• Madeleine Bowater

Protecting the Environment: What do States have to do?

Updated: Jun 28, 2020

‘[T]he environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’

International Court of Justice in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, [29]

Environmental Law and Human Rights have, until recently, seemed to be un-marriable ideas. However, they are more complementary than many may imagine. Global attention on environmental degradation and the resulting climate change has steadily grown over the previous decades. The global reach of social media campaigns has encouraged the young generation to stand up and strike for change. Countless people have been petitioning governments for change, such as declaring a climate emergency, but the question remains, what are governments actually required to do under international law? Are these requirements sufficient to combat alarming environmental threats?

In 2015, the United Nations General Assembly (‘UNGA’) adopted the 2030 Agenda for Sustainable Development, outlining 17 Sustainable Development Goals (‘SDG’) centered on peace and prosperity.[i] The goals call for global action to end poverty and other deprivations, improve health, education and economic growth, reduce inequalities, and create communities to manage climate change and preserve ecosystems. Although these goals are not binding hard-law, they were unanimously accepted by all UN Member States and embody the most vital issues facing humanity and the global community.[ii]

The environmental issues among these are:

SDG 12: Pollution

The issue of pollution encompasses air, ground, and water pollution and the disposal of chemicals, toxic waste, and plastic, posing a threat to ecosystem function, human health, and biodiversity.[iii] The World Health Organization estimated that 1.6 million deaths and 45 million disability-adjusted life years could have been prevented in 2016 alone with ‘sounds management and reduction of chemicals in the environment’.[iv] The UN Environment Programme has reported that solutions to this problem do exist; however, ‘more ambitious, urgent and worldwide action is needed by all stakeholders’.[v]

SDG 13: Climate Change

Following only plastic pollution in our oceans, this is perhaps the most publicised environmental threat, though misinformation and misconstrued reports are widespread. Going back to basics, climate change, or global warming, is the result of greenhouse gases (‘GHG’), such as carbon dioxide and methane) in the Earth’s atmosphere trapping heat, warming the Earth like a greenhouse.[vi] To date, an increase of 1°C since pre-industrial times has already significantly impacted many regions, especially in terms of extreme weather and rising sea levels.[vii] The UN Intergovernmental Panel on Climate Change (‘IPCC’) published a Special Report on Global Warming of 1.5°C (‘SR15’) in late 2018.[viii] The IPCC concluded that the impacts of 2°C of global warming would be significantly worse than if we were able to keep global warming to 1.5°C. It then estimated that 1.5°C would be reached between 2030 and 2052. However, as Myles Allen, a lead author of the SR15, states, this ‘doesn’t mean we have 12 years to act: it means we have to act now’.[ix]

SDG 15: Biodiversity Loss

Biological diversity is the ‘variability among living organisms. [T]his includes diversity within species, between species and of ecosystems’.[x] The risk of complete species extinction is measured using the Red List Index - a scale from 0 (all species extinct) to 1 (no threat to any species).[xi] Human activity, including agriculture, poaching and trafficking, deforestation, fishing, and energy production use, has resulted in biodiversity loss at an ‘alarming rate’.[xii] Accordingly, in 1993 the Index stood at 0.82, dropping to 0.73 by 2019. This loss not only undermines the intrinsic ‘ecological, genetic, social, economic, scientific, educational, cultural, recreational, and aesthetic’ value of biodiversity, but also threatens ‘food security, access to water, [and the] health of the rural poor and people worldwide’.[xiii]

International Environmental Law

Enter International Environmental Law (‘IEL’), a see-saw balancing two foundational ideas:[xiv]

  1. State sovereignty: a State may use the natural resources within its territory in any way it sees fit.[xv]

  2. The Do No Harm Principle: a State may not use its own territory in a way that harms the territory of another State.[xvi]

IEL centres around the use of a State’s own territory. It holds that I may plant or destroy or use anything in my own backyard as long as that action doesn’t cross the fence and harm your garden.[xvii] However, environmental phenomena are fundamentally cross-border issues as the wind, sea, and migration patterns don’t follow human-delineated lines.[xviii]

Additionally, there are three main issues with the law itself which undermine its potential efficacy.

