Protection or Development: Navigating a legal labyrinth

“While international environmental law is much better, the environment is, at least in some aspects, worse. This leads
some to question the value of international environmental agreements.”(Weiss 2011:26)

The 20th century has seen the progression of the burgeoning field of International Environmental Law
(IEL) occur sporadically, then rapidly, creating a convoluted contemporary legal system; one that is
extremely difficult to navigate. In order to understand the current state of IEL, it is important to trace
both its origins and its purpose, and discern how this has evolved over time. It is noteworthy that at
its inception, the environment and its related issues were not dominant areas of concern as it fell under
the realm of ‘soft politics’ and addressing it was seen as subversive to economic development. Today
however, as scientific knowledge has advanced and states’ governments acknowledge the
transboundary nature and far-reaching effects of environmental issues, the topic has received
increased attention and found its way to the forefront of the international law and policy making
agenda.

Nevertheless, some questions remain; has the foundational structure of IEL granted it the importance
which it is due? What is essentially at the crux of the existing convolution of environmental laws,
policies and agreements? Has the mutual inclusivity of environmental protection and economic
development truly been accepted; or is the pattern of ‘specific agreements for specific issues’ simply a
way by which states can superficially subscribe to protection mechanisms while simultaneously
ignoring those environmental issues which undermine their economic interests? Subsequently, is the
congested nature of IEL diluting its importance altogether? IEL is multidimensional and touches on
several areas of international relations. As it has evolved so too have the issues falling under its aegis
and as such cannot be pigeonholed within one theoretical framework. Therefore this paper will seek
to answer the abovementioned questions through multiple theoretical lenses which reflect the
attitudes and interests at the different stages in IEL evolution and the subsequent response by the
international community. It will seek to trace the evolution of IEL while critically assessing whether
or not its effectiveness has been hindered or propelled by its labyrinthine structure.

Prior to 1968 and Resolution 1346 (XLV)1 of the United Nations Economic and Social Council
(ECOSOC), global environmental governance as it relates to law and policy making, focused largely
on two broad issues; natural resource management with regards to transboundary areas, and
addressing “the global commons”2 which later came to be known as the Common Heritage of
Humankind (CHH). During this period also known as the traditional era, IEL took the form of
bilateral and regional agreements and dispute settlement mechanisms to treat with the shared usage
of resources such as water, wildlife and fisheries.3 These agreements centred around a focus on
territorial sovereignty and the apportionment of resources outside of national jurisdiction. There also
emerged two of the earliest principles and practices of IEL, bon voisinage or good neighbourliness, and
the no-harm rule. Both these tenets were later concretized in the 1945 UN Charter4 and the 1941 Trail
Smelter Arbitration Case respectively. Quintessentially, this case was but one of the landmark cases
during this era which propelled the creation and establishment of IEL as a discipline.

Fundamentally, there were three cases which served as benchmarks in the development of global
environmental law. Primarily, the Pacific Fur Seal Case/ Bering Sea Arbitration between the United
States and Britain treated with living resources in the global commons. This case was important in
delineating that the natural resource in question, the Bering Sea, was a common area and did not fall
under the jurisdiction of any one nation. The second case, the 1941 Trail Smelter Arbitration Case
between the United States and Canada dealt with transboundary air pollution. “The case was
landmark because it was the first to challenge historic principles of international law, which
subordinated international environmental duty to nationalistic claims of sovereignty and free-market
methods of unfettered industrial development.” (Wolf 2003) The findings of this case set what is often
regarded as the primary precedent of IEL even today.

