INTERNATIONAL INVIRONMENTAL LAW:

CONCEPTS AND ISSUES

Dr. A. K. Pandey

Environmental Pollution is as old as the human civilization. Due to the heavy

increasement of industrialization and technology the human environment has
tremendously changed. These phenomenon upset the eco-system which shrinkage the
balance between human life and environment. Environmental law is an instrument to
protect and improve the environment and to control any act polluting the environment. 1
An international concern for environmental protection is comparatively of recent origin.
The traditional environmental law does not contain any specific rules for protection and
preservation of environment. But in later half the international agencies drew the
attention regarding environmental protection.

Doctrinal Foundations of International Law

International law rests on the doctrine of sovereignty and equality of States. This
doctrine enshrines the principle that national States are sovereign and have equal rights
and duties as members of the international community, notwithstanding differences of an
economic, social, or political nature. This fundamental feature of international law has
created systemic limitations-the absence of an established central legislative authority,
comparable to a nation system and of a compulsory or even widely used, judicial system,
often coupled with the absence of effective enforcement machinery for breaches of
international law. It is not surprising, then, that even after a few countries of the existence
of international law, many still ask what has been described as “the standard sherry party
question” is international law really law? Despite its systemic limitations, international
law does exist. States make it and they fellow it, and like most other laws, on occasion,
they break it. Certain breaches are spectacular, overshadowing the general, everyday
pattern of compliance.


Reader in Law, H.N.B. Garhwal University, Badshahithaul, Tehri Garhwal.
1
C.M. Jariwala; “Changing Dimension of Indian Environmental Law” in P. Leelkrishnan (Ed.) Law and
Environment (1992) p.1.
Sources of International Law
The international community, in the face of the rudimentary character of
international law-making institutions, has developed its own system of creating norms
and making international laws. These are basically twofold: treaties and customary
international law. Treaties can only be binding on those that consent to them; they are
solemn binding agreements between subjects of the international legal order, principally
States. They originate in a framework of international negotiation over matter of common
interest, and result in an agreement, in the form of a text, that usually reflects mutual
advantage. Once the text is agreed upon (and at that stage often signed) the process of
ratification commences. This is the process by which the parties ensure, by their various
constitutional means, that when the treaty comes into force, the legal, financial, and
administrative mechanisms by which the parties will be able to honor their new
obligations, are in place. Only after these national measures have been put in place will
the state be in a position to notify the Depository (the State or institution formally holding
the list of parties) that it wishes to be bound by the treaty. This is the act of ratification.
Once a treaty has received the agreed upon number of ratifications, it will then come into
force. This is not an easy process. Pressures of government time, changing priorities, or
simple second thoughts, can cause dramatic delays. The larger the enterprise, the more
apparently intractable the problems often are. For example, on November 16, 1994, the
Law of the Sea Convention signed in Montego Bay, Jamaica, in December 1982 finally
came into force. It had taken 12 years and considerable legal ingenuity in the negotiation
of an amending Agreement, for this major international legislative act to receive the 60
ratifications it required to enter into force.

International customary law is defined by the Statute of the International Court of

Justice as “general practice accepted as law” by States. 2 In simple terms it is something
that states do because they regard themselves as legally obliged to do it.

Treaties and custom constitute hard law, law that nation States are obliged to
follow under the pain of sanction from international legal system and community.

2
Article 38(b) of the Statute of International Court of Justice.
Another category of law, in contrast, is termed soft law, and is comprised of non-binding
instruments that lay down guidelines for future action, or through which States commit
themselves politically to meeting certain objectives. Soft law is largely based on
international diplomacy and customs, dependent on moral suasion or fear of diplomatic
retribution. The 1972 Stockholm Declaration and the 1992 Rio Declaration, which
embody a series of widely revered environmental principles, constitute good examples of
soft law, although a number of those principles may be said to have crystallized into
“harder” obligations representing customary law. Subsidiary sources of international law
also exist, such as doctrine, judicial decisions, general assemble resolutions, and opinions
of international jurists.

