Developing international environmental law

The evolving framework of international environmental law and the development of national law provide a sound basis for addressing the major environmental threats of the day. It must be underpinned by a more coherent and coordinated approach among international environmental instruments, recognize the central importance of environmental compliance, enforcement and liability, and promote the observation of the precautionary approach as contained in the Rio Principles, and other important policy tools.

Environmental law, or legal enforcement, is one of the most effective tools to implement both specific and broad ranging environmental protection and management. It encompasses a wide spectrum, from hard laws with binding effects, such as international treaties and national legislation, to soft law, such as guiding principles, recommended practices and procedures, and standards. It covers specific problems such as soil degradation or the depletion of non-renewable resources and also such functional tasks as environmental impact assessment. At the national level, environmental legislation regulates the activities of enterprises and individuals and provides the framework within which environmental standards can be enforced. At the international level, conventions, protocols, and agreements bring countries together at a bilateral, regional or global level to address common environmental concerns.

This strategy features in the framework of Agenda 21 as formulated at UNCED (Rio de Janeiro, 1992), now coordinated by the United Nations Commission on Sustainable Development and implemented through national and local authorities.

Agenda 21 recommends:

1. Enactment of enforceable, effective laws, regulations and standards that are based on sound economic, social and environmental principles and appropriate risk assessment, incorporating sanctions designed to punish violations, obtain redress, and deter future violations.

2. Further development of international environmental law, in particular conventions and guidelines, promotion of its implementation, and coordinating functions arising from an increasing number of international legal agreements, inter alia, the functioning of convention secretariats, taking into account the need for the most efficient use of resources, including possible co-location of secretariats established in the future. The support for and concentration of UNEP capacity in this field is recommended.

3. Surveying the review, assessment and fields of action in international law for sustainable development.

Before 1972, there were 58 international treaties and other agreements concerning the environment. Between 1972 and 1992, 96 such agreements were adopted regionally or globally. On a global level, important treaties include the 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (CMS). These are administered by the UN Environment Programme (UNEP). Other global treaties include the Vienna Convention for the Protection of the Ozone Layer (1985), the Montreal Protocol on Substances that Deplete the Ozone Layer (1987), and its amendments of 1990, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), the UN Framework Convention on Climate Change (1992), and the Convention on Biological Diversity (1992). UNEP has played an important role in preparation of the above landmark agreements, as well as promoting the development of such guidelines and non-binding agreements as the World Charter for Nature (1982), the London Guidelines on Trade in Harmful Chemicals (1987, amended in 1989), and the Cairo Guidelines and Principles on Hazardous Waste Management (1987). The Montevideo Programme for the Development and Periodic Review of Environmental Law (1982) sets priorities for global law-making.

In 1989, 24 heads of state from around the world agreed that a High Authority should be established to set an internationally binding policy framework for behaviour by governments and the private sector in the field of environment, which should be accorded regulatory and enforcement powers, subject to control by the International Court of Justice. This agreement, reached in a top-down approach, is yet to be implemented.

In addressing transboundary pollution, one of the tools is enforcement of a country's national legislation regarding the export of wastes, banned chemicals, unregistered pesticides, and an enforcement of international agreements and treaties. The US Environmental Protection Agency (EPA) is now working with the intelligence community to address the worldwide smuggling of CFCs. Enforcement is an area where the necessary instruments are not in place and international cooperation is missing.