International Environmental Law Fairness

Effectiveness And World Order Elli Louka

download

https://ebookbell.com/product/international-environmental-law-
fairness-effectiveness-and-world-order-elli-louka-1221524

Explore and download more ebooks at ebookbell.com

Here are some recommended products that we believe you will be
interested in. You can click the link to download.

International Environmental Law Text Cases And Materials Malgosia

Fitzmaurice

https://ebookbell.com/product/international-environmental-law-text-
cases-and-materials-malgosia-fitzmaurice-46586542

International Environmental Law Policy And Ethics Second Edition

Gillespie

https://ebookbell.com/product/international-environmental-law-policy-
and-ethics-second-edition-gillespie-22009226

International Environmental Law Second Edition Pierremarie Dupuy

https://ebookbell.com/product/international-environmental-law-second-
edition-pierremarie-dupuy-22683152

International Environmental Law A Case Study Analysis Gerry Nagtzaam

https://ebookbell.com/product/international-environmental-law-a-case-
study-analysis-gerry-nagtzaam-33794986
International Environmental Law And Policy 5th University Casebook
Series 5th Edition David Hunter

https://ebookbell.com/product/international-environmental-law-and-
policy-5th-university-casebook-series-5th-edition-david-
hunter-34877192

International Environmental Law And Policy In Africa 1st Edition

Beatrice Chaytor

https://ebookbell.com/product/international-environmental-law-and-
policy-in-africa-1st-edition-beatrice-chaytor-4626660

International Environmental Law And Policy For The 21st Century 2nd
Revised Ed Ved P Nanda

https://ebookbell.com/product/international-environmental-law-and-
policy-for-the-21st-century-2nd-revised-ed-ved-p-nanda-4983652

International Environmental Law And The Conservation Of Coral Reefs

Edward J Goodwin

https://ebookbell.com/product/international-environmental-law-and-the-
conservation-of-coral-reefs-edward-j-goodwin-5227578

International Environmental Law And The Global South Shawkat Alam

https://ebookbell.com/product/international-environmental-law-and-the-
global-south-shawkat-alam-5314916
This page intentionally left blank
International Environmental Law
This book analyzes the law and policy for the management of global common resources. As
competing demands on the global commons are increasing, the protection of the environ-
ment and the pursuit of growth give rise to all sorts of conflicts. The book analyzes issues in
the protection of the global commons from fairness, effectiveness, and world order perspec-
tives. The author examines whether current policy making and future trends point to a fair
allocation of global common resources that will be effective in protecting the environment
and in the pursuit of sustainable development. The author looks at the cost effectiveness of
international environmental law and applies theories of national environmental law to inter-
national environmental problems. Chapters include analysis of areas such as marine pollution,
air pollution, fisheries management, transboundary water resources, biodiversity, hazardous
and radioactive waste management, state responsibility, and liability.

Elli Louka is the founder of Alphabetics Development & Investment (ADI), a company
devoted to environment and development. Louka was a Senior Fellow at the Orville H. Schell
Center for International Human Rights at Yale Law School and a Ford Foundation Fellow at
New York University School of Law. Dr. Louka is currently the recipient of a Marie Curie
Fellowship provided by the European Commission of the European Union. Other selected
publications by Dr. Louka include Conflicting Integration: The Environmental Law of the European
Union (2004), Biodiversity and Human Rights (2002), and Overcoming National Barriers to Inter-
national Waste Trade (1994).
International
Environmental
Law
Fairness, Effectiveness, and
World Order

Elli Louka
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521868129

© Elli Louka 2006

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2006

isbn-13 978-0-511-24967-9 eBook (EBL)

isbn-10 0-511-24967-5 eBook (EBL)

isbn-13 978-0-521-86812-9 hardback

isbn-10 0-521-86812-2 hardback

isbn-13 978-0-521-68759-1paperback
isbn-10 0-521-68759-4 paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
 Contents

Foreword by W. Michael Reisman page xi

Abbreviations xiii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Chapter 1. Introduction to International Environmental Law . . . . . . . . . . . . . . . . . . . . 5

1 The World Community and International Law 5
1.1 International Law 5
1.2 States 6
1.2.1 Sovereignty
1.2.2 Wealth
1.2.3 Cooperation
1.3 International Organizations 11
1.4 Nongovernmental Actors 16
2 International Lawmaking Process 20
2.1 Treaties 21
2.2 Custom 23
2.3 Principles of Law 24
2.4 Other Sources 25
2.5 Content 25
3 Perspectives 27
3.1 Developed Countries 27
3.2 Developing Countries 28
4 Historical Evolution 30
4.1 Stockholm 30
4.2 Rio 32
4.3 Johannesburg 35
4.4 From Stockholm to Johannesburg 38
4.5 Case Law 39
5 Globalization and International Law 47

v
vi Contents

6 Principles 49
6.1 Sovereignty over Natural Resources 49
6.2 Obligation Not to Cause Damage 50
6.3 Principles of Preventive Action and Precaution 50
6.4 Polluter Pays Principle and Equitable Sharing of Cost 51
6.5 Sustainable Development 52
6.6 Equitable Utilization 53
6.7 Common but Differentiated Responsibilities 54
6.8 Human Rights 54
7 Settlement of Disputes 55
8 Monitoring and Enforcement 57

Chapter 2. Foundations of International Environmental Law . . . . . . . . . . . . . . . . . . . 59

1 Functions of Law 59
2 Foundations 65
2.1 Minimum Order 66
2.2 Equity 67
2.3 Effectiveness as Equity 70
2.4 Cost-Effectiveness 73
3 Regulation of Natural Resources 75
4 Enclosure of National Commons 78
5 Enclosure of Global Commons 80
5.1 Fisheries 81
5.2 Deep Sea-Bed Resources 83
5.3 Germplasm and Related Knowledge 86
5.4 Freshwater Resources 88
5.5 Air 89
5.6 Seas 91
5.7 Waste Management 92
5.8 National Biodiversity Resources 93
6 Enclosure of Global Commons and Global Welfare 95
7 International Instruments 108
8 Conclusion 111

Chapter 3. Compliance and Governance Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . 114

1 Environmental and Strategic Impact Assessment 114
2 State Obligations 120
2.1 Exchange of Information 121
2.2 Notification 122
2.3 Consultation 123
2.4 Reporting/Monitoring 124
 Contents vii

3 Verification and Compliance 126

4 Right to Information and Participation and Access to Justice 129
4.1 International Instruments 129
4.2 Application of Right to Information 136
5 Conclusion 140

Chapter 4. Marine Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

1 State of Marine Environment 141
2 Integrated Coastal Zone Management 144
3 Evolution of International Instruments 146
3.1 Law of the Sea Convention 146
3.2 Pollution from Dumping 148
3.3 Regional Management 153
3.4 Pollution from Ships 154
3.5 Emergency Situations 159
3.6 Safety Regulations 159
4 Selected Regional Instruments 161
4.1 Protection of the Northeast Atlantic 161
4.2 Protection of the Baltic Sea 162
4.3 UNEP Regional Seas Program 163
5 Conclusion 167

Chapter 5. Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

1 State of Water Resources 169
2 Issues in Water Management 172
2.1 Allocation and Equity 172
2.1.1 Substantive Equity
2.1.2 Procedural Equity and Institutional Development
2.1.3 Principled Equitable Utilization or Ad Hoc Regionalism?
2.2 Efficiency and Quality 179
2.3 Integrated Water Resources Management 182
2.3.1 National
2.3.2 International
3 Case Law 185
4 International Instruments 188
5 Regional Instruments 192
5.1 Africa 193
5.2 Asia 209
5.3 Middle East 218
5.4 Europe 223
5.4.1 Suprabasin Instruments
5.4.2 Basin-Specific Instruments
viii Contents

5.5 American Region 239

5.5.1 United States–Canada
5.5.2 United States–Mexico
6 Conclusion 243

Chapter 6. Fisheries Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

1 State of World Fisheries 244
2 National Management of Fisheries Resources 245
2.1 Regulation 245
2.2 Privatization 247
3 International Management of Fisheries Resources 250
3.1 Law of the Sea Convention 250
3.2 Case Law 251
3.3 International Instruments 258
3.3.1 Agreement on Fisheries Management
3.3.2 FAO Code of Conduct for Responsible Fisheries
3.4 Regional Agreements 264
3.5 Case Studies 268
3.5.1 South East Atlantic Fisheries Organization (SEAFO)
3.5.2 South Pacific Forum Fisheries Agency (SPFFA) and Western
and Central Pacific Commission (WCPC)
3.5.3 North East Atlantic Fisheries Commission (NEAFC)
3.5.4 Northwest Atlantic Fisheries Organization (NAFO)
3.5.5 International Commission for the Conservation of Atlantic Tuna
(ICCAT)
3.5.6 General Fisheries Commission of the Mediterranean (GFCM)
3.5.7 Commission for the Conservation of Antarctic Marine Living
Resources (CCAMLR)
4 Conclusion 286

Chapter 7. Biodiversity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .288

1 Biodiversity Management 288
1.1 State of Biodiversity Resources 288
1.2 National and Transnational Protected Areas 289
1.3 Gene Banks 296
2 International Instruments 299
2.1 Biodiversity Convention 299
2.1.1 Biodiversity Protection
2.1.2 Resource Allocation
2.1.2.1 Market Value of Biodiversity
2.1.2.2 Bilateral Redistribution
2.1.2.3 Transnational Redistribution
2.1.2.4 Institutionalized Redistribution
2.2 Trade and Biodiversity 314
3 Protection of Habitats 316
3.1 World Heritage Sites 316
 Contents ix

3.2 Forests 318

3.3 Wetlands 322
4 Regional Instruments 323
4.1 Europe 323
4.2 Africa 326
4.3 South East Asia 330
4.4 Antarctica 332
4.5 Other Regional Instruments 333
5 Protection of Species 335
5.1 Protection of Migratory Species 335
5.2 Protection of Whales 337
5.3 Protection of Seals 339
5.4 Other Agreements 340
6 Conclusion 342

Chapter 8. Air Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

1 Ozone Depletion 344
1.1 Negotiating Process 344
1.2 Legislative Instruments 346
1.2.1 Protection of Ozone Layer
1.2.2 Regulation of Ozone-Depleting Substances
1.3 Conclusion 355
2 Climate Change 356
2.1 Negotiating Process 357
2.2 Legislative Instruments 361
2.2.1 Convention on Climate Change
2.2.2 Regulation of Greenhouse Gases
2.2.3 Market-Based Regulation of Greenhouse Gases
2.3 Conclusion 373
3 Transfrontier Air Pollution 374
3.1 Legislative Instruments 376
3.1.1 Convention on Transboundary Air Pollution
3.1.2 Regulation of Air Pollutants
3.2 Conclusion 382

Chapter 9. Trade and Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383

1 World Trade Institutions 383
2 The Treaties 384
3 Dispute Settlement 385
3.1 General Agreement on Tariffs and Trade 386
3.2 Sanitary and Phytosanitary Measures 394
4 Intellectual Property Rights and Trade 399
4.1 Intellectual Property Rights Institutions and Trade 401
x Contents

4.2 Intellectual Property Rights and Pharmaceuticals 409

4.3 Intellectual Property Rights and Genetic Resources 412
4.3.1 Letter of TRIPs
4.3.2 State Practice
4.3.3 Seed Wars
4.3.4 TRIPs and Traditional Knowledge
4.3.5 TRIPs and Farmers’ Rights
5 Conclusion 420

Chapter 10. Hazardous and Radioactive Wastes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424

1 State of International Waste Trade 424
2 State of Waste Management 425
2.1 Landfill/Geologic Disposal 425
2.2 Marine Disposal 426
2.3 Treatment 426
2.4 Incineration 426
2.5 Recycling and Reprocessing 427
3 International Instruments 428
3.1 Hazardous Wastes 428
3.2 Radioactive Wastes 434
4 National Regulatory Dilemmas 437
4.1 The United States 437
4.1.1 Management of Hazardous Wastes
4.1.2 Management of Radioactive Wastes
4.1.3 Management of Waste Trade
4.2 European Union 441
4.2.1 Management of Hazardous Wastes
4.2.2 Management of Radioactive Wastes
4.2.3 Management of Waste Trade
5 Conclusion 446
Chapter 11. Liability and State Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .448
1 Oil Pollution 451
2 Hazardous Materials Trade 456
2.1 CRTD Convention 456
2.2 HNS Convention 459
2.3 Liability for Waste Trade 461
3 Nuclear Energy 462
4 Liability for Damage to the Environment 466
5 State Responsibility 468
6 International Liability 475
7 Conclusion 481
International Treaties and Other Instruments 482
List of Cases 491
Index 495
 Foreword

Law, as Dr. Elli Louka vividly demonstrates in this extraordinary book, is most use-
fully conceived as a process of clarifying and implementing the common interests
of politically relevant actors. This conception is indispensable for understanding the
development of international environmental law. The spread of industrialization,
with its ever more intensive uses of the resources of the planet, followed by the
evolution of a global civilization of science and technology and, in part as a conse-
quence of those developments, the explosion of the population of the planet from
1.6 billion people in 1900 to 2.5 billion in 1950 and to more than 6 billion in
2000, have combined to put unprecedented and unrelenting stress on the ecological
systems on which the life of our species depends. No other area of lawmaking and
law-applying makes so clearly and vividly manifest the indispensable functions of all
law: the maintenance of minimum order, the allocation and regulation of the use of
scarce resources, and the conservation and allocation of the benefits and burdens of
the world’s resources in ways consistent with shared conceptions of equity.
Approaching this subject as if it could be studied as a body of static rules would be
sterile. Instead, Dr. Louka presents a dynamic picture, in which the diverse actors in
the international lawmaking process clarify key principles such as sovereignty over
national resources, precautionary principles with respect to equitable cost-sharing
of environmental externalities, principles of sustainable development, and common
as well as differentiated responsibilities. Dr. Louka then shows how those principles
are being applied in each of the major areas of international environmental law. Nor
can general international law be excluded from such an examination, for the legal
focus on the environment also has driven major changes in general international law,
which has acknowledged the “tragedy of commons” and in response has authorized
an increasing enclosure and nationalization of resources that for centuries had been
part of the res communis omnium.
Using as a framework this dynamic process in which international environmental
law is clarified, prescribed, and implemented, Dr. Louka reviews and synthesizes
past trends and projections of probable future trends with respect to (1) the marine
environment; (2) shared water resources; (3) fisheries resources; (4) the conservation
of biodiversity; (5) air; (6) trade and environment; and (7) the disposal of hazardous
and radioactive waste. Cutting across all of these trends and projection studies are
the international efforts to establish and police reporting and information-sharing
xi
xii Foreword

regimes, many now driven by the daunting challenge of prescribing for some measure
of liability in circumstances in which acts with the potential for causing significant
transnational damage are not prohibited by international law. One of the many
strengths of Dr. Louka’s book is that it presents in extraordinarily rich detail the
entire spectrum of the modern process of international environmental law.
Much of the writing in contemporary international environmental law is pas-
sionately and uncritically advocative. Although Dr. Louka’s book is plainly animated
by a deep concern for the preservation of the environment of the planet and the
realization that in the context of a global civilization of science and technology, it
can be protected only by effective international efforts, the stance adopted is not
uncritical and Dr. Louka never surrenders the scholarly role. Precisely because some
of the areas that Louka treats are – good intentions notwithstanding – marked by mis-
steps or – serious efforts notwithstanding – have registered no significant successes,
Dr. Louka’s book will be important for the practitioner in the vineyard of interna-
tional environmental law no less than for the political leaders who are charged with
its development.
Dr. Louka has produced a remarkable book that will be of great value to the
profession.