Development of International Environmental Law

International environmental law refers to the body of international law relevant to
environmental issues. While the status of international law as a disciple, in and of itself,
is disputed by a few international scholars who believe that no autonomous “international
law” exists apart from the general international law, it appears well established that
environmental perspectives and concerns have stimulated and catalyzed international
legal development. The growth of international environmental law is premised on the
globalization of environmental problems and concerns, attributable to two crucially
interrelated factors: ecological and economic interdependence. Huge conceptual leaps
have been made in international environmental law in the latter quarter of the twentieth
century. Environmental problems have progressed from being tackled within a bilateral,
coexistence framework to a multilateral, cooperation framework. Further, international
environmental law has traversed the path from being merely reactive, such as in the
negotiation of treaties to address the known threats of marine oil pollution, to being
proactive, such as in the case of the U.N. Framework Convention on Climate Change
(UNFCCC), which is an anticipatory response to the possibility of future anthropogenic
global climate change.
The development of international environmental law can be traced through two
main phases: from 1972-1992, which was the period of burgeoning international
environmental consciousness surrounding and following the U.N. Conference on the
Human Environment in Stockholm in 1972, and from 1992 onwards. This latter period,
initiated by the negotiations leading up to the 1992 U.N. Conference on Environment and
Development (UNCED) in Rio de Janeiro, is distinguished by concerns for sustainable
development and includes the current phase of experimentation with economic, market-
based instruments to achieve environmental compliance.

From Stockholm to Rio (1972-1992)

The 1972 Stockholm Conference served as a catalyst for several environmental
initiatives. It resulted in a Declaration containing a series of normative environmental
principles, a 109-point Environmental Action Plan, and a resolution recommending
institutional and financial implementation by the United Nations. 3 The result of these
recommendations was the creation of the United Nations Environment Programme
(UNEP), established by U.N. General Assembly Resolution and based in Nairobi. UNEP
plays an active role in convening and organizing meetings to negotiate global
environmental treaties. The Convention on the Control of Trans-boundary Movements of
Hazardous Wastes and their Disposal, signed in Basel, is as case in point. The Basel
Convention is built around two basic principles: proper waste management and prior
informed consent.4 UNEP was also directly responsible for the development of the
important Regional Seas Program, which has resulted in a network of regional framework
conventions protecting the marine environment, each with protocols developed to meet
the special requirements of the region.

This era also witnessed the birth of several other international environmental
treaties. Of particular significance is the 1985 Vienna Convention for the Protection of
the Ozone Layer. The very real and apparently imminent threat of depletion of the ozone
layer by commercially produced chemicals, principally chloroflurocarbons (CFCs),
prompted the convening of a conference in 1985 to negotiate the Vienna Convention. The
format chosen was a framework convention: general obligations and institutional
framework were laid down by the Treaty, to be made more specific in the future by the

3
Report of the United Nations Conference on the Human Environment, Stockholm (1972) [UN Doc.
A/Conf. 48/14 (1972)].
4
See, http://www.basel.international/ratif/ratif.html.
negotiation of detailed protocols (or subtreaties open to the parties to the main
Convention). The discovery of the ozone hole over Antarctica led to intense
intergovernmental negotiations and resulted in the Montreal Protocol on substances that
deplete the Ozone Layer in 1987. The Protocol called for a freeze on the production and
consumption of CFCs and halons at 1986 levels, followed by a 50 percent reduction in
CFC use by industrialized countries over a ten-year period. Developing countries were
allowed to increase their CFC consumption for a period of ten years. The Protocol was
deliberately designed as a flexible and dynamic instrument-countries were allowed to
select the most economic mix of reductions, with incentives to reduce the most harmful
chemicals.

A follow-up to the Stockholm Conference was held in 1982 in Nairobi, which

spurred the U.N. to set up the World Commission on Environment and Development,
chaired by Gro Harlem Brundtland, then Prime Minister of Norway. Its 1987 Report “Our
Common Future” placed the concept of sustainable development into the realm of
international environmental law.5 At the suggestion of the Commission, Preparations
began for the Rio Summit, officially the Conference on Environment and Development,
thus marking the end of the era of emphasis on the “human environment” and the
beginning of the era of emphasis on “environment and development”.

