The need for this principle was demonstrated by the recent Gulf Conflict. During their retreat from Kuwait in the spring of 1991 Iraqi forces set fire to 700 oil wells. In the nine months it took to bring the fires under control, a huge amount of hazardous gases was released into the atmosphere.

19See UN General Assembly Resolution 47/191 (1992).

20ICJ Communiqué No 93/20 of 19 July 1993. The usual chamber consists of three judges.

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In the sphere of environmental law this extremely general principle has been developed further and a number of more specific governing principles can be identified.

18.6.1 The duty to prevent, reduce and control environmental harm

Reference has already been made to the Trail Smelter Arbitration21 in which the tribunal made it clear that states are under a duty not to use or permit the use of their territory in such a manner as to cause injury in or to the territory of another state. Similarly in the Corfu Channel case the International Court made reference to ‘every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states’.22 Principle 21 of the Stockholm Declaration, while affirming the sovereign right of states to exploit their own resources, re-affirms the duty incumbent on states ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or to areas beyond the limits of national jurisdiction’. A number of states made clear at the Stockholm Conference that they felt Principle 21 to be declaratory of existing customary international law. Its use in numerous conventions, declarations and resolutions since then only strengthens the view that it is indeed a rule of international law.

It should be noted that the principle involves more than the need to make reparation for damage caused. States are under a duty to prevent future harm occurring. This duty is often expressed as the need for states to exercise ‘due diligence’. In deciding whether due diligence has been exercised it is legitimate to take into account a state’s resources and capabilities, the effectiveness of territorial control and the nature of the specific activities under consideration. The more inherently dangerous the activity undertaken, the greater the amount of diligence required. Of course, such a formulation does not clearly provide what specific action is required of a state and there have been attempts to provide a more detailed minimum standard of care. Alternatively, a number of conventions have used the formulation of ‘best available technology’ or ‘best practicable means’.23 Increasingly, reference is made to the ‘precautionary principle’ according to which states have a duty undertake assessment of the likely consequences for the environment of planned activities and to take preventive measures where appropriate. However, the principle should be used with care:

Despite its attractions, the great variety of interpretations given to the precautionary principle, and the novel and far-reaching effects of some applications, suggest that it is not yet a principle of international law. Difficult questions concerning the point at which it becomes applicable to any given activity remain unanswered and seriously undermine its normative character and practical utility, although support for it does indicate a policy of greater prudence on the part of those states willing to accept it.24

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21(1941) 3 RIAA 1905.

22[1949] ICJ Rep 4 at p 22.

23See, for example, Article 194(1) Law of the Sea Convention 1982; Article 4(3) Convention for the Prevention of Marine Pollution from Land Based Sources 1974.

24Boyle and Birnie, International Law and the Environment, 1992, Oxford: Oxford Unitersity Press at p 98.

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18.6.2 Consultation, co-operation and communication

An increasingly common provision in international conventions on the environment requires states to co-operate with other states likely to suffer environmental risks from proposed activities. In the Lac Lanoux Arbitration25 Spain complained that France had violated a treaty by diverting a river which flowed through the territory of both states. Although the tribunal found no treaty violation it affirmed the requirement of prior notice and consultation:

... a state which is liable to suffer repercussions from work undertaken by a neighbouring state is the sole judge of its interests and if the neighbouring state has not taken the initiative the other state cannot be denied the right to insist on notification of works or concessions which are the object of a scheme.26

The tribunal made clear that consultations between the two states must be genuine and conducted in good faith.

Principle 24 of the Stockholm Declaration re-affirms the need for cooperation and the duty to notify and consult has been repeated in a number of conventions and draft conventions dealing with shared natural resources.27 It is generally accepted that states are under a duty to give timely notification to states at risk following environmental accidents and emergencies. Thus it can be seen that while states are under a duty to prevent accidents, should an accident or emergency occur they have a continuing obligation to minimise its effects.

18.6.3 The polluter pays principle

A guiding principle that has found growing support in various measures taken to prevent pollution is that the polluter pays. The principle was endorsed by the OECD states in 1972 and adopted by the First Environmental Action Programme 1973 of the European Union. Article 25 of the Single European Act 1986 provides that action taken by the EU relating to the environment shall be based on the principles ‘that environmental damage should as a priority be rectified at source and that the polluter should pay’. The principle was again endorsed, this time by the Conference on Security and Co-operation in Europe, in 1990. For long it was argued that the principle was only supported by the industrial states but Principle 16 of the Declaration on Environment and Development 1992 calls for national authorities to endeavour to internalise environmental costs by making the polluter ‘in principle’ bear the cost of pollution.

18.7 Pollution

Although the Trail Smelter Arbitration28 illustrates that the discharge of toxic or other harmful substances in such a way as to cause harm on or to neighbouring

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25Spain v France (1957) 24 ILR 101.

26(1957) 24 LIR at p 138.

27Most notably in the ILC’s Draft Articles on the Non-Navigational Uses of International watercourses, 1994 which are widely accepted as being generally declaratory on customary international law. See also the Convention on Transboundary Air Pollution 1979.

28(1941) 3 RIAA 1905.

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states would give rise to international liability, until the 1970s there was no real attempt to control pollution in other situations. The urgent need for action to be taken in respect of pollution was acknowledged by states at the Stockholm Conference in 1972.29 After the conference UNEP, along with other concerned organisations, began investigating more specific measures that could be adopted to control pollution. One difficulty that was encountered early on was how best to define the level of pollution that would give rise to international responsibility. In 1974 the OECD adopted a definition of pollution that referred to:

... the introduction by man, directly or indirectly, of substances or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems, and impair or interfere with amenities and other legitimate uses of the environment.

This definition was subsequently included in Article 1 of the Convention on Long-Range Transboundary Air Pollution 1979 and has been used in a number of other conventions. The definition has two main implications. First, the term is confined to introduction of substances or energy by man into the environment and thus, over-use of resources, however harmful it might be, will not in itself constitute pollution. Secondly, the issue is raised of how harmful pollution needs to be before it will give rise to liability. Many conventions refer to harmful or deleterious effects, not just to property, but also to living resources and ecosystems. It would appear that some injury is necessary to establish responsibility subject to de minimis principles. Often the question of degree of harm is linked to the need to act with due diligence. Very often the allocation of responsibility will involve a balancing exercise between the harm caused and the practicable, available means to prevent such harm.

18.7.1 Atmospheric pollution

The municipal laws of industrialised states have long shown a concern with air pollution and have endeavoured to minimise the emission of noxious or other harmful gases. Unfortunately one of the methods often used to reduce the risk to the local population is to ensure that emissions are sent high into the atmosphere to disperse. It gradually came to be recognised that such actions did not irradiate the pollution but merely postponed and transferred the harmful effects. Today the major source of air pollution is the burning of fossil fuels in the course of energy production. Advances in scientific knowledge have meant that it has become more possible to track the spread of gases such as sulphur dioxide and nitrogen oxide to be able to establish both the source of the pollution and the location of its harmful effects. During the 1980s there was growing concern about the phenomena of acid rain, caused by the reaction of sulphur and nitrogen with water vapour in the air, and global warming. In addition the discovery was made that the ozone layer, which protects the earth from the sun’s ultraviolet radiation, was being damaged by the release of high levels of chlorine-based substances.

One aspect of the law relating to air pollution has been the question of sovereign rights to air space (discussed in Chapter 12). It is accepted that for the

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29 See in particular Principles 6 and 7 of the Stockholm Declaration.

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purposes of control of pollution the transient physical characteristics of the atmosphere must be recognised. As a result there has been a tendency to treat the atmosphere as a shared resource for the purposes of pollution and other environmental protection. This approach was adopted by the Geneva Convention on Long-Range Transboundary Air Pollution 1979 which governs issues of air pollution within Europe and North America. The convention is largely an expression of broad principles and the parties agree to ‘endeavour to limit’ and gradually reduce air pollution. The important provisions relate to information exchange and the need to give notification of significant risks.

CONVENTION ON LONG-RANGE

TRANSBOUNDARY AIR POLLUTION30

Definitions

Article 1

For the purposes of the present Convention:

(a)‘air pollution’ means the introduction by man, directly or indirectly, of substances or energy into the air resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment, and ‘air pollutants’ shall be construed accordingly;

(b)‘long-range transboundary air pollution’ means air pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one state and which has adverse effects in the area under the jurisdiction of another state at such a distance that it is not generally possible to distinguish the contribution of individual emission sources of groups of sources.

Fundamental principles

Article 2

The Contracting Parties, taking due account of the facts and problems involved, are determined to protect man and his environment against air pollution and shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution, including long-range transboundary air pollution.

Article 3

The Contracting Parties, within the framework or the present Convention, shall by means of exchanges of information, consultation, research and monitoring, develop without undue delay policies and strategies which shall serve as a means of combating the discharge of air pollutants, taking into account efforts already made at national and international levels.

Article 4

The Contracting Parties shall exchange information on and review their policies, scientific activities and technical measures which may have adverse effects,

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30Done at Geneva, 13 November 1979, entered into force 16 March 1983 – reproduced in (1979) 18 ILM 1442.

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thereby contributing to the reduction of air pollution including long-range transboundary air pollution.

Article 5

Consultations shall be held, upon request, at an early stage between, on the one hand, Contracting Parties which are actually affected by or exposed to a significant risk of long-range transboundary air pollution and, on the other hand, Contracting Parties within which and subject to whose jurisdiction a significant contribution to long-range transboundary air pollution originates, in connection with activities carried on or contemplated therein.

Air quality management

Article 6

Taking into account Articles 2–5, the ongoing research, exchange of information and monitoring and the results therefor, the cost and effectiveness of local and other remedies and, in order to combat air pollution, in particular that originating from new or rebuilt installations, each Contracting Party undertakes to develop the best policies and strategies including air quality management systems and, as part of them, control measures compatible with balanced development, in particular by using the best available technology which is economically feasible and lowand non-waste technology.

Research and development

Article 7

The Contracting Parties, as appropriate to their needs, shall initiate and cooperate in the conduct of research into and/or development of:

(a)existing and proposed technologies for reducing emissions of sulphur compounds and other major air pollutants, including technical and economic feasibility, and environmental consequences;

(b)instrumentation and other techniques for monitoring and measuring emission rates and ambient concentrations of air pollutants;

(c)improved models for a better understanding of the transmission of longrange transboundary air pollutants;

(d)the effects of sulphur compounds and other major air pollutants on human health and the environment, including agriculture, forestry, materials, aquatic and other natural ecosystems and visibility, with a view to establishing a scientific basis for dose/effect relationships designed to protect the environment;

(e)the economic, social and environmental assessment of alternative measures for attaining environmental objectives including the reduction of long-range transboundary air pollution;

(f)education and training programmes related to the environmental aspects of pollution by sulphur compounds and other major air pollutants.