W. Michael Reisman
Yale Law School
New Haven, Connecticut
December 2005
 Abbreviations

AAUs/assigned amount units (of CCAMLR/Convention for the

emissions) Conservation of Antarctic Marine
ACCOBAMS/Agreement on the Living Resources
Conservation of Cetaceans of the CCAS/Convention on the
Mediterranean and the Black Seas Conservation of Antarctic Seals
ACP/African, Caribbean and Pacific CCRF/Code of Conduct for
(countries) Responsible Fisheries
ACTO/Amazon Cooperation Treaty CDM/Clean Development Mechanism
Organization CDS/Catch Documentation Scheme
AIA/Advanced Informed Agreement CECAF/Committee of the Eastern
(procedure) Central Atlantic Fisheries
APFIC/Asia Pacific Fishery CERCLA/Comprehensive
Commission Environmental Response,
ASCIs/Areas of Special Conservation Compensation and Liability
Interest Act
ASCOBANS/Agreement on the CERs/certified emissions reductions
Conservation of Small Cetaceans of CFCs/chlorofluorocarbons
the Baltic and North Seas CGIAR/Consultative Group on
ASEAN/Association of South East International Agricultural Research
Asian Nations CIAT/International Center for Tropical
ATS/Antarctic Treaty System Agriculture
CIFOR/Center for International
BAT/best available technique
Forestry Research
BATNEEC/best available technology
CIMMYT/Center for the
not entailing excessive costs
Improvement of Maize and Wheat
BEP/best environmental practice
CIP/International Potato Center
CAMPs/Coastal Areas Management CITES/Convention on International
Programmes Trade in Endangered Species of Wild
CBD/Convention on Biological Flora and Fauna
Diversity CLRTAP/Convention on Long-Range
CBNRM/community-based natural Transboundary Air Pollution
resource management COP/Conference of the Parties

xiii
xiv Abbreviations

CRTD/Convention on Civil Liability GATT/General Agreement on Tariffs

for Damage Caused During Carriage and Trade
of Dangerous Goods by Road, Rail GEF/Global Environment Facility
and Inland Navigation Vessels GESAMP/Joint Group of Experts on
CSC/Convention on Supplementary the Scientific Aspects of Marine
Compensation for Nuclear Damage Environmental Protection
CSD/Commission on Sustainable GFCM/General Fisheries Council of
Development the Mediterranean
CTE/Committee on Trade and GPA/Global Programme of Action
Environment
HELCOM/Helsinki Convention for
DSB/Dispute Settlement Body the Protection of the Baltic Sea
DWFS/distant water fishing states IAEA/International Atomic Energy
EBRD/European Bank for Agency
Reconstruction and Development IARCs/International Agricultural
EC/European Community Research Centers
ECE/Economic Commission for IATP/Institute for Agriculture and
Europe Trade Policy
ECJ/European Court of Justice IATTC/Inter-American Tropical Tuna
ECOSOC/Economic and Social Commission
Council of the United Nations IBPGR/International Board for Plant
EEA/European Environment Agency Genetic Resources
EEC/European Economic Community IBRD/International Bank for
EEZ/Exclusive Economic Zone Reconstruction and Development
EIA/Environmental Impact Assessment ICARDA/International Center for
EMEP/Cooperative Programme for Agricultural Research in Dry
Monitoring and Evaluation of the Areas
Long-Range Transmission of Air ICARM/Integrated Coastal and River
Pollutants in Europe Basin Management
EPA/Environmental Protection ICCAT/International Convention for
Agency the Conservation of Atlantic Tunas
ERUs/Emission Reduction Units ICDM/Integrated Conservation and
ESCWA/Economic and Social Development Management
Commission for Western Asia ICJ/International Court of Justice
ETS/European Treaties Series ICNAF/International Convention for
EU/European Union the Northwest Atlantic Fisheries
EUROBATS/Agreement on the ICPDR/International Commission for
Conservation of Bats in Europe the Protection of the Danube River
ICPR/International Commission for
FAO/Food and Agriculture
the Protection of the Rhine
Organization
ICRAF/International Center for
FFA/Forum Fisheries Agency
Research in Agroforestry
FFVs/foreign fishing vessels
ICRISAT/International Crops
FOC/flag of convenience
Research Institute for the Semi-Arid
GAO/General Accounting Office Tropics
GATS/General Agreement on Trade in ICZM/Integrated Coastal Zone
Services Management
 Abbreviations xv

IDPs/internally displaced persons IWIC/International Waste

IFPRI/International Food Policy Identification Code
Research Institute IWRM/Integrated Water Resources
IITA/International Institute for Tropical Management
Agriculture
LDC/London Dumping Convention
ILC/International Law Commission
LLRWA/Low-Level Radioactive Waste
ILO/International Labor Organization
Act
ILRI/International Livestock Research
LULUCF/land-use, land-use change,
Institute
and forest
IMDG/International Maritime
Dangerous Goods (Code) MAP/Mediterranean Action Plan
IMF/International Monetary Fund MDBC/Murray-Darling Basin
IMO/International Maritime Commission
Organization MPAs/Marine Protected Areas
INBO/International Network of Basin MTAs/Material Transfer Agreements
Organizations NAFC/Northwest Atlantic Fisheries
IOFC/Indian Ocean Fishery Convention
Commission NAFO/Northwest Atlantic Fisheries
IOTC/Indian Ocean Tuna Commission Organization
IPCC/Intergovernmental Panel on NAFTA/North American Free Trade
Climate Change Agreement
IPF/Intergovernmental Panel on Forests NAMMCO/North Atlantic Marine
IPGRI/International Plant Genetic Mammals Commission
Resources Institute NASCO/North Atlantic Salmon
IRBM/Integrated River Basin Conservation Organization
Management NATO/North Atlantic Treaty
IRBO/International River Basin Organization
Organizations NEA/OECD/Nuclear Energy Agency
IRRI/International Rice Research of the Organization for Economic
Institute Co-operation and Development
ISA/International Seabed Authority NEAFC/North East Atlantic Fisheries
ISNAR/International Service for Commission
National Agricultural Research NEPA/National Environmental Policy
ITLOS/International Tribunal for the Act
Law of the Sea NGOs/nongovernmental
ITP/individual tradable permit organizations
ITQs/individual transferable quotas NIMBY/not in my backyard
ITTA/International Tropical Timber NPAFC/North Pacific Anadromous
Agreement Stocks Commission
ITTO/International Tropical Timber NPFSC/North Pacific Fur Seals
Organization Commission
IUCN/International Union for the NWPA/Nuclear Waste Policy Act
Conservation of Nature
IUU/illegal, unreported, and OAS/Organization of American States
unregulated fishing OAU/Organization of African Unity
IWC/International Whaling ODA/Official Development Assistance
Commission ODS/Ozone Depleting Substances
xvi Abbreviations

OECD/Organization for Economic TACs/total allowable catches

Co-operation and Development TBNRM/transboundary natural
OPRC/Oil Pollution Preparedness, resource management
Response, and Co-operation TDPs/tradable discharge permits
OSPAR/Convention for the Protection TRIPs/Trade-Related Intellectual
of the Marine Environment of the Property Rights
North East Atlantic TURFs/Territorial Use Rights in
Fishing
PCA/Permanent Court of Arbitration
TVA/Tennessee Valley Authority
PCIJ/Permanent Court of International
Justice UNCED/United Nations Conference
PGR/Plant Genetic Resources on the Environment and
PIC/prior informed consent Development
POPs/persistent organic pollutants UNCLOS/United Nations Convention
PRTRs/pollutant release and transfer on the Law of the Sea
registers UNCTAD/United Nations Conference
on Trade and Development
RAC/Regional Activity Centre
UNDP/United Nations Development
RBAs/River Basin Authorities
Program
RBMP/River Basin Management Plan
UN/ECE/United Nations Economic
RBOs/River Basin Organizations
Commission for Europe
RCRA/Resource Conservation and
UNESCAP/United Nations Economic
Recovery Act
and Social Commission for Asia and
RFOs/Regional Fisheries
the Pacific
Organizations
UNESCO/United Nations
SAARC/South Asian Association for Educational, Scientific, and Cultural
Regional Cooperation Organization
SADC/Southern African Development UNFF/United Nations Forum on
Community Forests
SARA/Superfund Amendment and UPOV/Union for the Protection of
Reauthorization Act New Varieties of Plants
SBSTA/Subsidiary Body for Scientific
VMS/Vessel Monitoring System
and Technological Advice
VOCs/volatile organic compounds
SEAFO/South East Atlantic Fisheries
Organization WCPFC/Western and Central Pacific
SEA/Strategic Environmental Fisheries Convention
Assessment WECAFC/Western Central Atlantic
SOLAS/International Convention for Fishery Commission
the Safety of Life at Sea WFD/Water Framework Directive
SPFFA/South Pacific Forum Fisheries WHO/World Health Organization
Agency WIPO/World Intellectual Property
SPREP/South Pacific Regional Rights Organization
Environment Program WSSD/World Summit on Sustainable
SPS/Sanitary and Phytosanitary Development
Measures WTO/World Trade Organization
 Introduction

This study examines the rules of international law governing the global commons.
Because global common resources are shared among states, competition for the use of
such resources and the sharing of externalities from resource use are bound to increase
in the future. The book examines how the quest for a minimum order, fairness, and
effectiveness has guided the development of international environmental law and
policy making.
Chapter 1 provides an introduction to international law and international envi-
ronmental law. It provides an overview of the actors of international lawmaking, the
international lawmaking process, and the historical evolution of international envi-
ronmental law. Concepts of international environmental law, such as sovereignty
over national resources, the “polluter pays” principle, the precautionary princi-
ple, equitable cost-sharing of environmental externalities, sustainable development,
and common but differentiated responsibilities are explored. The chapter examines
human rights as the threshold principles of international environmental lawmaking.
Issues of monitoring and enforcement in international law are also introduced.
Chapter 2 examines the foundations of international environmental law. The pur-
suit of minimum order, equity, and effectiveness in international law is analyzed and
the interconnection among the foundations of international environmental law is
explored. The chapter examines how issues of distributive equity often determine the
effectiveness of international environmental lawmaking. Issues of cost-effectiveness
as they influence the success of international environmental regimes are also exam-
ined. The enclosure of national common pool resources is introduced and analyzed.
More specifically, it is examined how many national/local common pool resource
systems could acquire differing forms of governance ranging from common property
and state property to private property. The “Tragedy of Commons” rationale that
precipitated the enclosure of common pool resources in national systems is driving
the enclosure of global common resources. The gradual enclosure of global com-
mon resources – as it is taking place in fisheries, germplasm resources and related
knowledge, freshwater resources, air, sea, waste management, and national biodi-
versity resources – is analyzed. Chapter 2 examines the interrelationship between
the nature of different enclosures and the effectiveness of international environmen-
tal regimes. The inclusionary or exclusionary nature of enclosures as they affect
perceptions of distributive equity is analyzed.
1
2 Introduction

Chapter 3 examines the compliance and governance mechanisms of international

environmental lawmaking such as environmental impact assessment, strategic envi-
ronmental assessment, exchange of information, notification, consultation, the right
to participation, and the right to information. The chapter examines whether such
instruments have been effective in the pursuit of international environmental law
objectives. The application of these instruments by international institutions and
states is particularly emphasized. Reporting, monitoring, and compliance proce-
dures as they are developing in different international environmental law regimes are
scrutinized.
The seas are a common pool resource that has become an open-access resource
in terms of pollution that states are putting into the seas. Chapter 4 examines the
different regulatory efforts that states have engaged in so as to diminish the open-
access character of the resource including the Law of the Sea Convention, the
MARPOL Convention, various regional conventions, and safety regulations. The
chapter concludes that – despite the efforts of states to enclose the global resources of
the seas under national or international regulatory regimes – the seas have remained
more or less an open-access resource in terms of pollution inputs.
Chapter 5 examines the problems associated with the management of shared water
resources. Water resources are not global resources like the seas but often are shared
among a number of states. As such, they are common pool resources that present the
collective action problems encountered in other common pool resource systems. The
chapter examines in detail the UN Watercourses Convention and its influence on the
articulation of regional instruments on the allocation and protection of freshwater
resources. Issues of equity in water allocation, efficiency, demand-led management,
and water quality are examined as they have been elaborated in different regional
fora, namely – Africa, Asia, Europe, the Middle East, and the American region.
Integrated water management, as it incorporates issues of water quantity and quality
at the river basin level, the establishment of Regional Basin Organizations (RBOs),
and their role in equitable and sound water management are explored in depth.
Fisheries are a typical example of global common resources. Fisheries are by
nature mobile resources, as they straddle sea areas under national jurisdiction and
the high seas. The management of fisheries has been a highly contentious issue in
international fora. Chapter 6 provides an overview of national regulatory systems for
fisheries resources ranging from the typical command-and-control measures to pri-
vatization through Individual Transferable Quotas (ITQs). The enclosure of national
fisheries resources has reverberated in international fora where states have been eager
to enclose global fisheries resources. The enclosure movement with regard to fish-
eries resources has been mostly exclusionary because the establishment of Regional
Fisheries Organizations, which increasingly assume rights beyond the Exclusive Eco-
nomic Zone (EEZ) of states, is rarely accommodating to new entrants. There are
even disputes among the states that are regime-insiders as they vie for the apportion-
ment of fisheries resources. Chapter 6 examines the international instruments for the
regulation of fisheries resources, including the 1995 Fisheries Agreement. Regional
efforts for the enclosure of fisheries resources are examined for the purposes of
revealing the degree of effectiveness of regional enclosure movements.
Most biodiversity resources, especially terrestrial biodiversity resources, are under
a state’s jurisdiction or are shared among a number of states in a region. Therefore,
 Introduction 3

many biodiversity resources could not be characterized as the classic example of

global common resources. The biodiversity loss that is witnessed today world-
wide, however, has put biodiversity on the international agenda with a new sense
of urgency. The international management of biodiversity is characterized by two
trends. One trend has to do with the assertion of state sovereignty over germplasm
resources situated in nature or in gene banks. The other trend has to do with the
attempts of the international community to regulate national and local biodiversity
protection systems so as to implement an international enclosure of national com-
mons. As many states do not have adequate resources to protect and manage their
biodiversity resources, such resources often become open-access resources and are
degraded. National and transnational protected areas and regional and international
gene banks are methods that have been used for the protection of biodiversity. The
international system has attempted to regulate the national management of biodiver-
sity through trade mechanisms, which prohibit or restrict the trade in endangered
species, and through a number of conventions that address regional biodiversity issues
or species-specific conservation issues. The effectiveness and equity of national and
international mechanisms for the protection of biodiversity resources are examined
in Chapter 7.
The Convention on Biological Diversity was the first convention to address bio-
diversity as a global common pool resource. The convention, in addition to dealing
with issues of protection of biodiversity, addresses distributive issues with regard to the
allocation of benefits from the exploitation of germplasm resources. Although “raw”
germplasm resources have been, for all practical purposes, open-access resources,
“worked” germplasm resources have been protected under various intellectual prop-
erty rights systems, such as breeders’ rights and biotechnology patent rights. The
disparity in the treatment of germplasm resources has led developing countries to
assert their jurisdiction over “raw” germplasm resources located within their terri-
tory and to demand fees from legal entities wishing to access such resources. It was
believed that the market value of biodiversity, as it is used in pharmaceuticals and
other biotechnology devices, would lead developed countries and companies to share
the benefits from the commercialization of germplasm resources with developing
countries. Chapter 7 analyzes the bilateral redistribution, transnational redistribu-
tion, and institutionalized redistribution of germplasm resources. The effectiveness
of distributional mechanisms in terms of bringing wealth to developing countries
and indigenous peoples and farmers is scrutinized.
Air quality is a global common pool resource as air pollution by some industries
affects the quality of the air for the rest of users. The enclosure of global air resources
has been inclusionary as countries quickly realized that control of air pollution by
some states will not do much to improve air quality as long as other states continue
to pollute. In the ozone and climate change regimes, developed countries have
been willing to provide side-payments to developing countries for joining in for
the outlawing of ozone-depleting substances and the reduction of greenhouse gases.
Chapter 8 explores the regime for the protection of the ozone, the climate change
regime, and transboundary air pollution regime. Issues of equity and effectiveness in
the elaboration and possible future articulation of the regimes are further examined.
Market-based instruments and their repercussions for the “privatization” of the air
are addressed.
4 Introduction