Rio and Beyond

The UNCED conference, held 20 years after the Stockholm Conference, was
popularly perceived as an attempt at environmental planning on a grand scale. In addition
to a tremendous surge in environmental consciousness, the Rio Summit resulted in:
 Agenda 21, an action plan for the next ten years and into the 21st Century6

5
Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June
1992.
6
Agenda 21 was one of the instruments adopted at the United Nations Conference on Environment and
Development (UNCED) held at Rio de Janeiro in 1992. Agenda 21 is a non-binding instrument that
presents a set of strategies and detailed programmes to halt and reverse the effects of environmental
degradation ant to promote environmentally sound and sustainable development in all countries.
  The Rio Declaration on the Environment and Development7
 The 1992 United Nations Framework Convention on Climate Change,
which was to provide a framework for the negotiation of detailed
protocols on further issues, such as controls on the emissions of
greenhouse gases, particularly carbon dioxide and deforestation
 The 1992 Convention on Biological Diversity, aimed at arresting the
alarming rate at which species were disappearing through pollution and
habitat destruction
 The Non-Legally Binding Authoritative Statement on Forests.

Despite the obvious significance of these environmental initiatives,

perhaps the most enduring legacy of the Rio Summit lies in its contribution to the
development of a framework of international environmental law principles. If
indeed the maturity of international environmental law is to be assessed by the
development of “discrete, discipline-specific” principles, then the Rio Declaration
heralded the coming of age of international environmental law.

Principles of International Environmental Law

Several principles of international environmental policy, some first enunciated in
the Stockholm Declaration, were crystallized through the Rio process. Among them, were
the principles of precaution, polluter-pays, sustainable development, common but
differentiated responsibility, and environment impact assessment. Some of these
concepts, such as the polluter pays and environment impact assessment, have their roots
in domestic environmental law. Environment impact assessment (EIA), for instance, was
first established in the domestic law of the United States under the 1972 National
Environment Protection Act. Other principles, such as that of common but differentiated
responsibility, are products of international thought and action. International lawyers still

7
The objects of the U.N. Conference of the Environment and Development are:
 to establish a new and equitable global partnership through the creation of new levels of
cooperation among states, key sectors of societies and people;
 to work towards international agreements to respect the interest of all and protect the integrity of
the global environmental and developmental system; and
 to recognise the integral and interdependent nature of our earth.
dispute whether any or all of these concepts remain policy principles or have hardened
into binding principles of customary international law.

Precautionary Principle
The Rio Declaration postulates that in cases when serious harm is threatened,
positive action to protect the environment should not be delayed until irrefutable
scientific proof of harm is available. It represents an important tool for decision-making
in uncertainty, which a significant body of opinion argues is now a legal principle. In its
strongest formulations this principle can be seen to require a reversal of the normal
burden of proof, so that a potential actor would need to prove that a proposed activity will
not cause harm before it can be sanctioned. It has been endorsed by virtually all recent
environmental treaties, including regional treaties such as the 1992 Maastricht Treaty on
European Union, the 1992 Paris Convention on the North East Atlantic, the Helsinki
Convention on the Baltic, and global environmental treaties such as the UNFCCC, the
Convention on Biological Diversity, and the 1995 United Nations Agreement on
Straddling Fish Stocks and Highly Migratory Fish Stocks. Environmental impact
assessment, public participation, and access to information related to the precautionary
principle is the concept of “environmental impact assessment”, which is based on the
premise that rational planning constitutes an essential tool for reconciling development
and environment. EIA provides and important modality for the implementation of the
precautionary principle. Though first debated at Stockholm, the concept of EIA found a
place only in the Rio Declaration. Agenda 21 calls on countries to assess the suitability of
infrastructure in human settlements, ensure that relevant decisions are preceded by EIAs,
take into account the costs of any ecological consequences and integrate environmental
considerations in decision-making at all levels and all ministries. The EIA requirement is
also embodied in several international instruments, notably the 1991 U.N. Economic
Commission for Europe (ECE), Convention on Environmental Impact Assessment in a
Trans-boundary Context, the 1992 Biodiversity Convention and the 1991 World Bank
Operational Directive 4.01. The value and legitimacy of the EIA process has, in recent
times, been strengthened by the evolution of the right of access to information on the
environmental and the right of public participation. The Rio Declaration recognizes in
Principle 10 that environmental issues are best handled with the participation of all
concerned citizens. This notion has recently been validated in the U.N. ECE Convention
on Access to Information, Public Participation in Decision-Making and Access to Justice
in Environmental Matters, signed on June 25, 1998, by 37 countries. The Convention
recognizes that “every person has the right to live in an environment adequate to his or
her health and well-being, and the duty, … to protect and improve the environment” and
that “citizens must have access to information, be entitled to participate in decision-
making and have access to justice in environmental matters.” So that people can fulfill
these rights and responsibilities, the Convention obligates signatory States to, among
other provision: (a) make environmental information available “as soon as possible,” and
“without an interest having to be stated” by the requester; (b) take specific measures to
ensure complete public participation in decisions of specific activities, plans, programs,
policies, and other regulations related to the environment; and (c) ensure that any person
who feels that the State has not met specific environmental commitments has access to a
review procedure before a court. The value of such participation is enhanced by the right
of access to information, a right that has found its way into various international
instruments. European directive 90/313 on Access to Environmental Information assures
the public free access to and dissemination of all environmental information held by
public authorities throughout the European Union.

