Exam Notes - Summary International Environmental Law PDF

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LECTURE 1Dealing with uncertainty - Environmental Impact Assessment: How law has responded (to try gain more knowledge) o Process to undertake before organizing an activity o Provide information about potential impacts to environment o Tells decision makers about current environment and see what imp...

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LECTURE 1 Dealing with uncertainty - Environmental Impact Assessment: How law has responded (to try gain more knowledge) o Process to undertake before organizing an activity o Provide information about potential impacts to environment o Tells decision makers about current environment and see what impacts may be and how can minimise this impact o In ideal world would be accompanied by monitoring - Precautionary principle: to prevent uncertainty being used to lead to worst environmental outcome o Example: fisheries manager getting report saying fish stocks have 70% chance to decline dramatically and 30% chance unlikely to change. No certainty – so will keep things the same cause 30% change will stay same. o Inevitable, to justify environmentally poor practices (need to prevent collapse) - Adaptive management: acknowledge uncertainty and build into decision making process o Experiment and monitor regulatory decisions outcomes, separate problem into 2 areas (conservative and more progressive) and monitor results to both and then decide whether to change decision + add regulations  Experiment to close uncertainty gaps Scientists = inherently uncertain, can’t make decisions Lawyers = can do better at dealing with uncertainty Regulatory options for addressing environmental problems 3 basic types of regulations (to provide incentives to change behaviour) - Command and control measures: government setting standard that people have to comply with. (complete ban or only allow x amount of emissions etc.) - Economic incentive systems: impose a price or opportunity cost for units of waste or resource consumption

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Information Based Approaches: Information about environmental behaviour of actors, then can exercise choice to influence the practice. Public disclosure on environmental behaviour (so public can participate and comment on)

To consider which method is the most effective: - Nature of the problem: economic or enforcement? - Induce state participation: states don’t usually like to be told how to do things o Command/control method o Give choice on how want to incorporate - Desire for choice in how states implement international obligations - Need for ongoing decision making capability - Need for review + update decisions if required – need institution to do this? - Put in place by domestic forum o People who are creating these needs some understanding of how international interacts with domestic LECTURE 2 Building International Cooperation - Uncertainty – can lead to gaps - Divergent values – states interested in protecting different things - Divergent state interests – want different things - Lack of legitimacy – treaty might be seen as unfair e.g. terms of process - Lack of domestic capacity – ability of developing countries to pay for/staff changes supposed to do according to treaty Tragedy of the Commons Collective action problems - Village green open for all to graze their sheep on (no one owns land) - Because free, villages get more sheep due to free food until grass + resource is overused Similar to lots of environmental issues - Free resource, natural response to use as much as can, without limits - One person on own cant solve problems

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To protect need collective action Cooperation, to agree on rules (go back to regulations) command and control = one sheep per villager, economic = pay to use green, information = list on townhall of sheep

Free-riding Everyone minus one agrees to one sheep on village green, Joe doesn’t agree puts 15 on there - States in international forum only required to abide by treaty if ratified and agreed o States can pick and choose with no legal consequences o ‘everyone else is resolving issue, doesn’t matter if we don’t comply’ - Other villages unhappy as doing hard work (limiting economic benefits – joe gets benefits) o Same thing in international community - Free-riders: undermine people’s willingness to agree with these systems o Build incentives to avoid them or sanctions o Fisheries and atmosphere most common resource in world Sources of International Environmental Law - Treaty - Customary international law (Article 38(1) ICJ Statute): International conventions, establishing rules expressly recognised by states. o International custom, as evidence of a general practice accepted as law o General principles of law recognised by civilized nations o Judicial decisions and teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law - Rules not necessarily written down but bind almost all members of international community o 2 criteria  1. Demonstrate that behaving in a certain was as believe it is a principle of international law  2. Demonstrate that states have generally acted consistently with this alleged principle

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Soft law o Code of conduct, guidelines, principles that have been recorded in international forum which contain principles/rules that people should apply to their conduct but aren’t actually binding