1. Enforcement and Content of Obligations

IEL, in essence, is comprised of negative obligations rather than positive ones. For example, if the trees that grow along our fenceline are shared - IEL would require you, as a figurative State, to NOT take action that would harm those plants. This can be compared with a positive area of law, such as human rights, which, if applied to the environment, would require you to take actual action to ensure the trees live, it would require you to regularly water and prune or fertilise, giving the trees what they need to thrive. This is the simple difference: IEL says don’t harm, positive areas of law say take action.

Despite the myriad treaties, conventions, and affirmed custom which govern States in respect of the environment, what States must actually do is not black and white. Most notably, the concept of common but differentiated responsibilities means that States are required to “do what they can”.[xix] Developed countries must contribute more than developing nations. This means that end goals may be defined, but the contribution of each State to that goal is not stated, blurring the line between hard and soft law. Such an approach may be equitable, but it is not enforceable. For example, the goal of limiting global warming to 1.5C outlined by the United Nations Framework Convention on Climate Change, Paris Agreement, and Kyoto Protocol don’t require States to reach a specific reduction in emissions. States simply pledge their commitment to limiting global warming to 1.5°C. This lack of clear obligations results in States not being able to be held liable by other States. State A cannot say to State B that it isn’t doing its part because neither knows what State B’s ‘part’ is.

Further, even where multilateral environmental agreements outline general obligations, they fail to create enforcement regimes.[xx] IEL takes a facilitative approach - where a country does not uphold its obligations (if they can be discerned), it is not punished, but rather assisted in reaching its goals.[xxi] Though this may be preferable in terms of achieving the end goal, IEL faces the same criticism as Public International Law (‘PIL’) - it is a toothless tiger, creating substantive obligations but not enforcing them.

2. Invocation of State Responsibility

Further to the issue of enforcement are the questions of invocation and attribution. Although the conduct of private entities can be attributed to a State in certain circumstances (meaning the State is liable), the rise of non-state actors and transnational enterprises has increased the difficulty of attributing environmental damage to a State.[xxii] If action can be attributed to a State, it is then a question of who holds that State responsible. The International Court of Justice (‘ICJ’) system is a bilateral one. Based on the principle of reciprocity, the ICJ requires an applicant, a respondent, and provable damage/injury.[xxiii] This may be ideal for disputes between two States regarding a migratory species or a cross-border river. However, this system isn’t ideal for damage to the ‘global commons’ (resources belonging to all, such as space). Many Multilateral Environmental Agreements allow for non-injured States to invoke the responsibility of another State, but the claimant is limited to a request ‘that the wrongful conduct cease’ and ‘a demand for reparation on behalf on the injured [S]tate’.[xxiv]

3. Environmental damage is ‘often irreversible’, so prevention is vital.

Finally, even if IEL is clear, enforceable, and invocable, its obligations are still inherently negative. In its 1997 Gabcikovo-Nagymaros decision between Hungary and Slovakia, the ICJ observed that environmental damage is ‘often irreversible’, so prevention is vital.[xxv] Prevention fundamentally requires proactive, positive action. But IEL and even PIL more generally are reactive. IEL is lacking in positive obligations. The only active action a State must take is to conduct an Environmental Impact Assessment when undertaking development which poses a reasonable and foreseeable risk to the environment, though this doesn’t ensure damage won’t occur.[xxvi] For example, the Deepwater Horizon oil spill in the Gulf of Mexico occurred even after the USA conducted an EIA prior to approving the offshore drilling.[xxvii]

Human Rights as an Alternate Approach

The International Bill of Rights consists of the Universal Declaration of Human Rights (‘UDHR’), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.[xxviii] Many of the rights contained in the International Bill are reiterated in regional conventions, such as the European Convention on Human Rights (‘ECHR’), the African Convention on Human Rights, and the Inter-American Convention on Human Rights.[xxix] The UNGA has affirmed that ‘each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms’.[xxx] This encompasses the obligation to prevent third parties from interfering with or violating human rights, and the positive obligation to take ‘deliberate and concrete’ measures aimed at full implementation of human rights.[xxxi]

There can be significant overlap between environmental harm and violation of human rights. The UN Special Rapporteur on Human Rights and the Environment, reports that continued global biodiversity loss threatens the ‘basic human rights to life, health, food and safe water’.[xxxii] Similarly, climate change threatens:[xxxiii]

the right to life, the right to adequate food, the right to the enjoyment of highest attainable standard of physical and mental health, the right to adequate housing, the right to self-determination, the right to safe drinking water and sanitation and the right to development.

