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Law
Environmental Law
Introduction to International
Environmental Law
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QUADRANT-I (A) – PERSONAL DETAILS
Role Name Affiliation
Principal Investigator Prof (Dr) Ranbir Singh Vice Chancellor, National
Law University Delhi
Co-Principal Investigator Prof (Dr) GS Bajpai Registrar, National Law
University Delhi
Paper Coordinator, if any Ms Lovleen Bhullar School of Oriental and
African Studies, University
of London
Content Writer/Author Mr Sujith Koonan School of Oriental and
African Studies, University
of London
Content Reviewer Prof Philippe Cullet School of Oriental and
African Studies, University
of London
Language Editor Ms Lovleen Bhullar School of Oriental and
African Studies, University
of London
QUADRANT-I (B) – DESCRIPTION OF MODULE
Items Description of Module
Subject Name Law
Paper Name Environmental Law
Module Name/Title Introduction to International
Environmental Law
Module Id ENLAW/1
Pre-requisites General principles of international law
Objectives To study the evolution and expansion
of international environmental law
Keywords International environmental law,
sources, MEAs, North-South debate
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QUADRANT-I – E-TEXT
1. Introduction
It is now widely recognised that the planet is facing a range of environmental challenges, which can
only be addressed through international co-operation. Developments in science and technology have
enhanced the possibility of understanding the environmental implications of various naturally occurring
events as well as human activities. The last few decades have witnessed an exponential increase in
multilateral environmental agreements covering a wide range of issues such as ozone depletion, climate
change, loss of biodiversity, toxic and hazardous products and wastes, pollution of rivers and depletion
of freshwater resources.
International environmental law is a comparatively new branch of international law. It has expanded
dramatically over the years particularly since the United Nations Conference on the Human
Environment, 1972. The development of international environmental law has produced mixed results.
While some treaty regimes have been effective in producing the desired results (e.g. Vienna Convention
on Protection of the Ozone Layer, 1985), some other regimes are struggling to produce results (e.g.
United Nations Framework Convention on Climate Change, 1992).
This unit provides an overview of the development of international environmental law and briefly
introduces its sources and important underlying principles. An in-depth analysis of the substantive
aspects of international environmental law is not an objective of this unit. This unit explains the sources
of international environmental law and narrates the development of international environmental law in
its historical context. It also highlights the expansion of international environmental law and the role
played by important international conferences on the environment in this process. This unit also
highlights the North-South debate in the international environmental law regime.
2. Learning Outcomes
After reading this unit, students will have an understanding of the origin, evolution and expansion of
international environmental law. By the end of this unit, students will be able to identify and critically
analyse international environmental law instruments.
3. Early Legal Developments
Early legal developments in the field of the environment were limited in nature and scope. Legal
initiatives mostly focused on specific issues such as regulation of whaling, fisheries, watercourses and
birds (e.g. Convention between France and Great Britain Relating to Fisheries, 1867 and Convention
for the Regulation of Whaling, 1931).
In the 1930s, the transboundary consequences of air pollution were acknowledged in arbitral
proceedings leading to the award of the arbitral tribunal in the Trail Smelter case. The Trail Smelter
case (Canada v. US) (1941) laid down the rule of international law on state responsibility in the context
of transboundary pollution (and for transboundary effects on environment in general). It was held that:
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 consequences and the injury is established by clear and convincing evidences.
This principle was concretised subsequently through case laws (e.g. Corfu Channel case (UK v
Albania) (1949) ICJ Reports 4). A number of treaties and declarations have also incorporated this
principle. For example, Article 194 of the United Nations Convention on the Law of the Sea, 1982 and
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Principle 21 of the Declaration of United Nations Conference on the Human Environment, 1972 reflect
this principle. The Trail Smelter case is a landmark case because it influenced the subsequent
development of international environmental law significantly. The case together with the treaties
th th
adopted and organisations established in the late 19 century and the early 20 century are believed to
have provided the basis of international environmental law.
4. Sources of International Environmental Law
Article 38(1) of the Statute of the International Court of Justice provides that treaties, customs and
general principles of law recognised by civilised nations are the major sources of international law.
Judicial decisions and teachings of the most highly qualified publicists are recognised as subsidiary
sources. While treaties and customary law are important sources of international environmental law, the
legal regime for the protection of the environment also includes a range of legally non-binding
instruments generally known as ‘soft law’, which includes declarations and guidelines.
4.1. Treaties
Treaties are the most frequently used source of international environmental law. The last few decades,
particularly the 1980s and the 1990s, have witnessed a proliferation of multilateral environmental
agreements (MEAs). Between the Stockholm Conference, 1972 and the Rio Conference, 1992, several
treaties were concluded covering a range of issues such as regulation of trade in endangered species
(Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES)),
marine pollution (International Convention for the Prevention of Pollution from Ships, 1973), ozone
protection (Vienna Convention on Protection of the Ozone Layer, 1985) and transboundary movement
of hazardous waste (Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, 1989). More than 100 MEAs were concluded between 1972 and 1992.
Environmental catastrophes such as the Amoco Cadiz oil spill (1978), the Chernobyl nuclear accident
(1986) and the Exxon Valdez oil spill (1989) also triggered the rapid development of international
environmental law.
Even though the number of MEAs has grown significantly, this development was criticised mainly
because of their ambiguous and indeterminate legal substance and non-compliance by state parties. The
proliferation of MEAs has also made coordination between different treaty regimes a difficult task.
Consequently, in recent years, the focus has shifted towards stronger emphasis on treaty coordination,
effectiveness, and compliance as opposed to the adoption of new treaties.
The treaty making process in international environmental law has also witnessed the introduction of
novel ideas, most importantly, the Convention-Protocol approach, which envisages a framework
convention with broad principles. Concrete obligations and actions will be laid down in subsequent
agreements known as protocols. For example, general principles pertaining to the protection of
biodiversity are laid down under the Convention on Biological Diversity, 1992. However, concrete
rights and duties have been laid down in subsequent protocols on different issues such as biosafety
(Cartagena Protocol on Biosafety, 2000) and benefit sharing (Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, 2010). The
climate change regime is another example with the United Nations Framework Convention on Climate
Change, 1992 as the framework convention and the Kyoto Protocol, 1997 as a subsequent agreement
with concrete rights and duties.
This method is progressive on various grounds. The idea of a framework convention without concrete
rights and duties helps to bring more countries on the table. The cooperation, which begins with the
framework convention, in theory, would nurture cooperation and trust among parties and would help to
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