Discussions between states about particular problems - Easier to get results/agreements as not binding - Treaty harder as imposes legally binding obligations (and slow to implement) - Soft law creates goals rather than obligations/duties o If sign up to soft law, will in good faith use best efforts to achieve goal o Believed to be instrumental in changing state behaviour o Makes impact in how states respond o Connection between development of ideas and principles in soft law and hard law, in customary international law o Sometimes states want to move law along, start with soft law Multilateral Environmental Agreements Environmental agreements between large # of states - Bi-lateral agreements Characteristics of agreements: - Know something needs to change, but updated things will occur later - Will allow for development of rules in other ways - Start to think about treaty, distinction between treaty + actionable rules - Way new rules can be implemented + old rules updated o In international law, to update, everyone has to agree otherwise confusing o In environmental context need to update in way that has max coverage that’s faster and easier to update - Appendix to treaty changed by majority vote to be updated - Option for state to opt out also if disagree with change, otherwise is enforceable with everyone Protocols - Subsidiary agreement to treaty of climate change

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Key convention contains rules pertaining to protocol and made under this convention (protocol), can agree to protocol and not convention Institution of frameworks they create o Meeting of parties/conference o COPs + MOPs (conference of parties/meetings of parties) Need to do this to update things, only states can do this Secretariat, policy support of COP Finance committees/scientific provide services also More than 200 of these around world dealing with IEL

Marine Biodiversity beyond National Jurisdiction Variety of life that can be found on Earth (plants, animals, fungi + microorganisms) as well as communities they form and habitats they live in - People thought conscious though, people don’t care if not in front of them - Different than species protection (out of date concept) Significant as world is ocean and much of diversity (ocean animals) - Know more about surface of moon than deep ocean, some never been seen (expensive and difficult to access) Oceans occupy more than 70% of the Earth’s surface and 95% of the biosphere Seamount - Mountains on sea floor due to seismic activities. Brings up nutrients from ocean floor then concentrates in area above sea mount - Targeted by fisheries - Mining: have thick crusts above them, proposed way to mine = remove surface of seamount and process minerals. Negative impact on biodiversity Hydrothermal Vents - Organisms around these vents exist in very high temperatures up to 300 degrees (extremes in temperatures 5 – 300 degrees). High in biodiversity, lots of species down there. Transient, vents shut off so have to move or die - Chimney often contains precious minerals, growing interest in mining these areas - Bioprospecting - Treaty discussions, gap in legal framework (potentially)

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History of BBNJ (Biodiversity beyond national jurisdiction) 2002 world summit on Sustainable Development called for representative marine protected areas by 2012. - Work on protected areas also taking place in the convention on Biological Diversity (CBD) - 2006 – 2012 UN Ad Hoc Meetings on Marine Biodiversity beyond national jurisdiction - UN GA Resolution 69/292, 2015. Agreement to move towards an international treaty. Four preparatory committee meetings held o Informal working group, forum to discuss issues of what states thought needed to happen and specific issues wanted to work on - UN GA Resolution 72/249, 24 December 2017: GA authorizes intergovernmental Committee (IGC) to negotiate a new treaty - First IGC met in September, next in March Refuges for some species to thrive even if negatively affected in other places - Need a lot of protected areas (especially if creatures migrate) - Didn’t make their 2012 goal Under law of sea, no institution/conference able to take on developing the law in same way as environmental agreement - September discussion similar issues raised as in 2006 - Preparatory committees - Conference to discuss - Hopefully have text next march to negotiate Brief introduction to the law of the sea - United Nations Convention on the Law of the Sea 1982 (UNCLOS of LOSC) established the framework for rules applying to the uses of the oceans - Key achievements: o Protection of freedom of navigation o Creation/recognition of a range of maritime zones: some where states exercise jurisdiction, others beyond national jurisdiction o Rules relating to fishing, mining, research  Not a lot of communication, subsidiary bodies, compartmentalized and doesn’t always relate to each other

