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Sources of International Environmental Law (IEL)

1.

Sources
of
International Environmental Law (IEL)
Az.-Prof. Dr. Yvonne Karimi-Schmidt

Sources
Article 38 of the statutes of ICJ reads as follows:
1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case
ex aequo et bono, if the parties agree thereto.
(Article 59: The decision of the Court has no binding force except between the parties and in respect of that particular case.)
Source: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE (ICJ) : http://www.icj-cij.org/en/statute
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3.

Sources
Article 38(1) of the statutes of ICJ
• provides a catalogue of sources of international law (IL).
• did not expressly mention the term ‘sources‘ - but
• is invoked as sources of international law.
Sources of IL can be characterized as ‘formal' and ‘material' sources
characterization is not by hierarchy but for clarification
Article 38(1)(a-c), conventions or treaties ,custom + general principles are formal sources
Article 38(1)(d), judicial decisions and juristic teachings are material sources.
– Formal sources confer upon rules an ‘obligatory character'
– material sources comprise the ‘actual content of the rules'
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4.

Sources
Four challenges influenced the creation of sources in IEL
1.
2.
3.
4.
Diverging State interests
Institutionalisation of environmental negotiations
Role by NGOs
Need to cope with scientific and technological progress
1.
2.
3.
Three features characterice IEL
Prevalence of treaties
Frequent use of soft law
Development of <droit derive‘> = administrative law (in form of decisions
adopted by Conferences of Parties=COPs established by multilateral environmental agreements=MEAs)
See: Pierre-Maire Dupuy & Jorge E. Vinuales, International Environmental Law, Cambridge University Press, 2015, Chapter 2, p. 33.
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5.

Prevalence of treaties in IEL
Reasons are:
1.
Novelty of environmental problems and inadequacy of prior customary
norms.
New problems call for new rules, better adapted to the regulatory
object than norms originally developed for a different purpose.
2. Environmental problems know no borders, and their
scientific understanding evolves over time.
Regulation has a significant institutional and procedural
dimension, which can be better addressed through treaty law.
3. Reluctance of developing countries as regards measures that hamper
their economic development.
Treatis allow for some degree of differentiation between
developed and developing countries.
See: Pierre-Maire Dupuy & Jorge E. Vinuales, International Environmental Law, Cambridge University Press,
2015, Chapter 2, p. 34.
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6.

Frequent use + Role of soft law in IEL
Soft law
1.
2.
3.
4.
5.
6.
is non-binding
played major role in development of env. protection
influenced development with a non-legally binding effect;
entails political-moral values;
is often basis of future law of treaties.
is attractive due to differences in the perception of env. regulation
7.
important soft-law documents:
– UN GA Res. 1803 (1962) on „Permanent Sovereignity over Natural Resoucres“
– Stockholm Declaration on Human Environment 1972 (UN-Doc. A/CONF. 48/14/Rev.1)
– World Chater for Nature 1982 (UN-Doc. A/RES/37/7)
– Rio Declaration on Environment and Development 1992 (UN-Doc. A/CONF.151/26)
– Forest Principles 1992 [UN-Doc. A/CONF.151/26 (vol.III)]
– Agenda 21 (1992)
– Millenium Declaration 2000 (UN-Doc. A/RES.55/2)
– Copenhagen Accord 2009 (UN-Doc. FCCC/CP/2009/L.7)
See: Pierre-Maire Dupuy & Jorge E. Vinuales, International Environmental Law, Cambridge University Press, 2015, Chapter 2, p.25, 34-36.
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7.