Common but Differentiated Responsibility (and respective capability)

The Rio Declaration requires States to cooperate in a spirit of global partner-ship
to protect the environment.8 Yet, because States have contributed differently to global
environmental problems, it recognizes that they should have common, but differentiated,
responsibilities. A good example is Article 4 of the 1992 UNFCCC, which places an
obligation on developed countries to take the lead in meeting the required reductions in
greenhouse gas emissions. Developing country parties, however, are only obliged to
implement these commitments to the extent that developed countries have met their
commitments to provide financial resources and to transfer technology.

8
Principle 7 of the Rio Declaration.
 As a general principle, sure to govern further negotiations on the UNFCCC, the
principle of common but differentiated responsibility is highly significant. The structure
of the 1997 UNFCCC Kyoto Protocol mirrors the philosophy of common but
differentiated responsibility. Developed countries are committed to reducing their overall
emissions of greenhouse gases by at least 5 percent below 1990 levels between 2008 and
2012. Developing nations have no such commitments. Although every nation State has
the responsibility to reduce global greenhouse gas emissions, only Organisation for
Economic Co-Operation and Development (OECD) and economics-in-transition
countries are required to make specific, quantified emission limitations. The limitations,
eve among these countries, vary to take into account differing domestic circumstances.
Developing countries are provided with an opportunity to participate through the Clean
Development Mechanism, which allows countries to cooperate on specific projects to
reduce greenhouse gas emissions.

Polluter-Pays
This principle makes the Polluter liable to pay the costs to remedy the
environmental harm caused. This principle is considered to be the most efficient way of
allocating costs of pollution prevention and control measures introduced by the public
Authorities to encourage rationale use scarce environmental resources. The practical
implications of this principle lie in its allocation of economic obligations in
environmentally damaging activities. This seemingly intuitive principle has not received
the kind of broad support that the precautionary principle has in recent times. Principle 16
of the Rio Declaration, for instance, supports the “internalization of environmental costs”
taking into account the polluter pays principle, but only “with due regard to the public
interest and without distorting international trade and investment.” An example of an
international instrument that refers expressly to the polluter-pays principle in the 1972
OECD Council recommendation on Guiding Principles Concerning the International
Economic Aspects of Environmental Policies, which endorses the polluter-pays principle
to allocate costs of pollution prevention and control measures, so as to encourage rational
use of environmental resources.9

Sustainable Development
Defined by the 1987 Brundtland Committee Report as “development that meets
the needs of the present without compromising the ability of future generations to meet
their own needs,” this principle is at the heart of many environmental initiatives. It
recognizes the need for intergenerational equity, sustainable and equitable use of
resources held in common by the current generation, and the integration of environmental
considerations into economic and other development initiatives. This principle is also
reflected in the Framework Convention on Climate Change among others. 10 The UNEP
clarified that “sustainable development” implies “progress towards national and
international equity, as well as the maintenance, rational use and enhancement of the
natural resources base that underpins the ecological resilience and economic growth.”
Injecting “sustainability” concepts into development policies has broad
implications for both macro and micro economics. Sustainable Development implies the
integration of environmental and social concern into all aspect of economic policy.
Principle 4 of the Rio Declaration States that “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.”