Chapter 9 examines international environmental issues as they intersect with

trade issues. The case law of the World Trade Organization (WTO) is examined in
the various cases in which free trade stumbles over regulatory measures that states
have enacted for the protection of species or of human health. Chapter 9 analyzes
the Trade-Related Intellectual Property Rights (TRIPs) system and its interaction
with the world intellectual property rights system. The development of the TRIPs
Agreement and its influence on intellectual property rights over pharmaceuticals
and germplasm resources are analyzed. The issue of intellectual property rights over
germplasm resources, concerns regarding the “enclosure of intellectual commons,”
and perceptions of fairness, as they have been articulated in related human rights
instruments, are analyzed in depth.
Waste is not prima facie a global common resource. Generally, wastes are looked
on as a negative resource in the sense that no value is assigned to them. Wastes are
generally viewed as an externality produced by industries and households, and the
question has been how to assign the costs associated with such an externality. The
transfer of wastes from developed to developing countries with no infrastructure and
lenient environmental laws brought the waste issue to the international arena and
made imperative the development of a transnational system for the management of
wastes. States have dealt with the waste issue as a forced enclosure issue. Generators
are forced to own their wastes and, thus, bear the costs of the externalities produced
by their wastes. Because wastes are perceived as a negative resource, unless ownership
is forced, they could be found disposed of on common pool resources polluting
the land, water, and air. The international instruments that regulate international
waste shipments have imposed state self-sufficiency and safeguards on waste transfers
based primarily on the prior notification and informed consent of the importing
country before a waste transfer is realized. Chapter 10 examines the effectiveness
and fairness of arrangements for the management and transfer of hazardous and
radioactive wastes. The question that is examined is whether the forced enclosure of
wastes, a so-called negative resource, has worked and whether the equity principles
implied in the notion of self-sufficiency are the only principles that should guide
the future international management of hazardous and radioactive wastes. National
regulatory systems are examined, as it is the management and often mismanagement
of wastes in national fora that has led to transnational waste shipments.
Chapter 11 explores the private liability regimes that have been developed to
address issues of oil pollution, hazardous materials trade, nuclear energy, and liability
for damage to the environment. The issue of state responsibility and associated case
law are analyzed. The issue of international liability for acts not prohibited by inter-
national law (e.g., pollution that is not prohibited by international instruments), as it
has been elaborated by the International Law Commission, is specifically scrutinized.
A question addressed is whether state practice indicates liability of states for polluting
activities originating within their territory or whether the principle that emerges is
that of equitable sharing of costs of externalities caused by polluting activities.
 1 Introduction to
International
Environmental Law

1. THE WORLD COMMUNITY AND INTERNATIONAL LAW

1.1. International Law

Modern international law has emerged from the ruins of two world wars. Before
World War I, public international law regulated the conduct of war. During that
period, states had the freedom to choose between war and peace. States had the right
to pursue their goals by war. The distinction between just wars and unjust wars was
not legally pertinent.1
The reorientation of international law came with the establishment of the League
of Nations following World War I. The League condemned external aggression
against the territorial integrity and political independence of League members.2
Another important development during this period was the establishment of the
Permanent Court of International Justice (PCIJ) and the International Labor Orga-
nization (ILO). However, these developments did not prevent the eruption of World
War II.
In the aftermath of World War II, one of the most important developments was
the establishment of the United Nations. The United Nations Charter outlawed
war as a general means for the resolution of disputes among states.3 After two world
wars, states realized that some institutional framework must be established and some
rules promulgated that would provide procedural and substantive safeguards to avert
future wars. The United Nations was to serve primarily that purpose: preservation
of peace among states.
International law is the law that states make to regulate matters among them:
first and foremost, war and peace and, after the attainment of a minimum peace
order, other matters including economic development, exchange rates, trade, the

1 L. Oppenheim, International Law 177–78 (vol. 2, 7th ed., 1952). The issue of morality of war has
preoccupied commentators, though. See Michael Walzer, Just and Unjust Wars: A Moral Argument
with Historical Illustrations 3–13 (1977). See also Clarence Wilfred Jenks, Law, Freedom and Welfare
52 (1963).
2 See also D.W. Bowett, The Law of International Institutions 15–16 (1963).
3 See infra notes 13–15.

5
6 Introduction to International Environmental Law

environment, and intellectual property rights. A number of organizations have

been developed to deal with such matters, including the World Trade Organization
(WTO) with regard to matters that affect trade and the United Nations Environment
Program (UNEP) with regard to matters that affect the environment.
It would be wrong, however, to perceive international law as only the regulatory
instrument of interstate relations. In order to prevent future egregious atrocities
against human beings – prevailing especially during war – the international system
developed a number of instruments that focus on the protection of the rights of the
individual. These human rights instruments launched by the Universal Declaration
of Human Rights present the order that the international system aspires to achieve.
In addition to what could be called traditional human rights4 (such as the right
to life, the right to property, and the right to be free from discrimination), other
rights have been proposed more or less persuasively. Such rights include the right to
development,5 the right to a decent environment,6 and the right not to be forcibly
displaced.7
Human rights articulate the demands for a maximum order of law. This order
goes beyond the achievement of elementary peace and incorporates the aspiration
for a better quality of life. Human rights shape the notion of human dignity, which
gives direction for the future development of international law. The ultimate goal
of the international law process is the protection of human dignity.8

1.2. States
1.2.1. Sovereignty
The United Nations Charter is based on the principle of sovereignty of states.
According to the Charter, each state is sovereign and no state is to violate the

4 The Universal Declaration of Human Rights, Dec. 10, 1948, reprinted in Basic Documents on Human
Rights 106 (Ian Brownlie, ed., 1971).
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp.
(No. 16) at 52, UN Doc. A/6316 (1966), reprinted in 999 UNTS 171, entered into force Mar. 23,
1976.
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21
U.N.GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), reprinted in 993 UNTS 3, entered into
force Jan. 3, 1976.
See also African Charter on Human and Peoples’ Rights (Banjul Charter), June 27, 1981, reprinted
in 21 ILM 58 (1982); Bangkok Declaration on Human Rights, April 2, 1993, A/CONF.157/ASRM/8.
5 Initially controversial, this right is now more or less accepted as a legitimate right. For an articulation of
the right in the Rio Declaration, see infra note 149.
6 The right to live in a decent or a healthy environment has been the subject of debate, see, e.g., Dinah
Shelton, Human Rights, Environmental Rights and the Right to Environment, 28 Stanford Journal of
International Law 103 (1991). See also Günther Handl, Human Rights and Protection of the Environ-
ment: A Mildly “Revisionist” View, in Human Rights, Sustainable Development and the Environment
117 (Antonio Augusto Cancado Trindade, ed., 1992).
7 Maria Stavropoulou, The Right not to Be Displaced, 9 American University Journal of International
Law & Policy 689 (1994). For the right not to be displaced, see also infra note 290.
8 See Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of
Public Order, 53 American Journal of International Law 1 (1959).
 The World Community and International Law 7

sovereignty of another state.9 This principle of legal equality based on the sovereignty
of states should not be confused with an assumption of equal power. In fact, the
concept of sovereignty is fairly new in international affairs. Historically, sovereignty
was not a given. Instead, states had to obtain the right to be called sovereign.10
Sovereignty denotes the ability to self-govern, and many states today do not really
possess that ability. In fact, some states are weaker than corporations and nongovern-
mental organizations (NGOs) in their capacity to run their own affairs.
As the reality of international politics indicates, certain states have more power,
self-government, and control and, thus, yield more influence in the configuration of
international relations than other states. The imbalance in the actual power of states
is enshrined into the UN Charter. The Security Council of the United Nations, the
body that makes decisions regarding war and peace, was formed by the victors of
World War II.11 The structure of power in the Security Council may be anachronistic
but, nevertheless, reflects that even the constitutive organs of the international system
could not have afforded to be oblivious of the importance of power in the making
of international relations. Sometimes this power is authoritative. In other cases, it
lacks legitimacy but, nevertheless, could still be effective in shaping the future of
international order.12
The principle of sovereignty implies that states “shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state.”13 But, as explored later in this book, this principle
contains its own antinomy in the UN Charter, as well as in the way that the Charter
has been interpreted including the cases of use of force, self-defense,14 or anticipatory
self-defense.15
It is provided that the United Nations must not intervene “in matters which are
essentially within the domestic jurisdiction of any state. . . . ”16 The International
Court of Justice, however, in the Tunis-Morocco Nationality Decrees case,17 ruled that
the scope of a state’s domestic jurisdiction is relative and depends on the development
of international law. The mere inclusion of a matter in the agenda of the General
Assembly or the Security Council does not in itself constitute intervention within the
meaning of article 2(7). The United Nations has engaged in activities considered

9 Art. 2(1) & (4), United Nations Charter, June 26, 1945 available online at http://www.un.org/
aboutun/charter [hereinafter UN Charter].
10 B. Buzan, National Security in the Post Cold War Third World, Paper presented at the Conference on
National Security in Developing Countries, Jan. 26, 1994, Institute for Strategic Studies, University of
Pretoria, South Africa.
11 Art. 23, UN Charter, supra note 9. Permanent members of the Security Council are China, France,
Russia, the United Kingdom, and the United States.
12 W. Michael Reisman, Law from the Policy Perspective, reprinted in International Law Essays 1, 7 (Myres
S. McDougal & W. Michael Reisman, eds., 1982).
13 Art. 2(4), UN Charter, supra note 9.
14 Art. 51, id.
15 Myres S. Mc Dougal & Florentino P. Feliciano, Law and the Minimum World Public Order: The Legal
Regulation of Coercion 231–41 (1961). See also Philip C. Jessup, A Modern Law of Nations 166–67
(1948); Oscar Schachter, The Rights of States to Use Armed Force, 82 Michigan Law Review 1620,
1633–35 (1984).
16 Art. 2(7), UN Charter, supra note 9.
17 Tunis-Morocco Nationality Decrees, Feb. 2, 1923, (1923) PCIJ, Ser.B, no.4, at 24.
8 Introduction to International Environmental Law

traditionally to be the prerogative of a nation-state, for example, in cases of self-

determination,18 racial discrimination,19 mass starvation,20 and environmental reg-
ulation.
The unequal distribution of power is a constitutive element of international law
from the creation of international regimes that formalize the division between haves
and haves-not to the development of customary international law. The Nuclear
Non-Proliferation Treaty is based on the presumption that it is legitimate for some
countries to possess nuclear weapons, whereas for others it is not.21 And customary
international law often is based on the practice of states that happen to be able to
shape international developments in an area. Space law has been developed by states
with the technology to explore space.22 The development of the Antarctic Treaty
system is based on an alliance of states that were the first to be able to enunciate
rights over the natural resources of Antarctica. The Antarctic Treaty regime could
be characterized as a kind of trusteeship arrangement developed by the acquiescence
of excluded states rather than by their willful consent.23
During the Cold War, the common reference to the United States and the Soviet
Union as the world’s superpowers, which mutually constrained each other, is well
known. In today’s world, a world in which one superpower has remained, the ques-
tion for other states has been how to constrain that power. A potential contender –
the European Union – has yet to acquire an independent voice and to amass mili-
tary resources that would match its economic breakthroughs. There are regionally
powerful states as well, such as India and China, which exert significant authority in
regional circles and, as a consequence, in international circles.

1.2.2. Wealth
After the wars of decolonization were fought, new states became members of the
international community. There was, therefore, the danger of a potential clash
between the new states and those states that are, so to speak, the founders of most
international law. New states generally have not adopted an outlook of international
law that fundamentally undermines the traditional view of such law by Western
states. The new states, however, came into international fora with a new set of
interests and demands. Developing states have pursued the right to development, for
instance, as a fundamental human right that is a precursor of other human rights.

18 Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opin-
ion), June 21, 1971, (1971) ICJ Reports 16.
19 E.S. Reddy, United Nations and Apartheid: Forty Years (1987).
20 The United Nations and Somalia – 1992–1996, Blue Book Series, Vol. VIII (UN Publication Sales No.
E.96.1.8).
21 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, reprinted in 729 UNTS 161. See
also Edward L. Miles, Nuclear Nonproliferation, 1945 to 1995, in Environmental Regime Effectiveness:
Confronting Theory with Evidence 273 (Edward L. Miles et al., eds., 2002).
22 Malcolm N. Shaw, International Law 66 (1986).
23 Some view the Antarctic Treaty regime as a sectoral res communis, a property that is held in trust by
the few for the benefit of many, something like an international trusteeship system. However, there
have been skirmishes in the development of the regime as some excluded countries have sought to be
included as Antarctic Treaty Consultative Parties. Efforts to make the area a true res communis have been
rejected by the Antarctic Treaty Consultative Parties. See Thomas M. Franck, Fairness in International
Law and Institutions 402–04 (1997).
 The World Community and International Law 9

Developing states often espouse the view that environmental protection should not
jeopardize their pursuit of wealth and development.
As new states came to the fore of the international arena, the economic gap
between developed states and developing countries became a permanent feature
of international relations. This division between developed states and developing
states intensified the challenge against some rules of international law developed
by the economically prosperous Western states. The division between developed
and less developed states created demands for a new international economic order
(NIEO) based on notions of sharing in wealth creation by all states. Ideas for the
development of a new international economic order eventually faded. Demands for
sharing prosperity, however, have not ceased to present themselves under different
disguises in various international fora, including that of environmental lawmaking.
Distinctions between developed and developing states (the North-South division)
are made in most international instruments and are prevalent in the international
discourse. Most recent distinctions are those made between newly industrialized
states (including mostly the southeast Asian states) and least-developed states (certain
states in Africa). There is also the addition of states with economies in transition,
states that came about after the breakup of the Soviet Union.
Because developing states do not have the same economic power as developed
states,24 they have formed the group G-77 (which now includes more than seventy-
seven states) to confront the power of the elite with the power of numbers. This
cluster of developing countries presenting a unified façade against developed states
should not obfuscate the fact that there are divisions and disagreements among
developing states as well. Sometimes developing states remain unified – under the
umbrella of G-77 – both in appearances and in substance. Frequently, however,
although appearances remain, the substance crumbles under the reality of different
interests. An example in the environmental field involves the climate change nego-
tiations. During these negotiations, small island-states fought for a strong normative
treaty as a means to protect their islands from the real danger of flooding. By con-
trast, other developing states (including those perceived to be regional powers, such
as China and India) pursued the usual path in international environment negotia-
tions, reiterating their right to development and putting the blame on industrialized
countries.25
The gap between developed and developing states continues to be wide. Although
citizens of a minority of states are quite affluent, the citizens of the majority of states
live under conditions of abject poverty. Citizens of the majority of states, for instance,
have an income of less than $1 per day. Although some states have been able to break
through the barrier between them and developed states, such is not the case for all
states, especially certain states located in vulnerable regions including sub-Saharan
Africa.
Despite the absence of a global war, states frequently engage regional conflicts that
involve violations of human rights. Furthermore, even developed democratic states –
which could be considered founders of human rights instruments – often engage in

24 The GNP of a developing state may be less than the revenues of a multinational corporation.
25 Daniel Bodansky, The United Nations Convention on Climate Change: A Commentary, 18 Yale Journal
of International Law 451 (1993).
10 Introduction to International Environmental Law

human rights violations.26 States that are more powerful mingle in the affairs of –
and even invade – less powerful states under the real threat or the pretext of a threat
to their national security27 or by simply pursuing the appropriation of other states’
resources.28 Many states are ravaged by a number of diseases, including AIDS and
malaria. Under these global circumstances, the question that emerges is what the
role of international law is, and, more specifically, what the role of international
environmental law is. This is a question that Chapter 2 will attempt to answer.

