International Environmental Law and Sustainability of Global Commons - Assignment Example

International environmental law: Drawing on specific legislative examples (e.g. Convention on Biological Diversity, Kyoto Protocol etc Critically discuss whether international environmental law ensures the sustainability of global commons. Introduction The international environment laws are formed to ensure that global commons maintain their existence without affecting the overall environment of the planet for the well being of all. Globally, efforts are made in this direction through different conventions and protocols such as Biological Diversity and Kyoto Protocol to ensure sustainability of global commons. The Stockholm Declaration on the Human Environment was first of its kind global effort made by adopting on June 16, 1972 an “Action Plan” with 109 suggestions for environmental protection. Before discussing sustainability issues we need to know the concept of global commons. The Stockholm Declaration defined the circumference of global commons in Principles 2 to 7 by proclaiming that not only oil and minerals but air, water, earth, plants, and animals also form part of the natural ecosystem that we name global commons. 1 Global commons are the global natural assets of the planet, which include Antarctica, Deep Sea Resources, Migratory Species, Endangered Species, atmosphere and Climate. Here, the crucial question arises to see whether the international treaties and agreements such as the United Nations Convention on the Law of the Sea (UNCLOS), the International Convention for the Prevention of Pollution by Ships (MARPOL, 1973/1978), and Framework Convention on Climate Change (UNFCCC) and the others have been successful in ensuring the sustainability of global commons or not. This essay will attempt to find an answer to the question of sustainability of natural common assets such as oceans and atmosphere through legislation, the examples of which include Kyoto Protocol, The Law of the Sea, MARRPOL Convention, and whether the International Court of Justice (ICJ) and International Tribunal for the Law of the Sea (ITLOS) have been effective in resolving the issues or have failed the expectations. Global Commons -- Who can or should take action and how? The issues related to global commons can be resolved through treaties, which could be bilateral, multilateral or within a country between the government and the private agencies through legal agreements or through government instrumentalities. Law of the country can be invoked to resolve the issues for the sustaining of global commons with in the physical boundaries of a country. Where spillover effects happen to be of global magnitude affecting the cause of global commons, action can be unilateral or through multilateral environment agreements (MEAs), which involve the enforcement agencies such as ICJ and ITLOS. 2 These global commons have intrinsic value, which is common to the stake of all nations. There could be points of departure from commons if they are not shared heritage of humanity, which could be within permanent sovereignty over the natural resources. The global commons are the responsibility of all states and even beyond the aim of particular environmental processes or safety functions. Such commons are defined by bilateral, multilateral, and global treaties. 3 Treaties on the concept of common concern come under the UN Framework Convention on Climate Change (FCCC) with a given preamble, which “The Parties to this Convention, Acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind…” such as Convention on Biological Diversity (CBD) wherein the stake holding groups agree that safeguarding of biological diversity is a common cause of humanity while confirming that the States have absolute rights over their own biological resources. 4 UNCLOS: Rights and Duties in Marine Areas UNCLOS has demarcated three areas causing marine pollution, namely land based pollution, vessel based pollution, and atmospheric pollution. Not only high seas but coastal areas also come under the purview of the UNCLOS provisions. States are bound to their duties to maintain the marine environment under Article 192. Clauses concerning the safety of marine biological resources are there in the sections of the Convention governing marine environment. Article 197, article198-99, and article. 204 bound states for cooperation by following “recommended practices and procedures” in emergencies and prompt states to “keep under surveillance” any function that can lead to pollution of the marine environment. 