Frequent use + Role of soft law in IEL
Soft law instruments, the conferences and institutions have an important
normative role as a promoters of new international norms.
• From this perspective one can distinguish between organisations
1. capable of expressing state practice (i.e. IUCN, UN-GA, UNCED=Rio Conference)
2. seeking to influence state practice by adopting various instruments (i.e.
International Law Association (ILA); Institut de Droit International (IDI)
Example No:
1. IUCN, International Union for Conservation of Nature (https://www.iucn.org/)
: is a membership Union uniquely composed of both government and civil society
organisations. Created in 1948, IUCN has evolved into the world’s largest and most
diverse environmental network. It harnesses the experience, resources and reach
of its 1,300 Member organisations and the input of some 10,000 experts. IUCN is
the global authority on the status of the natural world and the measures needed
to safeguard it.
IUCN adopted in 1963 a resolution that later became the basis for the adoption of
the CITES (Convention on International Trade in Endangered Species of wild Fauna
and Flora 1979).
See: Pierre-Maire Dupuy & Jorge E. Vinuales, International Environmental Law, Cambridge University Press, 2015, Chapter 2, p.25, 34-36.
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8.

Frequent use + Role of soft law in IEL
Example No:
2. ILA - International Law Association (http://www.ila-hq.org/ ) founded in Brussels in 1873.
Its objectives, under its Constitution, are "the study, clarification and development of
international law, both public and private, and the furtherance of international
understanding and respect for international law". The ILA has consultative status, as an
international non-governmental organisation, with a number of the United Nations
specialised agencies. ILA adopted in 1966 the Helsinki Rules on the Uses of the Waters of
International Rivers, which influenced the work of the UN-ILC (http://legal.un.org/ilc/) on
this matter, which in turn led to adoption of a treaty by the UN-GA, namely the Convention
on the Law of the Non-navigational Uses of. International Watercourses 1997. – see Historical
Background http://legal.un.org/avl/ha/clnuiw/clnuiw.html
Even if the contents of the soft law instrument do not become legally binding they
may still be influential. Examples: World Bank, International Finance Corporation,
regional development banks, private lenders have adopted environmental and
sustainability standards which because of their impact on the disbursement of
funds, command significant authority.
See: Pierre-Maire Dupuy & Jorge E. Vinuales, International Environmental Law, Cambridge University Press, 2015, Chapter 2, p.25, 34-36.
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9.

Development of „droit derivé“ = administrative law in IEL
droit derivé
= French term
• refers to resolutions, recommendations and decisions adopted by a body
that is empowered to do so by a multilateral environmental
agreement=MEA
• = enacted by intergovernmental bodies (i.e. GA, SC) or the COPs
(Conferences of Parties) or CMPs (Meetings of Parties)
• Legal validity of droit derivé = depends on the normative powers
delegated to the bodies by States parties in the constitutive treaty.
• droit derivé Regulations are not strictly speaking a formal source of IL;
they remain an important technique for the development of
international standards.
See: Pierre-Maire Dupuy & Jorge E. Vinuales, International Environmental Law, Cambridge University Press, 2015, Chapter 2, p. 36-37.
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10.

Development of „droit derivé“ = administrative law in IEL
droit derivé
= French term
• Regulations mainly take the form of decisions adopted by COPs or CMPs
on various subjects, such as:
1. Internal rules (procedural, administrative, financial)
2. Regulations implementing the obligations arising from MEAs
3. External regulations (on compliance, co-operation with other
treaties, elaboration of a variety of standards intended to guide the
conduct of States and other entities)
• Example No:
1. Art. 2.9(a)(i) of the Montreal Protocol on Substances that Deplete the
Ozone Layer1987
– allows for the possibility of introducing adjustments to the ozone
depleting potentials of regulated sustances by a CMP decision adopted
by qualified majority and binding on all the parties (Art. 2.9(c)-(d) )
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11.

Development of „droit derivé“ = administrative law in IEL
droit derivé
= French term
• Example No:
2. Marrakesh Accords = COP-decisions of the UNFCCC (subsequently
approved by the CMP of the Kyoto Protocol) which govern the details of the
three flexible mechanisms: joint implementation, cleand development
mechanism, emission trading.
3. Non-Compliance Procedures (NCPs) = Implementation mechanisms
established by MEAs.
E.g. Kyoto NCP which is managed by a Compliance Committee with
two branches:
1st = facilitative branche (facilitates compliance through provision of technical
and/or financial assistance) and
2nd = enforcement branch (empowered to order sanctions, eg. Restricting access to
the flexible mechanism or imposing a penalty reducing the overall amoutn of
emissions available under the cecond commitment period.)
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12.