This has resulted in the innovative approach of bringing actions under IHRL to require States to take certain action in line with IEL obligations. Early cases demonstrating the connection between environmental damage, human rights violations, and even international crimes were ‘brought against Shell for their actions in Nigeria and against Unocal for their actions in Burma’.[xxxiv]

The recent, landmark case Urgenda Foundation v The State of the Netherlands was brought in the Netherlands’ domestic legal system.[xxxv] This case was an action brought by the Urgenda Foundation on behalf of almost 900 Dutch citizens. The Hague Court of Appeal held that the Netherlands’ commitment reduce GHG emissions by 17% by 2020 was not sufficient to fulfil its positive duty of care under ECHR Articles 2 and 8.[xxxvi] These Articles protect the right to life and the right to respect for private and family life respectively. The Hague Court of Appeal acknowledged that climate change is a global issue and it could ‘only intervene in the emissions from Dutch territory’. However, it ultimately determined the Netherlands must change its target to 25% GHG emission reduction by 2020 in order to fulfil its duty of care to its people and protect their rights from ‘the real threat of climate change’. This is a vital example of citizens demanding greater action from States to combat climate change.

In a similar vein, a group of Australian Torres Strait Islanders have recently lodged a complaint with the UN Human Rights Committee alleging Australia’s failure to adequately reduce GHG emissions and take proper action to protect coastal areas has resulted in breaches of multiple UDHR articles.[xxxvii]

Big Problems, Small Solutions

The focus of the Article 33 Institute and this article is, of course, international law - the relations between and actions of States. However, it would be remiss not to mention perhaps the most important and immediate solution: individual action. A list of personal and simple changes one can make can be found here and here. In essence, the ‘reduce, reuse, recycle’ campaign says it simply and best. Reduce plastic and carbon consumption, have reusable alternatives on hand, and recycle where possible. More so than any State action or legal changes, individual action has an immediate impact.

