Environmental Law WF-OB-POEL

1. Introduction to environmental law – current problems
Discussion:
- Identification by students the current environmental problems.
An attempt to assess their origin, magnitude and the threat they pose.

Introduction to the topic. Presentation on genesis and development IEL:
I period: from the beginning - 1945
II period: 1945-1972
III period: 1972-1992
IV period: 1992 – till now

Outlining the significance of major international conferences
• 1972 UN Conference on the Human Environment (UNCHE, Stockholm)
• 1992 UN Conference on Environment and Development (UNCED, Rio de Janeiro)
• 2002 World Summit on Sustainable Development (WSSD, Johannesburg)
• 2012 UN Conference on Sustainable Development (“Rio+20”, Rio de Janeiro)

2. . Environmental protection at international, regional and national levels
Governance in international and national law
• States
• Organisations established by environmental treaties
• Non-state actors:
 Environmental and developmental organisations
 Legal groups
 Corporate sector
 Individuals and indigenous communities

Presentation on sources in Environmental Law:
Article 38(1) of the Statute of the International Court of Justice (ICJ), from four sources: treaties, international custom, general principles of law, and subsidiary sources (decisions of courts and tribunals and the writings of jurists and groups of jurists)
Treaty (convention, accord, agreement, protocol) the primary source of international legal rights and obligations in relation to environmental protection. A treaty can be adopted: bilaterally, regionally or globally.
Customary international law
The two elements of customary international law:
- state practice and
- opinio juris sive necessitatis.
General principles of international law
Subsidiary sources
• the decisions of courts and tribunals - the jurisprudence of these tribunals is becoming an increasingly important source of reference in the development of international environmental law and policy.
• the writings of jurists - have played a less significant role in developing international environmental law.
Basic sources of EU law
• Primary law: treaties agreed and ratified by member states (and candidate states in cases of treaties of accession).
• Secondary law: legislative acts of institutions of the European Community and Union.
• There is also some subsidiary law (other treaties among member states) and external law (treaties with the third countries)
• fundamental rights relevant to practice of the European Communities and Union.
Types of sources of national law.

3. Legal instruments of environmental protection
Main instruments used:
• Integrated environmental permits (IPPC)
• Environmental impact assessment (EIA)
• Strategic environmental assessment (SEA)
• Environmental management and audit (EMAS)
• Freedom of access to environmental information
• Public participation in environmental decision-making
• Access to justice in environmental matters

4. Terms, concepts and principles of environmental law
Presentation on principles in environmental protection
1. the states have sovereignty over their natural resources and the responsibility not to cause transboundary environmental damage - the obligation reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration;
2. the principle of preventive action;
3. the principle of co-operation;
4. the principle of sustainable development;
5. the precautionary principle;
6. the polluter-pays principle; and
7. the principle of common but differentiated responsibility.
Case study: Trail Smelter Arbitration (United States v. Canada)

5. Access to environmental information and public participation in environmental decision-making – reasons, instruments and competences

Discussion with the students on the significance of public participation in environmental matters in developed and developing countries.
Presentation on environmental access to information and public participation.
Access to environmental information in international law: the significance of the MOX Plant case (Ireland v. United Kingdom)

6. Environmental impact assessment for projects and plan, programmes
Environmental Impact Assessment (EIA) - is the process of examining the anticipated environmental effects of a proposed project - from consideration of environmental aspects at design stage, through consultation and preparation of an Environmental Impact Assessment Report (EIAR), evaluation of the EIAR by a competent authority, the subsequent decision as to whether the project should be permitted to proceed, encompassing public response to that decision.
Case study:
1. Pulp Mills on the River Uruguay (Argentina v. Uruguay)
2. the Gabcikovo-Nagymaros Project (Hungary v. Slovakia)

7. Legal regulation regarding nature protection
Student’s discussion about the roots causes of biodiversity loss in habitats:
(1) population growth and increasing resource consumption;
(2) ignorance about species and ecosystems;
(3) poorly conceived policies;
(4) the effects of global trading systems;
(5) inequity of resource distribution;
(6) failure to account fully for the value of biodiversity.
The 1992 Convention on Biological Diversity (CBD) includes new international rules on
• In situ, ex situ protection,
• access to genetic resources,
• access to and transfer of technology, and
• the handling of biotechnology and
• the distribution of its benefits.
Convention on International Trade in Endangered Species of Wild Fauna and Flora = CITES
Inclusion of a species in one of the Appendices results in the application of certain trade requirements or restrictions.
• Appendix I: Species threatened with extinction. International trade for commercial purposes is prohibited.
• Appendix II: Species that could become threatened with extinction unless trade is regulated. International trade is permitted but regulated.
• Appendix III: Species subject to regulation within the jurisdiction of a Party, and for which cooperation is requested. International trade is permitted but regulated.

8. Legal regulation concerning seas and oceans protection
The rules on the protection of the marine environment are among the most highly developed in the field of international environmental law,
Presentation on 1976 UNEP Regional Seas Programme, which has led to over thirty regional treaties.
In 1982, the international community finally adopted the United Nations Convention on the Law of Sea (UNCLOS).
Particular sources of pollution:
1. from land-based activities;
2. from seabed activities;
3. from activities in the ‘Area’;
4. from dumping;
5. from vessels; and
6. from or through the atmosphere.

9. Management of waste and dangerous substance
The rules of international law relating to the management of waste include:
• prevention and treatment;
• disposal;
• recycling and re-use;
• international movement (including trade).

