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Environmental Conservation: Limitations and Obligations of International Law

Global climate change, or the general increase in global temperatures as a result of increasing atmospheric greenhouse gas concentrations, is one of the most significant challenges facing our society today. Impacts of climate change include increasing droughts, increased severity of storms, global sea level rise and ocean acidification. Ocean acidification is the name given to the lowering of pH in the oceans as a result of the increased absorption of carbon dioxide from the atmosphere. This leads to destruction of various ecosystems and particularly the destruction of the coral reef which is a serious problem. It matters more than just scuba divers or wildlife photographers not getting some beautiful sights; the detrimental effects are jaw-dropping. The process of ocean acidification is a bit complicated but one of the most concerning issues is how this acidity affects creatures in the marine biomes and ocean ecosystems which in turn have terrible effects on terrestrial biomes as well as the Earth as a whole.

Conservation issues that arise in international waters have proven to be quite difficult to resolve in the past. In December of 1982, the United Nations held a convention on the Law of the Sea to establish rules governing all uses of the oceans and their resources (United Nations). This document comprises 320 articles and nine annexes, governing all aspects of ocean space. Among other things, the Law of the Sea codifies - to an extent - the national and international water boundaries, as well as the exclusive economic zones of all countries that touch the oceans. This has greatly enhanced international protection of the marine environment. This new law of international responsibility attempts to strike a careful balance between international environmental protection and the principle of territorial sovereignty.

Limitations on Law

Law is but one of many tools that can be used to achieve conservation objectives, and the formal institutions of law operate within a broader context that includes informal institutions (Ostrom). Compliance is generally imperfect, with implementation and enforcement failures affecting even the most sophisticated legal instruments, which vary in the degree to which they meet these criteria. Essentially, international law grapples with how to accomplish more than what the world's diverse national administrations and societies are capable of realistically implementing. Then, an overall reluctance of governments and societies is imposed on the long-term and enforceable constraints on economic development and other human ambitions (Wandesforde-Smith).

Regardless, for many species and ecosystems, effective conservation calls for cross-border approaches and long-term commitments. International law is the leading procedure to approach these issues of ocean and marine conservation. However, these international laws involving protection for marine life also dawdle in their making. Nonetheless, the positive outcomes of international laws are certainly commendable:

including (a) the designation of protected areas pursuant to international ­obligations; (b) similarly instigated national ­legislation regulating wildlife exploitation; (c) enhanced priority for conservation issues on governments’ agendas; (d) incorporation of technical guidance adopted by COPs and other treaty bodies into national action plans and legislation; (e) coordinated collection of data; (f) increased cooperation among and between governmental and nongovernmental stakeholders; (g) direct assistance to conservation initiatives through treaties’ funding mechanisms; and (h) many instances in which harmful developments were blocked or particular conservation actions taken when governments were confronted with their international obligations in national or international court proceedings or through compliance mechanisms (Bowman).

Thus, international wildlife law is increasingly summoned before national courts and domestic legislative implementation continues to be scrutinized. But the three main ways to invoke compliance with international wildlife law and conservation outcomes are scaling the cooperation, prioritizing actions, and generating stability. Although investing the implementation or improvement of an international regime may not in every instance be the best way to spend scarce conservation resources, optimizing their conservation impact may call for different methods in different circumstances.

International law research methodology consists primarily of the identification, analysis, and application of legal instruments, including their interpretation according to the format codified in the Vienna Convention on the Law of Treaties from 1969. Standard and agenda setting can and should be seen at international levels but implemented by national or local communities (Trouwborst). Similarly, prioritizing an application of international commitments for national authorities in legislation, policy, and practice serves as a moral compass for these authorities to keep conservation on the agenda. The buffering against unpredictable national policy changes, through the relative long-term stability provided by international law obligations facilitates a pooling of information and expertise, including centralized development of technical guidance.