International Treaties
Importance and characteristics:
The most common source of law in the international relations on
environment protection are treaties – especially multilateral environmental
treaties (MEAs). https://guides.ll.georgetown.edu/c.php?g=273374&p=1824812
Even if never all states are party of a treaty, a treaty is superior to
international customary law and the general principles of law concerning its
regulation potential.
Especially serious and enormous international environmental problems can
not be solved in one single treaty, so that solutions of specific problems are
regulated in multiple treaties, on various levels on the basis of different
contractual regulatory strategies.
Developing countries often have limited personal and financial ressources.
Developing countries are often only willing to be party of an agreement if
industrial states support them with financial and technological transfers.
Danger of overlapping and discrepancies of norms .
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13.

International Treaties
Importance and characteristics:
The degree of consensus of the participating parties is always
redounding for the success of a multilateral agreement of
environment protection .
Consensus is at least necessary between those states, whose
consent is indispensable for the achievement of the goal of the
treaty.
UNEP-REPORT: Glossary of terms for negotiators of multilateral environmental agreements: This glossary of terms and acronyms
aims to provide a support tool not only for those that are frequently engaged in negotiations under various multilateral
environmental agreements (MEAs), but also for those involved in the daily implementation of such agreements and related decisions.
Download: https://wedocs.unep.org/bitstream/handle/20.500.11822/7569/-Glossary of Terms for Negotiators of Multilateral
Environmental Agreements-2007762.pdf?sequence=3&amp%3BisAllowed=
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14.

International Treaties
A treaty is only worth as much as it is effectively fullfilled.
That is why cooperation gains and disadvantages resulting from the
compliance with the treaty for parties should be taken in account in
drafting the treaty and they should balance to each other.
Important aspects:
• Necessity of creating of positiv incentives for the conclusion of
the agreement ;
• Problem of the relation of „short-term costs“ and „Long-term
Benefits“ concerning environmental measures
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15.

Regulatory strategies of the law of treaties
„Piecemeal Approach“
• Isolated regulation in individual areas of a bigger complex of problems
• Particularly suitable if a homogeneous group of states has a pressing
regulatory need for a specific matter
• Danger of fragmentation of the law and thus loss of uniform standards.
• Unsuitable for the solution of more complex environmental problems.
Examples:
Convention on Early Notification of a Nuclear Accidentof 1986
Convention for the Prohibition of Fishing with Long Driftnets in the South
Pacific of 1989
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16.

Regulatory strategies of the law of treaties
Framework Convention Approach:
Particularly suitable for the solution of complex environmental
problems.
The objective is that a as universal as possible group of states
are regulating contractually a specific complex of problems
comprehensively following a holistic approach.
That is particularly difficult if states with different national
interests and needs have to be won over to a global
environmental convention
Further problems: strong restriction of sovereignty; strong
financial burden.
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17.

Regulatory strategies of the law of treaties
Framework Convention Approach:
Temporally stretched processes with the following different stages:
memorandum of understanding
framework agreement to determine certain objectives of the treaty
implementing protocols for the content arrangement of the framework
agreements
Advantage: uniform development of the law by framework
agreements and their protocols
Examples:
Vienna Convention for the Protection of the Ozone Layer 1985
United Nations Framework Convention on Climate Change 1992
Convention on Biological Diversity 1992
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18.

Treaty Negotiations
The pre-negotiation phase and the informal determination of the regulatory
needs is of crucial importance in this process.
The more complex the environmental problem (which should be regulated) is
the more intense have to be the preliminary work in this exploratory stage.
A small circle of states is necessary to map out this exploratory stage
successfully.
A few states take over a informal „stewardship“- role in this process and they
look after the presumable interests of the future parties of the treaty on a
fiduciary basis and they create the basis for satisfying conclusion of treaty for
all parties.
That is why the industrial states must not stay among themselves in this prenegotiation phase.
The development of drafting concrete models of this pre-negotiation process
is task of political sciences.
An effective composition of the following actual treaty negotiations is
necessary.
Article on this subject: Ottawa Process – US Decision to Join Ottawa Process on Landmines (describing the negotiation process of the multilateral Ottawa Treaty 1997)
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19.