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o Rules relating to marine pollution o Compulsory dispute settlement BUT not able to resolve all issues -

Almost universal coverage (except US) - Treated mostly as customary international law - Range of different topics covered, all agreed on in one place so states couldn’t pick and choose what agreed to - Maritime zones, states have varying levels of control on sea out into highseas 1973-1982 negotiation - Modern principles weren’t around when this was made o Environmental, limited principles included o Hard to amend treaty o No conference of parties willing to do anything substantive, lacks key components of MEAs The high seas - Water column beyond national jurisdiction The Area - Seabed and nonliving resources administered by the international seabed authority - Has own unique regime (High seas + the area) when talking about BBNJ How jurisdiction works in the Law of the Sea - Flag state jurisdiction: Countries can grant ‘nationality’ to a vessel, which must comply with its laws wherever it is. On the high seas, flag state jurisdiction is exclusive, apart from limited exceptions (art 92 and 110) o All vessels registered to a country, allowed to fly flag of that vessel + has primary jurisdiction over that vessel - Coastal state jurisdiction: in various maritime zones (national jurisdiction), coastal states can exercise jurisdiction over foreign vessels to a limited extent o Territorial sea – sovereignty but foreign vessels and aircraft have a right of innocent passage.

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Exclusive economic zone (EEZ) and continental shelf – “sovereign rights” over resources and pollution. Can regulate fishing etc. (if enters that jurisdiction) Port State jurisdiction: when a vessel is voluntarily in port it is subject to the laws of the port state o

LECTURE 3 Areas ‘beyond national jurisdiction’: the high seas - Freedom of navigation, fishing, marine scientific research o Navigation: allows states to go anywhere they want without intervention - Regional fisheries management organisations (RFMOs) are created by treaties to agree on conservation and management measures for fishing on the high seas. But ad hoc and uneven in coverage - United Nations Fish Stock Convention created an obligation to join or comply with measures of RFMOs but only applies to parties to that treaty - “flags of convenience” – willing to grant nationality for a fee, poorly enforced laws, state not party to important treaties, so vessels are fishing without constraint - Shipping issues regulated by the International Maritime Organisation Freedom of fishing on high seas - Broad obligations to cooperate within convention - Freedom of fishing interpreted by any state so can fish as much as want in areas where there is no rules (high seas) - Can’t have unregulated fishing as leads to over fishing and destruction of stocks (regional fisheries management organisation) exist in different parts of world to limit fishing so continues to be sustainable over long term o Do this by allowing a total allowable catch across members of org o Problem, doesn’t exist everywhere o Where do exist, cover different types of things (in whole area, but certain types of fish)  South china sea, no rules cause no one can agree  East coast south America, controversy faulkland islands, cant cooperate

Problem – rule that only bound by treaty that you sign up to Truly don’t want to be bound (determined to keep fishing, all have to do is not sign convention) Flags of convenience: biggest problem for managing fisheries RFMOs separate treaties, little coordination between them o If stock overlaps geographically can be problematic o One org may have diff approach o o

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SPIFRO - Non-migratory species (tuna) - Big gaps in world where no geographically RMFO - Tuna = economically important fishery o Obligation to protect biodiversity but instead think about how many fish should be caught Deep sea bed - Reason why separate regime for deep sea to high seas, discovery of minerals in deep sea bed. No existing tech/users who extracted these for commercial use o Could be important in future (valuable + regulated) o Could apply principle of freedom (tends to dominate in high seas) therefore, first person to develop technology to get them would get to keep them o Developing countries now emerging from colonialism, strong belief that have huge economic disadvantage because of colonial powers  Technology benefit for richer countries, unfair as countries will get minerals, yet not technology for ages  Because minerals (from beyond national jurisdiction) belong to all of us, proposed that they be known as common heritage of mankind.  Incorporated this principle into convention  Resources belong to all states of seabed, because of this unity ownership  Joint efforts to extract minerals, any benefits from extracting should be shared among equitable basis among all states