Exchange of information31

Article 8

The Contracting Parties, within the framework of the Executive Body referred to in Article 10 and bilaterally, shall, in their common interests, exchange available information on:

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31Provisions relating to exchange of information and publicity are increasingly common in treaties concerned with environmental issues. Adverse publicity and informed lobbying by the general public are seen as major sanctions against pollution.

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(a)data on emissions at periods of time to be agreed upon, of agreed air pollutants, starting with sulphur dioxide, coming from grid-units of agreed size; or on the fluxes of agreed air pollutants, starting with sulphur dioxide, across national borders, at distances and at periods of time to be agreed upon;

(b)major changes in national policies and in general industrial development, and their potential impact, which would be likely to cause significant changes in long-range transboundary air pollution;

(c)control technologies for reducing air pollution relevant to long-range transboundary air pollution;

(d)the projected cost of the emission control of sulphur compounds and other major air pollutants on a national scale;

(e)meteorological and physico-chemical data relating to the processes during emission;

(f)physico-chemical and biological data relating to the effects of long-range transboundary air pollution and the extent of damage which these data indicate can be attributed to long-range transboundary air pollution;

(g)national, subregional and regional policies and strategies for the control of sulphur compounds and other major air pollutants.

Implementation and further development of the co-operative programme for the monitoring and evaluation of the long-range transmission of air pollutants in Europe

Article 9

The Contracting Parties stress the need for the implementation of the existing ‘Co-operative programme for the monitoring and evaluation of the long-range transmission of air pollutants in Europe’ (hereinafter referred to as EMEP) and, with regard to the further development of this programme, agree to emphasise:

(a)the desirability of Contracting Parties joining in and fully implementing EMEP which, as a first step, is based on the monitoring of sulphur dioxide and related substances;

(b)the need to use comparable or standardised procedures for monitoring whenever possible;

(c)the desirability of basing the monitoring programme on the framework of both national and international programmes. The establishment of monitoring stations and the collection of data shall be carried out under the national jurisdiction of the country in which the monitoring stations are located;

(d)the desirability of establishing a framework for a co-operative environmental monitoring programme, based on and taking into account present and future national, subregional, regional and other international programmes;

(e)the need to exchange data on emissions at periods of time to be agreed upon, of agreed air pollutants, starting with sulphur dioxide coming from gridunits of agreed size; or on the fluxes of agreed air pollutants, starting with sulphur dioxide, across national borders, at distances and at periods of time to be agreed upon. The method, including the model, used to determine the fluxes, as well as the method, including the model, used to determine the transmission of air pollutants based on the emissions per grid-unit, shall be made available and periodically reviewed, in order to improve the methods and the models;

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(f)their willingness to continue the exchange and periodic updating of national data on total emissions of agreed air pollutants, starting with sulphur dioxide;

(g)the need to provide meteorological and physico-chemical data relating to processes during transmission;

(h)the need to monitor chemical components in other media such as water, soil and vegetation, as well as a similar monitoring programme to record effects on health and environment;

(i)the desirability of extending the national EMEP networks to make them operational for control and surveillance purposes.

Executive body

Article 10

1The representatives of the Contracting Parties shall, within the framework of the Senior Advisors to ECE Governments on Environmental Problems, constitute the Executive Body of the present Convention, and shall meet at least annually in that capacity.

2The Executive Body shall:

(a)review the implementation of the present Convention;

(b)establish, as appropriate, working groups to consider matters related to the implementation and development of the present Convention and to this end to prepare appropriate studies and other documentation and to submit recommendations to be considered by the Executive Body;

(c)fulfil such other functions as may be appropriate under the provisions of the present Convention.

3The Executive Body shall utilise the Steering Body for the EMEP to play an integral part in the operation of the present Convention, in particular with regard to data collection and scientific co-operation.

4The Executive Body, in discharging its functions, shall, when it deems appropriate, also make use of information from other relevant international organisations.

Secretariat

Article 11

The Executive Secretary of the Economic Commission for Europe shall carry out, for the Executive Body, the following secretariat functions:

(a)to convene and prepare the meetings of the Executive Body;

(b)to transmit to the Contracting Parties reports and other information received in accordance with the provisions of the present Convention;

(c)to discharge the functions assigned by the Executive Body.

Amendments to the Convention

Article 12

1 Any Contracting Party may propose amendments to the present Convention.

The text of proposed amendments shall be submitted in writing to the Executive Secretary of the Economic Commission for Europe, who shall communicate them to all Contracting Parties. The Executive Body shall discuss proposed amendments at its next annual meeting provided that such proposals have been circulated by the Executive Secretary of the Economic Commission for Europe to the Contracting Parties at least 90 days in advance.

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3 An amendment to the present Convention shall be adopted by consensus of the representatives of the Contracting Parties, and shall enter into force for the Contracting Parties which have accepted it on the 90th day after the date on which two-thirds of the Contracting Parties have deposited their instruments of acceptance with the depositary. Thereafter, the amendment shall enter into force for any other Contracting Party on the 90th day after the date on which that Contracting Party deposits its instrument of acceptance of the amendment.

Settlement of disputes

Article 13

If a dispute arises between two or more Contracting Parties to the present Convention as to the interpretation or application of the Convention, they shall seek a solution by negotiation or by any other method of dispute settlement acceptable to the parties to the dispute.

Another major treaty dealing with atmospheric matters is the Vienna Convention for the Protection of the Ozone Layer 198532 which was largely the work of UNEP. The convention is supplemented by the Montreal Protocol on Substances that Deplete the Ozone Layer 198733 which sets targets for the gradual elimination of CFCs and other substances that have a deleterious effect on the ozone layer.34

VIENNA CONVENTION FOR THE PROTECTION

OF THE OZONE LAYER35

Article 1 Definitions

For the purposes of this Convention:

1‘The ozone layer’ means the layer of atmospheric ozone above the planetary boundary layer.

2‘Adverse effects’ means changes in the physical environment or biota, including changes in the climate, which have significant deleterious effects on human health or on the composition, resilience and productivity of natural and managed ecosystems, or on materials useful to mankind.

3‘Alternative technologies or equipment’ means technologies or equipment the use of which makes it possible to reduce or effectively eliminate emissions of substances which have or are likely to have adverse effects on the ozone layer.

4‘Alternative substances’ means substances which reduce, eliminate or avoid adverse effects on the ozone layer.

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32Done at Vienna, 22 March 1985. Entered into force, 22 September 1988 – reprinted in (1987) 26 ILM 1529.

33Done at Montreal, 16 September 1987. Entered into force 1 January 1989. Reproduced in (1987) 26 ILM 1550.

34The international law relating to protection of the ozone layer provides a useful illustration of an increasingly popular form of law making and development. The original Convention is drafted in broad terms and essentially exists to provide a framework which can be filled in subsequently as and when more detailed agreement becomes possible.

35Done at Vienna, 22 March 1985. Entered into force, 22 September 1988 – reprinted in (1987) 26 ILM 1529.

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5‘Parties’ means, unless the text otherwise indicates, parties to this Convention.

6‘Regional economic integration organisation’ means an organisation constituted by sovereign states of a given region which has competence in respect of matters governed by this Convention or its Protocols and has been duly authorised, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to the instruments concerned.

7‘Protocols’ means Protocols to this Convention.

Article 2 General Obligations

1The parties shall take appropriate measures in accordance with the provisions of this Convention and of those Protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.

2To this end the parties shall, in accordance with the means at their disposal and their capabilities:

(a)Co-operate by means of systematic observations, 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 co-operate in harmonising 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)Co-operate in the formulation of agreed measures, procedures and standards for the implementation of this Convention, with a view to the adoption of Protocols and annexes.

(d)Co-operate with competent international bodies to implement effectively this Convention and Protocols to which they are a party.

3The provisions of this Convention shall in no way affect the right of parties to adopt, in accordance with international law, domestic measures additional to those referred to in paras 1 and 2 above, nor shall they affect additional domestic measures already taken by a party, provided that those measures are not incompatible with their obligations under this Convention.

4The application of this article shall be based on relevant scientific and technical considerations.

In some ways linked to the question of depletion of the ozone layer is the issue of climatic change and in particular, global warming and the so-called greenhouse effect. Partly because of the limitations of universally accepted scientific knowledge in the area and also because of the strong economic interests that are connected with practices which are alleged to affect the climate adversely, it has proved difficult to obtain agreement on rules relating to climatic change. However, at the Rio Conference in 1992 the Convention on Global Climate Change 1992 was adopted. The Convention, which entered into force in March 1994, has been criticised for not going far enough to protect the global climate but it is at least a start from which further refinements may follow.

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UNITED NATIONS FRAMEWORK CONVENTION

ON CLIMATE CHANGE36

Article 1

For the purposes of this Convention:

1‘Adverse effects of climate change’ means changes in the physical environment or biota resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socio-economic systems or on human health and welfare.

2‘Climate change’ means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over considerable time periods.

3‘Climate system’ means the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions.

4‘Emissions’ means the release of greenhouse gases and/or their precursors into the atmosphere over a specified area and period of time.

5‘Greenhouse gases’ means those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infra-red radiation.

6‘Regional economic integration organisation’ means an organisation constituted by sovereign states of a given region which has competence in respect of matters governed by this Convention or its Protocols and has been duly authorised, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to the instruments concerned.

7‘Reservoir’ means a component or components of the climate system where a greenhouse gas or a precursor of a greenhouse gas is stored.

8‘Sink’ means any process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor of a greenhouse gas from the atmosphere.

9‘Source’ means any process or activity which releases a greenhouse gas, an aerosol or a precursor of a greenhouse gas into the atmosphere.

Article 2

The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

Article 3

In their actions to achieve the objective of the Convention and to implement its provisions, the parties shall be guided, inter alia, by the following:

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36Adopted by the UN Conference on Environment and Development, Rio de Janeiro, 14 June 1992.

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1The parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

2The specific needs and special circumstances of developing country parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those parties, especially developing country parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.

3The parties should take precautionary measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be costeffective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socioeconomic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out co-operatively by interested Parties.

4The parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.

5The parties should co-operate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all parties, particularly developing country parties, thus enabling them better to address the problems of climate change. Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.

18.7.2 Marine pollution

Marine pollution has long been an area of concern and as early as 1926 attempts were made to draw up an international convention to control pollution from ships.37 However, the attempts were unsuccessful and for the next 40 years little was done to regulate the situation. For example, there was little discussion of marine pollution at either UNCLOS I or UNCLOS II apart from the expression of a general obligation on states to prevent pollution of the high seas by oil and by radioactive waste.38 It was not until the late 1960s that it became clear that action needed to be taken to preserve the marine environment and reduce the level of pollution. This realisation of the need for action coincided with a rapid increase in the number of high tonnage oil tankers which posed the

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37See Boyle and Birnie, International Law and the Environment 1992, Oxford: Oxford University Press at p 251.