Written by Madeleine Bowater

Co-Chair and Founder

End Notes [i] UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1. [ii] Ibid; National Geographic, ‘Planet or Plastic?’ (Web site) <https://www.nationalgeographic.com/magazine/2018/06/plastic-planet-waste-pollution-trash-crisis/>. [iii] See Harry H. Jr. Almond, ‘International Environmental Law: The Impact and Implications of Municipal Environmental Law’, ILSA Journal of International & Comparative Law 2(1) (1995), 1; Robert P. Jr. Barnidge, ‘The Due Diligence Principle under International Law’, 8(1) International Community Law Review (2006), 81. [iv] World Health Organisation, ‘The public health impact of chemicals: Knowns and unknowns’ (2016) WHO/FWC/PHE/EPE/16.01. [v] United Nations Environment Assembly of the United Nations Environment Programme, 4th sess 21 January 2019, Global Chemicals Outlook II: summary for policymakers, UNEP/EA.4/21, p. 13. [vi] Kristalina Georgieva, CEO of the World Bank, quoted in Damian Carrington, ‘We are last generation that can stop climate change' – UN summit’, The Guardian (Online Newspaper Article) 3 December 2018, <https://www.theguardian.com/environment/2018/dec/03/we-are-last-generation-that-can-stop-climate-change- un-summit>; United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) Article 1 (‘UNFCCC’); National Geographic, ‘What is global warming, explained’ (Web site) <https://www.nationalgeographic.com/environment/global-warming/global-warming- overview/>. [vii] See Intergovernmental Panel on Climate Change, ‘Summary for Policy Makers of IPCC Special Report on Global Warming of 1.5°C approved by governments’ (2018) available at https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1- 5c-approved-by-governments/. [viii] Intergovernmental Panel on Climate Change, 2018, Global warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [V. Masson-Delmotte, P. Zhai, H. O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J. B. R. Matthews, Y. Chen, X. Zhou, M. I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, T. Waterfield (eds.)] available at https://www.ipcc.ch/sr15/. [ix] Myles Allen, ‘Why protesters should be wary of ‘12 years to climate breakdown’ rhetoric’ The Conversation (Web site) 19 April 2019, <http://theconversation.com/why-protesters-should-be-wary-of-12-years-to-climate- breakdown-rhetoric-115489>. [x] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 69 (entered into force 29 December 1993) (‘CBD’) article 2. [xi] United Nations, ‘Sustainable Development Goal 15’ (Web site) <https://sustainabledevelopment.un.org/sdg15>. [xii] See PBL Netherlands Environmental Assessment Agency, CBD Technical Series No. 79, How sectors can contribute to sustainable use and conservation of biodiversity (2014), available at <https://sustainabledevelopment.un.org/content/documents/1981cbd-ts-79-en.pdf>. [xiii] United Nations, ‘Biodiversity and Ecosystems’ Sustainable Development Goals (Web site) https://sustainabledevelopment.un.org/topics/biodiversityandecosystems; UN General Assembly, 66th sess, 66/288 The Future We Want, UN Doc A/RES/66/288 (11 December 2012). [xiv] Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 877; James Crawford, Brownlie’s Principles on International Law (Cambridge University Press, 8th ed, 2012); Max Valverde Soto ‘General Principles of International Environmental Law’ (1996) 3 ILSA Journal of International and Comparative Law 193, 194; United Nations General Assembly, Charter of Economic Rights and Duties of States, GA Res.3281(XXIX), UN GAOR, 28th sess, Agenda Item 48, UN Doc.A/RES/29/3281 (12 December 1974). [xv] CBD (n x), preamble; Declaration of the United Nations Conference on the Human Environment, opened for signature 16 June 1972, UN Doc A/RES/2994 (‘Stockholm Declaration’), principle 21; Rio Declaration on Environment and Development, opened for signature 14 June 1992, UN Doc A/CONF.151/26 (vol. I) (‘Rio Declaration’), preamble; United Nations Conference on Trade and Development, ‘Volume 1: Final Act and Report’, UN GAOR, UN Doc.E/CONF.46/141,Vol 1 (16 June 1964) 10 [54], Gen. Prin. 3; Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press, 1st ed, 1997); James Crawford and David Johnston, eds., Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec. 14, 1962); also Declaration of the Right to Development, G.A. Res. 41/128 (Dec. 4,1986); Ricardo Pereira and Orla Gough, ‘Permanent sovereignty over natural resources in the 21st century: Natural resource governance and the right to self-determination of indigenous peoples under international law’ 14 Melbourne Journal of International Law 451. [xvi] Hans-Georg Dederer, Eds: Marc Bungenberg and Stephan Hobe ‘Extraterritorial Possibilities of Enforcement in Cases of Human Rights Violations’ in Permanent Sovereignty over Natural Resources (Springer International Publishing Switzerland, 1st ed, 2015) 187; Rio Declaration (n xv), principle 7; Gabcíkovo-Nagymaros (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 3, [43] (‘Gabcikovo-Nagymaros’). [xvii] Corfu Channel (U.K. v Albania) (Judgment) [1949] ICJ Rep 4, 22 (‘Corfu Channel’); International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, UN Doc.A/56/10 (10 August 2001) article 3; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, [29] (‘Nuclear Weapons’); Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Oxford University Press, 3rd ed, 2009) 145; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2009] ICJ Rep 14, 101 (‘Pulp Mills’); Request for an Examination of