5 Further Articles 205, 206, 203-04 focus on informing the global bodies for circulating the same to other states, appraising the situation emerging out of pollution so that developing states could benefit from such communication by providing preference to them over developed nations for help. 6 As per the environment provisions of UNCLOS, the flag states, port states and coastal states have the collective responsibility of implementing rules and standards. States “shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent and control pollution of the marine environment” from different sources. Arts. 213–214, 216–220, 222. 7 a. Flag State Jurisdiction Under Article 217, it is the responsibility of flag states to ensure that ships under their jurisdiction follow the rules and flag state laws of the Convention. Suitable steps need to be taken by flag states to ensure that ships registering and flying their flags follow the global regulations and rules. Flag state can initiate legal proceeding against the defaulter ships irrespective of the place of pollution and impose severe penalties to deter them from violating the law in future but no state has jurisdiction in the high sea until a ship reaches a flag state, which means that the Article 217 is not fully equipped to handle high sea pollution. 8 b. Port State Jurisdiction Jurisdiction of port states under Art. 218 is proclaimed where ships enter a port or offshore terminal. The port state can enquire and start proceedings if any discharge on the high sea is found violating global regulations and rules. It comes under the jurisdiction of the port state to initiate proceedings if discharges in the internal, territorial seas, and reserved economic area of another state are caused by a vessel in a porting state if such a request is made by another state or by the port state itself. Port states are supposed to take action if any other state or the flag state makes such a complaint. The port state can hold sailing permission to a ship violating international norms until the remedies have been made not to cause any further loss to marine environment. 9 c. Coastal State Jurisdiction Coastal states have vast powers under Art (220) to fight pollution of the marine environment in their territorial seas and reserved economic zones, supporting the general grant of coastal state jurisdiction over these zones proclaimed by Art. 21(1) and Art. 56(1) (b)(iii). The legislative power of the coastal state to fight pollution by ships is agreed for the territorial sea by Art 211(4) and for the reserved economic zone by Art 211(5). Under Art 220(5), coastal states can take a physical check of the vessel. If the discharge poses a risk to the coastline, the state may start proceedings, including stopping the vessel. About 70 percent of marine pollution originates from land based sources especially near densely inhabited coastal areas and regions where tourism activity increases the density of population in seasons when tourists visit the coasts. Although UNCLOS controls land based pollution as it regulates other sources of pollution but success rate has not been exemplary. Under the 1997 UN Convention on the Law of the Non- Navigational Uses of International Watercourses, it is affirmed in Art. 23 that “[w]atercourse States shall, individually and, where appropriate, in cooperation with other States, take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards.” 10 Protection of marine environment is presenting three challenges in the coastal regions and adjoining areas. These are submerging of natural coastlines because of expansion in human colonies, occurrence of engineering functions on a bigger level such as ports, harbors and land reclamation, and growth in industrial functions, tourism causing loss to marine and coastal eco-systems through inconsistent exploitation. Pollutants affect the quality of water making it degrading for marine life creating shortage of facilities. 11 The leading sources of marine pollution are Shipping, Dumping, Sea- bed activities, land-based and atmosphere pollution. 12 Oil is one of the biggest pollutants affecting marine life and earning capacity of the coastal areas. Birds are the easy prey to oil, as they cannot survive being sensitive to oil pollution; any attempts to save them from oil pollution fails. Fish are not affected as much from the exposure to crude oil if the time span is short. On the contrary, fuel oil can kill fish. Coastal areas take time to recuperate from oil spills, thus affecting businesses operating from the beaches. 