1
Economic and Social Council Resolution 1346 (XLV) of 30 July 1968 recommended the General Assembly consider
convening a UN conference on problems of the human environment.
2
“Those areas of the environment outside the boundaries of any state, such as the high seas, deep sea bed, Antarctica, outer
space, and, some authorities would add, the ozone layer, certain world-cultural landmarks, endangered species,
rainforests, coral reefs, and some genetic resources.” (Nanda et al 2013)
3
Some examples include the 1902 Paris Convention to Protect Birds Useful to Agriculture, the 1931, 1937, 1946
International Conventions for the Regulation of Whaling, and the 1929 and 1951 International Plant Protection
Conventions.
4
This is often referred to the Duty to Cooperate enshrined in Article I of the UN Charter – “to achieve international
cooperation in solving international problems of an economic, social, cultural or humanitarian character”. (UN Charter
1945)
The tribunal held that,

“Under the principles of international law, as well as of the law of the United States, 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…” (Trail
Smelter Arbitration 1941)

This principle was in effect a manifestation of an earlier precedent already entrenched in common law
but never before applied to actions outside a nation’s territorial borders; i.e. sic utere tuo ut alienum non
laedas – one should use one’s own property so as not to injure another. This is known today as the
aforementioned no-harm rule. Finally, the third case occurred between Spain and France in 1957; the
Lac Lanoux Arbitration addressed transboundary freshwaters and introduced the IEL standards of
prior notification and consultation, not only as a treaty stipulation in that instance, but more
distinctively as a principle of customary international law.

These arbitrations among other transnational disputes set the tone for the treaties and agreements
which followed as well as the creation of several organizations, institutions and agencies, an integral
one being the World Conservation Union (IUCN) established in 1948. Howbeit, it is noteworthy that
there still was not one overarching international environmental organization or UN agency charged
solely with a mandate to attend to environmental issues. Nevertheless, these developments ushered
in the modern era of IEL.

In the years leading up to the 1972 UN Conference on the Human Environment (Stockholm
Conference) there were several catalysts which basically urged a paradigm shift in the approach to
global environmental governance. Sand (2007:34) postulates three ‘concurrent discourses’ which
were responsible for this change; “…

 A global rise in environmental risks highlighted by a series of eco-disasters

 A growing public awareness of the ‘world eco-crisis’, alerted by media attention and seminal
publications
 Innovative examples of national legislation enacted in response to the environmental challenge…”

Nevertheless, the obvious shift to the establishment of a unified environmental agency was not so
clear cut. At the time, the UN nations did not have an environmental agenda, but due to the
transcendence and far reaching effects of the environmental issues at hand, other UN agencies and
organizations were already involved in mitigation efforts. It is notable that there was in fact extreme
tension between and among existing UN agencies in a highly politicized arena, further exacerbated
by overlapping domains, scarcity of financial resources and the ever present apprehension toward the
creation of an entirely new agency as it related to the infringement on territorial sovereignty. The
result of these combined factors was the United Nations Environment Programme (UNEP), a
decentralized proposal with minimal administration, which accredited existing institutions with
differing environmental responsibilities. The fact that this mechanism did not carry the full weight or
authority if the other UN agencies, in a sense spoke to the level of importance attributed to
environmental protection. “This decision put UNEP and environmental issues on a path that has made
them subservient to other interests.” (Chambers 2004:18) Albeit there was an initial intention to
‘upgrade’ UNEP in the future, it can be said that the novelty wore off. Additionally, even though there
were at that time, and yet still have been consistent calls by some scholars for a World Environment
Organization (WEO), “reformist hopes [have been] left unfulfilled” as at this stage, the prospects of
“massive reorganization and full centralization are inconceivable” for myriad reasons. (Charnovitz
2004:93-98)

Apart from this, there were misgivings by both developed and developing countries. Chambers
(2004:16) proffers that

“Developed countries…did not want to pay for yet another international organization and
wanted the “absolute minimum” of new institutions. Developing countries objected to a large
new environmental organization on the grounds that regulations on the environment could be
a new form of colonialism, or at the very least a restriction on their economic development.”