Compliance with and Enforcement of International Environmental Law

The term ‘enforcement’ in the context of international environmental law refers to
the measures taken to ensure the fulfillment of international legal obligations, or to obtain
a ruling by an appropriate international body that obligations are not being fulfilled.
Initially, only the general principles of state responsibility and dispute settlement guided
efforts at enforcement of international environmental law. As the principle subjects of
international law, states assume the obligation to enforce international environmental law.
Enforcement by States arises primarily in situations of transboundary environmental
harm and involves a determination by an international body, such as the ICJ in the Hague.

9
S. Shantha Kumar, Introduction to Environmental Law, (2007), Wadhwa & Company, Nagpur, pp. 103-
104.
10
Article 3(4), Framework Convention on Climate Change.
The ICJ, the principal judicial organ of the United Nations, rules on questions of
international law, including-potentially-issues of international environmental law. In fact,
however, its contribution to the development of international environmental law
principles has been very slight.
A range of techniques and a panoply of international actors are today involved in
the enforcement of international law. Enforcement includes a wide array of forms
including diffusion of information, monitoring, verification, and inspection. For example,
it is increasingly common for international law agreements to mandate their Conferences
of Parties, the permanent plenary body of environmental agreements, to conduct
implementation reviews. This review mechanism monitors national compliance with the
obligations undertaken under the environmental agreement. Such a review is based
primarily on national self-reporting, although some conventions provide for independent
means of gathering information.
Other conventions may use incentives or disincentives; that is, adopt the “carrot
and stick” approach, to obtain participation and ensure compliance. For example, under
the Montreal Protocol trade restrictions can be imposed on imports to and exports from
non-parties to the Protocol, and a fund has been created to assist countries in complying
with their obligations under the Protocol, thereby encouraging participations. Recently
negotiated conventions utilize creative, dynamic, and flexible means to obtain
environmental compliance. The UNFCCC Kyoto Protocol provides a number of
“flexibility mechanisms” (including cooperative implementation, emissions trading, and
technology transfer) to assist parties to meet their commitments.
Among the concerned actors are also international organizations and NGOs.
International organizations have a small, but useful, role to play in the enforcement of
international environmental obligations. States have traditionally been reluctant to endow
international organizations with enforcement powers, but some recent instruments do
provide certain bodies with limited enforcement authorities. For instance, the 1982
United Nations Convention on the Law of the Sea provides the International Sea Bed
Authority with the power to supervise implementation of parts of the Convention, call
attention of the Assembly to cases of noncompliance, and institute proceedings for
noncompliance. NGOs often play the role of self-appointed “watchdogs” over national
governments, and can thus help in the enforcement of international law through political
means or public-interest litigation, to ensure that governments maintain their international
environmental commitments. The individual as an actor in the international arena also
deserves mention. With the increasing emphasis on public participation and provision of
access to environmental information in international discourse, the individual’s role in
ensuring international environmental compliance is becoming increasingly relevant.

Conclusion
It would be obvious from the above discussion that in present era there has been a
steady growth in International Environmental Law. Considerable attention has been given
to the area of state responsibility for environmental damage. There has also been a focus
on the protection of specific sectoral areas. Recently attention has been given to problems
shared by the whole global community such as climate change and the depletion of
biodiversity. Attention has also been given to the enforcement of liability provisions
dealing with wrongful acts having environmentally injurious consequences. At the 1992
UNCED, attention was focused on the question of sustainable development and the
competing interest of development and developing countries. The Rio Declaration and
the ongoing work of the Commission on Sustainable Development have sought to address
the multiplicity of issues connected with the achievement of sustainable development.
Partly as a result of UNCED and it’s resultant document, there has also recently been a
greater focus on the need for more effective implementation of international
environmental law at the global, regional and national level. Though there are some
weakness still remain for international environmental law, including the proliferation of
soft law instruments, the lack of comprehensive coverage, and problems with
implementation and enforcement, which create difficulty for international environmental
law to forge a distinctive Jurisprudence.