13 Global law binds a country to take steps for being a party to the treaty such as there is the Convention on Biological Diversity or the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Such conditions should be kept in mind by the law makers while the non-binding global declarations need to be adhered to principles, standards, and suggestions like given in Chapter 17 of Agenda 21 or the FAO Code of Conduct for Responsible Fisheries, can lead by showing the way to resolving coastal issues pertaining to a country’s coastal management. Such documents show the acceptance level relating to following best practices, thus, could be a way of finding means of formulating frameworks of ICM. 14 Among a number of marine pollution sources, land-based pollution bears minimal impact of global regulation except the Mediterranean region where robust strides have been made to gain positive outcomes. A pertinent question emerges in this context of finding whether global law and particularly the Law of the Sea Convention have been able to provide inputs to effectively create an environment for safeguarding and maintaining the well being of marine life. The natural reaction over it has been voiced thus, “This general problem is especially acute with international environmental law, as the important question, who shall speak for the commons? or even, more conservatively, who can speak for the commons? remains largely unresolved.” 15 MARPOL The aim of general instrument, the International Convention for the Prevention of Pollution by Ships (MARPOL, 1973/1978) has been “the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances.” The provisions of MARPOL, 1973/1978 are given in Art. 2(4) for defining what constitutes a vessel although the term pollution is not defined but its constituents are given in the definition of discharge. Dumping is not part of the vessel discharge as well as hazardous substances emerging because of exploration of the seabed going on for pure scientific study. As per Article 2(3) (b) and Article 3(3) of the Convention, government and non-commercial ships come outside its provisions. 16 MARPOL 73/78was rectified for adoption in 1992 making it mandatory to use double hull to the current practice of using single hull oil tankers after the passing of certain years since purchased. Under the new rules becoming applicable on April 27, 2001, the policy of speedier staging out of single hull oil tankers has been adopted. Other than MARPOL, global organizations such as European Union have taken the issue of oil vessel accidents causing marine pollution seriously as such accidents pollute EU coastlines. It is making strenuous efforts and supporting IMO in up keeping and/or staging out the old oil vessels using single hull under its Regulation No. 417/2002, Feb. 18, 2002, 2002 O.J. (L 64). 17 For smooth moving of ships, the encrustation of their hulls with marine flora and fauna need to be stopped, as it hinders the movement of the ship, affecting a ship fuel’s mileage capacity, creating environment as well as commercial issues. The culprit here is the defective anti-fouling system, as listed in Annex I, which strips into the water and causes heavy damage of marine life and possibly to humans eating affected seafood. The 1972 London Convention, Annex I, lists all banned substances for dumping including “high-level radio-active wastes or other high-level radio-active matter, defined on public health, biological or other grounds, by the competent international body in this field, at present the International Atomic Energy Agency, as unsuitable for dumping at sea.” A multilateral method of meeting and checking radioactive dumping at sea was laid down by the International Agency for Atomic Energy in 1977 leading to total ban on any such dumping of radioactive wastes. 18 Other Conventions forbidding dumping of waste include the Annex V of the 1974 Baltic Sea Convention that prohibits dumping at regional level, the 1976 Protocol Additional to the Barcelona Convention regarding the Mediterranean Sea, “wastes and other matters highly, partly, or slightly radioactive.” Art. IV and Annex I, No. 7. Not the least, Art. 3(3) of the Convention for the Protection of the North- East Atlantic straightway forbid the dumping of low- and medium level radioactive substances, including wastes. 19 Other than the MARPOL Convention, IMO has taken the issue of marine pollution by taking strict measures to control ship source pollution by holding a Convention on the Control of Harmful Anti-Fouling Systems on October 5, 2001. The purpose of this Convention is to save the marine life like barnacles from toxic paint. States participating to the Convention are bound to limit the use of harmful anti-fouling systems, as shown in Annex 1. Further rectifications were made to the IMO’S 1974 SOLAS Convention in January 2001 making it compulsory to follow the International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium, and High-Legal Radioactive Waste on Board Ships. 20 The question of saving oceans and seas from the pollution caused in the high sea still remains to be resolved, as no convention can guarantee safety of marine environment amidst the high sea. Severe steps taken by whether flag states, port states, and coastal states can not check the quantum of marine loss. The Kyoto Protocol The Kyoto Protocol has alarmed the environmentalists of the global affects of a country’s rights in different contexts related to any of the global commons, which could be related to the nuclear policy of a country or global warming. Globalization has provided a new meaning and context to the local issues.’ A discussion on the environmental regulations would highlight the theme of environmental protection forays. 21 The Kyoto Protocol was realized in December 1997 in Kyoto, Japan to discuss the global warming. The agreement on Kyoto Protocol was reached on the framework of fixed timelines to minimize the emissions in greenhouse gases. Earlier, the US signed the Kyoto Protocol like other nations of the world, as the US was the leading defaulter nation causing global warming by emitting a fifth and a quarter of the total greenhouse gases but support to the agreement was taken back by the US in the year 2001. Other countries to the strength of 141ratified the Kyoto Protocol in 2005. All America was not against the agreement, particularly in cities such as Seattle and Salt Lake City, local ordinances were issued to support the Protocol’s aims of reducing local emissions. 22 In March 2005, a group of ten mayors initiated their own climate protection program getting the sanction for it from the United States Conference of Mayors in June 2005 and got support from more than 200 mayors by February 2006. Attempts were made via this initiative of the mayors to "meet or exceed the Kyoto Protocol targets ... in their own operations and communities," through the support of federal and state governments to achieve Kyoto aims, appreciating the Congress to pass legislation without opposition for creating an emissions trading system. 23 Incidentally, the principle of common but differentiated responsibility has been the basis of such conventions for providing preferential treatment to developing nations in the matter of help, as was adopted by UNFCCC, as a principle of "common but differentiated responsibilities." As per the principle, there was agreement among the parties that the highest share of previous and ongoing global emissions of greenhouse gases emerged from developed countries while the per capita emissions in developing countries are still comparatively low. It denotes that in future the share of the developing countries in future will increase as per their social and development requirements of developing countries. Accordingly, their share of reducing emissions is lower than developed nations. 24 Future of Kyoto Protocol The future of Kyoto Protocol’s first engagement after becoming effective in 2005 would require fresh appraisal on what to do next as its final date is approaching in 2012. The next question is on giving extension to the Kyoto Protocol for issuing new emission reduction aims for developed country stakeholders. Next-in-line question would be entering into a new agreement under the UN Framework Convention on Climate Change, which checks the emissions of countries that either are not stakeholders to Kyoto such as the United States or do not have Kyoto emissions deadlines such as developing countries? Or should a single new agreement be made to replace the Kyoto Protocol and is more vast in scope, looking after emissions levels of all stakeholder countries? The purpose of the Copenhagen Conference that was to be held from December 2009 was to find answers to the future path of the Kyoto Protocol. All around the world, climate for “seal the deal” slogan was quite encouraging for meeting at “Hopenhagen”, raising high hopes as such for the success of the Conference but nothing such materialized on the scale of a comprehensive agreement; only a political agreement could be reached through the Copenhagen Accord materialized by leading 25 economies of the world. 25 The Kyoto Protocol has paved the way to the second commitment as decided in Cancun as the time of the Kyoto Protocol is approaching in 2012. The second commitment period could not be realized in Cancun but a number of measures were adopted to indicate growth under the Kyoto regime for going ahead. It has been made clear in the preamble of the Cancun that to mitigate the worst climate change scenario, the Annex 1 nations need to reduce carbon emissions collectively by 25 to 40 percent till 2020 to bring emissions below the 1990 level. The decisions taken at Cancun are in line with the Annex 1 nations that are Party to the Kyoto Protocol to formally agree to achieve the targets brought forwards in the Copenhagen and under the UNFCCC and the Kyoto Protocol as well. 26 Features of the Kyoto Protocol include: • Request to developed countries to set high targets of minimizing their greenhouse gas emissions. • Unanimity over emissions trading and the Clean Development Mechanism and Joint Implementation option remaining open for meeting Annex I targets. It gives a message that carbon markets will play a positive role by helping Annex I countries achieve targets in the future. Further, carbon dioxide capture and storage (CCS) has been agreed to be a worthwhile initiative under the Kyoto Protocol’s Clean Development Mechanism (CDM). Progress on the future road map of Kyoto points towards the system gaps in moving from one period of historical journey of the international environment organizations to another, as is evident from the doubts created over future of Kyoto going berserk from its aim at Copenhagen to Cancun but such issues can be handled in strides. 