The latter proved to be just the beginning of two analogous debates which exist even today, namely
the North/South debate, and the protection/development dichotomy. The persistence of these
disequilibria have raised some concerns regarding the real issues at the crux of environmental
governance as well as casted doubt on the approach taken by law and policy makers. In the first
instance it is argued that “the disparities between the affluent (North) and the impoverished (South)
are often used to present environmental degradation as either a cost of development or as a vestige of
profligate foreign investments in the South. This North-South split is often portrayed as a battle over
money and technology…These debates mask the real source of conflict, which is a fundamental
difference in how the nations of the North and the South think about progress.” (Susskind & Ali
2015:16-17) On the other hand, it is proposed that post-colonial developing states face a different
environmental quandary altogether and so protection is not paramount, or in the least, tantamount to
their respective development goals. Louka (2006:29) posits that “most developing countries, when
they entered the international arena as independent sovereign states, were faced with environmental
problems that were of a different nature than those experienced by developed countries.” She furthers
that…
 “Lack of enforcement in developing countries is indicative of both the lack of capacity but also
a certain lack of will, as many developing countries are content to sacrifice more of their
environmental protection in the pursuit of their development goals…developed countries were
allowed to despoil their environment in order to develop and [so] they [too] should achieve
some level of development [and wealth] before they implement environmental measures...after
[this], the pursuit of environmental quality should follow, as it has happened in developed
countries.”

Ironically, this vantage point extends to developed countries as well; in the sense that some economic
incentive or opportunity for gain must be seen before adhering to environmental regulations. Again,
this precautionary approach, favouring and leaving room for the possibility of economic development
allowing it to take precedence over environmental protection, is a clear example of the apparent
paltriness of effective and efficient global environmental governance.

Notwithstanding these crucial setbacks, additional advancements of this era included a rapid
proliferation of treaties and multilateral agreements going far beyond the scope and focus of the two
prevalent issues of the traditional era. While this meant that more credence was being given to the
need for environmental law and policy, it also meant treaty congestion, inter-agency rivalries and
essentially, turf wars regarding jurisdiction over the different issues. The system became extremely
chaotic and as its very nature called for national implementation via domestic legislation, the
multiplicity of agreements meant increasing encroachment on states’ sovereignty and thus led to a
further obstacle of widespread non-compliance. This effectively undermined the force of these
agreements and left the system both convoluted and somewhat stagnated.

Nonetheless, this was a pivotal point for environmental treaty agendas as both the subject and design
changed. “New man-made risks such as industrial pollution and resource degradation by hazardous
substances or activities now moved into the focus…from ad-hoc single-issue diplomatic conventions
to regulatory regimes open to future change.” (Sand 2007:35) There was also the inclusion of formal
provisions for dispute settlement mechanisms in international environmental agreements by recourse
to legal means of resolution. Moreover there was a transpiration within several states’ of new and
innovative domestic environmental laws which were voluntarily adopted and mimicked by others
leading to involuntary, but much needed consensus building and harmonization at some levels. By
1981 IEL was recognized as an academic discipline and there was further codification of environmental
law standards and principles. As aforementioned, there was also an increase in the role of developing
or ‘Southern’ countries evinced in the thematic extension to include development issues and the need
for an augmentation in the North’s capacity building efforts and financial aid and technology transfers.
These factors indicated the need for even further improvements which states attempted to address 20
years after Stockholm at the 1992 UN Conference on the Environment and Development.
An integral development which predated the 1992 Rio Summit was the publication of the “Brundtland
Report”5 in 1971, which more or less introduced the concept of sustainability and sustainable
development into IEL, one which would set the tone for all agreements and conferences going forward.
The decisive features of this era included an intense focus on the protection/development nexus
within the North/South context, intergenerational equity and ‘participatory revolution’ with a host
of NGOs and civil society being involved throughout the entire process. Chief additions to IEL
embodied hard law (UN Framework Convention on Climate Change and the Conference on
Biodiversity) and soft law (Rio Declaration on Environment and Development, and Agenda 21). The
fractured views between developing and developed was especially highlighted at the Rio Summit.
“Developing countries influenced many of the provisions of the declaration including the articulation
of a right to development, the definition of sustainable development, the focus on eradication of
poverty and on the special needs of developing countries.” (Louka 2006:33) Stemming from this was
the principle of ‘common but differentiated responsibilities’ outlined in Principle 76 of the Rio
Declaration, as well as the right of access to information evidenced in the participation of citizens in
addressing environmental issues. Principles 15 and 16 also introduced two key tenets; the precautionary
approach7 and the polluter pays principle8 respectively. The installation of these principles was indubitably
accompanied by its own obstacles. Initially, the precautionary principle was established to combat
procrastination and unwillingness by governments to take action by using the excuse of insufficient
scientific certainty and the cost of taking measures under these circumstances. Some states such as
the United States have even viewed it as “a protectionist principle – a new non-tariff barrier to trade.”
(Louka 2006:51) it has also been suggested that the polluter-pays principle has nothing more than
rhetoric value as it has often been enunciated but not adhered to. Similarly, Agenda 21 can be described
as a utopic goal set by developed states. Albeit it has been described as “a blueprint for how the goal
of sustainable development should be achieved” (Chambers 2004:21), it also noted that “the costs of
the environmental, social, and economic programs necessary to achieve [this] worldwide will total