the Situation in Accordance with Paragraph 63 of the Nuclear Tests Case (New Zealand v France) [1974] ICJ Rep 288 [306]; Stockholm Declaration, (n xv) principle 21; Trail Smelter Arbitration (U.S. v Canada) (Judgment) [1941] 3 RIAA 1905, 1965 (‘Trail Smelter’); Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart Publishing, 1st ed, 2011) 39-43. [xviii] Rebecca M Bratspies, 'State Responsibility for Human-Induced Environmental Disasters' (2012) 55 German Yearbook of International Law 175. [xix] Max Valverde Soto (above xiv), 204, 607; Rio Declaration (n xv), principles 4, 7. [xx] Karen N. Scott, The Dynamic Evolution of International Environmental Law, 49 Victoria U. Wellington L. Rev. (2018) 607, 620. [xxi] See for e.g. Paris Agreement, opened for signature 12 December 2015, UN Doc C.N.63.2016. (entered into force 4 November 2016), article 15. [xxii] ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, GA Res.56/83 (2001) (‘ARSIWA’), article 42; Rebecca M Bratspies (n xviii), 176; Jefferi Hamzah Sendut, ‘The International Court of Justice and Compensation for Environmental Harm: A Missed Opportunity’, 1 De Lege Ferenda (2018), 17; Hans-Georg Dederer; Danwood Mzikenge Chirwa, ‘The Doctrine of State Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights’ (2004) 5 Melbourne Journal of International Law 1. [xxiii] Rebecca M Bratspies (n xviii), 200; ARSIWA (n xxii), article 48. [xxiv] See Barcelona Traction, Light and Power Company (Belgium v Spain) (Judgment) [1970] ICJ Rep 3; East Timor (Portugal v Australia) (Judgement) [1995] ICJ Rep 90, 102. [xxv] Gabcíkovo-Nagymaros (n xvi) [78]. [xxvi] Responsibility and Obligation of States with Respect to Activities in the Area (Advisory Opinion) [2011] ITLOS Rep 10 [50], [125] – [135]; Corfu Channel (n xvii); ARSIWA (n xxii); Gabcíkovo- Nagymaros (n xvi); Nuclear Weapons (n xvii) [29]; Pulp Mills (n xvii) [205]; Trail Smelter (n xvii); United Nations General Assembly, Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm, UN GAOR,6th Comm, 62nd sess, Agenda Item 84, UN Doc.A/RES/62/68 (6 December 2007) Annex I [4]. [xxvii] Rebecca M Bratspies (n xviii). [xxviii] Opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 172 (entered into force 3 January 1976); Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/RES/217A (III) (10 December 1948); Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res.53/144, 9 December 1998, article 2. [xxix] Organization of African Unity (OAU), African Charter on Human and Peoples' Rights (‘Banjul Charter’), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969; Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 (‘ECHR’). [xxx] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res.53/144, 9 December 1998, article 2; United Nations Committee on the Elimination of Discrimination against Women, Communication No.35/2011: Decision adopted by the Committee at its Fifty-fifth session (M.E.N. v Denmark) 55th sess, UN Doc.CEDAW/C/55/D/35/2011 (26 July 2013); Legal Consequences of the Construction of a Wall in the Occupied Palestinan Territory (Advisory Opinion) [2004] ICJ Rep 136, 107-11. [xxxi] The ETO Consortium, ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2013); Velásquez-Rodríguez v. Honduras (Merits) (Inter-American Court of Human Rights, Ser C, No.4, 29 July 1988) 30 [172]; African Union, African Commission on Human and Peoples Rights, Communication No.155/96 Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria (African Commission on Human and People’s Rights, 27 October 2001) [57]. United Nations Human Rights Commission, General Comment 21: The right for everyone to take part in cultural life, ESC GC.21, UN ECSOR, 43rd sess, UN Doc.E/C.12/GC/21 (21 December 2009) [48]; United Nations Committee on Economic and Social Rights, General Comment 24: State Obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities: restricting marketing and advertising of certain goods to protect public health, ESC GC 24, UN ECSOR, 61st sess, UN Doc. E/C.12/GC/24 (10 August 2017) [14]; United Nations Human Rights Commission, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80th sess, 2187th mtg, UN Doc.CCPR/C/21/Rev.1/Add.13 (26 May 2004), [8]; United Nations Committee on Economic, Social and Cultural Rights, ‘General Comment No 3: The Nature of State Parties’ Obligations (Art. 2, Para. 1 of the Covenant)’, UN ESCOR, 5th sess, UN Doc. E/1991/23 (14 December 1990) [9]; United Nations Economic and Social Council, ‘Note verbale from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights’, UN ESCOR, 43rd sess, Provisional Agenda Items 8 and 18, UN Doc. E/CN.4/1987/17 (8 January 1987). [xxxii] UN Human Rights Office of the High Commissioner, ‘Failing to protect biodiversity can be a human rights violation – UN experts’ (Web site) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24738&LangID=E>. [xxxiii] UN Human Rights Council, Human rights and the environment, 31st sess, April 2016, UN Doc. A/HRC/RES/31/8. [xxxiv] Rebecca M Bratspies (n xviii). [xxxv] Urgenda Foundation v The State of the Netherlands [2015] HAZA C/09/00456689 (June 24, 2015); aff’d (Oct. 9, 2018) (District Court of the Hague, and The Hague Court of Appeal (on appeal)). [xxxvi] ECHR (nxxix). [xxxvii] Livia Albeck-Ripka, ‘Their Islands Are Being Eroded. So Are Their Human Rights, They Say.’ New York Times (Web site) 12 May 2019, <https://www.nytimes.com/2019/05/12/world/australia/climate-change-torres- strait-islands.html>.

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