27 Good thing is that there is general agreement over framing of rules and targets so that there remains no gap between the first and the second commitment periods of the Protocol. Thus, pressure was created for holding negotiations for finding conclusions on the second commitment period of the Kyoto Protocol in South Africa. There remains no ambiguity on what needs to be achieved in the next and future course of the Kyoto Protocol. 28 The legal aspect of the Kyoto Protocol has yet to be finalized as it could not be attained in Cancun; it would be discussed in Durban in the next year. The Ad Hoc Working Group on Long-term Cooperative Action has been awarded extra time of one year to decide the “legal options with the aim to complete an agreed outcome.” It means that the Parties to the agreement are yet to decide whether they would be bound legally to the Kyoto Protocol, or would try the alternative path of cooperating via COP in stead of pursuing a new treaty. 29 Judicial Perspective – ICJ & ITLOS The role of the International Court of Justice (ICJ) and ITLOS in resolving marine environment disputes has been a topic of discussion as their credibility depends on awarding impartial and effective decisions. No proceedings can be made in the ICJ until two states agree to its jurisdiction, thus, limiting the powers of the ICJ. It is very rare that cases are heard unlike the case of the Pulp Mills on the River Uruguay, damaging river environment. Doubts were raised over the competence of the ICJ related to complex scientific issues arising. 30 The International Tribunal for the Law of the Sea (ITLOS) was set up in 1982 by the UNCLOS amidst opposition from many states. It is one of the four options, the ICJ being the first option, to resolve environmental disputes. ITLOS remains affected from the same handicap that ICJ suffers of jurisdiction over an issue that needs two parties agreeing to its jurisdiction over a related problem. The system difference between ICJ and ITLOS remains in the matter of jurisdiction, as ITLOS has a permanent 11-member Seabed Disputes Chamber (SBDC) for listening to disputes that are beyond the national jurisdiction. All parties whether they are states, companies or individuals can come to ITLOS for redress unlike the ICJ. The scope of SBDC is quite vast in that it can use the laws of different judicial bodies for resolving disputes. 31 The biggest disadvantage that the states find in ITLOS is that there are other better options before states; ITLOS is yet to be experimented for decision making. States prefer to go to the ICJ because they know how it functions. 32 Conclusion The list of global agreements for the sustainability of global commons has created divisions in law, which itself has created a challenge for adhering to rules as per a specific situation. In the case of climate change, this applies more than in other sectors because the reason and effects of climate change impact a number of fields in the society and the environment. The inter-exchange between the climate change regime and other treaties can be confronting, synergetic, or neutral. For achieving better results from different environmental pursuits, it is crucial to follow a divergent road that does not lead to disputes over the sustaining of global commons. Political initiatives in this regard can pave the way for different environment laws do not clash in the wider interests. Legal inroads and organizational level efforts have some limits in resolving the emerging issues. Different Conferences and Protocols should work in the direction of getting political leverage from such agreements because where international law cannot address the synergies of various environmental treaties, political level initiatives can do the job. 33 The success of the Kyoto Protocol to a greater extent glimpses from its normative framing making it a flexible environmentalist bounding the member countries through commitments befitting the market forces. It is the latent trend in global perspective to pursue issues through liberal norms, as is evident from the Kyoto, a leading example of latest strides made to realize the set targets. As wee see the results, the developed countries adhered to quantify emission targets and agreed to legally enforceable outcomes on reducing GHG emissions to 5.2 percent below 1990 levels till 2012. 