Key Environmental Law Treaties and Agreements

AuthorAndrew Long
Pages977-994
CHAPTER 49
Key Environmental Law Treaties
and Agreements
ANDREW LONG
I. Introduction: Global Environmental Problems
The rapid growth of international environmental law (IEL) in the last 40
years responds to an increasing scientific understanding of humanity’s abil-
ity to fundamentally alter natural systems on a global scale. Just as U.S. envi-
ronmental law emerged as the public came to understand the risks generated
by industrial activity—such as recognition of unintended harm from wide-
spread use of chemical products following the popularity of Rachel Carson’s
seminal book Silent Spring—IEL has grown as a result of increasing public
awareness that environmental issues transcending national boundaries
threaten significant harm. Early international environmental agreements
tended to focus on discrete issues and national implementation, such as pro-
tection of economically valuable wildlife species. Since the hole in the ozone
layer captured the public imagination in the mid-1980s, however, global col-
lective action problems have become increasingly predominant in defining
the IEL landscape. Global resource systems that once seemed to hold limit-
less bounty (such as the oceans) or to be beyond humanity’s reach (such as
the atmosphere) have become vulnerable to massive changes resulting from
human activity. Such problems create grave risks for people throughout the
world and require cooperative action among countries because they cannot
be addressed by any one country acting alone. The basic dilemma underly-
ing IEL today is that the nations of the world can only avoid long-term col-
lective risk by assuming near-term restraints on their sovereign activities.
The global effort to respond to climate change has come to epitomize this
dilemma for many people.
This chapter provides a brief digest of major IEL agreements that have
come into existence over the last 40 years. It is meant to serve as a quick
digest for the practitioner of some of the most significant agreements and
principles that drive the development of IEL. It begins by discussing the two
most important “soft law” agreements for establishing the core principles of
977
IEL: the Declaration of the United Nations Conference on the Human Envi-
ronment (Stockholm Declaration)1 and the Rio Declaration on Environment
and Development, U.N. Conference on Environment and Development (Rio
Declaration).2 From there, the chapter briefly highlights the key agreements
addressing the following topics: the atmospheric commons; the ocean com-
mons; biodiversity; and pollution. These topical areas were chosen both for
their significance as a matter of environmental quality and because of the
legal and/or political significance of the agreements designed to regulate
them.
II. Agreements Establishing Environmental Principles
A. Stockholm Declaration
In many important respects, the 1972 Stockholm Conference on the Human
Environment marks the beginning of IEL to address globally significant envi-
ronmental problems. Prior to Stockholm, IEL agreements consisted almost
exclusively of bilateral and regional treaties addressing a relatively narrow
resource preservation issue affecting a limited geographic area, such as the
Pacific Fur Seals Treaty. The international aspect of these early agreements
arose from cross-border concerns rather than global collective action prob-
lems. The Stockholm Conference had the symbolic importance of gathering
the nations of the world together to begin cooperation toward solving global
environmental problems and created the U.N. Environment Program. But
perhaps the most important outcome of the conference for the development
of IEL was the Stockholm Declaration, which was the first multilateral state-
ment of IEL principles. The principles enshrined in the Stockholm Declara-
tion laid the foundation upon which the conceptual framework of IEL and
international environmental policy has been constructed in the last 40 years.
Principle 21 of the Stockholm Declaration has arguably been the most
important principle in IEL since 1972 because it sets the context within which
all further development has occurred. Principle 21 provides that states have
“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.” This principle,
which recognizes countries’ sovereignty over resources within their territory,
and a corresponding obligation to avoid harm to other nations and the com-
mons (a principle against transboundary harm), was recognized as express-
ing customary international law by the International Court of Justice (ICJ) in
its Legality of the Threat or Use of Nuclear Weapons (New Zealand v. France)
advisory opinion.3 In their influential treatise, Philippe Sands and Jacqueline
Peel describe it as the “cornerstone of international environmental law.”4
Principle 21 establishes the essential parameters that frame negotiations to
address the collective action problems at the heart of IEL—the challenge of
engaging and coordinating independent sovereign states to regulate their
978 INTERNATIONAL ENVIRONMENTAL LAW

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