38Articles 24 and 25 of the Convention on the High Seas, done at Geneva, 29 April 1958.

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risk of massive environmental damage. In April 1967, the Liberian registered tanker, the Torrey Canyon, broke up off the coast of the UK spilling about 100,000 tons of crude oil into the sea. The environmental damage resulting from the spill and the high level publicity it received increased the pressure for new controls to be introduced. At the same time, it was discovered that mercury emissions from a Japanese factory were poisoning fish and it became clear that the threat to the marine environment came not just from ships. In fact, it is generally accepted that there are four main sources of marine pollution:

•shipping;

•dumping;

•sea bed activities;

•land-based pollution.

The Torrey Canyon disaster had an immediate effect on the law relating to liability for the effects of pollution. The International Convention on Civil Liability for Oil Pollution Damage 1969 (the Civil Liability Convention) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 (the Fund Convention) impose obligations on the shipowner to pay for pollution damage and the cost of any preventive measures taken. The Fund Convention establishes an International Oil Pollution Compensation Fund which will compensate victims in the event that the shipowner is not liable. The Fund is financed by a levy on oil imports. In addition to these measures two private schemes were adopted: the Tanker Owners’ Voluntary Agreement concerning Liability for Oil Pollution (TOVALOP) and the Contract regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL). These private schemes mirror the provisions of the conventions and still are of relevance to those states that are not parties to the conventions.

Aside from the question of compensation arrangements it was recognised that there was a need also for stricter controls on pollution. This was recognised at the Stockholm Conference and it was resolved that new controls would be introduced. In the same year as the conference the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters 1972 (the London Dumping Convention) was signed. Dumping is defined as the deliberate disposal of waste and the Convention prohibits the dumping of specific categories of waste. The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft 1972 (the Oslo Dumping Convention) imposes stricter rules in respect of the north-east Atlantic and the North Sea. There have since been a number of other similar regional conventions. The year after the adoption of the London and Oslo Conventions the International Convention for the Prevention of Pollution by Ships 1973 (MARPOL) was signed. Marine pollution was a major concern at UNCLOS III and the Law of the Sea Convention 1982 (LOSC) has a number of significant provisions relating to marine pollution. Most importantly LOSC gives the coastal state rights to make and enforce regulations protecting its territorial sea and the EEZ and continental shelf. More recently such regulations have been coordinated by regional agreements between neighbouring states and this can be

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particularly effective where the continental shelf and EEZs cover the major shipping lanes.

UNITED NATIONS CONVENTION ON THE LAW

OF THE SEA 198239

PART XII – PROTECTION AND PRESERVATION OF THE MARINE

ENVIRONMENT

Section 1 General Provisions

Article 192 General Obligation

States have the obligation to protect and preserve the marine environment.

Article 193 Sovereign rights of states to exploit their natural resources

States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.

Article 194 Measures to prevent, reduce and control pollution of the marine environment

1States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonise their policies in this connection.

2States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

3The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimise to the fullest possible extent:

(a)the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere by dumping;

(b)pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

(c)pollution from installations and devices used in exploration or exploitation of the natural resources of the sea bed and subsoil in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

(d)pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing

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39Adopted at Montego Bay, 10 December 1982. Entered into force 16 November 1994. Reproduced in (1982) 21 ILM at 1261.

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with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

4In taking such measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other states in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

5The measures taken in accordance with this Part shall include those necessary to protect and preserve rare and fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.

Section 2 Global and regional co-operation

Article 197 Co-operation on a global or regional basis

States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organisations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.

Article 198 Notification of imminent or actual damage

When a state becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other states it deems likely to be affected by such damage, as well as the competent international organisations.

Article 199 Contingency plans against pollution

In the cases referred to in Article 198, states in the area affected, in accordance with their capabilities, and the competent international organisations shall cooperate, to the extent possible, in eliminating the effects of pollution and preventing or minimising the damage. To this end, states shall jointly develop and promote contingency plans for responding to pollution incidents in the maritime environment.

Section 5 International rules and national legislation to prevent, reduce and control pollution of the marine environment

Article 207 Pollution from land-based sources

1States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.

2States shall take other measures as may be necessary to prevent, reduce and control such pollution.

3States shall endeavour to harmonise their policies in this connection at the appropriate regional level.

4States, acting especially through competent international organisations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing states and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

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5 Laws, regulations, measures, rules, standards and recommended practices and procedures referred to in paras 1, 2 and 4 shall include those designed to minimise, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment.

Article 208 Pollution from sea bed activities subject to national jurisdiction

1Coastal states shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with sea bed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to Articles 60 and 80.

2States shall take other measures as may be necessary to prevent, reduce and control such pollution.

3Such laws, regulations and measures shall be no less effective than international rules, standards and recommended practices and procedures.

4States shall endeavour to harmonise their policies in this connection at the appropriate regional level.

5States, acting especially through competent international organisations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment referred to in para 1. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

Article 209 Pollution from activities in the Area40

Article 210 Pollution by dumping

1States shall adopt laws and regulations to prevent, reduce and control pollution of the maritime environment by dumping.

2States shall take other measures as may be necessary to prevent, reduce and control such pollution.

3Such laws, regulations and measures shall ensure that dumping is not carried out without the permission of the competent authorities of states.

4States, acting especially through competent international organisations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

5Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal state, which has the right to permit, regulate and control such dumping after due consideration of the matter with other states which by reason of their geographical situation may be adversely affected thereby.

6National laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards.

Article 211 Pollution from vessels

1 States, acting through the competent international organisations or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels

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40 See Chapter 11.

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and promote the adoption, in the same manner, wherever appropriate, of routing systems designed to minimise the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal states. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary.

2States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.

3States which establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organisation. Whenever such requirements are established in identical form by two or more coastal states in an endeavour to harmonise policy, the communication shall indicate which states are participating in such co-operative arrangements. Every state shall require the master of a vessel flying its flag or of its registry, when navigating within the territorial sea of a state participating in such co-operative arrangements, to furnish, upon the request of that state, information as to whether it is proceeding to a state of the same region participating in such co-operative arrangements and, if so, indicate whether it complies with the port entry requirements of that state.

4Coastal states may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part XII, section 3, not hamper innocent passage of foreign vessels.

5Coastal states, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.

6 (a) Where the international rules and standards referred to in para 1 are inadequate to meet special circumstances and coastal states have reasonable grounds for believing that a particular, clearly defined area of their respective exclusive economic zones is an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognised technical reasons in relation to its oceanographical and ecological conditions, as well as its utilisation or the protection of its resources and the particular character of its traffic, the coastal states, after appropriate consultations through the competent international organisation with any other states concerned, may, for that area, direct a communication to that organization, submitting scientific and technical evidence in support and information on necessary reception facilities. Within 12 months after receiving such a communication, the organisation shall determine whether the conditions in that area correspond to the requirements set out above. If the organisation so determines, the coastal states may, for that area, adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the organisation, for

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special areas. These laws and regulations shall not become applicable to foreign vessels until 15 months after the submission of the communication to the organisation.

(b)The coastal states shall publish the limits of any such particular, clearly defined area.

(c)If the coastal states intend to adopt additional laws and regulations for the same area for the prevention, reduction and control of pollution from vessels, they shall, when submitting the aforesaid communication, at the same time notify the organisation thereof. Such additional laws and regulations may relate to discharges or navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards; they shall become applicable to foreign vessels 15 months after the submission of the communication to the organisation, provided that the organisation agrees within 12 months after the submission of the communication.

7 The international rules and standards referred to in this article should include inter alia those relating to prompt notification to coastal states, whose coastline or related interests may be affected by incidents, including maritime casualties, which involve discharges or probability of discharges.

Article 212 Pollution from or through the atmosphere

1States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules standards and recommended practices and procedures and the safety of air navigation.

2States shall take other measures as may be necessary to prevent, reduce and control such pollution.

3States, acting especially through competent international organisations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution.

SECTION 6 ENFORCEMENT

Article 213 Enforcement with respect to pollution from land-based sources

States shall enforce their laws and regulations adopted in accordance with Article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organisations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources.

Article 214 Enforcement with respect to pollution from sea bed activities

States shall enforce their laws and regulations adopted in accordance with Article 208 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organisations or diplomatic conference to prevent, reduce and control pollution of the marine environment arising from or in connection with sea bed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to Articles 60 and 80.

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Article 215 Enforcement with respect to pollution from activities in the Area

Enforcement of international rules, regulations and procedures established in accordance with Part XI to prevent, reduce and control pollution of the marine environment from activities in the Area shall be governed by that Part.

Article 216 Enforcement with respect to pollution by dumping

1 Laws and regulations adopted in accordance with this Convention and applicable international rules and standards established through competent international organisations or diplomatic conference for the prevention, reduction and control of pollution of the marine environment by dumping shall be enforced:

(a)by the coastal state with regard to dumping within its territorial sea or its exclusive economic zone or onto its continental shelf;

(b)by the flag state with regard to vessels flying its flag or vessels or aircraft of its registry;

(c)by any state with regard to acts of loading of wastes or other matter occurring within its territory or at its off-shore terminals.

2 No state shall be obliged by virtue of this article to institute proceedings when another state has already instituted proceedings in accordance with this article.

Article 217 Enforcement by flag states

1States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organisation or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag states shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs.

2States shall, in particular, take appropriate measures in order to ensure that vessels flying their flag or of their registry are prohibited from sailing, until they can proceed to sea in compliance with the requirements of the international rules and standards referred to in para 1, including requirements in respect of design, construction, equipment and manning of vessels.

3States shall ensure that vessels flying their flag or of their registry carry on board certificates required by and issued pursuant to international rules and standards referred to in para 1. States shall ensure that vessels flying their flag are periodically inspected in order to verify that such certificates are in conformity with the actual condition of the vessels. These certificates shall be accepted by other states as evidence of the condition of the vessels and shall be regarded as having the same force as certificates issued by them, unless there are clear grounds for believing that the condition of the vessel does not correspond substantially with the particulars of the certificates.

4If a vessel commits a violation of rules and standards established through the competent international organisation or general diplomatic conference, the flag state, without prejudice to Articles 218, 220 and 228, shall provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation irrespective of where the violation occurred or where the pollution caused by such violation has occurred or has been spotted.

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5Flag states conducting an investigation of the violation may request the assistance of any other state whose co-operation could be useful in clarifying the circumstances of the case. States shall endeavour to meet appropriate requests of flag states.

6States shall, at the written request of any state, investigate any violation alleged to have been committed by vessels flying their flag. If satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, flag states shall without delay institute such proceedings in accordance with their laws.

7Flag states shall promptly inform the requesting state and the competent international organisation of the action taken and its outcome. Such information shall be available to all states.