International Law In Action

Today, this well-recognized restraint on the freedom of action which a state via its independence and territorial supremacy is to be found in the prohibition of the abuse by a state by virtue of international law. For example, in the Island of Palmas case (United States v. The Netherlands, 1928) the sole arbitrator, Huber, who was then President of the Permanent Court of International Justice, stated that, “Territorial sovereignty involves the exclusive right to display the activities of a state. This right has as corollary a duty: the obligation to protect within the territory the rights of other States” (Island of Palmas Case).

It is also relevant to refer to the Lac Lanoux case (Spain v. France, 1972) on the utilization by France of the waters of Lake Lanoux in the Pyrenees for generating electricity. For this purpose, part of the water had to be diverted from its natural course through the transboundary Carol River to another river, the Ariège. According to Spain, this would affect the interests of Spanish users, but France claimed that it had ensured restoration of the original water flow and had given guarantees so that the needs of Spanish users would be met. France and Spain were unable to resolve this issue by negotiation, and therefore submitted it to arbitration in 1956. This led to a case dealing with the rights and duties under general international law of riparian States in relation to an international watercourse. The Tribunal concluded that the works envisaged by France did not constitute infringements of the Spanish rights under the Treaty of Bayonne and its Additional Act, because France had taken adequate measures to prevent damage to Spain and Spanish users, and for other reasons.

The Rio Declaration (1992), adopted in a non-binding form by the United Nations

Conference on Environment and Development (UNCED), provides in Principle 2 that States shall prevent transboundary damage:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction and the health of human beings, including generations unborn (UNCED).

However, there are situations where international treaties may be taken into account by the Courts as a declaratory statement of customary international law, which itself is a part of the law of the land; and as relevant to the interpretation of a statute. No treaty restrains states without its consent. Indeed it is an employment of sovereignty that states manage in deliberately assuming those commitments. Therefore, obligations assumed under the UNCLOS are more than balanced by corresponding commitments by other states to act towards the particular state in a manner that protects or is consistent with its interests, hence global interests being a driving force to many treaties and deals. To some extent, experts recognize a limited normative force of certain norms in soft law even though they admit that those norms would not be enforceable by an international court. In practice, the development of soft law norms with regard to the protection of the human environment began immediately after the Stockholm Conference with the creation of a special subsidiary organ of the UN General Assembly devoted to the promotion of both universal and regional environmental law (Mendis).

At the regional level in general, and in Europe in particular, several international institutions have engaged in important activities related to environmental protection such as the OECD (Organization for Economic Cooperation and Development) and EEC (European Economic Development). The action of some non-governmental organizations has also contributed to this aspect of international law such as the Helsinki Rules on the Use of Waters of International Rivers of 1966. Arguably, however, the growth and complaints of soft law are largely a concern of the developed countries. Rooted in dissatisfaction following a shift of power within formal law-making arenas, those who make the soft laws have valid concerns:

From their perspective, customary law, which we would consider very hard, is in fact law that is created primarily because of the great power that we in the industrial world exercise over others. There are really two sides to the controversy over soft law. It is important, when we criticize it, to appreciate that there are others on the other side of the mirror who are looking at it quite differently (Reisman).

Influence of Precaution In Environmental Cooperation

Recognizing that the general international law principle of duty to cooperate manifests itself as an invalidating obligation where states must inform and consult one another, prior to engaging in any activity or initiative that is likely to cause transboundary environmental harm. The principles of ‘due diligence’ or ‘due care’ with respect to the environment as well as natural wealth and resources are among the first basic principles of environmental protection and preservation law (Mendis). The notion of precaution espouses a parental attitude towards the environment, protecting it from potential harm by acting on foresight and avoiding unacceptable risks. However, this same consideration for precaution leads some states to assert that they are not bound to act until there is “clear and and convincing scientific proof of actual or threatened harm.[…]this argument has been used at various times to delay the negotiation of measures to tackle the risk of global climate change, acid rain, and ozone depletion” (Birnie). A more realistic approach is to lower the threshold of proof. While still entailing some element of proximate cause, this would require measures of prevention at an earlier stage, when there is still some room for uncertainty. A stronger version of the precautionary principle goes further by reversing the burden of proof altogether.

In short,