Environmental Law

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Since the middle of the last century, there has been a growing interest in the international community to protect the environment well beyond the national level. It is noted that environmental problems cannot be effectively addressed by countries at the level of national initiatives. International and even global cooperation is necessary in this regard. This is due to the fact that economic actions taken in the territory of one states may have negative consequences in the territory of other.

International cooperation increases in dimension as the transnational nature of env. problems develops.

Among the primary ones is climate change, which has different relationships to other problems.

The key issues :

- the sources of EL: international, regional national

- general principles of EL

- selected areas of regulations: climate change, nature protection, EIA

assessments, protection against pollution, air protection, water

protection and water management

- liability in EL.

1. Introduction to environmental law – current problems – 2 h

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 – 2 h

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 – 2 h

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 – 2 h

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 – 2 h

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 – 4 h

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 – 4 h

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 – 2

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 – 2 h

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 – 2 h

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 – 4 h

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 – 1

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 – 1

Students discussion on developments of international environmental law.

 Sands P., Principles of International Environmental Law, – selected issues

 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

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 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

Learning outcomes:

1. Knowledge - Students knows environmental problems and will be able to identify their causes and environmental, social and economic consequences. Student identifies the instruments of international, European, polish environmental law and institutional surrounding. The student is able to name basic international legal acts in environmental protection and knows their basic principles.

2. Skills - The student understands the importance of law as an instrument of environmental protection. Student interprets the legal acts and, on the basis of them draws correct conclusions (examines the legal acts, finds the necessary acts). Student explains terminology and data in the field of sustainable development, environmental law and nature protection, understands the significance of each sources of environmental protection.

3. Competences - Student applies environment regulation to current problems, is critically interested and open to innovative achievements in the field of environmental law (to contribute to a better environment and biodiversity saving).

activity during classes = 20 % of the final grade; presentation on the topic connected with environmental law = 80 % of the final grade.

Grade 2

A

1. Student does not explain terminology and principles in the field of sustainable development, environmental law and nature protection, does not understand the significance of each sources of environmental protection.

2. Student does not identify the instruments of international, European, polish environmental law and institutional surrounding.

B

3.Student cannot construct conclusions from the facts presented to him and concepts regarding environmental law.

4.Student does not interpret the legal acts and, on the basis of them cannot give correct conclusions (examines the legal acts, finds the necessary acts).

C

5. Student is not able to work in a group, is critically interested and is not open to innovative achievements in the field of environmental law (to contribute to a better environment and biodiversity saving).

Grade 3

A

1.Student explains basic terminology and principles in the field of sustainable development, environmental law and nature protection, understands in general the significance of each sources of environmental protection.

2. Student identifies the basic instruments of international, European, polish environmental law and institutional surrounding.

B

3. Student can construct basic conclusions from the facts presented to him and concepts regarding environmental law.

4. Student interprets in general the legal acts and, on the basis of them draws basic conclusions (examines the legal acts, finds the necessary acts).

C

5. Student is able to work in a group to some extend, is little critically interested and open to innovative achievements in the field of environmental law (to contribute to a better environment and biodiversity saving).

Grade 4

A

1.Student explains terminology and principles in the field of sustainable development in a proper way, environmental law and nature protection, understands well the significance of each sources of environmental protection.

2.Student identifies well the instruments of international, European, polish environmental law and institutional surrounding..

B

3.Student can construct proper conclusions from the facts presented to him and concepts regarding environmental law.

4. Student interprets the legal acts well and, on the basis of them draws correct conclusions (examines the legal acts, finds the necessary acts).

C

5. Student is able to work in a group, is critically interested and open to innovative achievements in the field of environmental law (to contribute to a better environment and biodiversity saving).

Grade 5

A

1.Student explains very way terminology and principles in the field of sustainable development, environmental law and nature protection, presents in-depth understanding of the significance of each sources of environmental protection.

2. Student identifies very well the instruments of international, European, polish environmental law and institutional surrounding.

B

3.Student can construct very well conclusions from the facts presented to him and concepts regarding environmental law.

4. Student interprets the legal acts very well and, on the basis of them draws correct conclusions with complex explanation (examines the legal acts, finds the necessary acts).

C

5. Student is able to work in a group performing different roles, is very critically interested and very open to innovative achievements in the field of environmental law (to contribute to a better environment and biodiversity saving).

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