8Penalties provided for by the laws and regulations of states for vessels flying their flag shall be adequate in severity to discourage violations wherever they occur.

Article 218 Enforcement by port states

1When a vessel is voluntarily within a port or at an off-shore terminal of a state, that state may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that state in violation of applicable international rules and standards established through the competent international organisation or general diplomatic conference.

2No proceedings pursuant to para 1 shall be instituted in respect of a discharge violation in the internal waters, territorial sea or exclusive economic zone of another state unless requested by that state, the flag state, or a state damaged or threatened by the discharge violation, or unless the violation has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone of the state instituting the proceedings.

3When a vessel is voluntarily within a port or at an off-shore terminal of a state, that state shall, as far as practicable, comply with requests from any state for investigation of a discharge violation referred to in para 1, believed to have occurred in, caused, or threatened damage to the internal waters, territorial sea or exclusive economic zone of the requesting state. It shall likewise, as far as practicable, comply with requests from the flag state for investigation of such a violation, irrespective of where the violation occurred.

4The records of the investigation carried out by a port state pursuant to this article shall be transmitted upon request to the flag state or to the coastal state. Any proceedings instituted by the port state on the basis of such an investigation may, subject to section 7, be suspended at the request of the coastal state when the violation has occurred within its internal waters, territorial sea or exclusive economic zone. The evidence and records of the case, together with any bond or other financial security posted with the authorities of the port state, shall in that event be transmitted to the coastal state. Such transmittal shall preclude the continuation of proceedings in the port state.

Article 219 Measures relating to seaworthiness of vessels to avoid pollution

Subject to section 7, states which, upon request or on their own initiative, have ascertained that a vessel within one of their ports or at one of their offshore terminals is in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment shall, as far as practicable, take administrative measures to prevent the vessel from sailing. Such states may permit the vessel to proceed only to the nearest

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appropriate repair yard and, upon removal of the causes of the violation, shall permit the vessel to continue immediately.

Article 220 Enforcement by coastal states

1When a vessel is voluntarily within a port or at an off-shore terminal of a state, that state may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that state.

2Where there are clear grounds for believing that a vessel navigating in the territorial sea of a state has, during its passage therein, violated laws and regulations of that state adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that state, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section 7.

3Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a state has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that state conforming and giving effect to such rules and standards, that state may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred.

4States shall adopt laws and regulations and take other measures so that vessels flying their flag comply with requests for information pursuant to para 3.

5Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a state has, in the exclusive economic zone, committed a violation referred to in para 3 resulting in a substantial discharge causing or threatening significant pollution of the marine environment, that state may undertake physical inspection of the vessel for matters relating to the violation if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection.

6Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a state has, in the exclusive economic zone, committed a violation referred to in para 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal state, or to any resources of its territorial sea or exclusive economic zone, that state may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.

7Notwithstanding the provisions of para 6, whenever appropriate procedures have been established, either through the competent international organisation or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal state if bound by such procedures shall allow the vessel to proceed.

8The provisions of paras 3, 4, 5, 6 and 7 also apply in respect of national laws and regulations adopted pursuant to Article 211, para 6.

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Article 221 Measures to avoid pollution arising from maritime casualties

1Nothing in this Part shall prejudice the right of states, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences.

2For the purposes of this article, ‘maritime casualty’ means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo.

Article 222 Enforcement with respect to pollution from or through the atmosphere

States shall enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with Article 212, para 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organisations or diplomatic conference to prevent, reduce and control pollution of the marine environment from or through the atmosphere, in conformity with all relevant international rules and standards concerning the safety of air navigation.

SECTION 7 SAFEGUARDS

Article 223 Measures to facilitate proceedings

In proceedings instituted pursuant to this Part, states shall take measures to facilitate the hearing of witnesses and the admission of evidence submitted by authorities of another state, or by the competent international organisation, and shall facilitate the attendance at such proceedings of official representatives of the competent international organisation, the flag state and any state affected by pollution arising out of any violation. The official representatives attending such proceedings shall have such rights and duties as may be provided under national laws and regulations or international law.

Article 224 Exercise of powers of enforcement

The powers of enforcement against foreign vessels under this Part may only be exercised by officials or by warships, military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.

Article 225 Duty to avoid adverse consequences in the exercise of the powers of enforcement

In the exercise under this Convention of their powers of enforcement against foreign vessels, states shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk.

Article 226 Investigation of foreign vessels

1 (a) States shall not delay a foreign vessel longer than is essential for purposes of the investigations provided for in Articles 216, 218 and 220. Any physical inspection of a foreign vessel shall be limited to an examination of such

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certificates, records or other documents as the vessel is required to carry by generally accepted international rules and standards or of any similar documents which it is carrying; further physical inspection of the vessel may be undertaken only after such an examination and only when:

(i)there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents;

(ii)the contents of such documents are not sufficient to confirm or verify a suspected violation; or

(iii)the vessel is not carrying valid certificates and records.

(b)If the investigation indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security.

(c)Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been refused or made conditional, the flag state of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part XV.

2 States shall co-operate to develop procedures for the avoidance of unnecessary physical inspection of vessels at sea.

Article 227 Non-discrimination with respect to foreign vessels

In exercising their rights and performing their duties under this Part, states shall not discriminate in form or in fact against vessels of any other state.

Article 228 Suspension and restrictions on institution of proceedings

1Proceedings to impose penalties in respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the state instituting proceedings shall be suspended upon the taking of proceedings to impose penalties in respect of corresponding charges by the flag state within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal state or the flag state in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels. The flag state shall in due course make available to the state previously instituting proceedings a full dossier of the case and the records of the proceedings, whenever the flag state has requested the suspension of proceedings in accordance with this article. When proceedings instituted by the flag state have been brought to a conclusion, the suspended proceedings shall be terminated. Upon payment of costs incurred in respect of such proceedings, any bond posted or other financial security provided in connection with the suspended proceedings shall be released by the coastal state.

2Proceedings to impose penalties on foreign vessels shall not be instituted after the expiry of three years from the date on which the violation was committed, and shall not be taken by any state in the event of proceedings having been instituted by another state subject to the provisions set out in para 1.

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3 The provisions of this article are without prejudice to the right of the flag state to take any measures, including proceedings to impose penalties, according to its laws irrespective of prior proceedings by another state.

Article 229 Institution of civil proceedings

Nothing in this Convention affects the institution of civil proceedings in respect of any claim for loss or damage resulting from pollution of the marine environment.

Article 230 Monetary penalties and the observance of recognised rights of the accused

1Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea.

2Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea.

3In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognised rights of the accused shall be observed.

Article 231 Notification to the flag state and other states concerned

States shall promptly notify the flag state and any other state concerned of any measures taken pursuant to section 6 against foreign vessels, and shall submit to the flag state all official reports concerning such measures. However, with respect to violations committed in the territorial sea, the foregoing obligations of the coastal state apply only to such measures as are taken in proceedings. The diplomatic agents or consular officers and where possible the maritime authority of the flag state, shall be immediately informed of any such measures taken pursuant to section 6 against foreign vessels.

Article 232 Liability of states arising from enforcement measures

States shall be liable for damage or loss attributable to them arising from measures taken pursuant to section 6 when such measures are unlawful or exceed those reasonably required in the light of available information. States shall provide for recourse in their courts for actions in respect of such damage or loss.

Article 233 Safeguards with respect to straits used for international navigation

Nothing in sections 5, 6 and 7 affects the legal regime of straits used for international navigation. However, if a foreign ship other than those referred to in section 10 has committed a violation of the laws and regulations referred to in Article 42, para 1 (a) and (b), causing or threatening major damage to the marine environment of the straits, the states bordering the straits may take appropriate enforcement measures and if so shall respect mutatis mutandis the provisions of this section.

SECTION 8 ICE-COVERED AREAS

Article 234 Ice-covered areas

Coastal states have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone,

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where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

SECTION 9 RESPONSIBILITY AND LIABILITY

Article 235 Responsibility and liability

1States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.

2States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction.

3With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, states shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds.

SECTION 10 SOVEREIGN IMMUNITY

Article 236 Sovereign immunity

The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a state and used for the time being only on government non-commercial service. However, each state shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this Convention.

SECTION 11 OBLIGATIONS UNDER OTHER CONVENTIONS ON THE PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT

Article 237 Obligations under other conventions on the protection and preservation of the marine environment

1The provisions of this Part are without prejudice to the specific obligations assumed by states under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention.

2Specific obligations assumed by states under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.

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18.7.3 Nuclear energy

In 1956 the International Atomic Energy Agency (IAEA) was established with the objective of encouraging the use of nuclear power. The Stockholm Conference 1972 indicated particular concern about nuclear waste and the dumping of radio-active waste at sea was outlawed by the London Dumping Convention 1972. Gradually too, the IAEA was given strongly enhanced powers with regard to the safety of nuclear installations including the right to carry out inspections. The basis of the legal regime pertaining to nuclear power is the requirement of publicity and notification, especially of significant risks, but also to encourage the spread of best practices with regard to safety.

Following the Chernobyl accident, when for some considerable time it was impossible to know exactly the extent of the disaster, the Convention on Assistance in Case of Nuclear Accident or Radiological Emergency 198641 and the Convention on Early Notification of Nuclear Accident 198642 were signed setting down some important provisions applicable should an accident or emergency occur.

18.8 Conservation of natural resources

Control of pollution is only one aspect of international environmental law. Principle 2 of the Stockholm Declaration proclaimed that the natural resources of the earth should be safeguarded for the benefit of present and future generations. The principle marks a shift away from ideas of absolute sovereignty over natural resources and has been followed by a number of conventions dealing both with general and specific aspects of conservation.

In 1980 the International Union for Conservation of Nature and Natural Resources (IUCN), a non-governmental organisation commissioned by UNEP to draw up a conservation action plan, published the ‘World Conservation Strategy’. The aim of the strategy was to advance the achievement of sustainable development through the conservation of living resources. The strategy represents a consensus reached by the scientific community and those concerned with the environment. In the same year the General Assembly of the United Nations passed a resolution on conservation:

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41Convention on Assistance in Case of Nuclear Accident or Radiological Emergency, done at Vienna, 26 September 1986. Entered into force 26 February 1987. Reproduced in (1986) 25 ILM 1377.

42Convention on Early Notification of a Nuclear Accident, done at Vienna, 26 September 1986. Entered into force 27 October 1986. Reproduced in (1986) 25 ILM 1370.