1.2.3. Cooperation
States are not equal in their power and authority.29 Whereas in decisions affecting
war and peace, the hegemonic power of some states is obvious, in the everyday affairs
of state interaction hegemonic tendencies tend to be subtler. Because war is not an
option for most societies under normal conditions, states have tried to cooperate
to achieve desirable outcomes. Even hegemonic states find it costly to affirm their
position constantly through the use of force. Often, therefore, they engage in some
sort of cooperative behavior with other states.
In game theory parlance, states find themselves captured in repeated games in
which the number of players is limited. Such players usually possess quite substantial
information about the past performance of other players. The international com-
munity is comprised of a small number of states; this community becomes even
smaller if one only counts states actively participating in most international matters.
States are avid collectors of information about the performance and general circum-
stances of other states, especially that of states that affect their interests. Thus, one
could conceive state interaction as one in which cooperation is the expected norm
rather than the exception.30 The reluctance to use force, the absence of a centralized
enforcement authority, reciprocity, and cooperative patterns of behavior make the
international arena look like alternating from hierarchy to coarchy and vice versa.31
A result of cooperation is the establishment of networks or clubs among certain
states. The General Agreement on Tariffs and Trade (GATT) was, in effect, a trade
club among industrialized states. Various security regimes connect allies that happen
to possess similar ideological outlook and development orientation, for instance,
the North Atlantic Treaty Organization (NATO). Such organizations often lack
transparency, but the lack of open and transparent procedures is viewed as the key
to organizational effectiveness. This lack of transparency gives freedom to officials

26 See U.S.: Abu Ghraib only the “Tip of the Iceberg,” Human Rights Watch, Apr. 27, 2005. See also
David Scheffer, Beyond Occupation Law, in 97 American Journal of International Law 842 (2003) (on
the law of occupation and the potential liability of occupying states).
27 See General Assembly Resolution 38/7, The Situation in Grenada, A/RES/38/7, Nov. 3, 1983. See
also Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), (Merits),
June 27, 1986, (1986) ICJ Reports 14. See also John Yoo, International Law and the War in Iraq,
97 American Journal of International Law 563 (2003). But see Richard Falk, What Future for the UN
Charter System of War Prevention, 97 American Journal of International Law 590 (2003).
28 Iraq’s invasion of Kuwait was allegedly performed to take over Kuwait’s oil resources. See also Security
Council Resolution 661, S/RES/661, Aug. 6, 1990.
29 See Reisman, supra note 12.
30 See, e.g., Robert Axelrod, The Evolution of Cooperation (1984).
31 W. Michael Reisman, Sanctions and Enforcement, reprinted in International Law Essays 381, 405 (Myres
S. McDougal & W. Michael Reisman, eds., 1981).
 The World Community and International Law 11

involved in these organizations to put together package deals without being con-
stantly scrutinized by the media and the public.32
The club model of international cooperation has been challenged by the excluded
states. Developing countries have engaged in efforts to participate in the clubs of
developed states so as to obtain advantages previously not available to them. India
and China engaged in substantial lobbying to enter the World Trade Organization
(WTO) club. Eastern European countries have engaged in efforts to participate in
the NATO and the European Community (EC) clubs.
Environmental problems have, as a general rule, transboundary effects. Therefore,
states realized early that cooperation, common rules, and standards are better than
unilateral action. The outcome of cooperation in the environmental field can be
seen in the number and quality of treaties and other instruments that have been put
in place for the protection of environment. Not all these treaties are well monitored
and enforced.33 Nevertheless, treaties affirm the will of states to cooperate for the
achievement of desirable outcomes. In the environmental field, developed states have
been willing to compensate developing states for their participation in cooperative
arrangements that are to have global beneficial environmental effects but that may,
at the same time, slow the pace of growth.

1.3. International Organizations

The United Nations System
The Security Council
The Security Council of the United Nations is comprised of the victor states of
World War II (France, the United Kingdom, the United States, Russia, and China)34
as permanent members, and ten nonpermanent members selected by the General
Assembly. The permanent members of the Security Council have the power to veto
any decision of the Security Council,35 reflecting the importance of authoritative
power in the making of the international order.
The Security Council is the primary organ of the United Nations, which deals
with matters of war and peace.36 The Security Council is not generally involved in
environmental matters. However, in exceptional cases, for instance, with regard to
Iraq’s invasion of Kuwait, it held Iraq liable for various damages inflicted on Kuwait
including the damage to the environment.37 The decisions of the Security Council
are binding38 and the powers of the Council are very extensive.39

32 Robert O. Keohane & Joseph S. Nye, Jr., Between Centralization and Fragmentation: The Club
Model of Multilateral Cooperation and Problems of Democratic Legitimacy 2, KSG Working Paper
No. 01-004, John F. Kennedy School of Government, Harvard University, Feb. 2001 available online
http://ssrn.com/abstract=262175 (Social Science Research Network).
33 United States General Accounting Office (GAO), International Agreements Are Not Well Monitored
(GAO-RCED-92–43, 1992).
34 Art. 23, UN Charter, supra note 9.
35 Art. 27(3), id.
36 Arts. 39 & 41, id.
37 Para. 16, Security Council Resolution 687, S/RES/687, April 3, 1991.
38 See arts. 25 & 103, UN Charter, supra note 9.
39 Art. 24. “In order to ensure prompt and effective action by the United Nations, its Members confer on
the Security Council primary [not exclusive, though] responsibility for the maintenance of international
peace and security . . . ” Id.
12 Introduction to International Environmental Law

The General Assembly

If the Security Council reflects some of the power elite of the world community,
the General Assembly is the democratic institution comprised of all members of
the United Nations.40 In the General Assembly, each member state has one vote.41
The General Assembly issues resolutions and recommendations that are not binding
but are frequently influential in the shaping of international relations and, when
adopted unanimously, could be considered sources of customary international law.
The General Assembly can consider a variety of matters, such as economic, social,
educational, cultural, health-related, or human rights–centered issues.
Given the broad scope of powers accorded to it, the General Assembly has been
involved in various environmental issues. The General Assembly convened the 1972
UN Conference on the Human Environment (Stockholm Conference), the 1992
UN Conference on Environment and Development (UNCED, Rio Conference)
and the 2002 World Summit on Sustainable Development (WSSD, Johannesburg
Conference). All of these conferences are considered landmarks in the development
of international environmental law.
The General Assembly has created two organs of the United Nations that have
played an essential role in international environmental developments, namely, the
United Nations Environment Program (UNEP) and the United Nations Develop-
ment Program (UNDP). The Commission on Sustainable Development, a product
of the UNCED Conference, functions under the auspices of the General Assembly.
The General Assembly has taken bold steps in asking the International Court of
Justice (ICJ) to give its opinion on the legality of nuclear weapons.42

International Court of Justice

The International Court of Justice (ICJ) or World Court is the principal judicial
organ of the United Nations.43 All member states of the UN become ipso facto
parties to the Statute of the International Court of Justice.44 Only a state party to
the Court’s Statute may be party to a contentious case.45 The jurisdiction of the
Court in contentious cases is based on the consent of states.
Consent may be given:
• ad hoc under article 36(1); States can submit a dispute to the Court by virtue of
an agreement usually called compromis;
• by prior agreement in a treaty under article 36(1);
• by accepting the compulsory jurisdiction of the Court through a declaration
under article 36(2).
Compulsory jurisdiction is conferred to the Court by a declaration of a con-
cerned country.46 Declarations are usually not retroactive and include reservations.

40 Art. 9, id.
41 There are have been claims, however, that votes should be weighted based on the population of each
state. See Shaw, supra note 22, at 597.
42 See infra note 224.
43 Art. 92, UN Charter, supra note 9.
44 Art. 93, id.
45 Arts. 34 & 36(2), Statute of the International Court of Justice, June 26, 1945 available online at
http://www.icj-cij.org.
46 Art. 36(2)–(5), id.
 The World Community and International Law 13

Declarations may include the possibility of dispute settlement by other means and
may provide that the ICJ does not have jurisdiction in matters falling under domes-
tic jurisdiction (“self-judging” clause).47 Several declarations exclude disputes arising
under multilateral treaties unless all parties to the treaty affected by the decision are
also parties to the case before the Court. A few declarations exclude disputes aris-
ing out of hostilities in which the declarant state is entangled or disputes that have
to do with national security issues. An increasing number of states have included
clauses in their declarations designed to avoid surprise lawsuits by states that accept
the Court’s jurisdiction and, immediately after that, bring a case against another
state. Some states have excluded from the jurisdiction of the Court any dispute that
was brought by a state less than twelve months after that state had accepted the
jurisdiction of the Court. In order to further protect themselves, many states have
reserved the right to modify or terminate a declaration peremptorily by means of
notification to the Secretary General of the UN with effect from the moment of
notification.48
A few treaties give the Court appellate jurisdiction. The 1944 Convention on
International Civil Aviation, for example, provides for appeal to the Court of deci-
sions of the Council of the International Civil Aviation Organization.49
The International Court of Justice is comprised of a body of fifteen independent
judges elected, regardless of their nationality, although no two of these judges can
be nationals of the same state.50 Judges are persons of high moral character who
possess qualifications for appointment in the highest judicial offices of their respective
countries.51 Members of the Court are elected by the Security Council and the
General Assembly, each body voting separately.52 Nominations are made by national
groups in the Permanent Court of Arbitration.53 An informal agreement among
members of the United Nations generally governs the distribution of seats among
the various regions of the world. Judges serve for nine years, with five judges rotating
every three years.54 Judges may be reelected and this is often the case. If a party in
a case does not have a judge of its nationality sitting at the bench, it may designate
an ad hoc such judge.55 The Court generally has decided cases by full bench. It
may, however, form chambers composed of three or more judges to deal with a
particular case or a category of cases.56 The ICJ has established a chamber devoted
to environmental matters.
The principle of stare decisis does not apply to the decisions of the ICJ. As men-
tioned in article 59 of the Statute of the International Court of Justice: “The decision
of the Court has no binding force except between the parties and in respect of that
particular case.” However, the Court frequently refers to its own decisions and to
those of other tribunals.

47 Shaw, supra note 22, at 530.

48 Id. at 531.
49 Art. 84, Convention on International Civil Aviation, Dec. 7, 1944, reprinted in 15 UNTS 295.
50 Art. 3(1), Statute of the International Court of Justice, supra note 45.
51 Art. 2, id.
52 Arts. 4(1) & 8, id.
53 Art. 4(1), id.
54 Art. 13(1), id.
55 Art. 31, id.
56 Art. 29, id.
14 Introduction to International Environmental Law

In addition to its function as a dispute settlement mechanism, the Court provides

advisory opinions on any legal question at the request “of whatever body may be
authorized by or in accordance with the Charter of the United Nations to make such
request.”57 The General Assembly has the authority to ask the ICJ to give an advisory
opinion on any legal matter.58 Other organs of the UN and specialized agencies may
request advisory opinions of the Court on “legal questions arising within the scope
of their activities.”59 Based on this provision, the Court has been able to answer the
General Assembly’s request regarding the legality of nuclear weapons considering,
inter alia, environmental matters.60 The ICJ declared that it had no jurisdiction
to give advisory opinion on the legality of nuclear weapons to the World Health
Organization (WHO) because the legality of nuclear weapons did not arise within
the scope of activities of WHO.61

Other Organizations
International institutions play multiple roles in the development of international
environmental law. They provide the coordinating fora under which most envi-
ronmental issues are discussed and decided. International organizations have some
lawmaking function because they issue recommendations, resolutions, and other so-
called soft law instruments that, although not binding on states, exert varying levels
of influence on the development of international environmental law.62
UNEP has provided the forum for the discussion of many international treaties,
such as the Basel Convention on the control of waste movements and the Biodiversity
Convention. UNEP has taken a leadership role in the regional seas programs. The
International Maritime Organization (IMO) has been instrumental in the production
of the regulatory framework for the control of pollution from ships. The Interna-
tional Atomic Energy Agency (IAEA) has generated a number of guidelines on the
protection of public health from nuclear materials, and also has been instrumental
in the implementation of the Nuclear Non-Proliferation Treaty, generating rules for
the disposal of radioactive waste. The World Meteorological Organization (WMO)
has played a role in the climate change discussions. The World Health Organization
(WHO) has been involved in a number of environmental issues including the control
of pesticides and the trade in chemicals. The Food and Agriculture Organization
(FAO) is primarily involved in fisheries, agricultural and forestry development and
agrobiodiversity issues. The International Agricultural Research Centers (IARCs)
have been involved in gene bank development. The World Trade Organization
(WTO) is involved in trade matters, but its broad jurisdiction over trade regulation
intersects often with environmental matters. The UN Economic and Social Coun-
cil (ECOSOC) and the UNDP have been taking into consideration environmental
concerns as they affect socioeconomic decisions. Various other permanent and ad hoc

57 Art. 65(1), id.

58 Art. 96(1), UN Charter, supra note 9.
59 Art. 96(2), id.
60 See infra note 224.
61 Id.
62 See, e.g., Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54
International Organization 421 (2000).
 The World Community and International Law 15

institutions (e.g., various working groups, committees) have assisted in the growth
of international environmental law.
Environmental considerations have had an impact on the agenda of many inter-
national organizations. Environmental considerations affect various areas of the
economy including all sorts of development projects, agriculture and forestry. The
World Bank (International Bank for Reconstruction and Development [IBRD]), for
instance, in its pursuit of development (that may involve construction of dams, roads,
or the development of protected areas) has found itself entangled in environmen-
tal and human rights matters. Similarly, the Global Environment Facility (GEF)
finances many development projects in which environmental considerations are
paramount.
Other organizations that have been involved in the development of interna-
tional environmental law include the International Tropical Timber Organization
(ITTO), which has been proactive in the sustainable management of tropical forests.
Regional organizations – such as the European Bank for Reconstruction and Devel-
opment (EBRD), the Organization for Economic Co-operation and Development
(OECD), the Organization of African Union (OAU), the Organization of Ameri-
can States (OAS), the Association of South East Asian Nations (ASEAN), the Asian
Development Bank and the South Asian Association for Regional Co-operation
(SAARC) – have played an influential role in the development of international
environment law.
Some institutions have monitoring character, such as the EMEP system (Cooper-
ative Programme for Monitoring and Evaluation of the Long-range Transmission of
Air Pollutants in Europe), which was developed under the UN/ECE regime regard-
ing transboundary pollution in Europe. The Conference of the Parties (COP) –
an institution provided for in most international environmental law treaties – has
acquired increasing monitoring and enforcement powers in recent environmental
conventions. State parties to a convention have to report to the COP of that conven-
tion on measures they have taken to implement that convention. Failure to report –
depending on the will of other state parties – may trigger sanctions.63 Some conven-
tions establish dispute settlement mechanisms that may be optional or obligatory.64
The ICJ is the primary judiciary organ, but other international tribunals have been
established, such as the ITLOS (International Tribunal of the Law of the Sea) and
the Appellate Body of the WTO.
A plethora of international institutions with overlapping capacities and respon-
sibilities has generated demands to rationalize the international system and, more
specifically, the international system for the protection of environment. Such ratio-
nalization may be needed depending on advantages/disadvantages of redundancy
in the administration of international law. Given that some institutions are more
competent or resilient than others allowing for some form of institutional com-
petition by tolerating some redundancy in the international system may not be
ill-advised. Completely streamlined institutional systems could be susceptible to
failure in case of a challenge. Allowing for some jurisdictional overlap among