5
The Brundtland Commission referred to this concept as “development that meets the needs of the present without compromising the
ability of the future generations to meet their own needs.” (Nanda et al 2013:26)
6
“States shall cooperate in a spirit of global partnership to conserve, protect and restore health and integrity of the
Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but
differentiated responsibilities.” Principle 7, Rio Declaration on Environment and Development, June 13, 1992.
7
“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 15, ibid.
8
This principle holds that the polluter should be made to internalize the cost of pollution, or externalities which affect
society in its entirety. It follows that if they are made to incorporate the cost into production processes, pollution would
subsequently be reduced. (Louka 2006:34)
hundreds of billions of dollars a year.” (Nanda et al 2013:41) Evidently covering this cost is impossible
for developing states and highly taxing on even developed countries.

Even today, the notion of sustainable development has not been afforded a unanimous definition
within the international arena. Accord in this regard has again been majorly affected by the
North/South divide. Theorists contend that “the combination of unsustainable resource consumption
by industrialized nations (and their companies), and the chronic conditions of poverty in the
developing world, has created in post-colonial societies some of the planet’s severest ecological and
social problems.” (Sethi & Kulkarni 2011:101) Sustainability has made its way into every agreement
since the Rio Summit, nevertheless it has been regarded by some scholars as a fully Western concept
and so is still frowned upon by many developing states. Geisinger (2000:68) posits that;

“Sustainable development is not just a reflection of Western ideology, but a force for defining
environmental problems in Western terms. The ecocratic discourse that has developed around
[this] principle serves to further marginalize any conception of environment that does not fit
into the Western framework. Its implementation assumes the ability of science to develop
technologies to limit environmental damage while ensuring material growth.”

Louka (2006:52) agrees that

“the term has been decried by some as devoid of content, a concept used to express different
and often disparate worldviews…as developed countries and their NGOs have used the
principle to underline the importance of environmental values whereas developing countries
have used [it] to buttress their right to development.”

This idea has continued to be a contentious issue. In 2002, the World Summit on Sustainable Development
(WSSD) was held in Johannesburg but was disappointing to both environmentalists and NGOs as its two main
documents, the Declaration on Sustainable Development and the Plan of Implementation, focused largely on
social and economic development and growth rather than addressing environmental objectives. Fundamentally
development, rather than protection was now at the crux of the labyrinth of environmental laws, policies and
agreements.