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UN GENERAL ASSEMBLY RESOLUTION 35/8 (30 OCTOBER 1980) – HISTORICAL RESPONSIBILITY OF STATES FOR THE PRESERVATION OF NATURE FOR PRESENT AND FUTURE GENERATIONS

The General Assembly,

Having considered the item entitled ‘Historical responsibility of states for the preservation of nature for present and future generations’,

Conscious of the disastrous consequences which a war involving the use of nuclear weapons and other weapons of mass destruction would have on man and his environment,

Noting that the continuation of the arms race, including the testing of various types of weapons, especially nuclear weapons, and the accumulation of toxic chemicals are adversely affecting the human environment and damaging the vegetable and animal world,

Bearing in mind that the arms race is diverting material and intellectual resources from the solution of the urgent problems of preserving nature,

Attaching great importance to the development of planned, constructive international co-operation in solving the problems of preserving nature,

Recognising that the prospects for solving problems so universal as the preservation of nature are closely linked to the strengthening and development of international détente and the creation of conditions which would banish war from the life of mankind,

Noting with satisfaction the drafting and signature in recent years of a number of international agreements designed to preserve the environment,

Determined to preserve nature as a prerequisite for the normal life of man

1Proclaims the historical responsibility of states for the preservation of nature for present and future generations;

2Draws the attention of states to the fact that the continuing arms race has pernicious effects on the environment and reduces the prospects for the necessary international co-operation in preserving nature on our planet;

3Calls upon states, in the interest of present and future generations, to demonstrate due concern and take the measures, including legislative measures, necessary for preserving nature, and also to promote international co-operation in this field;

4Requests the Secretary General, with the co-operation of the United Nations Environment Programme, to prepare a report on the pernicious effects of the arms race on nature and to seek the views of states on possible measures to be taken at the international level for the preservation of nature;

5Decides to include in the provisional agenda of its thirty-sixth session an item entitled ‘Historical responsibility of states for the preservation of nature for present and future generations: report of the Secretary General’.

Two years later a more strongly worded document was adopted:

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WORLD CHARTER FOR NATURE43

I GENERAL PRINCIPLES

1Nature shall be respected and its essential processes shall not be impaired.

2The genetic viability on the earth shall not be compromised; the population levels of all life forms, wild and domesticated, must be at least sufficient for their survival, and to this end necessary habitats shall be safeguarded.

3All areas of the earth, both land and sea, shall be subject to these principles of conservation; special protection shall be given to unique areas, to representative samples of all the different types of ecosystems and to the habitats of rare or endangered species.

4Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilised by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist.

5Nature shall be secured against degradation caused by warfare or other hostile activities.

II FUNCTIONS

6In the decision-making process it shall be recognised that man’s needs can be met only by ensuring the proper functioning of natural systems and by respecting the principles set forth in the present Charter.

7In the planning and implementation of social and economic development activities, due account shall be taken of the fact that the conservation of nature is an integral part of those activities.

8In formulating long-term plans for economic development, population growth and the improvement of standards of living, due account shall be taken of the long-term capacity of natural systems to ensure the subsistence and settlement of the populations concerned, recognising that this capacity may be enhanced through science and technology.

9The allocation of areas of the earth to various uses shall be planned and due account shall be taken of the physical constraints, the biological productivity and diversity and the natural beauty of the areas concerned.

10Natural resources shall not be wasted, but used with a restraint appropriate to the principles set forth in the present Charter, in accordance with the following rules:

(a)living resources shall not be utilised in excess of their natural capacity for regeneration;

(b)the productivity of soils shall be maintained or enhanced through measures which safeguard their long-term fertility and the process of organic decomposition, and prevent erosion and all other forms of degradation;

(c)resources, including water, which are not consumed as they are used shall be reused or recycled;

(d)non-renewable resources which are consumed as they are used shall be exploited with restraint, taking into account their abundance, the rational

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43Adopted by the UN General Assembly, 28 October 1982. UNGA Res 37/7, UN GAOR Supp (No 51) 21, UN Doc A/37/L4 and Add 1 (1982).

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possibilities of converting them for consumption, and the compatibility of their exploitation with the functioning of natural systems.

11 Activities which might have an impact on nature shall be controlled, and the best available technologies that minimise significant risks to nature or other adverse effects shall be used; in particular:

(a)activities which are likely to cause irreversible damage to nature shall be avoided;

(b)activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed;

(c)activities which may disturb nature shall be preceded by assessment of their consequences and environmental impact studies of development projects shall be conducted sufficiently in advance, and if they are to be undertaken, such activities shall be planned and carried out so as to minimise potential adverse effects;

(d)agriculture, grazing, forestry and fisheries practices shall be adapted to the natural characteristics and constraints of given areas;

(e)areas degraded by human activities shall be rehabilitated for purposes in accord with their natural potential and compatible with the well-being of affected populations.

12 Discharge of pollutants into natural systems shall be avoided and:

(a)where this is not feasible, such pollutants shall be treated at the source, using the best practicable means available;

(b)special precautions shall be taken to prevent discharge of radioactive or toxic wastes.

13Measures intended to prevent, control or limit natural disasters, infestations and diseases shall be specifically directed to the causes of these scourges and shall avoid adverse side-effects on nature.

IIIIMPLEMENTATION

14The principles set forth in the present Charter shall be reflected in the law and practice of each state, as well as at the international level.

15Knowledge of nature shall be broadly disseminated by all possible means, particularly by ecological education as an integral part of general education.

16All planning shall include, among its essential elements, the formulation of strategies for the conservation of nature, the establishment of inventories of ecosystems and assessments of the effects on nature of proposed policies and activities; all of these elements shall be disclosed to the public by appropriate means in time to permit effective consultation and participation.

17Funds, programmes and administrative structures necessary to achieve the objective of the conservation of nature shall be provided.

18Constant efforts shall be made to increase knowledge of nature by scientific research and to disseminate such knowledge unimpeded by restrictions of any kind.

19The status of natural processes, ecosystems and species shall be closely monitored to enable early detection of degradation or threat, ensure timely intervention and facilitate the evaluation of conservation policies and methods.

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20 Military activities damaging to nature shall be avoided, and in particular:

(a) further development, testing and use of nuclear, biological, chemical or environmental modification methods of warfare shall be prohibited; and

(b) protected areas, the Antarctic region and outer space shall be free of military activity.

21 States and, to the extent they are able, other public authorities, international organisations, individuals, groups and corporations shall:

(a)co-operate in the task of conserving nature through common activities and other relevant actions, including information exchange and consultations;

(b)establish standards for products and manufacturing processes that may have adverse effects on nature, as well as agreed methodologies for assessing these effects;

(c)implement the applicable international legal provisions for the conservation of nature and the protection of the environment;

(d)ensure that activities within their jurisdictions or control do not cause damage to the natural systems located within other states or in the areas beyond the limits of national jurisdiction;

(e)safeguard and conserve nature in areas beyond national jurisdiction.

22Taking fully into account the sovereignty of states over their natural resources, each state shall give effect to the provisions of the present Charter through its competent organs and in co-operation with other states.

23All persons, in accordance with their national legislation, shall have the opportunity to participate, individually or with others, in the formulation of decisions of direct concern to their environment, and shall have access to means of redress when their environment has suffered damage of degradation.

24Each person has a duty to act in accordance with the provisions of the present Charter; acting individually, in association with others or through participation in the political process, each person shall strive to ensure that the objectives of the present Charter are met.

As has already been seen, many of the provisions of the World Charter for Nature were re-affirmed and developed in the Rio Declaration 1992 and Agenda 21 also provided the framework for future action.

18.8.1 Conservation of migratory and land-based species

As far as existing conventional law is concerned, the emphasis has been on conservation of living resources. Some treaties refer to specific species, for example, the Agreement on the Conservation of Polar Bears 1973, while others impose rules of more general application. In addition there are a number of bilateral agreements relating to conservation. There are four multilateral treaties which are regarded as being particularly significant:

•Convention on Wetlands of International Importance 1971 (Ramsar Convention);

•Convention for the protection of the World Cultural and National Heritage 1972 (the World Heritage Convention);

•Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES);

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•Convention on the Conservation of Migratory Species of Wild Animals 1980 (Bonn Convention).

All four adopt different approaches to the problem of conservation. The Ramsar Convention and the Bonn Convention make provision for the protection of habitats and the Ramsar Convention refers to sustainable utilisation of wetland areas. The World Heritage Convention is concerned with identifying natural sites of particular importance and imposing specific obligations in respect of such sites. The convention also establishes a trust fund to be administered through UNESCO for assisting in the protection of such sites. The Bonn Convention, in addition to providing habitat protection, also seeks to protect migratory species during the course of their migration. The convention is particularly concerned to encourage co-operation between states for the protection of migratory species. CITES has been the most successful of the four Conventions; it attempts to encourage conservation by outlawing commercial trade in endangered species, the view being that the ending of commercial trade will result in the ending of endangered status of many species. The Convention lists two categories of endangered species: those seriously threatened with extinction in which all trade is prohibited, and those which are not yet threatened with extinction but which may become so if trade continues uncontrolled. Trade in the latter category is permitted but is subject to stringent controls.

CONVENTION ON WETLANDS OF

INTERNATIONAL IMPORTANCE44

The Contracting Parties,

Recognising the interdependence of man and his environment;

Considering the fundamental ecological functions of wetlands as regulators of water regimes and as habitats supporting a characteristic flora and fauna, especially waterfowl;

Being convinced that wetlands constitute a resource of great economic, cultural, scientific and recreational value, the loss of which would be irreparable;

Desiring to stem the progressive encroachment on and loss of wetlands now and in the future;

Recognising that waterfowl in their seasonal migrations may transcend frontiers and so should be regarded as an international resource;

Being confident that the conservation of wetlands and their flora and fauna can be ensured by combining far-sighted national policies with co-ordinated international action;

Have agreed as follows:

Article 1

1 For the purpose of this Convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with

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44 Done at Ramsar, Iran on 2 February 1971, entered into force 21 December 1975.

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water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.

2 For the purpose of this Convention waterfowl are birds ecologically dependent on wetlands.

Article 2

1Each Contracting party shall designate suitable wetlands within its territory for inclusion in a List of Wetlands of International Importance, hereinafter referred to as ‘the List’ which is maintained by the bureau established under Article 8. The boundaries of each wetland shall be precisely described and also delimited on a map and they may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six metres at low tide lying within the wetlands, especially where these have an importance as waterfowl habitat.

2Wetlands should be selected for the List on account of their international significance in terms of ecology, botany, zoology, limnology or hydrology. In the first instance, wetlands of international importance to waterfowl at any season should be included.

3The inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated.

4Each Contracting Party shall designate at least one wetland to be included in the List when signing this Convention or when depositing its instrument of ratification or accession, as provided in Article 9.

5Any Contracting Party shall have the right to add to the List further wetlands situated within its territory, to extend the boundaries of those wetlands already included by it in the List and shall, at the earliest possible time, inform the organisation or government responsible for the continuing bureau duties specified in Article 8 of such changes.

6Each Contracting Party shall consider its international responsibilities for the conservation, management and wise use of migratory stocks of waterfowl, both when designating entries for the List and when exercising its right to change entries in the List relating to wetlands within its territory.