63 See Chapter 3, Section 2.4.

64 See Chapter 3, Section 3.
16 Introduction to International Environmental Law

institutions that are not strictly identical yields more diversity and more flexibil-
ity in responses.65
One could claim, for instance, that the International Whaling Commission is a
redundant organization and its responsibilities should fall under the CITES secre-
tariat. A total bureaucratic streamlining would mandate to do away with the Com-
mission and devote its resources to the CITES Secretariat. To many environmental-
ists, such an outcome would not be the most effective outcome for the protection
of whales. It is questionable whether the CITES Secretariat would have the will
to defend the ban on whale hunting as forcefully as the Whaling Commission has
done.
Another example involves the jurisdictional overlap between the FAO and the
Conference of the Parties (COP) of the Biodiversity Convention. The institutions
have separate yet also overlapping jurisdiction, as the FAO is responsible for agrobio-
diversity, whereas the COP is concerned with the general protection of biodiversity.
In practice, the separation of jurisdictional reach has not worked well and there
has been friction in the cooperation between the two institutions.66 One could
conclude, however, that the jurisdictional overlap has had some positive outcomes.
The FAO has been able to broker a multilateral treaty on the dissemination of
agricultural resources that is a first step in creating some predictability with regard
to property rights over such resources. The Treaty on Plant Genetic Resources
for Food and Agriculture is now contributing in the development of the equi-
table sharing of benefits derived from the manipulation of food and agricultural
resources.67

1.4. Nongovernmental Actors

Environmental NGOs
There are roughly two broad categories of actors in the environmental movement:
the mainstream environmentalists and the deep ecologists.
According to the official line of mainstream environmentalism, development has
to be sought, but standards must be developed so that environmental deterioration
is minimized for the benefit of public health and quality of life.
At the other end of the spectrum, deep ecologists have argued for a “protection
of environment for the sake of environment” approach based on the belief that the
“the interests of nature” override or, at least, are at the same footing as the interests

65 See Bobbi Low et al., Redundancy and Diversity in Governing and Managing Common-Pool Resources,
Paper Presented at the 8th Biennial Conference of the International Association for the Study of Common
Property 7, Bloomington, Indiana, May 31–June 4, 2002. See generally Jonathan B. Bendor, Parallel
Systems (1985); See also Herbert A. Simon, The Proverbs of Administration, 6 Public Administration
Review 53 (1946), reprinted in Classics of Organization Theory (Jay M. Shafritz & J. Steven Ott, eds.,
1992). For the role of administrative redundancy in fighting corruption and promoting accountability
in developing countries, see Stephen B. Peterson, Another Path to Customs Reform: Mexico’s Second
Inspection, Discussion Paper No. 632, Harvard Institute for International Development, April 1998.
The author argues that the system of double inspection in customs administration is designed to fight
corruption by building overlapping layers of administration that would be pitted against each other.
66 Chapter 7, Section 2.1.2.3.
67 Chapter 7, Section 2.1.2.4.
 The World Community and International Law 17

of humans. According to these advocates, the current paradigm for development,

one that is derived from the Judeo-Christian tradition, views human life as the cen-
ter of all creation. According to deep ecologists, life must be reconsidered under
an ecological-ethical perspective allowing for the creation of small communities68
and survival through hunting, gathering, and gardening.69 An offshoot of the deep-
ecology approach is the animal rights movement, which has made its impact on
international instruments, for instance, the instruments that prohibit whale hunting.
Deep ecology is a result of the resentment against globalization – and what is implied
by globalization, free markets. Some strands of deep ecology, it could be argued, have
assumed the role of an alternative ideology to that supported by free markets.
The deep–ecology approach is based on different philosophical assumptions than
those shared by the majority of people in the world today. As long as the assumptions
differ, the chances for achieving a common ground are substantially reduced. Deep
ecology stands against technological innovation and the model of industrialization
as we experience it. It is tempting to point out, however, that pursuing “what is
good for nature” will not be helpful in prescribing standards to manage and protect
the environment. Only by attaching values – a human artifact – can the course of
action be determined that is appropriate for the protection of the environment and
human health.70
That the deep-ecology approach has been developed and has juxtaposed itself to
the current model of development is not surprising. A quest of modern civilizations
has been for a return to an unadulterated mythical past, one that probably never
existed.71 What is most striking is how deep ecology has affected some of the out-
puts of the mainstream environmental movement and international environmental
law and policy. The influence of the deep-ecology approach on the mainstream
environmental movement can be seen in the propagation of policies that favor strict
preservation72 and the establishment of exclusionary protected biodiversity areas
through the forcible exclusion of people.73 The effects of deep ecology can be seen
on policies that ban animal hunting even when such hunting provides the sole source
of income for certain indigenous societies.74 A deep-ecology slant can be detected
in the pursuit of self-sufficiency in the markets for the transfers of hazardous waste75
and the articulation of policies that exhibit zero tolerance for pollution.76

68 See, e.g., Fritz Schumacher, Small is Beautiful (1993).

69 See, e.g., Lawrence E. Johnson, A Morally Deep World: An Essay on Moral Significance and Environ-
mental Ethics (1993).
70 For a critique of the deep–ecology approach, see Luc Ferry, Le Nouvel Ordre Ecologique (1995). See
also James J. Kay, On the Nature of Ecological Integrity, in Ecological Integrity and the Management
of Ecosystems 210 (Stephen Woodley et at., eds., 1990).
71 Western civilization has been presented as corrupt, for instance, by the Romanticism movement that
urged a return to nature.
72 See, generally, Donald Show, Inside the Environmental Movement (1992).
73 Chapter 7, Section 1.2.
74 For instance, the campaign against trade in natural furs coming from certain species, without making
clear distinctions between endangered and nonendangered species, has harmed indigenous groups that
live in the Arctic regions and for which hunting is the only possible source of income.
75 Chapter 10, Section 3.1.
76 David Vogel & Timothy Kessler, How Compliance Happens and Doesn’t Happen Domestically, in
Engaging Countries: Strengthening Compliance with International Environmental Accords 19, 24
(Edith Brown Weiss & Harold K. Jacobson, eds., 1998).
18 Introduction to International Environmental Law

The environmental movement had its birth in the developed world and has acted
as an opposition to untrammeled development by emphasizing the importance of
quality of life based on a clean environment. Environmental groups have lobbied
governments in developed countries to adopt stringent regulations for the reduction
of pollution and protection of natural resources. Although not always as successful
as intended, these efforts have borne fruits and have improved the quality of life in
many areas of the developed world.
Because many environmental problems have global dimensions, environmental
groups have tried to spread their activities in the developing world. Environmental
issues have received mixed response in the developing world. Sometimes govern-
ments support exclusionary protected areas for ecotourism or for achieving better
control over ethnic minorities. But, in most cases, developing countries’ govern-
ments balk at taking decisive action on other problems, such as marine pollution or
the supply of clean drinking water.
The NGOs of developing countries have been overwhelmed by the more pros-
perous NGOs of developed countries. In fact, much of the funding for developing
countries’ NGOs comes from developed countries’ foundations. Some economists
have claimed that developed countries’ NGOs have been able to set the agenda
of the developing countries’ NGOs and that, accordingly, such agendas have little
to do with the problems that developing countries face.77 Specific environmental
problems prevalent in developing countries, such as dwindling supplies of drinkable
water and malnutrition, are not adequately addressed.
Because of allegations of transposing developed world ideals to developing coun-
tries, many environmental organizations have changed their discourse and have pro-
posed that the management of environmental problems has to be executed with the
participation of local people. The participation of local communities, however, is
not always applied in practice.
To be fair, environmental NGOs in developed countries are not always mono-
lithic. Whereas for some members of these organizations, local participation is a sim-
ple switch in discourse to please new audiences, others view public participation as
the means to change the substance of environmental policies. Community-oriented
participation discourses, even if they do not end up in substantial public participa-
tion, are an important means of defining and legitimizing local interests. Community
participation dialogues provide room for maneuverability to local groups who view
the management of environmental problems as a way to address their economic and
social needs.78
Environmental NGOs have challenged further the club model of interstate rela-
tions and have sought to become involved in intergovernmental fora. Environmental
NGOs have had significant influence in the shaping of some environmental regimes.
The evolution of the London Convention, the Whaling Convention, the Basel
Convention, the CITES, and the World Heritage Convention has been influenced
substantially by the actions of environmental NGOs.

77 Jagdish Bhagwati, In Defense of Globalization 47 (2004).

78 Sally Jeanrenaud, People Oriented Approaches in Global Conservation: Is the Leopard Changing its
Spots? (International Institute for Environment and Development (IIED) & Institute for Development
Studies (IDS), 2002).
 The World Community and International Law 19

In other cases, the impact of environmental groups has been weaker but, nev-
ertheless, has remained influential. NGOs have attempted to infiltrate international
organizations that are not prima facie confronted with environmental issues, such as
the WTO, with less success. Interestingly, developing states, which are now entering
these club-type organizations, are less prone to welcome NGOs than their developed
countries’ counterparts.79

Industry NGOs
Industry NGOs are not as visible as environmental NGOs, but they are not less
powerful. Actually, in some fora, where expert advice is needed, industry could
appear more credible because it has the resources to put together the expertise and,
thus, provide an authoritative analysis of an environmental issue. It has been claimed,
for instance, that industry NGOs are successful in the European Commission –
the initiator of legislative proposals within the European Union.
Industry NGOs are generally perceived as reluctant to provide leadership for the
abatement of environmental problems for which industries are responsible. Industry
has attempted to delay or to curtail environmental action when such action is per-
ceived as too costly. Industry has claimed frequently that scientific uncertainty is a
valid reason for inaction. The standards that some industries apply for the protection
of environment in developing countries often lag behind those adopted in developed
countries.
Having said that, it would be wrong to classify all industries as culprits of environ-
mental deterioration. Some industries have been innovators and are at the forefront
of environmental engineering. Within an industry or a company are often dissenting
voices that attempt to reorient discourse to corporate responsible solutions and to
redefine the allegiance of corporations not strictly to shareholders but to a broader
category of stakeholders that includes employees, the surrounding communities, and
the general public. Industry has learned the hard way that environmentally irrespon-
sible behavior is not only costly in terms of liability but also in terms of reputation.

Scientists
The role of science has been prominent in the development of international environ-
mental law.80 Scientists, however, rarely agree on the definition of an environmental
problem or the prescriptions for its solution. Sometimes the disagreement is the
result of the use of different data (for instance, in fisheries) or of the application of
different models (climate change). Given the lack of scientific certainty, most deci-
sions on environmental matters have to be made based on political considerations.
However, scientific communities and informal networks among scientists81 often
frame the environmental discourse. UNEP, WMO, and national scientific institutions
(such as the United States National Aeronautics and Space Administration [NASA])
have executed the research on ozone depletion. The Intergovernmental Panel on

79 See Keohane, supra note 32, at 6–8.

80 Peter M. Haas, Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Atmospheric
Ozone, in Knowledge, Power, and International Policy Organization, 46(1) International Organization
201 (1992).
81 Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International
Regulatory Agreements 171–72 (1995).
20 Introduction to International Environmental Law

Climate Change (IPCC) was organized by UNEP and WMO to provide insights
on the climate change debate.
The positions of scientists are used often by proponents or opponents of an
environmental action to advance their own view. The climate change discourse
has been influenced by the inability of scientists to reach consensus on whether
climate change really exists and its possible repercussions. The lack of scientific
consensus has provided some countries with justification to delay purposive action
for the abatement of carbon dioxide emissions, the main culprit of climate change.
By contrast, scientific consensus on the ozone hole over Antarctica precipitated
decisive action to phase out ozone-depleting substances.
Environmental law could be conceived as a series of dialectic interactions between
what are perceived as opposing trends: one devoted to development as usual and the
other to the injection of ecodevelopment as “new” paradigm for development. The
role of science in these series of dialectic interactions is the role of facilitator.

Indigenous Peoples
The Indigenous Peoples Forum is an informal network of indigenous groups that
seeks to bring to prominence issues that affect indigenous peoples. The Indigenous
Peoples Forum lacks a clear legal personality. However, it has been able, through a
series of gradual steps, to establish itself as an influential international institutional
network.
Indigenous peoples have asserted their fundamental human rights through the
Draft Declaration on the Rights of Indigenous Peoples.82 A number of ILO stan-
dards,83 which are currently in force, are not considered sufficient to guarantee
indigenous peoples rights. The interaction of indigenous peoples with environmen-
tal organizations has been ambivalent. Indigenous peoples have occasionally colluded
with the environmental movement against corporations whose pollution adversely
affects their traditional livelihoods. Other times, however, the indigenous people
movement has collided with the environmental movement, especially, with regard
to land-use rights. Environmental groups prefer state control over land, especially
forested land. Environmentalists are not convinced that indigenous groups, if left
to their own devices, would opt for environmentally sound solutions. Indigenous
peoples prefer to exercise control over the land through property rights and, thus,
to retain discretionary control over its use. The preference of environmental groups
for state control perpetuates, as should be expected, a rift between the indigenous
peoples’ movement and the environmental movement.

2. INTERNATIONAL LAWMAKING PROCESS

International law develops as states get together to calibrate their interaction and for-
malize their relationships. States frequently enter into agreements with one another
about matters of mutual concern. This way, states explicitly set the law that would

82 Draft United Nations Declaration on the Rights of Indigenous Peoples, Aug. 26, 1994, reprinted in 34
ILM 541 (1995).
83 Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989,
reprinted in 28 ILM 1382 (1989).
 International Lawmaking Process 21

regulate their behavior. Other times, states engage in practice under the perception
that such practice constitutes or should constitute law. If such practice is general and
is exercised under the opinion that it constitutes law, it is considered general custom
and, thus, a source of international law. Law could be derived from what are called
general principles of law, judicial decisions, and the teachings of the “most highly
qualified publicists.”84
Article 38 of the Statute of the International Court of Justice is cited most often
as the authoritative text on sources of law. According to that article:
The Court, whose function is to decide in accordance with international law such dis-
putes as are submitted to it, shall apply: 1.international conventions, whether general
or particular, establishing rules expressly recognized by the contesting states; 2.interna-
tional custom, as evidence of general practice accepted as law; 3.the general principles
of law recognized by civilized nations; 4.subject to provisions of article 59, judicial deci-
sions and the teachings of the most highly qualified publicists of the various nations as
subsidiary for the determination of the rules of law.