10. Air and atmosphere protection
3 different problems – 3 different regimes
1) Transboundary long-range pollutions - the 1979 ECE Convention on Long-Range Transboundary Air Pollution
2) Ozon layer protection - the 1985 Vienna Convention for the Protection of the Ozone Layer with Montreal Protocol
3) Climate change - the 1992 UN Frame Convention on Climate Change

11. Legal basis of climate protection
An overview of how the international legal and policy framework to address
climate change developed over time and points out some of the key issues under negotiation.
• A brief history of international climate change negotiations and introduces the United Nations Framework Convention on Climate Change (UNFCCC).
• The key provisions of the UNFCCC, its organisational structure, and different Party groups under the Convention
• The 3 mechanisms under Kyoto Protocol
• Paris agreement and climate policy after 2015
• Main negotiation issues. How the negotiations have evolved over the past years (from a two-track to a one-track approach) and highlights some of the key issues relevant for a future climate change regime.

12. Responsibility of the state for environmental damage
The concept of ‘enforcement’ in international environmental law - the right to take measures to ensure the fulfilment of international legal obligations or to obtain a ruling by an appropriate international court, tribunal or other body, including an international organization, that obligations are not being fulfilled.
An overview of international procedures and mechanisms are available to assist in the pacific settlement of environmental disputes.
The UN Charter identifies the traditional mechanisms, including negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of the parties’ own choice.
These techniques can be divided into two broad categories: diplomatic means according to which the parties retain control over the dispute insofar as they may accept or reject a proposed settlement (negotiation, consultation, mediation, conciliation); and legal means which result in legally binding decisions for the parties to the dispute (arbitration and judicial settlement).

13. Future perspective of environmental law
Students discussion on developments of international environmental law.

 Bodansky D. M., The Art and Craft of International Environmental Law (2010) – selected issue
 Eccleston Ch. H., March F., Global Environmental Policy, Concepts, Principles and Practise (2011) – selected issue
Kosieradzka-Federczyk Agata, Public access to environmental information in the light of the EU and Polish law, , W: Security and Globalization in the Context of European Integration. Legal Aspects, 2017

Optional reading:
 Kiss A., Shelton D., Guide to International Environmental Law (2007)
 Louka E., International Environmental Law: Fairness, Effectiveness, and World Order (2006)
 Fitzmaurice M., Contemporary Issues in International Environmental Law (2009)
 Bodansky D., Brunnée J., Rajamani L., International Climate Change Law (2017)
 Carlarne C. P., Gray K. R., Tarasofsky R., The Oxford Handbook of International Climate Change Law (2016)
 Hollo E. J., Kulovesi K., Mehling M., Climate Change and the Law (2013)
 Argüello G., Marine Pollution, Shipping Waste and International Law (2021)
 Craik N., Impact Assessment Process, Substance and Integration (2010)
 Wood Ch., Environmental Impact Assessment. A Comparative Review (2013)
 Fischer T. B., The Theory and Practice of Strategic Environmental Assessment. Towards a More Systematic Approach
 Jürgen F., International Environmental “soft law” (2013)
 Stephens T., International Courts and Environmental Protection (2009)
 Weiss E. B., The Evolution of International Environmental Law (2011)
 Rubenstein K., Pogge T., Environmental Discourses in Public and International Law (2011)
 Weiss E. B., The Evolution of International Environmental Law, 54 Japanese Y.B. Intl. L. 1-27 (2011)
 P. H. Sand, J. McGee, Lessons learnt from two decades of international environmental agreements: law International Environmental Agreements: Politics, Law and Economics volume 22, (2022)
 Bekhoven J. van, Public Participation as a General Principle in International Environmental Law: Its Current Status and Real Impact, National Taiwan University Law Review 2016, Vol. 11: 2
 Eritja M. C., del Castillo T. F., Biological Diversity and International Law. Challenges for the Post 2020 Scenario, 2021
 Ong D. M., The Convention On International Trade In Endangered Species (Cites, 1973): Implications Of Recent Developments In International And Ec Environmental Law, Journal of Environmental Law, Vol. 10, No. 2, 10th Anniversary Issue (1998)

Legal acts (main):
Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus, 1998
Convention on the Ban of the Import into Africa and the Control of Transboundary Movements and Management of Hazardous Wastes within Africa, Bamako, 1991
Convention on Biological Diversity (CBD), Nairobi, 1992
Cartagena Protocol on Biosafety 2000
Nagoya Protocol on Access and benefit sharing 2010, Japan
Convention on the Conservation of Migratory Species of Wild Animals (CMS), Bonn, 1979
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 1989
Convention on the International Trade in Endangered Species of Wild Flora and Fauna (CITES), Washington, DC, 1973
Convention on Long-Range Transboundary Air Pollution
Convention on Environmental Impact Assessment in a Transboundary Context 25.02.1991 (Espoo Connvention)
Convention on the Protection and Use of Transboundary Watercourses and International Lakes (ECE Water Convention), Helsinki, 1992
Convention on the Transboundary Effects of Industrial Accidents, Helsinki, 1992
Convention on Wetlands of International Importance Especially As Waterfowl Habitat (notably not a Multilateral Environmental Agreement)
Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD; 1994)
Espoo Convention Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 1991
Framework Convention on Climate Change (UNFCCC), New York, 1992
International Tropical Timber Agreement (ITTA), Geneva, 1994
Stockholm Convention Stockholm Convention on Persistent Organic Pollutants Stockholm, 2001
Vienna Convention for the Protection of the Ozone Layer, Vienna, 1985, including the Montreal Protocol on Substances that Deplete the Ozone Layer, Montreal, 1987

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