34 With the increasing level of consciousness over the sustainability of global commons, hopefully the global environment laws would be enforced effectively by the legal bodies with the developed countries cooperating by sharing their common but different responsibility towards sustainability of global commons. End Notes 1. Alexandre Kiss, Dinah Shelton, ‘Substance of international environmental law’, Guide to International Environmental Law, Martinus Nijhoff Publishers, 2007, pp. 194-195 2. Richard Snape and Don Gunasekera, ‘Countdown to Kyoto’: the consequences of the mandatory global carbon dioxide emissions reductions, Australian APEC Study Centre, Canberra, 19–21 August 1997, P. 3 3. Professor Thomas Cottier, ‘International environmental law and the emerging concept of common concern of mankind: possible impact on climate change mitigation’ World Trade Institute, Berne, 2007. 4. Cottier, 2007. 5. Kiss and Shelton, p. 194, para 4. 6. Kiss and Shelton, p. 194 7. Kiss and Shelton, P. 195, para. 3. 8. Kiss and Shelton, P. 196, para. 1. 9. Kiss and Shelton, P. 196, para 2. 10. Kiss and Shelton, 202-03, para. 4. 11. Alan E. Boyle, Marine pollution under the law of the sea convention, The American Journal of International Law, vol. 79, no. 2, 1985, p. 331. 12. R.R Churchill, A.V. Lowe, The law of the sea, Manchester University press, third edition, 1999. 13. Oscar Schachter, Daniel Serwer, ‘Marine pollution problems and remedies’, The American Journal of International Law, vol. 65, no. 1, 1971, p. 90. 14. Schachter and Serwer, p. 56. 15. Boyle, p. 371. 16. Kiss & Shelton, 199-200. 17. Kiss & Shelton, p. 199, para. 5 18. Kiss and Shelton, p. 200, para. 2. 19. Kiss and Shelton, p. 201, para. 2. 20. Kiss and Shelton, p. 201, para. 3. 21. Judith Resnik, ‘Laws migration: American exceptionalism, silent dialogues, and federalisms multiple ports of entry, The Yale Law Journal, vol. 115, no. 7, 2006, pp. 1564-1670. 22. Resnik, 2006. 23. Resnik, 2006. 24. Snape and Gunasekera, ‘Countdown to Kyoto’: the consequences of the mandatory global carbon dioxide emissions reductions’, Australian APEC Study Centre, 1997, p. 3. 25. Daniel Bodansky, ‘The Copenhagen climate change conference: a post-mortem’, American Journal of International Law, vol. 104, 2010. 26. Jennifer Morgan, Athena Ballesteros, Florence Daviet, Kelly Levin, Heather McGray, Hilary McMahon, Fred Stolle, Lutz Weischer, & Jacob Werksman, Reflections on the Cancún agreements, World Resources Institute, 2010. 27. Morgan et al., 2010. 28. Morgan et al., 2010. 29. Morgan et al., 2010. 30. Stephen Hockman QC, ‘International Court for the Environment, ICE Coalition, 2010, p. 2 31. ITLOS, 2008. 32. Dapo Akande, 2010. 33. Harro van Asselt, ‘Dealing with the fragmentation of global climate governance: legal and political approaches in interplay management, Global Governance Working Paper, no. 30, 2007. 34. Steven Bernstein, ‘International institutions and the framing of domestic policies: the Kyoto Protocol and Canadas response to climate change, Policy Sciences, vol. 35, no. 2, 2002, pp. 209. Bibliography Akande Dapo, ‘The Hamburg Tribunal heats up? is ITLOS now in business?’, EJIL: Talk!, 2010, retrieved 15 April 2011, . 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Cottier T, ‘International Environmental Law and the Emerging Concept of Common Concern of Mankind: Possible Impact on Climate Change Mitigation’ World Trade Institute, Berne, 2007, retrieved 13 April 2011, . ITLOS, ‘International Tribunal For The Law Of The Sea’ Project on International Courts and Tribunals, 2008, retrieved 15 April 2011, . Keckes, S. ‘Protecting the marine environment’, Ambio, vol. 12, no. 2, 1983, pp. 112-114, retrieved 13 April 2011 . Kiss A, Shelton D, ‘Substance of international environmental law’, Guide to International Environmental Law, Martinus Nijhoff Publishers, 2007, pp.199-200, retrieved 13 April 2011, . Morgan J, Ballesteros, Daviet, Levin, McGray, McMahon, Stolle, Weischer, & Werksman, Reflections on the Cancún Agreements, World Resources Institute, 2010, retrieved 13 April 2011, . Resnik J, ‘Laws migration: American exceptionalism, silent dialogues, and federalisms multiple ports of entry, The Yale Law Journal, vol. 115, no. 7, 2006, pp. 1564-1670, retrieved 13 April 2011, . Schachter O, Serwer D, ‘Marine pollution problems and remedies’, The American Journal of International Law, vol. 65, no. 1, 1971, p. 90, retrieved 13 April 2011, . Snape R and Gunasekera D, ‘Countdown to Kyoto’: the consequences of the mandatory global carbon dioxide emissions reductions, Australian APEC Study Centre, Canberra, 19–21 August 1997, P. 3. Stephen Hockman QC, ‘International Court for the Environment, ICE Coalition, 2010, p. 2 Treaties in force, 2006, p. 463, retrieved 13 April 2011 . Read More