Article 3

1The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory.

2Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passed without delay to the organisation or government responsible for the continuing bureau duties specified in Article 8.

Article 4

1Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the List or not, and provide adequately for their wardening.

2When a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should as far as possible compensate for any loss of wetland resources, and in particular it should create

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additional reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat.

3The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands and their flora and fauna.

4The Contracting Parties shall endeavour through management to increase waterfowl populations on appropriate wetlands.

5The Contracting Parties shall promote the training of personnel competent in the fields of wetland research, management and wardening.

Article 5

The Contracting Parties shall consult with each other about implementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties.

They shall at the same time endeavour to co-ordinate and support present and future policies and regulations concerning the conservation of wetlands and their flora and fauna.

CONVENTION FOR THE PROTECTION OF THE WORLD CULTURAL AND NATIONAL HERITAGE 1972 (THE WORLD HERITAGE CONVENTION)45

I Definitions of the cultural and the natural heritage

Article 1

For the purposes of this Convention, the following shall be considered as ‘cultural heritage’:

monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science;

groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science;

sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view.

Article 2

For the purposes of this Convention, the following shall be considered as ‘natural heritage’:

natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

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45Convention for the Protection of the World Cultural and National Heritage 1972 (the World Heritage Convention), done at Paris, 23 November 1972. Entered into force 17 December 1975.

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geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

natural sites or precisely delineated areas of universal value from the point of view of science, conservation or natural beauty.

Article 3

It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above.

II National protection and international protection of the cultural and natural heritage

Article 4

Each State Party to this Convention recognises that the duty of ensuring the identifications, protection, conservation, preservation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that state. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

Article 5

To ensure that effective and active measures are taken for the protection, conservation and preservation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:

(a)to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;

(b)to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions;

(c)to develop scientific and technical studies and research and to work out such operating methods as will make the state capable of counteracting the dangers that threaten its cultural or natural heritage;

(d)to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and

(e)to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.

Article 6

1While fully respecting the sovereignty of the states on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property rights provided by national legislation, the States Parties to this Convention recognise that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.

2The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and preservation of the cultural and natural heritage referred to in paras 2 and 4 of Article 11 if the state on whose territory it is situated so request.

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3 Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.

Article 7

For the purposes of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage.

II Intergovernmental committee for the protection of the world cultural and natural heritage

Article 8

1An intergovernmental committee for the protection of the cultural and natural heritage of outstanding universal value, called ‘the World Heritage Committee’, is hereby established within the United Nations Educational, Scientific and Cultural Organisation. It shall be composed of 15 States Parties to the Convention, elected by States Parties to the Convention meeting in general assembly during the ordinary session of the General Conference of the United Nations Educational, Scientific and Cultural Organisation. The number of States members of the Committee shall be increased to 21 as from the date of the ordinary session of the General Conference following the entry into force of this Convention for at least 40 states.

2Election of members of the Committee shall ensure an equitable representation of the different regions and cultures of the world.

...

Article 11

1Every State Party to this Convention shall, in so far as possible, submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the list provided for in para 2 of this article. This inventory, which shall not be considered exhaustive, shall include documentation about the location of the property in question and its significance.

2On the basis of the inventories submitted by states in accordance with para 1, the Committee shall establish, keep up to date and publish, under the title of ‘World Heritage List’, a list of properties forming part of the cultural and natural heritage, as defined in Articles 1 and 2 of this Convention, which it considers as having outstanding universal value in terms of such criteria as it shall have established. An updated list shall be distributed at least every two years.

3The inclusion of a property in the World Heritage List requires the consent of the state concerned ...

...

IV Fund for the protection of the world cultural and natural heritage

Article 15

1A Fund for the Protection of the World Cultural and Natural Heritage of Outstanding Universal Value, called ‘the World Heritage Fund’, is hereby established.

2The Fund shall constitute a trust fund, in conformity with the provisions of the Financial Regulations of the United Nations Educational, Scientific and Cultural Organisation.

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3 The resources of the Fund shall consist of:

(a)compulsory and voluntary contributions made by the States Parties to this Convention;

(b)contributions, gifts or bequests;

(c)any interest due on the resources of the Fund;

(d)funds raised by collections and receipts from events organised for the benefit of the Fund; and

(e)all other resources authorised by the Fund’s regulations, as drawn up by the World Heritage Committee.

CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA46

The Contracting States,

Recognising that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come;

Conscious of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic points of view;

Recognising that peoples and states are and should be the best protectors of their own wild fauna and flora;

Recognising, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade;

Convinced of the urgency of taking appropriate measures to this end;

Have agreed as follows:

Article I Definitions

For the purpose of the present Convention, unless the context otherwise requires:

(a)‘Species’ means any species, subspecies, or geographically separate population thereof;

(b)‘Specimen’ means:

(i)any animal or plant, whether alive or dead;

(ii)in the case of an animal: for species included in Appendices I and II, any readily recognisable part or derivative thereof; and for species included in Appendix III, any readily recognisable part or derivative thereof specified in Appendix III in relation to the species; and

(iii)in the case of a plant: for species included in Appendix I, any readily recognisable part or derivative thereof; and for species included in Appendices II and III, any readily recognisable part or derivative thereof specified in Appendices II and III in relation to the species;

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46Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) done at Washington, 3 March 1973. Entered into force 1 July 1975, 993 UNTS 243 – reprinted in (1973) 12 ILM 1085.

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(c)‘Trade’ means export, re-export, import and introduction from the sea;

(d)‘Re-export’ means export of any specimen that has previously been exported;

(e)‘Introduction from the sea’ means transportation into a state of specimens of any species which were taken in the marine environment not under the jurisdiction of any state;

(f)‘Scientific Authority’ means a national scientific authority designated in accordance with Article IX;

(g)‘Management Authority’ means a national management authority designated in accordance with Article IX;

(h)‘Party’ means a state for which the present Convention has entered into force.

Article II Fundamental principles

1Appendix I shall include all species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorised in exceptional circumstances.

2Appendix II shall include:

(a)all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilisation incompatible with their survival; and

(b)other species which must be subject to regulation in order that trade in specimens of certain species referred to in sub-para (a) of this paragraph may be brought under effective control;

3Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other parties in the control of trade.

4The Parties shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention.

Article III Regulation of trade in specimens of species included in Appendix I

1All trade in specimens of species included in Appendix I shall be in accordance with the provisions of this Article.

2The export of any specimen of a species included in Appendix I shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

(a)a Scientific Authority of the state of export has advised that such export will not be detrimental to the survival of that species;

(b)a Management Authority of the state of export is satisfied that the specimen was not obtained in contravention of the laws of that state for the protection of fauna and flora;

(c)a Management Authority of the state of export is satisfied that any living specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment; and

(d)a Management Authority of the state of export is satisfied that an import permit has been granted for that specimen.

3 The import of any specimen of a species included in Appendix I shall require the prior grant and presentation of an import permit and either an export

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permit or a re-export certificate. An import permit shall only be granted when the following conditions have been met:

(a)a Scientific Authority of the state of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved;

(b)a Scientific Authority of the state of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and

(c)a Management Authority of the state of import is satisfied that the specimen is not to be used for primarily commercial purposes.

4 The re-export of any specimen of a species included in Appendix I shall require the prior grant and presentation of a re-export permit. A re-export permit shall only be granted when the following conditions have been met:

(a)a Management Authority of the state of re-export is satisfied that the specimen was imported into that state in accordance with the provisions of the present Convention;

(b)a Management Authority of the state of re-export is satisfied that any living specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment; and

(c)a Management Authority of the state of re-export is satisfied that an import permit has been granted for any living specimen.

5 The introduction from the sea of any specimen of a species included in Appendix I shall require the prior grant of a certificate from a Management Authority of the state of introduction. A certificate shall only be granted when the following conditions have been met:

(a)a Scientific Authority of the state of introduction advises that the introduction will not be detrimental to the survival of the species involved;

(b)a Management Authority of the state of introduction is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and

(c)a Management Authority of the state of introduction is satisfied that the specimen is not to be used for primarily commercial purposes.

Article IV Regulation of trade in specimens of species included in Appendix II

1All trade of species included in Appendix II shall be in accordance with the provisions of this article.

2The export of any specimen of a species included in Appendix II shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

(a)a Scientific Authority of the state of export has advised that such export will not be detrimental to the survival of that species;

(b)a Management Authority of the state of export is satisfied that the specimen was not obtained in contravention of the laws of that state for the protection of fauna and flora; and

(c)a Management Authority of the state of export is satisfied that any living specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment.

3 A Scientific Authority in each party shall monitor both the export permits granted by that state for specimens of species included in Appendix II and the

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actual export of such specimens. Whenever a Scientific Authority determines that the export of such specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I, the Scientific Authority shall advise the appropriate Management Authority of suitable measures to be taken to limit the grant of export permits for specimens of that species.

4The import of any specimen of a species included in Appendix II shall require the prior presentation of either an export permit or a re-export certificate.

5The re-export of any specimen of a species included in Appendix II shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met:

(a)a Management Authority of the state of re-export is satisfied that the specimen was imported into that state in accordance with the provisions of the present Convention; and

(b)a Management Authority of the state of re-export is satisfied that any living specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment.

6 The introduction from the sea of any specimen of a species included in Appendix II shall require the prior grant of a certificate from a Management Authority of the state of introduction. A certificate shall only be granted when the following conditions have been met:

(a) a Scientific Authority of the state of introduction advises that the introduction will not be detrimental to the survival of the species involved; and

(b) a Management Authority of the state of introduction is satisfied that any living specimen will be so handled as to minimise the risk of injury, damage to health or cruel treatment.

7 Certificates referred to in para 6 of this Article may be granted on the advice of a Scientific Authority, in consultation with other national scientific authorities or, when appropriate, international scientific authorities, in respect of periods not exceeding one year for total numbers of specimens to be introduced in such periods.

Article V Regulation of trade in specimens of species included in Appendix III

1All trade in specimens of species included in Appendix II shall be in accordance with the provisions of this article.

2The export of any specimen of a species included in Appendix III from any state which has included that species in Appendix III shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

(a)a Management Authority of the state of export is satisfied that the specimen was not obtained in contravention of the laws of that state for the protection of fauna and flora; and

(b)a Management Authority of the state of export is satisfied that any living specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment.

3 The import of any specimen of a species included in Appendix III shall require, except in circumstances to which para 4 of this article applies, the prior presentation of a certificate of origin and, where the import is from a state which has included that species in Appendix III, an export permit.

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4 In the case of re-export, a certificate granted by the Management Authority of the state of re-export that the specimen was processed in that state or is being reexported shall be accepted by the state of import as evidence that the provisions of the present Convention have been complied with in respect of the specimen concerned.

