Denver Journal of International Law & Policy

Volume 39 Article 3
Number 3 Summer

January 2011

Basic Functions and Principles of International Environmental

Law in the Context of Managing Water Resources
James A. R. Nafziger

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Recommended Citation
James A. R. Nafziger, Basic Functions and Principles of International Environmental Law in the Context of
Managing Water Resources, 39 Denv. J. Int'l L. & Pol'y 381 (2011).

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 BASIC FUNCTIONS AND PRINCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW IN THE CONTEXT OF MANAGING WATER
RESOURCES
JAMES A.R. NAFZIGER*
I. INTRODUCTION
International environmental law plays an important role in shaping and giving
effect to institutional policies for managing natural resources. Its rules, principles,
and procedures are normative not only when they are binding as hard law but also
when they provide non-binding guidance as soft law for national and sub-national
policies. In either normative capacity, international environmental law lends
greater authority and coherence to divergent sectoral policies and fills gaps where
effective policies are incomplete or do not exist. The law also facilitates the
transfer of institutional policies and techniques from one political unit or system to
another. This harmonizing effect is particularly apparent within integrated
regional systems such as the European Union and federal systems such as the
United States. But the systems themselves are also becoming more congruent with
each other. The growing structural convergence of the European and United States
systems is itself a good reason to undertake trans-Atlantic analysis of institutional
policies for regulating and managing resources. We can learn a great deal from
each other's experiences in having to grapple, more and more, with the same or
similar complexities.
The purpose of this survey is to introduce the essentials of international
environmental law and suggest how it can be efficiently integrated into post-
secondary education concerning the comparative environmental impacts of
different institutional policies for managing natural resources. The focus is on the
environmental management of shared water resources. The aim is to give students,
whether law-trained or not, a deeper understanding of the uses of international
environmental law in a variety of ecological sectors, from the oceans to the
mountains, and on all tiers of natural resource management, from local to
international.

" Thomas B. Stoel Professor of Law and Director of International Programs, Willamette University
College of Law. The author served as a United States member of a project entitled Trans-Atlantic
InternationalEnvironmentalPolicy in Relation to EnvironmentalEducation, organized by the
Directorate General for Education and Culture of the European Commission and the United States
Department of Education (Atlantis Project P1 16J060002). This article is adapted from a project report
by the author, and a paper based on it was presented on February 12, 2010, at International Law
Weekend-Midwest, organized by the International Law Association (American Branch) at the
University of Denver, Sturm College of Law. The theme of the Weekend was "Sustainable
Development, Corporate Governance, and International Law." The author thanks Brandon Espinosa for
his careful assistance.
 DENV. J. INT'L L. & POL'Y VOL. 39:3

This survey therefore summarizes the general legal framework and historical
development of international environmental law, then identifies several of its
essential functions and general principles, and concludes with a brief commentary
on a few of its contributions and challenges to it. Expressing the uses of the law
primarily in terms of the essential functions of multilateral agreements and the
most important principles is intended to highlight the utility of international
environmental law and institutions. At the very least, a familiarity with such
functions and principles, within the context of shared water resources, yields a
common vocabulary to express diverse policy alternatives.
II. THE GENERAL LEGAL FRAMEWORK

Public international law, primarily, but also private international law' play
significant roles in resolving transboundary, environmental disputes. Limited
extraterritorial application of national regulatory law is also noteworthy.2