2.1. Treaties
International agreements, called “treaties,” “conventions,” “covenants,” and “char-
ters,” could be bilateral or multilateral. Usually, multilateral treaties signed by a
number of states are deemed to have lawmaking effects, whereas bilateral treaties are
viewed more or less the way contracts are viewed in domestic law (as having effect
between the parties that signed them).85 The process of multilateral treaty creation
involves a number of states that wish to resolve an issue of international importance.
These states usually request an international organization with authority on the sub-
ject matter (for instance, the World Health Organization, in matters of public health,
the International Labor Organization on labor matters) to establish a working group
to draft a treaty. This initiates a process of treaty negotiation and bargaining until
a consensus is established. Usually, states attempt to reach consensus during treaty
negotiations, which often results in the adoption of the lowest common denomi-
nator. Instances exist, however, in which states would adopt a convention without
a consensus. Lack of a consensus in the adoption of a convention is likely to affect
the lawmaking character of the convention. This is particularly the case if countries
explicitly refuse to sign or ratify the convention.
The Vienna Convention on the Law of the Treaties86 is the document used
frequently to interpret the text of many international treaties. The Vienna Con-
vention has codified some of the general principles that are enshrined in the law
of the treaties such as pacta sunt servanda87 and that treaties must not in principle
have retroactive character.88 The Vienna Convention demonstrates a preference for
the peaceful settlement of disputes89 and requires parties to perform their treaty

84 See art. 38(d), Statute of the International Court of Justice, supra note 45.
85 See J.G. Starke, An Introduction to International Law 78–81 (1963).
86 Vienna Convention on the Law of the Treaties, May 23, 1969, reprinted in 8 ILM 679 (1969).
87 Art. 26, id.
88 Art. 28, id.
89 See article 65 of the Vienna Convention, which refers to article 33 of the UN Charter, id.
22 Introduction to International Environmental Law

obligations “in good faith.”90 The Vienna Convention provides for the establish-
ment of a Conciliation Commission in case a disagreement arises during treaty
performance,91 but the decisions of the Conciliation Commission are not binding.
The convention provides for the possibility of reference of a dispute to the ICJ or
arbitration.92
States are free to make reservations to specific articles of a convention.93 This
creates in effect an à la carte convention system. Too many reservations on the
text of a convention undermine the authoritative character of the convention. For
this reason, certain treaties prohibit reservations.94 Many environmental and human
rights treaties do so. The prohibition of reservations enhances the consistency and
uniformity of treaties but, at the same time, restricting the possibility of reservations
implies less state participation in the treaty regime. If reservations are allowed, without
any restriction, state participation is facilitated but the lawmaking attributes of a treaty
are diluted.
After a convention is signed, it enters into a process of ratification. This means that
states must ask their legislative organs (e.g., a parliament) to adopt the convention and
to incorporate it into the domestic legal order. Unless a state ratifies a convention,
the convention does not have binding effects on that state (provided that the rules
included in the convention have not become a rule of customary law).
A convention specifies in one of its articles the number of states that are required
for ratification. After this prespecified number of states ratify the convention, it is
said that “the convention enters into force,”95 that is, it has become binding law
among the states that ratified it. The number of states required to ratify a convention
varies depending on the reach of the convention. The Law of the Sea Convention
(UNCLOS), which is considered the constitutive instrument of the law of the seas,
required sixty ratifications.96 Because of its wide reach, it took fourteen years for the
UNCLOS to enter into force.97 For some conventions, ratification by certain states
is important because nonratification by these states would risk depriving these con-
ventions of a convincing legal authority. For instance, the civil liability instruments
for oil pollution attempt to ensure the participation of states where major carriers
of oil reside. The climate change instruments attempt to ensure the participation of
countries that are major emitters of carbon dioxide.
Many international environmental treaties are umbrella framework treaties – set-
ting the parameters of international environmental action – followed by protocols
defining the specific standards of state behavior. The model of a framework con-
vention followed by specific protocols has been adopted as the regulatory archetype
for a number of environmental problems, such as ozone depletion, acid rain, and
climate change. The rationale behind the framework-protocol approach is for states
to commit to engage, initially, in cooperative behavior to manage what seems to be

90 For the element of good faith, see art. 26, Vienna Convention, id.
91 See art. 66 and Annex to the Vienna Convention, id.
92 Art. 66, id.
93 Art. 2(d), id. See also art. 20, id.
94 Art. 19, id.
95 See art. 24, id.
96 See Chapter 4, Section 3.1.
97 Id.
 International Lawmaking Process 23

an emerging environmental problem through a framework convention. As scien-

tific evidence accumulates or the political will manifests to tackle the problem more
decisively, further specific regulatory protocols can be adopted.
The framework/protocol legislative approach is not the only regulatory process for
the management of environmental problems. In the case of marine pollution, specific
conventions, such as the 1972 London Dumping Convention and the 1973 MAR-
POL Convention, preceded the 1982 UNCLOS. The UNCLOS is the framework
convention that has established the basic rules that govern the oceans. The process
of adopting a constitutional convention that attempts to address environmental and
other issues presented in the exploitation and protection of a medium (for instance,
seas, water, air) can be time-consuming, however. In the case of the UNCLOS, it
took more than ten years to adopt a coherent text for the protection of the oceans.

2.2. Custom
The relevance of custom as a source of international law has been debated. Some
scholars maintain that custom is an authoritative source of international law,98
whereas others purport that custom is anachronistic and even hard to prove in an
international environment rich in bilateral and multilateral agreements among states.
According to article 38 of the Statute of the International Court of Justice, there are
two elements that are needed for the establishment of international custom: general
practice and opinio juris (opinio juris sive necessitatis). General practice could be derived
from a number of material acts, for instance, domestic law, newspaper reports, and
government statements. Opinio juris requires that states behave in a certain way under
the stated belief, which does not have to be a genuine belief, that their behavior
is law or is becoming law.99 The International Court of Justice has established that
some degree of uniformity is required for custom to become law.100 However, it is
possible for custom to develop if a number of states follow consistently a practice that
has had an impact on international relations because of the authoritative influence
of these states. The role of maritime powers in the establishment of the law of the
sea, and the role of the United States and the Soviet Union in the development
of space law are indisputable.101 Thus, even in the creation of international custom
that, according to article 38, must be based on general practice, one can decipher the
role of authoritative power in lawmaking. For the practice of a state to develop into
custom, it is not necessary for that state to believe that its behavior constitutes law.
What is necessary is that its behavior remains unchallenged by other states.102 For a
state not to be bound by customary international law it has to have objected consis-
tently to the creation of such law (the doctrine of persistent objector).103 Opposition

98 Anthony D’Amato, The Concept of Custom in International Law (1971).

99 Shaw, supra note 22, at 71–73.
100 Id. at 64.
101 Id. at 66–67.
102 Michael Akehurst, Custom as a Source of International Law, 47 British Yearbook of International Law
1 (1974–75).
103 Ian Brownlie, Principles of Public International Law 10 (1998).
24 Introduction to International Environmental Law

expressed for the first time after a rule has been established firmly will not generally
prevent a state from being bound.104
Eventually, one can never prove a rule of customary law in an absolute manner but
only relatively. After all, the Statute of the International Court of Justice speaks of
“general practice” – not universal practice. It has been maintained that the consent
of half of the states of the world is sufficient or that the consent of third world states
is necessary. Arguments also have been made about the existence of regional custom
that is established among the states of a particular geographic region.105
Special custom prevails over general custom – lex specialis derogat legi generali – unless
the general custom amounts to what has been called jus cogens or a peremptory norm
of international law.106 Examples of jus cogens include the prohibition of genocide and
slave trade and the principle of diplomatic immunity. Treaties can provide evidence
of customary international law – unratified treaties as well. This is so because treaties
provide irrefutable evidence that some states believe that a certain practice is law.
It is more difficult to try to assemble state practice found in disparate sources that
could provide convincing proof of the combination of elements of state practice and
opinio juris.
It is apparent from the development of customary international law that protest
and consent play a vital part in the formulation of international law. The weight
attached to protest and consent depends on the number and authoritative power of
states that support them.

2.3. Principles of Law

Commentators are often at a loss about what to include under the rubric of gen-
eral principles of law. Therefore, they resort to some of the incontrovertible ele-
ments of any legal system – such as that violation of an agreement involves an
obligation of restitution and the principle of good faith or estoppel. The role of
equity as a principle of international law has been contested.107 Although inter-
national tribunals have used the principle of equity in a number of renowned
cases regarding the delimitation of the continental shelf 108 or the allocation of
water sources,109 it has been argued that equity is an all-encompassing concept that
introduces an unacceptable amount of uncertainty110 in international law. Some
commentators, by contrast, view equity as a normative principle of international
law.111

104 Id. at 10.

105 Akehurst, supra note 102, at 29–31.
106 Art. 53, Vienna Convention, supra note 86.
107 For a comprehensive treatment of the concept of equity, see Thomas M. Franck, Fairness in International
Law and Institutions 15–75 (1995).
108 See, e.g., paras. 88–89, 91, 98, North Sea Continental Shelf Cases, Feb. 20, 1969, (1969) ICJ
Reports 4.
109 See, e.g., Meuse Case, infra note 221.
110 Rosalyn Higgins, International Trade Law and the Avoidance, Containment and Resolution of Disputes,
General Course in Public International Law, 230 Recueil des Cours 9, 292 (1991).
111 Wolfgang Friedman, The Changing Structure of International Law 197 (1964).
 International Lawmaking Process 25

2.4. Other Sources

Court Decisions
Decisions of the ICJ, arbitration tribunals, and national courts, although presented
in article 38 as subsidiary sources of international law, are of importance in shaping
expectations about the legitimacy and likelihood of success of different claims made
under international law. States in their pleadings before courts often refer to prior
decisions of international and domestic tribunals and the International Court of
Justice itself, although not bound by the principle of stare decisis, frequently refers to
its prior decisions.

Teachings of Scholars
The work of scholars is influential in further shaping the development of interna-
tional law. This is especially the case with new evolving concepts of international
environmental law, such as the polluter pays principle or the precautionary principle,
which require further clarification for their successful application.

Soft Law Instruments

Other sources of law include decisions, recommendations, declarations, and resolu-
tions of various institutions that have been established under international law. This
is what has been called in some circles “soft law,”112 which, in contrast to “hard
law” (e.g., treaties, custom), does not have a binding character on state behavior.
Despite its nonbinding character, soft law has the capability of creating expectations
that shape the future direction of international law. It is not rare for a norm, artic-
ulated in a soft law instrument, to be incorporated into a treaty later and, thus, to
become a state obligation. The transformation of soft law instruments into binding
requirements is part of the norm creation in international law. Soft law instruments in
conjunction with a set of international norms (such as treaties) solidify expectations
and generate impetus for consistent future behavior of states and other international
actors.

2.5. Content
After deciding on the type of instrument that would be most effective in addressing
an environmental problem, policy makers must make a choice about the policies
to be incorporated in that instrument. In domestic arenas, significant emphasis has
been placed on regulatory approaches, called command-and-control regulations,
that specify the standards and often the technologies that industry should adopt in
order to be in compliance.
Economic instruments are relatively new regulatory instruments, the purpose of
which is to provide incentives for industry to comply. Economic instruments can
take the form of taxes or subsidies. A particular fuel, for instance, such as petroleum,
could be taxed to discourage its use. Renewable technology could be subsidized to
encourage its wide application. Overall economic instruments that could be used

112 See Abbott, supra note 62.

26 Introduction to International Environmental Law

to change industry and consumer behavior include taxes on polluting products such
as fuels, fertilizers, pesticides, tax differentiation (between ecofriendly and polluting
products), user charges (charges for using water or for mineral exploitation), and
subsidies.
The problem with economic instruments is that political will needs to be invested
in them to be adopted and then implemented. In order for taxes to influence a specific
behavior, they often need to be set quite high; this could cause industry or con-
sumer backlash. The fate of carbon tax within the European Union is well known.113
Subsidies and other economic vehicles must be carefully calibrated; otherwise, they
may spur wasteful investment. Other instruments such as tradable discharge per-
mits114 and transferable quotas115 have been used in domestic arenas as more flexible
methods to reduce pollution.
There is another problem with economic instruments and their application in
the international arena. Economic instruments, such as tradable permits, tend to be
complex instruments and demand a level of institutional maturity that has yet to be
attained in many international institutions. Also, the more complex the instrument,
the harder it would be to enforce it, given the fragmented enforcement possibil-
ities available in the international system. And this is true not only for economic
instruments but also for any other complex regulatory instrument. For instance, the
MARPOL Treaty was initially based on effluent discharges and, as such, it was dif-
ficult to monitor and enforce. Since the treaty has switched from effluent discharges
to technological standards, it has functioned better. This is because the adoption of
new technology in a ship is easily monitored by a simple inspection, whereas what
ships do in the high seas and the types or quantity of pollutants they discharge can be
hardly monitored. Often, the effectiveness of international regimes has to do with
the straightforward nature of standards they provide.116
Most international instruments that have been adopted follow the conventional
command-and-control approach. With the exception of climate change and ozone
protection instruments, which marginally flirt with incentive generation,117 most of

113 A carbon tax is a tax on energy sources that discharge carbon dioxide into the atmosphere. The European
Union has been discussing the imposition of carbon taxes since the early 1990s, but carbon taxes have
yet to be adopted. In the meantime, Sweden, the Netherlands, and Norway have introduced carbon
taxes.
114 Tradable discharge permits operate as follows: a country or a group of countries sets a cap for the
emissions of a polluting substance. Then permits are issued to industries the aggregate number of which
must not exceed the cap. Industries that produce less pollution than that allowed by their permits could
sell their extra permits to other industries that exceed the amount of pollution allowed for in their
permits. It is hoped that the emission trading that takes place would achieve environmental results with
the least cost for the industry. On the issue of tradable discharge permits (TDPs) and trading of emissions,
see Chapter 8.
115 Individual Transferable Quotas (ITQ) work like TDPs. In this case, a country or a group of countries
set a cap on the amount of a resource that is to be harvested (i.e., fisheries). This cap is usually called
Total Allowable Catch (TAC). This TAC is distributed to fishers through permits that define how much
each fisher is entitled to harvest from the oceans. Fishers who fish less than their assigned permits could
trade their extra permits with fishers who wish to fish more. Regarding Individual Transferable Quotas
(ITQs) in fisheries, see Chapter 6.
116 Oran R. Young, The Politics of International Regime Formation: Managing Natural Resources and
the Environment, in Foundations of Environmental Law and Policy 315 (Richard L. Revesz, ed., 1997).
117 See Chapter 8, Sections 1 & 2.
 PERSPECTIVES 27

international conventions still prescribe standards and, increasingly, procedures for

the application of environmental law. Such procedures involve extensive reporting
requirements and the provision of information and data that is sorely lacking in many
domestic and international fora. The lack of credible data has undermined inter-
national lawmaking and crippled the ability of international institutions to monitor
state behavior effectively.118 Many problems in the implementation of international
environmental law have to do with the lack of data that would function as a baseline
for assessing future pollution reduction and resource exploitation.

3. PERSPECTIVES

3.1. Developed Countries

Environmental deterioration was put in front of Western audiences with the pub-
lication of Silent Spring,119 a book that touted the adverse effects of pesticides, and
primarily DDT, on ecosystems and human health. The book galvanized the environ-
mental movement and launched a number of regulatory instruments in the United
States with zero pollution as a goal.120 Although European countries initially exhib-
ited a less risk-adverse attitude than the United States,121 they gradually developed
equally complicated regulatory systems for environmental protection. The evolu-
tion of the European Community environmental legislation from an enumeration
of environmental goals to the prescription of detailed procedures for standard appli-
cation is documented.122
Although there have been ebbs and flows in the development of environmental
regulations – ebbs usually associated with economic deflation and flows with eco-
nomic prosperity – one can certainly detect an increase in the sophistication and in
the number of international environmental standards. Because of the costs that such
standards impose on industries, as industries have to revamp their technologies to
become more environmentally friendly, it has been proposed that the command-and-
control approach of environmental regulation must be supplemented with economic
incentives. Various instruments have been proposed that would allow companies to
choose not only the most effective way but also the most efficient way to meet
environmental standards. Tradable emission allowances have been implemented in
some developed countries as a way to reduce the costs of pollution prevention.123
Property rights have been allocated to fishers in the hope of abating overfishing and
the depletion of fish stocks.124
Compliance with and enforcement of environmental standards is not perfect.
After all, some lack of compliance is endemic in all regulatory systems. Compli-
ance with environmental regulations does not seem to be worse than compliance
with other regulatory instruments to the point that some commentators even talk

118 GAO, supra note 33.

119 Rachel Louise Carson, Silent Spring (1962).
120 See supra note 76.
121 Elli Louka, Conflicting Integration: The Environmental Law of the European Union 67 (2004).
122 Id.
123 See Chapter 8, Section 2.2.3.
124 See Chapter 6, Section 2.2.
28 Introduction to International Environmental Law

of over-compliance with environmental regulations.125 Compliance with environ-

mental standards is evident in the better air quality in most cities of the developed
world,126 the relatively cleaner beaches,127 and the restitution of the ozone layer.128
Still, however, a lot remains to be accomplished in terms of restoring damaged
ecosystems.129

3.2. Developing Countries

During colonial times, environmental legislation in developing countries was gen-
erated by colonial governments and was resented by local people.
Colonial governments were the first to impose environmental management
accompanied with strict enforcement to protect natural areas that were previously
free access areas.130 These areas were enclosed, called “nature reserves,” and were
removed from consumptive use. The 1933 Convention Relative to the Preservation
of Fauna and Flora in their Natural State131 was one of the first international con-
ventions adopted for the protection of biodiversity. The convention presents many
similarities with the exclusionary conservation conventions adopted in later years.
According to the preamble of the convention, “the natural fauna and flora of certain
parts of the world, and in particular Africa, are in danger, in present conditions, of
extinction and permanent injury.” According to the framers of the convention, such
preservation of natural resources can be achieved best by

(i) the constitution of national parks, strict natural reserves, and other reserves within
which the hunting, killing, or capturing of fauna, and the collection or destruction
of flora shall be limited or prohibited,
(ii) the institution of regulation concerning the hunting, killing, and capturing of
fauna outside such areas,
(iii) the regulation of the traffic in trophies,
(iv) the prohibition of certain methods of and weapons for the hunting, killing, and
capturing of fauna.132

The convention went as far as to establish a list of Class A (strict protection) and
Class B (less strictly protected than Class A species) species whose hunting must be
prevented even by the “natives.” According to article 8(1),

125 Beyond Compliance: What Motivates Environmental Behavior?, Overcompliance with Environmen-
tal Regulations (Proceedings of a Workshop sponsored by the U.S. Environmental Protection Agency’s
National Center for Environmental Economics and National Center for Environmental Research, Wash-
ington, DC, June 4, 2001).
126 The UN/ECE CLRTAP in Europe is considered generally successful, see Chapter 8, Section 3.
127 Many developed countries are investing in sewage infrastructure, see OSPAR and HELCOM regime,
Chapter 4, Sections 4.1 & 4.2.
128 See Chapter 8, Section 1.
129 See Chapter 7, Section 1.
130 See, generally, Jack Westoby, Introduction to World Forestry (1989).
131 Convention Relative to the Preservation of Fauna and Flora in their Natural State, Nov. 8, 1933. The
countries involved included the Union of South Africa, Belgium, the United Kingdom, Egypt, Spain,
France, Italy, Portugal, and the Anglo-Egyptian Sudan. (Because of lack of ratifications, the convention
did not enter into force.)
132 Preamble, id.
 PERSPECTIVES 29

Animals belonging to the species mentioned in Class B, whilst not requiring such
rigorous protection as those mentioned in Class A shall not be hunted, killed, or
captured, even by natives, except under special license granted by the competent
authorities.