Although the efforts of these three summits, Stockholm, Rio and Johannesburg has achieved some
measure of success, the foundational structure of IEL and the complex web of overlying agreements
has continued to act as a hindrance in treating with environmental degradation and its far-reaching
effects. Rio+209, its subsequent launching of the Sustainable Development Goals (SDGs) and The
2030 Agenda for Sustainable Development, was typically more of the same; new layers of laws and

9
The United Nations Conference on Sustainable Development - or Rio+20 - took place in Rio de Janeiro, Brazil on 20-22
June 2012.
policies to contend with. There has been a realization in theory, that there needs to be some change
regarding the structure of the system, however this has yet to occur in practice. Advocates for a WEO
assert that “it is needed for two reasons: first, many ecosystems continue to deteriorate and the human
environment is under serious, uncontrolled threats; second, the processes of international
environmental governance need rationalization.” (Charnovitz 2004:102) Oberthür (2004:52-58)
offers an alternative approach to consolidating efforts. He propounds that the clustering of
Multilateral Environmental Agreements by either issue, region, or both, can be effective starting
points for improving IEL and governance. Still even with these suggestions, at the very least,
navigating the legal framework of environmental governance remains arduous and prohibitive.

IEL continues to be a dynamic and developing field within the international framework; from
Stockholm to Rio+20 and beyond, major developments have been made. Withal, there remains a lack
of cohesion and the focus has diluted and drastically shifted from environmental protection to growth
and development characterized by an on-going retrogressive debate between the ever-contentious
advanced industrialized countries of the core and the developing peripheral states. At present, the
drive for economic development has become an inherently basal element across the board even though
it may not be explicitly stated. The future of environmental protection ultimately depends on the
system’s ability to reconcile these differences and genuinely ascribe to collective responsibility; but
the historical evolution of IEL does not seem to offer a very promising prognosis.
Chambers, W. Bradnee, 2004. “From environmental to sustainable development governance: Thirty
years of coordination within the United Nations.” In Reforming International Environmental
Governance: From Institutional Limits to Innovative Reforms, edited by W. Bradnee Chambers and
Jessica F. Green, 13-39. New York: United Nations University Press.

Charnovitz, Steve, 2004. “A World Environment Organization.” In Reforming International Environmental

Governance: From Institutional Limits to Innovative Reforms, edited by W. Bradnee Chambers and
Jessica F. Green, 93-123. New York: United Nations University Press.

Geisinger, Alex. 1999. “Sustainable Development and the Domination of Nature: Spreading the Seed
of Western Ideology of Nature.” Boston College Environmental Affairs 27(1): 43-73. IUCN (ID:
ANA-065455)

Louka, Elli. 2006. International Environmental Law: Fairness, Effectiveness, and World Order. New York:
Cambridge University Press.

Nanda, Ved, and George (Rock) Pring. 2013. International Environmental Law and Policy for the 21st Century:
2nd Revised Edition. Leiden: Martinus Nijhoff Publishers.

Oberthür, Sebastian, 2004. “Clustering of multilateral environmental agreements: Potentials and

limitations.” In Reforming International Environmental Governance: From Institutional Limits to
Innovative Reforms, edited by W. Bradnee Chambers and Jessica F. Green, 40-65. New York:
United Nations University Press.

Sand, Peter H. 2007. “The Evolution of International Environmental Law.” In The Oxford Handbook of
International Environmental Law, edited by Daniel Bodansky, Jutta Brunnée and Ellen Hey, 31-43.
New York: Oxford University Press.

Sethi, Purnima, and V.S. Kulkarni. 2011. International Environmental Law. New Delhi: Alfa Publications

Susskind, Lawrence E. and Saleem H. Ali. 2015. Environmental Diplomacy: Negotiating More Effective Global
Agreements: Second Edition. New York: Oxford University Press.

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at:
http://www.refworld.org/docid/3ae6b3930.html [accessed 14 April 2017]
Weiss, Edith Brown. 2011. “The Evolution of International Environmental Law.” Japanese Yearbook
of International Law 54:1-27. Accessed April 03, 2017.

Wolf, Kevin. 2003. “Trail Smelter Arbitration.” Environmental Encyclopedia, Accessed April 18, 2017
http://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-
maps/trail-smelter-arbitration