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Reflected power that developing countries had moral power

Focus on poly metallic nodules - Lying on bottom of abyssal plains - Basic approach of companies, big vaccum to hoover up nodules to be processed and excess debris would be released into water Exploration license - Long line of hydrothermal vents (mineral rich chimneys) home to significant wildlife - Exploitation licenses sometimes issued Scientists critical - Mid Atlantic ridge (hydrothermal vents) - Potential for them to be exploited/mined Fishing and mining, key activities which ruin biodiversity. As far as we know, biodiversity in areas beyond national jurisdiction is decling Problems for marine biodiversity beyond national jurisdiction (BBNJ) Fisheries - Declining fish stocks – FAO estimate that 31% of fishstocks are overfished, 58% fully fished. Of Tuna stocks, 41% fished at unsustainable level - Inability of many RFMOs to manage stocks unsustainably: o Decision making rules allow states to ‘holdout’ for higher quotas o Large amounts of illegal or unregulated fishing o Reluctance to take broader steps to protect the environment from effects of fishing - Gaps in coverage/membership of RFMOs - states not signed up to convention - China and Russia - resistance - Rules for fishing developed before concepts of ‘biodiversity’ 1995 Treaty - Brought in some environmental procedures – precautionary issue A LOT of problems - Convention, resources of area (common resource for mankind? - Rise of interest in obtaining biotechnology of organisms in ocean

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Organisms in water, covered by freedom of fishing

Living resources of on seabed should be covered by this principle - Negotiators didn’t think anything down there - Enormous amount of biodiversity on seabed Problems for BBNJ - A key problem is how to deal with emerging uses of the oceans for which no organisation exists - Example: ocean iron fertilization (depositing soluble iron into the oceans to stimulate increased CO2 uptake) - Not covered by existing legal instruments. UNCLOs doesn’t have regular meetings of the parties in the way that MEAs do - Eventually, parties to the London Convention on Dumping took steps. But still controversy because not strictly “dumping” according to that convention Climate change technology - Stimulate plankton growth (absorb) CO2 from atmosphere so carbon dioxide removed. Thought could sell carbon credits o No one understood, location to be regulated o Covered by conventions to parties of dumping even though doesn’t technically fit definition - Other tech may not have remote key/connected home Parties meet – to usually talk about finance - Concerned would reopen law of the sea convention for negotiation - No forum for these issues Issues for negotiation in the new internationally Legally Binding Instrument (ILBI) Package of issues 1. Marine genetic Resources 2. Environmental and Strategic impact assessments 3. Area based management (including marine protected areas) 4. Capacity building and technology transfer

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About helping countries meet obligations and participate in expeditions

Also important 1. The relationship between existing bodies and the new treaty: “must not undermine” the existing bodies o How will interrelate, some think would need an identifiable source to tell us what to do o Fisheries institution then knew think has to stay away from fisheries – hands on to hands off model 2. Should the ILBI contain general principles? What should they include? Environmental principles in the Law of the Sea Convention (excluding pollution) - Article 192: States have the obligation to protect and preserve the marine environment o Hard to apply sometimes - Article 194(5): the measures taken in accordance with this part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life o Closest to concept of biodiversity as it gets, acknowledging interlinkages - Article 206: where states have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205 o If reasonable grounds that their activities are making substantial pollution/changes to environment must assess their activities  Not a very good way of talking about EIAs ICN involved biodiversity - Learning new ways to manage this - Good place to have conversations – experts can have input - Not enormous detail, just principles in new treaty

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Scientific activity - Freedom to conduct research - Scientists come up with guidelines, but no regulations - Climate change, regime not in position to deal with regulatory - Massive amounts of idon dumped into ocean (dumping) - Put big pumps in oceans to bring cold water up to the front to disrupt Early Developments of IEL Developed after WW2 after growth of institutions and awareness of environmental impact - A number of bilateral treaties for cross-boundar...