Many governments that were established after the demise of colonialism adopted
similar exclusionary policies for protected areas. Exclusionary polices brought vast
land areas under state control and confirmed the authority of newly established
national governments over territories resided by people of diverse tribal and other
affiliations. Protected areas were pursued as a good source of foreign exchange –
income brought by tourism or safaris or donors willing to shoulder the cost of
land preservation. The exclusion of resident peoples from restricted nature reserve
areas was, and is still, such a constitutive element of preservation efforts that some
commentators have characterized it “coercive conservation.”133 Chapter 7 provides
more details on the phenomenon of coercive conservation and how it has affected
environmental policies.
Putting aside the pursuit of protected areas, however, most developing countries,
when they entered the international arena as independent sovereign states, were faced
with environmental problems that were of different nature than those experienced
by developed countries. Such problems included the spread of various infectious
diseases, unsafe drinking water, and a lack of adequate food supply and housing.
Some respected scientists have argued that the spread of malaria in some developing
countries justifies the use of DDT, a substance prohibited for use in many developing
and developed countries, underlying the different nature of problems and appropriate
solutions for different areas of the world.
Because of the urgent problems that many developing countries face, they have
been slow to adopt stringent environmental laws or have been reluctant, once they
adopt such laws, actually to enforce them. Lack of enforcement in developing coun-
tries 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. Developing countries often
have argued that developed countries were allowed to despoil their environment in
order to develop and that they, developing countries, should achieve some level of
development before they implement environmental measures. Developing countries
argue that, after some level of development and wealth is achieved, the pursuit of
environmental quality should follow, as it has happened in developed countries.
Given the different priorities of developing countries, it is not surprising that,
when developing countries understood that the North was attempting to impose,
through international lawmaking, its own environmental standards on them, they
were less than willing to comply. The different views of developing countries were
made evident during the Rio Conference and in the subsequent negotiations of
international regimes, such as the ozone regime and the climate change regime.
During these negotiations, developing countries asked in effect for compensation for
their participation in the functioning of international environmental laws that they

133 Nancy Peluso, Coercive Conservation: the Politics of State Resource Control, 3 Global Environmental
Change – Human and Policy Dimensions 199 (1993).
30 Introduction to International Environmental Law

deemed served primarily the interests and concerns of developed states. Financial
compensation in exchange for environmental performance became the cornerstone
of the ozone protection and climate change regimes.134

4. HISTORICAL EVOLUTION

4.1. Stockholm
In the late 1960s, as the environmental movement was emerging, the Swedish dele-
gation asked the United Nations to convene a conference on the environment. The
immense coordinating effort that such a conference required was put together by
Canadian Maurice Strong, who was to become the first Executive Director of UNEP,
the first UN institution devoted exclusively to the protection of the environment.
The Stockholm Conference produced the Stockholm Declaration on the Human
Environment. Some believed that the declaration should begin with a sweeping
articulation of every human being’s right to a wholesome environment.135 A rights
approach, however, did not prevail. The declaration adopted an anthropocentric
approach to the protection of the environment, as the full title of the declaration
denotes: “Declaration of the United Nations Conference on the Human Environ-
ment.”136
In the first article of the declaration, an explicit linkage is formulated between
human rights and the conditions of living in an environment of quality. According
to Principle 1:
Man has a fundamental right to freedom, equality and adequate conditions of life in
an environment of a quality that permits a life of dignity and well-being [emphasis added].
The declaration contains the seeds of provisions that were espoused by subse-
quent legislative instruments. For instance, Principle 2, which refers to the rights of
“future generations,” could be considered a distant predecessor of the intergenera-
tional equity principle.137 Principle 9 refers to the special environmental problems
caused by underdevelopment, which “can best be remedied by accelerated devel-
opment through the transfer of substantial quantities of financial and technological

134 See Chapter 8, Sections 1 & 2.

135 For a detailed analysis of the articles of the Stockholm Declaration and the negotiating history of the
declaration, see Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 Harvard
International Law Journal 423 (1973); See also Alexander Kiss, Ten Years after Stockholm: International
Environmental Law, 77 Proceedings of the American Society of International Law 411 (1983); Jutta
Brunée, The Stockholm Declaration and the Structure and Processes of International Law 67, in The
Stockholm Declaration and the Law of the Marine Environment 67 (M.H. Nordquist et al., eds. 2003).
136 Declaration of the United Nations Conference on the Human Environment, June 16, 1972,
A/CONF.48/14 and Corr.1, reprinted in 11 ILM 1416 (1972). The Stockholm Conference was not the
first environmental instrument to be adopted internationally. The 1968 African Convention on Conser-
vation of Nature and Natural Resources (see Chapter 7, Section 4.2. and the 1971 Ramsar Treaty, see
Chapter 7, Section 3.3, were some of the first conventions to establish stringent rules for the protection
of biodiversity. The conventions regarding the prevention of pollution of the sea by oil were some of
the first instruments for the regulation of pollution. See Chapter 11.
137 See Edith Brown Weiss, In Fairness to Future Generations 24 (1989). Inter-generational equity requires
each generation to “pass the planet on in no worse condition than it received it and to provide equitable
access to its resources and benefits.”
 Historical Evolution 31

assistance . . . , ” making, thus, indirect allusion to the right to development that is

articulated later in the Rio Declaration. Principle 12 is an expression of the prin-
ciple of additionality – the fact that additional financial assistance must be given to
developing countries in order to enable these countries to protect the environment.
The principle of additionality was discussed extensively during the climate change
and ozone negotiations.
A well-known provision of the Stockholm Declaration is Principle 21. Principle
21 serves a double function. It asserts the sovereign right of states to exploit their
natural resources, but it also provides for the
responsibility [of states] to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or areas beyond the limits of
national jurisdiction.

Principle 21 has launched a debate over the establishment of “international liabil-

ity” of states for harmful activities that occur under their control but cause damage
to the environment of other states.138 The details of this debate are explored in
Chapter 11.
The rest of the 1970s and the 1980s witnessed the accumulation of many envi-
ronmental instruments. Some of these instruments have played an important role
in defining environmental problems in a global or a regional setting. Some of these
instruments include the 1972 London Dumping Convention, the Convention on
the Trade in Endangered Species (CITES Convention), the UNEP Regional Seas
Program, the MARPOL Convention with regard to pollution by ships, the Bonn
Convention on the protection of migratory species, and the LRTAP Convention
on transboundary air pollution. From a regulatory viewpoint, most of these treaties
rarely provided clear standards for action that would bind states to certain outcomes.
As these legislative instruments are maturing, their regulatory vise tightens and the
inclusion of a command-and-control approach becomes clearer in most of the instru-
ments and, especially, in the instruments that regulate pollution among developed
countries.
A decade after the adoption of the Stockholm Declaration, the World Charter
for Nature was adopted by the General Assembly.139 The Charter was sponsored by
thirty-four developing nations and was drafted by the International Union for the
Conservation of Nature (IUCN) and independent experts. The Charter is divided
into General Principles, Functions, and Implementation. The General Principles
provide that nature must be respected and that the habitat and life forms must be
safeguarded to ensure their survival. The Functions component of the Charter rec-
ommends controls on economic development and consideration for the long-term
capacity of ecosystems to support human use. The Implementation component
encourages countries to adopt domestic and international legislation, develop eco-
logical education, set up funding and administrative arrangements, encourage pub-
lic participation and planning, assess the impact of military activities on the envi-
ronment, and establish administrative regulations. The Charter recommends the

138 See Chapter 11, Section 6.

139 General Assembly Resolution 37/7, World Charter for Nature, A/Res/37/7, Oct. 28, 1982, reprinted
in 22 ILM 455 (1983).
32 Introduction to International Environmental Law

application of the environmental impact assessment. Some developing countries

opposed the inclusion of environmental impact assessment as they claimed that they
were unable to conduct environmental impact assessments of the caliber of assess-
ments performed by developed countries. Other countries objected to the provision
of the Charter encouraging the use of best available technology. Some developing
countries claimed that the provision makes developing countries, in effect, depen-
dent on developed countries for technology transfers.
Another important development that paved the way to the Rio Summit was
the publication of “Our Common Future” in 1987 by the World Commission.140
The World Commission was created by a 1983 UN General Assembly Resolu-
tion and was assigned the task of looking at environmental and development issues
and proposing better ways to address them. “Our Common Future” also called the
“Brundtland Report” after the chairman of the World Commission (Gro Brundt-
land), provides a comprehensive overview of various global issues. Such issues include
sustainable development, the international economy, the debt crisis, food security,
species, ecosystems, industry, the urban challenge, peace and the arms race, climate
change, and ozone depletion. A concept that reverberated long after the Brundtland
report was completed is the concept of sustainable development, defined as develop-
ment that satisfies the needs of present generations without jeopardizing the ability
of future generations to meet their needs.141
In 1989, the UN General Assembly, noting the Brundtland Report, called for
the UN Conference on Environment and Development.142

4.2. Rio
The UN Conference on Environment and Development (or Earth Summit) was
held in Rio de Janeiro between June 3 and June 14, 1992, with the participation of
an unprecedented number of NGOs. It produced a number of instruments that have
shaped the development of international environmental law until today – the Rio
Declaration on Environment and Development,143 Agenda 21,144 the Non-Binding
Principles on the Sustainable Development of all Types of Forest,145 the Treaty on
Biological Diversity,146 and the Treaty on Climate Change.147

140 World Commission on Environment and Development, Our Common Future (Brundtland Report)
(1987).
141 Id. at 43.
142 General Assembly Resolution 44/228, United Nations Conference on Environment and Development,
A/RES/44/228, Dec. 22, 1989.
143 Rio Declaration on Environment and Development, June 13, 1992, reprinted in 31 ILM 876 (1992).
144 A voluminous document that provides the course of action for the management and prevention of
many environmental problems. See Agenda 21, June 5, 1992 available online at http://www.un.org/
esa/sustdev/documents/agenda21 (Division for Sustainable Development, United Nations Department
of Economic & Social Affairs).
145 Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of All Types of Forests, June 13, 1992, reprinted in 31 ILM
881 (1992).
146 Convention on Biological Diversity, June 5, 1982, reprinted in 31 ILM 822 (1992).
147 UN Framework Convention on Climate Change, May 9, 1992, reprinted in 31 ILM 849 (1992).
Random documents with unrelated
content Scribd suggests to you:
May 1894.
 GLOSSARY.
Abye, to pay the penalty of, to atone for.
Aigrette, a plume of feathers.
Alembic, an old chemical apparatus or vessel, used for distilling.
Astucious, astute, shrewd, cunning.
Baaren-hauter, a nickname for a German private soldier.
Ban-dog, a large fierce dog.
Banneret, a standard-bearer.
Banquette, the walk behind the parapet of a fortress.
Barbican, the outwork defending the gate of a fortress.
Bartizan, a small overhanging turret or projecting parapet.
Brache, a kind of sporting dog.
Braggadocio, a blusterer, a boaster.
Caftan, a long robe worn by men in the East.
"Cour plénière," in ancient French history a gathering of all a king's
vassals.
Cresset, a large kind of candlestick for holding a small fire or
illuminant.
Dalmatic, dalmatique, a long ecclesiastical robe.
Diet, the national assembly.
Doomsmen, all who gathered at the doom, or great popular court
of the ancient Scandinavians.
Dorf, a village.
Double-ganger, Doppelgänger, a spectral counterpart of a living
person.
Earth-shoot, a landslip.
Emprise, feat, enterprise.
Espadon, a long heavy sword.
"Fain, to make one," to please, to give pleasure or joy to.
Faustrecht, the right claimed by the petty barons of the Empire to
wage private warfare.
Folter-kammer, a torture-chamber.
Gammon, a smoked ham.
Gauds, trinkets, ornaments.
Gear, business, affair; property.
Geierstein, vulture-stone.
Graffs-lust, the count's delight.
Hauberk, a shirt of mail.
Hauptman, a captain.
Hundred, an old subdivision of the English counties.
Kreutzer, a German copper coin, worth one third of a penny
English.
Lammer-geier, the bearded vulture.
Landamman, the chief magistrate in a Swiss canton.
Landvogt, a bailiff.
Lanzknecht, a German mercenary soldier.
Largesse, a free distribution of money.
Leaguer, a camp.
Losel, a slothful person.
Lyme-hound, a large dog.
"Maen Gorsedd," the stone of the British bards.
Mail, a trunk.
Mainour, a thing stolen, discovered in the hands of the thief.
Malecredence, mistrust.
Merlin, a kind of hawk, formerly trained to hunt game birds.
Minnesinger, a poet-minstrel of mediæval Germany.
Montero-cap, a horseman's scarlet cap of fine Spanish cloth
trimmed with fur.
Morisco, a Moor of Spain.
Palmer, a pilgrim to the Holy Land.
"Par amours," forbidden love.
Partisan, a kind of pike or halberd.
Peltry, skins and furs of wild animals.
Pight, pitched, placed, fixed.
Ptisan, a decoction of barley.
Rigadoon, a dance with a peculiar hopping step.
"Roba di guadagno," profitable goods.
Romaunt, a story or tale in verse.
Saltire-wise, two lines crossing one another diagonally like a St.
Andrew's cross.
Samite, a textile made of gold cloth or satin.
Schlaf-trunk, a sleeping-draught.
Schwarz-bier, black beer.
Schwarz-reiter, a German mercenary horse-soldier
Seigniory, the right of ownership vested in a feudal superior or
lord.
Shaveling, a priest.
Soothfast, true, worthy of belief.
Stoup, a drinking-cup.
Strappado, a cruel form of military punishment.
Strick-kind, the child of the cord—the prisoner on trial before the
Vehmic Tribunal.
Switzer, a native of Switzerland.
Thane, intermediate between a freeman and a noble.
Treillage, trellis-work.
Vail, to doff, to lower, to take off.
Verjämbt, condemned by the Vehmic Tribunal.
Vestiary, a room for keeping vestments.
Visne, venue, the place where a law action can be tried.
Wapentake, an old subdivision of the English counties.
Warrand, a defender.
Wassail, ale or wine sweetened and flavoured with spices.
Welked, marked with protuberances or ridges.
Wimple, a shawl worn by women out of doors.
Wroge, Vroge, lists of offences that called for the attention of the
court.
Yung-herr, Jung-her, Junker, a young man.
Zechin, a Venetian gold coin, worth from 9s. to 10s.