Article VIII Measures to be Taken by the Parties

1The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:

(a)to penalise trade in, or possession of, such specimens, or both; and

(b)to provide for the confiscation or return to the state of export of such specimens.

2In addition to the measures taken under para 1 of this article, a party may, when it deems it necessary, provide for any method of internal reimbursement for expenses incurred as a result of the confiscation of a specimen traded in violation of the measures taken in the application of the provisions of the present Convention.

3As far as possible, the parties shall ensure that specimens shall pass through any formalities required for trade with a minimum of delay. To facilitate such passage, a party may designate ports of exit and ports of entry at which specimens must be presented for clearance. The parties shall ensure further that all living specimens, during any period of transit, holding or shipment, are properly cared for so as to minimise the risk of injury, damage to health or cruel treatment.

4Where a living specimen is confiscated as a result of measures referred to in para 1 of this Article:

(a)the specimen shall be entrusted to a Management Authority of the state of confiscation;

(b)the Management Authority shall, after consultation with the state of export, return the specimen to that state at the expense of that state, or to a rescue centre or such other place as the Management Authority deems appropriate and consistent with the purposes of the present Convention; and

(c)the Management Authority may obtain the advice of a Scientific Authority, or may, whenever it considers it desirable, consult the Secretariat in order to facilitate the decision under sub-para (b) of this paragraph, including the choice of a rescue centre of other place.

5A rescue centre as referred to in para 4 of this article means an institution designated by a Management Authority to look after the welfare of living specimens, particularly those that have been confiscated.

6Each Party shall maintain records of trade in specimens of species included in Appendices I, II and III which shall cover:

(a)the names and addresses of exporters and importers; and

(b)the number and type of permits and certificate granted; the states with which such trade occurred; the numbers or quantities and types of specimens, names of species as included in Appendices I, II and III and, where applicable, the size and sex of the specimens in question.

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7 Each party shall prepare periodic reports on its implementation of the present Convention and shall transmit to the Secretariat:

(a) an annual report containing a summary of the information specified in subpara (b) of para 6 of this article; and

(b) a biennial report on legislative, regulatory and administrative measures taken to enforce the provisions of the present Convention.

8 The information referred to in para 7 of this article shall be available to the public where this is not inconsistent with the law of the Party concerned.

Article IX Management and Scientific Authorities

1 Each party shall designate for the purposes of the present Convention:

(a)one or more Management Authorities competent to grant permits or certificates on behalf of that party; and

(b)one or more Scientific Authorities.

2A state depositing an instrument of ratification, acceptance, approval or accession shall at that time inform the Depositary Government of the name and address of the Management Authority authorised to communicate with other parties and with the Secretariat.

3Any changes in the designations or authorisations under the provisions of this Article shall be communicated by the party concerned to the Secretariat for transmission to all other parties.

4Any Management Authority referred to in para 2 of this article shall if so requested by the Secretariat or the Management Authority of another party, communicate to it impression of stamps, seals or other devices used to authenticate permits or certificates.

Article X Trade with states not party to the Convention

Where export or re-export is to, or import is from, a state not a party to the present Convention, comparable documentation issued by the competent authorities in that state which substantially conforms with the requirements of the present Convention for permits and certificates may be accepted in lieu thereof by any party.

CONVENTION ON THE CONSERVATION OF

MIGRATORY SPECIES OF WILD ANIMALS47

Article II Fundamental principles

1 The parties acknowledge the importance of migratory species48 being conserved and of Range states49agreeing to take action to this end whenever possible and appropriate, paying special attention to migratory species the

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47Done at Bonn, Germany, 23 June 1979.

48Defined in Article I as ‘the entire population or any geographically separate part of a population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries’.

49Defined in Article I as ‘any state that exercises jurisdiction over any part of the range of that migratory species, or a sState, flag vessels of which are engaged outside national jurisdictional limits in [taking, hunting, fishing, capturing, harassing, deliberately killing, or attempting to engage in any such conduct] that migratory species’.

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conservation status of which is unfavourable, and taking individually or in cooperation appropriate and necessary steps to conserve such species and their habitat.

2The parties acknowledge the need to take action to avoid any migratory species becoming endangered.

3In particular, the parties:

(a)should promote, co-operate in and support research relating to migratory species;

(b)shall endeavour to provide immediate protection for migratory species included in Appendix I; and

(c)shall endeavour to conclude agreements covering the conservation and management of migratory species included in Appendix II.50

In 1992 the Convention on Biological Diversity was signed at the Rio Conference. This takes the law relating to conservation a stage further by requiring states to take positive action in many key areas. The force of the Convention is however slightly undermined by the fact that many of the provisions are qualified with words such as ‘as far as possible and appropriate’ and it remains unclear what specific action the Convention will promulgate.

CONVENTION ON BIOLOGICAL DIVERSITY51

Article 1

The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.

Article 2

For the purposes of this Convention:

‘Biological diversity’ means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.

‘Biological resources’ includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.

‘Biotechnology’ means any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.

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50Appendix I lists endangered species; Appendix II lists those species with an unfavourable conservation status.

51Convention on Biological Diversity – adopted at the UN Conference on Environment and Development, 5 June 1992, reprinted (1992) 31 ILM 818.

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‘Country of origin of genetic resources’ means the country which possesses those genetic resources in in-situ conditions.

‘Country providing genetic resources’ means the country supplying genetic resources collected from in-situ sources, including populations of both wild and domesticated species, or taken from ex-situ sources, which may or may not have originated in that country.

‘Domesticated or cultivated species’ means species in which the evolutionary process has been influenced by humans to meet their needs.

‘Ecosystem’ means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.

‘Ex-situ conservation’ means the conservation of components of biological diversity outside their natural habitat.

‘Genetic material’ means any material of plant, animal, microbial or other origin containing functional units of heredity.

‘Genetic resources’ means genetic material of actual or potential value.

‘Habitat’ means the place or type of site where an organisms or population naturally occurs.

‘In-situ conditions’ means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.

‘In-situ conservation’ means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.

‘Protected area’ means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives.

‘Regional economic integration organisation’ means an organisation constituted by sovereign states of a given region, to which its member states have transferred competence in respect of matters governed by this Convention and which has been duly authorised, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it.

‘Sustainable use’ means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintain its potential to meet the needs and aspirations of present and future generations.

‘Technology’ includes biotechnology.

Article 3

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 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 national jurisdiction.

Article 4 Jurisdictional scope Article 5

Each Contracting Party shall, as far as possible and as appropriate, co-operate with other Contracting Parties, directly or, where appropriate, through competent international organisations, in respect of areas beyond national

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jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.

Article 6

Each Contracting Party shall, in accordance with its particular conditions and capabilities:

(a)develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and

(b)integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

18.8.2 Conservation of marine resources

The conservation regime governing living marine resources has a slightly different history since it has largely developed as an integral part of the law of the sea and the main concern has been with fishing rights and the need to avoid over-fishing. The first treaties regulating fishing rights were agreed before World War One and since that time there have been a number of treaties governing such things as fishing quotas and fishing rights. The UN Food and Agriculture Organisation has had an important role in encouraging cooperation between coastal states. Many groups of coastal states have made agreements setting a total allowable catch and very often attempting to exclude other states from fishing grounds. The first truly global attempt to regulate the conservation of marine resources was the Convention on Fishing and Conservation of the Living Resources of the High Seas 1958 which imposes only limited duties of conservation. Conservation provisions are considerably strengthened in LOSC although concerns continue to be expressed about the extent to which such provisions will prove effective.

In addition to the general rules relating to marine resources there are a number of specific agreements which relate to single species or groups of species, the best known of which is probably the International Convention for the Regulation of Whaling 1946.

18.8.3 Antarctica

Antarctica constitutes the largest area of land not subject to the jurisdiction of a single state. The special nature of the region has meant that it has been the subject of specific attention by international law. The region is important from an environmental point of view but it also has an economic importance since the discovery in the 1980s of significant quantities of manganese nodules. Historically, Antarctica had been the subject of completing claims to sovereignty by a number of different states. However in the late 1950s pressure from the scientific community resulted in the suspension of such claims and the signing of the Antarctic Treaty 1959 by the main claimant states. The treaty provides that the region shall only be used for peaceful purposes. Subsequently, the Convention for the Conservation of Antarctic Seals 1972 and the Convention on the Conservation of Antarctic Marine Living Resources 1980 were signed.

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The discovery of the manganese deposits led to renewed discussions and a 50year ban on mining was agreed in April 1991. In the same year a Protocol to the Antarctic Treaty, the Protocol on Environmental Protection 1991, was signed. The Protocol would have the effect of establishing Antarctica as a world park, thus putting a permanent end to the individual claims of sovereignty, and significantly strengthen the conservation provisions of the Antarctic regime.

18.9 A right to a decent environment

As was discussed in Chapter 1, traditionally international law was only concerned with the rights and obligations of states. It has already been seen in Chapter 16 that significant changes occurred with the establishment of rules governing human rights. Arguments have since been raised about the existence of people’s rights additional to and different from the rights of individual human beings. The growth of environmental law has now led to discussion about whether there exists a right to a decent environment. Such a right might not only be possessed by individuals and peoples but raises the connected question of whether future generations, animals or even the environment itself have recognisable rights. Clearly, much depends on the concept of ‘right’ that is employed. Some would argue that rights which are not capable of legal enforcement should not properly be called rights. Jeremy Bentham expressed such a view when he referred to claims of the existence of rights as ‘nonsense on stilts’. Others argue that no right can exist without a corresponding clearly defined duty.

It seems clear that the existence of recognised human rights has implications for environmental law. For example, the right to life must in some part be dependent on the existence of an environment capable of sustaining life. Principle 1 of the Stockholm Declaration provides that:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being ...

and imposes a corresponding duty to protect and improve the environment for present and future generations. Article 24 of the African Charter on Human and Peoples’ Rights 1981 provides:

All peoples shall have the right to a general satisfactory environment favourable to their development.

No other treaty appears expressly to recognise an individual right to a decent environment and it is submitted that the right operates at the level of a general principle, in a manner similar to the right of self-determination, rather than as an individually enforceable human right.