Conclusion of treaty
• The entry into force of a treaty takes place only then if the
treaty text is negotiated, signed and finally ratified by the
parties.
• The treaty is finally legally binding after the ratification
– The ratification requires the approval of the parliaments according to
national law).
• This composite contracting process according to Art. 9 ff
Vienna Convention on the Law of Treaties is a long process
and takes time and bears the risk of the failure of the treaty
until last (problem of change request of national parliaments
with the effect of repeated treaty conclusion procedure).
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20.

Conclusion of treaty
• Signatory states can agree on a simplified and shortened
procedure for less important and especially technical treaties
(only occasionally initialling, no parliamentary approval, no
ratification)
• Multilateral conventions on environmental protection need
to pass regularly through all of the above-mentioned stages.
Article on this subject: J. Timmons Roberts, Bradley C. Parks and Alexis A. Vásquez,
Who Ratifies Environmental Treaties and Why? Institutionalism, Structuralism and
Participation by 192 Nations in 22 Treaties, in: Global Environmental Politics, Vol.
4, Issue 3 - August 2004
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21.

Treaty amendment
• According to Art. 39 Vienna Convention on the Law of Treaties of
1969 applies the same procedure for the treaty amendments as for
the conclusion of treaty.
• Signatures and ratifiactions are necessary in this procedure too.
• For annexes of multilateral environmental treaties exists a
simplified amendment procedures (the respective conference of
signatory states can amend by a qualified majority).
• The binding effect extends on all signatory states which do not raise
explicit objections within a certain time frame.
• Prohibitive quorum: specific number of signatory states has not
given their approval, so that the amendment of the annex is not
legally binding
• Positive quorum: specific minimum number has agreed on the
annex, so that the amendment is legally binding
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22.

Customary international law
Importance and characteristics:
• Customary law plays a more important role in international public
law than in national law.
• That applies also for international environmental law.
• But one has to mention that the importance of customary law in
the area of IEL has decreased in the same amount as the
importance of the law of treaties has increased.
• Norms of customary law are particularly applied in the case of
regulatory loopholes of the law of treaties and in the case of
solutions of environmental problems between states which are not
bond by a treaty.
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23.

Customary international law
Importance and characteristics :
• Norms of customary international law have only universal validity if all
relevant states are bund by them.
• Regional or local customary law can develop in a delimit group of
states/area.
• It is in the nature of customary law that norms stay mostly abstract and
that the emergence of a norm of customary law is more difficult to prove
the more detailled a discussion about the content of the norm is.
• Therefore universal customary international law mostly includes only the
lowest common denominator of states practices worldwide which
emerged in a longlasting process.
• Regional customary law on the other hand can outperform universal
norms of customary law in substance and precision.
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24.

Customary international law
Requirements for the emergence of customary international law:
• The International Court of Justice Statute defines customary
international law in Article 38(1)(b) as "evidence of a general
practice accepted as law.”
• Objective requirement for the emergence is the general practice of
states.
• Subjective requirement for the emergence is what states have
accepted as law (opinio iuris) in regard to their general practice.
To this date it is controversial what counts as general practice of
states and which group of states have to participate in this general
practice and if there exists the concept as "instant custom”.
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25.

Customary international law
Requirements for the emergence of customary international law :
• Concerning the „generality-element“ of the state practice the
principle prevailed that the practice does not have to encompass all
states or be completely uniform.
• Undisputed is also that the general practice of states can be
expressed during the conclusions of bi- and multilateral treaties.
• The generality of the practice is also assumed if powerful states or if
culturally or ideologically different groups of states are represented.
• Especially in the case of international environmental law there is
only a short duration of practice possible as environmental
problems change and evolve dynamically.
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26.