END OF VOL. I.

Printed by Ballantyne, Hanson & Co.

Edinburgh and London.
 Transcriber's Note:
Obvious typographical errors have been corrected.
Inconsistent spelling, hyphenation, and capitalization
(e.g. his grace/Grace) in the original document have
been preserved.
 *** END OF THE PROJECT GUTENBERG EBOOK ANNE OF
GEIERSTEIN; OR, THE MAIDEN OF THE MIST. VOLUME 1 (OF 2) ***

Updated editions will replace the previous one—the old editions

will be renamed.

Creating the works from print editions not protected by U.S.

copyright law means that no one owns a United States
copyright in these works, so the Foundation (and you!) can copy
and distribute it in the United States without permission and
without paying copyright royalties. Special rules, set forth in the
General Terms of Use part of this license, apply to copying and
distributing Project Gutenberg™ electronic works to protect the
PROJECT GUTENBERG™ concept and trademark. Project
Gutenberg is a registered trademark, and may not be used if
you charge for an eBook, except by following the terms of the
trademark license, including paying royalties for use of the
Project Gutenberg trademark. If you do not charge anything for
copies of this eBook, complying with the trademark license is
very easy. You may use this eBook for nearly any purpose such
as creation of derivative works, reports, performances and
research. Project Gutenberg eBooks may be modified and
printed and given away—you may do practically ANYTHING in
the United States with eBooks not protected by U.S. copyright
law. Redistribution is subject to the trademark license, especially
commercial redistribution.

START: FULL LICENSE

THE FULL PROJECT GUTENBERG LICENSE
 PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK

To protect the Project Gutenberg™ mission of promoting the

free distribution of electronic works, by using or distributing this
work (or any other work associated in any way with the phrase
“Project Gutenberg”), you agree to comply with all the terms of
the Full Project Gutenberg™ License available with this file or
online at www.gutenberg.org/license.

Section 1. General Terms of Use and

Redistributing Project Gutenberg™
electronic works
1.A. By reading or using any part of this Project Gutenberg™
electronic work, you indicate that you have read, understand,
agree to and accept all the terms of this license and intellectual
property (trademark/copyright) agreement. If you do not agree
to abide by all the terms of this agreement, you must cease
using and return or destroy all copies of Project Gutenberg™
electronic works in your possession. If you paid a fee for
obtaining a copy of or access to a Project Gutenberg™
electronic work and you do not agree to be bound by the terms
of this agreement, you may obtain a refund from the person or
entity to whom you paid the fee as set forth in paragraph 1.E.8.

1.B. “Project Gutenberg” is a registered trademark. It may only

be used on or associated in any way with an electronic work by
people who agree to be bound by the terms of this agreement.
There are a few things that you can do with most Project
Gutenberg™ electronic works even without complying with the
full terms of this agreement. See paragraph 1.C below. There
are a lot of things you can do with Project Gutenberg™
electronic works if you follow the terms of this agreement and
help preserve free future access to Project Gutenberg™
electronic works. See paragraph 1.E below.
1.C. The Project Gutenberg Literary Archive Foundation (“the
Foundation” or PGLAF), owns a compilation copyright in the
collection of Project Gutenberg™ electronic works. Nearly all the
individual works in the collection are in the public domain in the
United States. If an individual work is unprotected by copyright
law in the United States and you are located in the United
States, we do not claim a right to prevent you from copying,
distributing, performing, displaying or creating derivative works
based on the work as long as all references to Project
Gutenberg are removed. Of course, we hope that you will
support the Project Gutenberg™ mission of promoting free
access to electronic works by freely sharing Project Gutenberg™
works in compliance with the terms of this agreement for
keeping the Project Gutenberg™ name associated with the
work. You can easily comply with the terms of this agreement
by keeping this work in the same format with its attached full
Project Gutenberg™ License when you share it without charge
with others.

1.D. The copyright laws of the place where you are located also
govern what you can do with this work. Copyright laws in most
countries are in a constant state of change. If you are outside
the United States, check the laws of your country in addition to
the terms of this agreement before downloading, copying,
displaying, performing, distributing or creating derivative works
based on this work or any other Project Gutenberg™ work. The
Foundation makes no representations concerning the copyright
status of any work in any country other than the United States.

1.E. Unless you have removed all references to Project

Gutenberg:

1.E.1. The following sentence, with active links to, or other

immediate access to, the full Project Gutenberg™ License must
appear prominently whenever any copy of a Project
Gutenberg™ work (any work on which the phrase “Project
Gutenberg” appears, or with which the phrase “Project
Gutenberg” is associated) is accessed, displayed, performed,
viewed, copied or distributed:

This eBook is for the use of anyone anywhere in the United

States and most other parts of the world at no cost and
with almost no restrictions whatsoever. You may copy it,
give it away or re-use it under the terms of the Project
Gutenberg License included with this eBook or online at
www.gutenberg.org. If you are not located in the United
States, you will have to check the laws of the country
where you are located before using this eBook.

1.E.2. If an individual Project Gutenberg™ electronic work is

derived from texts not protected by U.S. copyright law (does not
contain a notice indicating that it is posted with permission of
the copyright holder), the work can be copied and distributed to
anyone in the United States without paying any fees or charges.
If you are redistributing or providing access to a work with the
phrase “Project Gutenberg” associated with or appearing on the
work, you must comply either with the requirements of
paragraphs 1.E.1 through 1.E.7 or obtain permission for the use
of the work and the Project Gutenberg™ trademark as set forth
in paragraphs 1.E.8 or 1.E.9.

1.E.3. If an individual Project Gutenberg™ electronic work is

posted with the permission of the copyright holder, your use and
distribution must comply with both paragraphs 1.E.1 through
1.E.7 and any additional terms imposed by the copyright holder.
Additional terms will be linked to the Project Gutenberg™
License for all works posted with the permission of the copyright
holder found at the beginning of this work.

1.E.4. Do not unlink or detach or remove the full Project

Gutenberg™ License terms from this work, or any files
 containing a part of this work or any other work associated with
Project Gutenberg™.

1.E.5. Do not copy, display, perform, distribute or redistribute

this electronic work, or any part of this electronic work, without
prominently displaying the sentence set forth in paragraph 1.E.1
with active links or immediate access to the full terms of the
Project Gutenberg™ License.

1.E.6. You may convert to and distribute this work in any binary,
compressed, marked up, nonproprietary or proprietary form,
including any word processing or hypertext form. However, if
you provide access to or distribute copies of a Project
Gutenberg™ work in a format other than “Plain Vanilla ASCII” or
other format used in the official version posted on the official
Project Gutenberg™ website (www.gutenberg.org), you must,
at no additional cost, fee or expense to the user, provide a copy,
a means of exporting a copy, or a means of obtaining a copy
upon request, of the work in its original “Plain Vanilla ASCII” or
other form. Any alternate format must include the full Project
Gutenberg™ License as specified in paragraph 1.E.1.

1.E.7. Do not charge a fee for access to, viewing, displaying,

performing, copying or distributing any Project Gutenberg™
works unless you comply with paragraph 1.E.8 or 1.E.9.

1.E.8. You may charge a reasonable fee for copies of or

providing access to or distributing Project Gutenberg™
electronic works provided that:

• You pay a royalty fee of 20% of the gross profits you derive
from the use of Project Gutenberg™ works calculated using the
method you already use to calculate your applicable taxes. The
fee is owed to the owner of the Project Gutenberg™ trademark,
but he has agreed to donate royalties under this paragraph to
the Project Gutenberg Literary Archive Foundation. Royalty
 payments must be paid within 60 days following each date on
which you prepare (or are legally required to prepare) your
periodic tax returns. Royalty payments should be clearly marked
as such and sent to the Project Gutenberg Literary Archive
Foundation at the address specified in Section 4, “Information
about donations to the Project Gutenberg Literary Archive
Foundation.”

• You provide a full refund of any money paid by a user who

notifies you in writing (or by e-mail) within 30 days of receipt
that s/he does not agree to the terms of the full Project
Gutenberg™ License. You must require such a user to return or
destroy all copies of the works possessed in a physical medium
and discontinue all use of and all access to other copies of
Project Gutenberg™ works.

• You provide, in accordance with paragraph 1.F.3, a full refund of

any money paid for a work or a replacement copy, if a defect in
the electronic work is discovered and reported to you within 90
days of receipt of the work.

• You comply with all other terms of this agreement for free
distribution of Project Gutenberg™ works.

1.E.9. If you wish to charge a fee or distribute a Project

Gutenberg™ electronic work or group of works on different
terms than are set forth in this agreement, you must obtain
permission in writing from the Project Gutenberg Literary
Archive Foundation, the manager of the Project Gutenberg™
trademark. Contact the Foundation as set forth in Section 3
below.

1.F.

1.F.1. Project Gutenberg volunteers and employees expend

considerable effort to identify, do copyright research on,
transcribe and proofread works not protected by U.S. copyright
law in creating the Project Gutenberg™ collection. Despite these
efforts, Project Gutenberg™ electronic works, and the medium
on which they may be stored, may contain “Defects,” such as,
but not limited to, incomplete, inaccurate or corrupt data,
transcription errors, a copyright or other intellectual property
infringement, a defective or damaged disk or other medium, a
computer virus, or computer codes that damage or cannot be
read by your equipment.

1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except

for the “Right of Replacement or Refund” described in
paragraph 1.F.3, the Project Gutenberg Literary Archive
Foundation, the owner of the Project Gutenberg™ trademark,
and any other party distributing a Project Gutenberg™ electronic
work under this agreement, disclaim all liability to you for
damages, costs and expenses, including legal fees. YOU AGREE
THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT
LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT
EXCEPT THOSE PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE
THAT THE FOUNDATION, THE TRADEMARK OWNER, AND ANY
DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE LIABLE
TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL,
PUNITIVE OR INCIDENTAL DAMAGES EVEN IF YOU GIVE
NOTICE OF THE POSSIBILITY OF SUCH DAMAGE.

1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you

discover a defect in this electronic work within 90 days of
receiving it, you can receive a refund of the money (if any) you
paid for it by sending a written explanation to the person you
received the work from. If you received the work on a physical
medium, you must return the medium with your written
explanation. The person or entity that provided you with the
defective work may elect to provide a replacement copy in lieu
of a refund. If you received the work electronically, the person
or entity providing it to you may choose to give you a second
opportunity to receive the work electronically in lieu of a refund.
If the second copy is also defective, you may demand a refund
in writing without further opportunities to fix the problem.

1.F.4. Except for the limited right of replacement or refund set

forth in paragraph 1.F.3, this work is provided to you ‘AS-IS’,
WITH NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.

1.F.5. Some states do not allow disclaimers of certain implied

warranties or the exclusion or limitation of certain types of
damages. If any disclaimer or limitation set forth in this
agreement violates the law of the state applicable to this
agreement, the agreement shall be interpreted to make the
maximum disclaimer or limitation permitted by the applicable
state law. The invalidity or unenforceability of any provision of
this agreement shall not void the remaining provisions.

1.F.6. INDEMNITY - You agree to indemnify and hold the

Foundation, the trademark owner, any agent or employee of the
Foundation, anyone providing copies of Project Gutenberg™
electronic works in accordance with this agreement, and any
volunteers associated with the production, promotion and
distribution of Project Gutenberg™ electronic works, harmless
from all liability, costs and expenses, including legal fees, that
arise directly or indirectly from any of the following which you
do or cause to occur: (a) distribution of this or any Project
Gutenberg™ work, (b) alteration, modification, or additions or
deletions to any Project Gutenberg™ work, and (c) any Defect
you cause.

Section 2. Information about the Mission

of Project Gutenberg™
Project Gutenberg™ is synonymous with the free distribution of
electronic works in formats readable by the widest variety of
computers including obsolete, old, middle-aged and new
computers. It exists because of the efforts of hundreds of
volunteers and donations from people in all walks of life.

Volunteers and financial support to provide volunteers with the

assistance they need are critical to reaching Project
Gutenberg™’s goals and ensuring that the Project Gutenberg™
collection will remain freely available for generations to come. In
2001, the Project Gutenberg Literary Archive Foundation was
created to provide a secure and permanent future for Project
Gutenberg™ and future generations. To learn more about the
Project Gutenberg Literary Archive Foundation and how your
efforts and donations can help, see Sections 3 and 4 and the
Foundation information page at www.gutenberg.org.

Section 3. Information about the Project

Gutenberg Literary Archive Foundation
The Project Gutenberg Literary Archive Foundation is a non-
profit 501(c)(3) educational corporation organized under the
laws of the state of Mississippi and granted tax exempt status
by the Internal Revenue Service. The Foundation’s EIN or
federal tax identification number is 64-6221541. Contributions
to the Project Gutenberg Literary Archive Foundation are tax
deductible to the full extent permitted by U.S. federal laws and
your state’s laws.

The Foundation’s business office is located at 809 North 1500

West, Salt Lake City, UT 84116, (801) 596-1887. Email contact
links and up to date contact information can be found at the
Foundation’s website and official page at
www.gutenberg.org/contact
 Section 4. Information about Donations to
the Project Gutenberg Literary Archive
Foundation
Project Gutenberg™ depends upon and cannot survive without
widespread public support and donations to carry out its mission
of increasing the number of public domain and licensed works
that can be freely distributed in machine-readable form
accessible by the widest array of equipment including outdated
equipment. Many small donations ($1 to $5,000) are particularly
important to maintaining tax exempt status with the IRS.

The Foundation is committed to complying with the laws

regulating charities and charitable donations in all 50 states of
the United States. Compliance requirements are not uniform
and it takes a considerable effort, much paperwork and many
fees to meet and keep up with these requirements. We do not
solicit donations in locations where we have not received written
confirmation of compliance. To SEND DONATIONS or determine
the status of compliance for any particular state visit
www.gutenberg.org/donate.

While we cannot and do not solicit contributions from states

where we have not met the solicitation requirements, we know
of no prohibition against accepting unsolicited donations from
donors in such states who approach us with offers to donate.

International donations are gratefully accepted, but we cannot

make any statements concerning tax treatment of donations
received from outside the United States. U.S. laws alone swamp
our small staff.

Please check the Project Gutenberg web pages for current

donation methods and addresses. Donations are accepted in a
number of other ways including checks, online payments and
credit card donations. To donate, please visit:
www.gutenberg.org/donate.

Section 5. General Information About

Project Gutenberg™ electronic works
Professor Michael S. Hart was the originator of the Project
Gutenberg™ concept of a library of electronic works that could
be freely shared with anyone. For forty years, he produced and
distributed Project Gutenberg™ eBooks with only a loose
network of volunteer support.

Project Gutenberg™ eBooks are often created from several

printed editions, all of which are confirmed as not protected by
copyright in the U.S. unless a copyright notice is included. Thus,
we do not necessarily keep eBooks in compliance with any
particular paper edition.

Most people start at our website which has the main PG search
facility: www.gutenberg.org.

This website includes information about Project Gutenberg™,

including how to make donations to the Project Gutenberg
Literary Archive Foundation, how to help produce our new
eBooks, and how to subscribe to our email newsletter to hear
about new eBooks.
Welcome to our website – the perfect destination for book lovers and
knowledge seekers. We believe that every book holds a new world,
offering opportunities for learning, discovery, and personal growth.
That’s why we are dedicated to bringing you a diverse collection of
books, ranging from classic literature and specialized publications to
self-development guides and children's books.

More than just a book-buying platform, we strive to be a bridge

connecting you with timeless cultural and intellectual values. With an
elegant, user-friendly interface and a smart search system, you can
quickly find the books that best suit your interests. Additionally,
our special promotions and home delivery services help you save time
and fully enjoy the joy of reading.

Join us on a journey of knowledge exploration, passion nurturing, and

personal growth every day!

ebookbell.com