1. Private international law, otherwise known as "conflict of laws," refers largely to the rules that
govern jurisdiction of courts, choice of law, and the recognition and enforcement of foreign judgments
in civil actions.
2. Courts in the United States generally have been reluctant to extend federal environmental laws
extraterritorially even when foreign activity causes harmful effects in the country. See, e.g., Born Free
U.S.A. v. Norton, 278 F. Supp. 2d 5, 19-20 (D.D.C. 2003) (refusing to apply the National
Environmental Policy Act, 42 U.S.C. §§ 4321-4370H [hereinafter NEPA], extraterritorially in cases
involving importation of elephants from a foreign state), vacated,No. 03-5216, 2004 WL 180263 (D.C.
Cir. 2004). The main exception is where either the conduct or effects at issue occur in the global
commons, outside any national jurisdiction. See Natural Res. Def. Council v. United States, No. CV-
01-07781 CAS(RZX), 2002 WL 32095131, at 9-12 (C.D. Cal. Sept. 17, 2002) (holding that the
presumption against extraterritorial application of U.S. statutes did not bar extraterritorial application of
NEPA to Navy sea tests affecting the U.S. Exclusive Economic Zone); Envtl. Def. Fund v. Massey, 986
F.2d 528, 529 (D.C. Cir. 1993) (holding "that the presumption against the extraterritorial application of
statutes ... does not apply where the conduct regulated by the statute occurs primarily.., in the United
States, and the alleged extraterritorial effect of the statute will be felt in Antarctica-a continent without
a sovereign, and an area over which the United States has a great measure of legislative control"). But
courts are becoming less inhibited in extending statutory law to events and persons in other countries
with effects in the United States. See, e.g., Pakootas v. Cominco Teck Metals, Ltd., No. CV-04-256-
AAM, 2004 WL 2578982, at 16-17 (E.D. Wash. Nov. 8, 2004). There, the U.S. members of the
Confederated Tribes of the Colville Reservation brought an action against a Canadian-owned smelter in
Trail, British Columbia, on the basis of an extraterritorial application of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). Id. at 1. The court denied the
defendant corporation's motion to dismiss, finding as follows:
There is no direct evidence that Congress intended extraterritorial
application of CERCLA to conduct occurring outside the United States.
There is also no direct evidence that Congress did not intend such
application. There is, however, no doubt that Congress intended CERCLA
to clean up hazardous substances at sites within the jurisdiction of the United
States. That fact, combined with the well-established principle that the
presumption against extraterritorial application generally does not apply
where conduct in a foreign country produces adverse effects within the
United States, leads the court to conclude that extraterritorial application of
CERCLA is not precluded in this case. The Upper Columbia River Site is a
"domestic condition" over which the United States has sovereignty and
2011 BASIC FUNCTIONS AND PRINCIPLES

Although public international law as a whole was once confined, in the positivist
tradition, to relations between States, it infuses nearly every sector of human
activity today. 3 Regardless of whether particular rules of law are hard, in the sense
of being legally binding, or soft, when they are normative but non-binding, they
not only govern relations between sovereign States but also shape expectations and
decisions within national and sub-national systems. Thus, clean-air issues
implicate the law of transfrontier pollution whereas issues of water quality and
accessibility engage the international law of watercourses and drainage basins. By
the same token, local management of fisheries may need to take account of
international rules applicable in coastal zones. International environmental law
also promotes such ecological projects as the establishment of natural heritage
sites, reserves, other protected areas, and biological diversity programs.
Several examples illustrate the role of international environmental law in
managing water resources. In the Case Concerning the Gabjikovo-Nagymaros
Project,4 Hungary and Slovakia disputed each other's construction of dams on the
Danube River. 5 The International Court of Justice, quoting from its advisory
opinion in Legality of the Threat or Use of Nuclear Weapons, 6 reiterated that
[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. The existence of the general obligation of States to
ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control 7is now
part of the corpus of international law relating to the environment.
It should be noted that much of international environmental law is sectoral.
For example, wetlands constitute one sector with its own regime, watercourses
another, and forests yet a third sector. Of particular significance is the Convention
on Wetlands of International Importance Especially as Waterfowl Habitat (also

legislative control. Extraterritorial application of CERCLA in this case does

not create a conflict between U.S. laws and Canadian laws.
Id. at 16.
3. Since its origins in the sixteenth and seventeenth centuries, the "law of nations"-a term that
appears, for example, in the eighteenth-century United States Constitution-was premised on a
"1universal law of society." United States v. Smith, 18 U.S. (5 Wheat.) 153, 161 (1820). In the late
eighteenth century Jeremy Bentham converted the "law of nations" into what he was the first to call
"international law." Bentham's positivist concept of law, based on the consent of sovereign States, led
to John Austin's analytic jurisprudence. It adopted a formalistic view of law as the product of
sovereign command, purely and simply. Austin's extreme version of positivism temporarily relegated
international law to the status of moral suasion from the mid-nineteenth century to the first quarter of
the twentieth century. Today, however, a more cosmopolitan view of international law, freed of
Austinian positivism, broadly extends the authority and legitimacy of international law into human
affairs.
4. Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (Sept. 25).
5. Id. 1140-41, 44.
6. Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).
7. Id. 29.
 DENV. J. INT'L L. & POL'Y VOL. 39:3