27.

Customary international law: Customary Principles in IEL
No harm principle = prohibition of transboundary environmental harm principle
Prevention principle = preventive action principle
Precautionary principle
Cooperation principle + notification and consultation obligations
Prior informed consent (PIC) principle
Environmental impact assessment (EIA) principle
Polluter pays principle
Common but differentiated responsibilites principle
Participation principle
Access to and exchange of information principle
Inter-generational equity principle
Rectification of damage at source principle
Equitable utilisation + joint management of shared resources principle
Integration principle
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28.

No harm principle =
Prohibition of Transboundary Environmental Harm
In the end of the 19th century the „principle of freedom to pollute“ of every state
without consideration of environmental concerns was still in place.
According to the principle of the absolute territorial sovereignty laid down in the
Harmon-Doctrin of 1898 would be every state permitted to use its territory and
exploit its resources without consideration of interests of other states (=unilateral
understanding of state sovereignty).
The case Trail-Smelter (1941) changed this perception and the Harmon-Doctrin of
absolute sovereignty was overcome.
Today there is the general consensus in the international community and between
scholars that states are prohibited by customary international law to unfold or allow
knowingly acts on its territory which could cause transboundary environmental
damage.
This prohibition is laid down in Principle 21 Stockholm Declaration 1972 and Principle
2 Rio de Janeiro 1992, but also in numerous other international treaties which deal
with questions of trans-border environmental pollution.
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29.

No harm principle =
Prohibition of Transboundary Environmental Harm
The latest juisprudence of the ICJ confirms the vaitity of the prohibition too.
For instance:
In the Lac Lanoux-case (1957): The Lac Lanoux arbitral award, delivered on 16 November
1957—which settled a dispute between France and Spain concerning the use of the waters of
Lac Lanoux—concerned mainly two topics of international environmental law: on the one
hand, the principle not to cause substantial damage to the environment of other States—
or to areas beyond national jurisdiction—already stated in the Trail Smelter Arbitration; on the
other hand, the principles for the use of shared natural, especially water, resources
(https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e154)
and https://leap.unep.org/countries/fr/national-case-law/lake-lanoux-arbitration-france-v-spain
In the advisory opinion of the ICJ on the Legality of the Threat or Use of Nuclear Weapons the ICJ
held (8 July 1996): „The existence of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or f areas beyond national control
is now part of the corpus of international law.”Legality of the Threat or Use of Nuclear Weapons Case, Adv. Op. [1996] I.C.J.
Rep. 226: Summary: http://www.icj-cij.org/docket/index.php?sum=498&code=unan&p1=3&p2=4&case=95&k=e1&p3=5
In the judgement of the ICJ of the 25 September 1997 in the legal dispute between Hungary and
Slowaikia over a dam project Gabcikovo-Nagymaros the ICJ
Gabcíkovo-Nagymaros Project (Hungary/Slovakia). Summary of the Judgment of 25 September 1997: http://www.icjcij.org/docket/index.php?sum=483&code=hs&p1=3&p2=3&case=92&k=8d&p3=5 Latest developments in the case: http://www.icjcij.org/docket/index.php?p1=3&p2=3&code=hs&case=92&k=8d
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30.

Precautionary principle
• No coherent definition - but attempt to take the lack of certainty
of possible adverse effects into account.
• Many environmental damages caused by innovative technologies
are identified decades later
• Expression of the need/want to learn from mistakes of the past
and to prevent irreversible dangers.
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31.

Precautionary principle
Legal anchoring on a global level
• Rio-Decl. of 1992 - Principle 15: lack of scientific certainty is no reason to
postpone action to avoid potentially serious or irreversible harm to the
environment
• Agenda 21 of 1992 - Chapter 35.3: …“In the face of threats of irreversible environmental
damage, lack of full scientific understanding should not be an excuse for postponing actions which are justified in their
own right. The precautionary approach could provide a basis for policies relating to complex systems that are not yet fully
understood and whose consequences of disturbances cannot yet be predicted.“
• Convention on Biological Diversity of 1992 (CBD) - Preamble
• Cartagena Protocol on Biosafety to the Convention on Biological
Diversity (CBD) - Preamble: „Reaffirming the precautionary approach contained in
Principle 15 of the Rio Declaration on Environment and Development“. – Art. 1 refers explicitly to the precautionary principle.
– Art. 10 par. 6 and
– Art. 11 par. 8 ( parties can take decisions to prevent potential dangers in the case of
lack of scientific certainty)
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32.