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APPENDIX

UNITED NATIONS MEMBER STATES1

With the admission of Palau, there are now 185 member states of the United Nations. The member states and the dates on which they joined the Organisation are listed below:

Member – (date of admission)

Afghanistan – (19 November 1946)

Albania – (14 December 1955)

Algeria – (8 October 1962)

Andorra – (28 July 1993)

Angola – (1 December 1976)

Antigua and Barbuda – (11 November 1981)

Argentina – (24 October 1945)

Armenia – (2 March 1992)

Australia – (1 November 1945)

Austria – (14 December 1955)

Azerbaijan – (9 March 1992)

Bahamas – (18 September 1973)

Bahrain – (21 September 1971)

Bangladesh – (17 September 1974)

Barbados – (9 December 1966)

Belarus – (24 October 1945)2

Belgium – (27 December 1945)

Belize – (25 September 1981)

Benin – (20 September 1960)

Bhutan – (21 September 1971)

Bolivia – (14 November 1945)

Bosnia and Herzegovina – (22 May 1992)

Botswana – (17 October 1966)

Brazil – (24 October 1945)

Brunei Darussalam – (21 September 1984)

Bulgaria – (14 December 1955)

Burkina Faso – (20 September 1960)

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1Source: UN Press Release ORG/1190 (15 December 1994). Updated 24 June 1997 from http://www.un.org/Overview/unmember.html.

2On 19 September 1991, Byelorussia informed the United Nations that it had changed its name to Belarus.

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Burundi – (18 September 1962)

Cambodia – (14 December 1955)

Cameroon – (20 September 1960) Canada – (9 November 1945) Cape Verde – (16 September 1975)

Central African Republic – (20 September 1960) Chad – (20 September 1960)

Chile – (24 October 1945)

China – (24 October 1945) Colombia – (5 November 1945) Comoros – (12 November 1975) Congo – (20 September 1960) Costa Rica – (2 November 1945) Côte d’Ivoire – (20 September 1960) Croatia – (22 May 1992)

Cuba – (24 October 1945) Cyprus – (20 September 1960)

Czech Republic – (19 January 1993)3

Democratic People’s Republic of Korea – (17 September 1991) Democratic Republic of the Congo – (20 September 1960) Denmark – (24 October 1945)

Djibouti – (20 September 1977)

Dominica – (18 December 1978) Dominican Republic – (24 October 1945) Ecuador – (21 December 1945)

Egypt – (24 October 1945)4

El Salvador – (24 October 1945) Equatorial Guinea – (12 November 1968) Eritrea – (28 May 1993)

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3Czechoslovakia was an original member of the United Nations from 24 October 1945. In a letter dated 10 December 1992, its Permanent Representative informed the Secretary General that the Czech and Slovak Federal Republic would cease to exist on 31 December 1992 and that the Czech Republic and the Slovak Republic, as successor states, would apply for membership in the United Nations. Following the receipt of its application, the Security Council, on 8 January, recommended to the General Assembly that the Czech Republic be admitted to United Nations membership. The Czech Republic was thus admitted on 19 January as a member state.

4Egypt and Syria were original members of the United Nations from 24 October 1945. Following a plebiscite on 21 February 1958, the United Arab Republic was established by a union of Egypt and Syria and continued as a single member. On 13 October 1961, Syria, having resumed its status as an independent state, resumed its separate membership in the United Nations. On 2 September 1971, the United Arab Republic changed its name to the Arab Republic of Egypt.

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Estonia – (17 September 1991)

Ethiopia – (13 November 1945)

Federated States of Micronesia – (17 September 1991)

Fiji – (13 October 1970)

Finland – (14 December 1955)

France – (24 October 1945)

Gabon – (20 September 1960)

Gambia – (21 September 1965)

Georgia – (31 July 1992)

Germany – (18 September 1973)5

Ghana – (8 March 1957)

Greece – (25 October 1945)

Grenada – (17 September 1974)

Guatemala – (21 November 1945)

Guinea – (12 December 1958)

Guinea-Bissau – (17 September 1974)

Guyana – (20 September 1966)

Haiti – (24 October 1945)

Honduras – (17 December 1945)

Hungary – (14 December 1955)

Iceland – (19 November 1946)

India – (30 October 1945)

Indonesia – (28 September 1950)6

Iran – (24 October 1945)

Iraq – (21 December 1945)

Ireland – (14 December 1955)

Israel – (11 May 1949)

Italy – (14 December 1955)

Jamaica – (18 September 1962)

Japan – (18 December 1956)

Jordan – (14 December 1955)

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5The Federal Republic of Germany and the German Democratic Republic were admitted to membership in the United Nations on 18 September 1973. Through the accession of the German Democratic Republic to the Federal Republic of Germany, effective from 3 October 1990, the two German States have united to form one sovereign state.

6By letter of 20 January 1965, Indonesia announced its decision to withdraw from the United Nations ‘at this stage and under the present circumstances’. By telegram of 19 September 1966, it announced its decision ‘to resume full co-operation with the United Nations and to resume participation in its activities’. On 28 September 1966, the General Assembly took note of this decision and the President invited representatives of Indonesia to take seats in the Assembly.

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Kazakstan – (2 March 1992)

Kenya – (16 December 1963)

Kuwait – (14 May 1963)

Kyrgyz Republic – (2 March 1992)

Lao People’s Democratic Republic – (14 December 1955)

Latvia – (17 September 1991)

Lebanon – (24 October 1945)

Lesotho – (17 October 1966)

Liberia – (2 November 1945)

Libya – (14 December 1955)

Liechtenstein – (18 September 1990)

Lithuania – (17 September 1991)

Luxembourg – (24 October 1945)

Madagascar – (20 September 1960)

Malawi – (1 December 1964)

Malaysia – (17 September 1957)7

Maldives – (21 September 1965)

Mali – (28 September 1960)

Malta – (1 December 1964)

Marshall Islands – (17 September 1991)

Mauritania – (7 October 1961)

Mauritius – (24 April 1968)

Mexico – (7 November 1945)

Monaco – (28 May 1993)

Mongolia – (27 October 1961)

Morocco – (12 November 1956)

Mozambique – (16 September 1975)

Myanmar – (19 April 1948)

Namibia – (23 April 1990)

Nepal – (14 December 1955)

Netherlands – (10 December 1945)

New Zealand – (24 October 1945)

Nicaragua – (24 October 1945)

Niger – (20 September 1960)

Nigeria – (7 October 1960)

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7The Federation of Malaya joined the United Nations on 17 September 1957. On 16 September 1963, its name was changed to Malaysia, following the admission to the new federation of Singapore, Sabah (North Borneo) and Sarawak. Singapore became an independent state on 9 August 1965 and a member of the United Nations on 21 September 1965.

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Norway – (27 November 1945)

Oman – (7 October 1971)

Pakistan – (30 September 1947)

Palau – (15 December 1994)

Panama – (13 November 1945)

Papua New Guinea – (10 October 1975)

Paraguay – (24 October 1945)

Peru – (31 October 1945)

Philippines – (24 October 1945)

Poland – (24 October 1945)

Portugal – (14 December 1955)

Qatar – (21 September 1971)

Republic of Korea – (17 September 1991)

Republic of Moldova – (2 March 1992)

Romania – (14 December 1955)

Russian Federation – (24 October 1945)8

Rwanda – (18 September 1962)

Saint Kitts and Nevis – (23 September 1983)

Saint Lucia – (18 September 1979)

Saint Vincent and the Grenadines – (16 September 1980)

Samoa – (15 December 1976)

San Marino – (2 March 1992)

Sao Tome and Principe – (16 September 1975)

Saudi Arabia – (24 October 1945)

Senegal – (28 September 1960)

Seychelles – (21 September 1976)

Sierra Leone – (27 September 1961)

Singapore – (21 September 1965)

Slovak Republic – (19 January 1993)9

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8The Union of Soviet Socialist Republics was an original member of the United Nations from 24 October 1945. In a letter dated 24 December 1991, Boris Yeltsin, the President of the Russian Federation, informed the Secretary General that the membership of the Soviet Union in the Security Council and all other United Nations organs was being continued by the Russian Federation with the support of the 11 member countries of the Commonwealth of Independent States.

9Czechoslovakia was an original member of the United Nations from 24 October 1945. In a letter dated 10 December 1992, its Permanent Representative informed the Secretary General that the Czech and Slovak Federal Republic would cease to exist on 31 December 1992 and that the Czech Republic and the Slovak Republic, as successor sStates, would apply for membership in the United Nations. Following the receipt of its application, the Security Council, on 8 January, recommended to the General Assembly that the Slovak Republic be admitted to United Nations membership. The Slovak Republic was thus admitted on 19 January as a member state.

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Slovenia – (22 May 1992)

Solomon Islands – (19 September 1978) Somalia – (20 September 1960)

South Africa – (7 November 1945) Spain – (14 December 1955)

Sri Lanka – (14 December 1955) Sudan – (12 November 1956) Suriname – (4 December 1975) Swaziland – (24 September 1968) Sweden – (19 November 1946) Syria – (24 October 1945)10 Tajikistan – (2 March 1992) Thailand – (16 December 1946)

The former Yugoslav Republic of Macedonia – (8 April 1993)11 Togo – (20 September 1960)

Trinidad and Tobago – (18 September 1962) Tunisia – (12 November 1956)

Turkey – (24 October 1945) Turkmenistan – (2 March 1992) Uganda – (25 October 1962) Ukraine – (24 October 1945)

United Arab Emirates – (9 December 1971) United Kingdom – (24 October 1945)

United Republic of Tanzania – (14 December 1961)12 United States of America – (24 October 1945) Uruguay – (18 December 1945)

Uzbekistan – (2 March 1992) Vanuatu – (15 September 1981)

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10Egypt and Syria were original members of the United Nations from 24 October 1945. Following a plebiscite on 21 February 1958, the United Arab Republic was established by a union of Egypt and Syria and continued as a single member. On 13 October 1961, Syria, having resumed its status as an independent State, resumed its separate membership in the United Nations.

11The General Assembly decided on 8 April 1993 to admit to United Nations membership the state being provisionally referred to for all purposes within the United Nations as ‘The former Yugoslav Republic of Macedonia’ pending settlement of the difference that had arisen over its name.

12Tanganyika was a member of the United Nations from 14 December 1961 and Zanzibar was a member from 16 December 1963. Following the ratification on 26 April 1964 of Articles of Union between Tanganyika and Zanzibar, the United Republic of Tanganyika and Zanzibar continued as a single member, changing its name to the United Republic of Tanzania on 1 November 1964.

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Venezuela – (15 November 1945)

Viet Nam – (20 September 1977)

Yemen – (30 September 1947)13

Yugoslavia – (24 October 1945)

Zambia – (1 December 1964)

Zimbabwe – (25 August 1980)

Membership of the Security Council

Permanent members

China

France

Russian Federation

United Kingdom

United States of America

Elected members (membership term ends)

Chile (31 December 1997)

Costa Rica (31 December 1998)

Egypt (31 December 1997)

Guinea-Bissau (31 December 1997)

Japan (31 December 1998)

Kenya (31 December 1998)

Poland (31 December 1997)

Portugal (31 December 1998)

Republic of Korea (31 December 1997)

Sweden (31 December 1998)

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13Yemen was admitted to membership in the United Nations on 30 September 1947 and Democratic Yemen on 14 December 1967. On 22 May 1990, the two countries merged and have since been represented as one member with the name ’Yemen’.

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