Precautionary principle
Legal anchoring on a regional-european level
• Communication from the Commission on the precautionary principle
2000 - Brussels, 2.2.2000 COM(2000) 1 final : e.g. Marketing bans or
recall of products that are hazardous to health if there is an urgent need
for action in view of possible risks to human, animal or plant health or for
reasons of environmental protection and the available scientific data do
not allow a comprehensive risk assessment.
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33.

Prevention principle =
preventive action principle
supports the need to take measures to address issues today rather than allow
their consequences to fester leading to higher costs and increased risk in the
future.
For example, this principle is critical for tackling the impacts of climate change.
Legal anchoring
– Stockholm Decl. of 1972 - Principle 21: „ States have … the sovereign right
to exploit their own resources … 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.“
– Rio-Decl. of 1992 - Principle 2:
– UN Convention on the Law of the Sees (UNCLOS) Art 194
United Nations Framework Convention on Climate Change 1992 Preamble
Convention on Biological Diversity 1992 Art. 3
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34.

Polluter pays principle (PPP)
stems from the commonly accepted notion that those who produce pollution
should bear the costs of managing it to prevent damage to human health or
the environment.
• For instance, a factory that produces a potentially poisonous substance as a
by-product of its activities is usually held responsible for its safe disposal.
• The polluter pays principle is part of a set of broader principles to guide
sustainable development worldwide
• Legal anchoring
1992 Rio Declaration principle 16
Helsinki Convention ( ) Convention on the Protection of the Marine Environment of the Baltic-Sea) Art. 3
OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic) Art. 2
Danube Convention Art. 2
HELCOM
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35.

Rectification at source principle
• states that environmental damage should, to the greatest extent possible,
be resolved at source.
• In other words, policy should tackle the root cause of the problem rather
than simply tackling its consequences.
• For example, it means that air pollution should be tackled directly by
regulating emissions from cars and other sources.
• Legal anchoring
• Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and
their Disposal 1989
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36.

General principles of law
• Low practical importance in IEL-situations as regulations concerning
environmental protection are already recognised as customary law.
• They are limited to the principles as
• pacta sunt servanda,
• bona fides,
• concept of estoppel or
• the principle of abuse of rights and/or abuse of the law.
• But these principles have to be observed in all fields of international law.
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37.

Judicial Decisions
Compendium of judicial decisions on Matters related to
environment:
• international decisions, Volume I, 20 April 2018 ,
https://www.unep.org/resources/publication/compendium-judicialdecisions-matters-related-environment-international
• national decisions (Volume I), 20 April 2018,
https://www.unep.org/resources/publication/compendium-judicialdecisions-matters-related-environment-national-decisions
• national decisions (Volume III), 20 April 2018,
https://www.unep.org/resources/publication/compendium-judicialdecisions-matters-related-environment-national-1
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38.

Ius Cogens
• The principle of jus cogens is enshrined in Article 53 of the Vienna
Convention on the Law of Treaties: “a peremptory norm of general
international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character.”
• Recognised principles with characteristics of jus cogens are e.g. the
prohibition of force, piracy, genocide and slavery.
• Comparable norms in international environmental law are difficult to
define at the moment.
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Prof. Dr. Yvonne Karimi-Schmidt
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39.

erga omnes
• The problem in the law of international environmental protection is, if
norms exist as they would unfold effects towards every other state (erga
omnes) and they could be enforced countermeasures.
• Up to now there is no consensus of the international community.
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Prof. Dr. Yvonne Karimi-Schmidt
39

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