known as the Ramsar Convention), 8 to which the United States and all members of
the European Union are parties. It seeks "to stem the progressive encroachment
and loss of wetlands . . . by combining far-sighted national policies and co-
ordinating international action." 9 Although the treaty was the first to focus sharply
on the habitat of an endangered species (waterfowl), its scope has broadened to
encompass the entire wetlands ecology. Article 5 mandates that
The Contracting Parties shall consult with each other about
implementing obligations arising from the Convention especially in the
case of a wetland extending over the territories of more than one
Contracting Party or where a water system is shared by Contracting
Parties.
They shall at the same time endeavour to co-ordinate and support
present and future policies and regulations concerning the conservation
10
of wetlands and their flora and fauna.
The Convention further requires parties to engage in the conservation and
"wise use" of wetlands, particularly those of international importance that each
party designates for inclusion on the Ramsar Convention List.1" Parties also agree
to undertake environmental impact assessments, resource inventories, the
establishment of nature reserves, ecological training programs, and consultations
12
with other parties.
The 2004 Berlin Rules on Water Resources,13 though soft law, and the 1997
U.N. Convention on the Law of Non-Navigational Uses of International
Watercourses,1 4 though not yet in force, are also influential. Each of these
instruments sets forth important principles, rules, and general practices. The
Convention on Watercourses, for example, requires States Parties to cooperate in
preventing, reducing, and controlling pollution that may cause significant harm to
watercourses and related environments1 5 and to protect and preserve the
watercourse ecosystems within their control.' 6 It also instructs States to settle their
disputes related to their treaty obligations according to a graduated process,
beginning with negotiations and, as a last resort, concluding with binding 7
arbitration or contentious proceedings before the International Court of Justice.

8. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2,

1971, T.I.A.S. No. 11,084, 996 U.N.T.S. 245 [hereinafter Convention on Wetlands].
9. Id. at pmbl.
10. Id.art. 5.
11. Id. arts. 2-3.
12. Id. arts. 3-5.
13. Int'l Law Ass'n, Report of the Seventy-First Conference, 71 INT'L L. ASS'N REP. CONFS. 334
(Aug. 16-21, 2004) [hereinafter Berlin Rules].
14. Convention on the Law of the Non-navigational Uses of International Watercourses, opened
for signature May 21, 1997, 36 I.L.M, 700 [hereinafter Convention on Watercourses].
15. Id.art. 21, T 2.
16. Id.art. 20.
17. Id. art. 33.
2011 BASIC FUNCTIONS AND PRINCIPLES

This survey might have simply identified other legal authority applicable to
individual case studies, or it might have focused sharply on the particular
geographical regions addressed by published case studies-for example, the
framework of integrated coastal management along the Spanish Mediterranean
littoral.' 8 Alternatively, the survey might have focused, somewhat more broadly,
on the European Union, taking account of its established rules as well as the
evolving norms of its marine and other policies. Instead, the survey's scope is
global so as to facilitate a comprehensive understanding of the role of international
environmental law in shaping and giving effect to a wide variety of institutional
policies with environmental impacts.
III. HISTORICAL DEVELOPMENT AND ESSENTIAL CHARACTERISTICS OF
INTERNATIONAL ENVIRONMENTAL LAW

A. Early Initiatives
The earliest recorded treaty in human history, between the city states of
Lagash and Umma in Mesopotamia, in about 3100 B.C., 19 confirms their
settlement of a dispute concerning shared water resources. In modem times,
bilateral agreements between sovereign States have helped manage fisheries,
protect migratory birds, and resolve issues of marine and riparian regulatory
jurisdiction. Eventually treaties began to require international collaboration and
establish institutions to coordinate national implementation of international
agreements. For example, the Fur Seals Conventions of 189320 mandated regional
consultations and cooperation to protect that species of wildlife in the North
Pacific. The 1909 Treaty Relating to the Boundary Waters and Questions Along
the Boundary between Canada and the United States2 1 was ahead of its time. It
was especially innovative in two respects: its establishment of a bilateral
institution, the International Joint Commission, for consultation and dispute
resolution; and its ban on "pollution" 22 of boundary waters. Today, we take the
term "pollution" for granted, but it was quite novel as a legal concept in 1909 when
the Boundary Waters Treaty was concluded. Although the term was originally
limited to navigational obstructions, it has evolved to include the contaminants
with which we are most apt to associate "pollution" today.
B. ArbitralAwards
International environmental law that transcends rules for regulating specific
natural resources is, however, of recent origin. In particular, the landmark series of

18. See Juan Sudrez de Vivero & J.C. Rodriguez Mateos, Coastal Crisis: The Failure of Coastal
Management in the Spanish MediterraneanRegion, 33 COASTAL MGMT. 206 (2005).
19. See Amnon Altman, Tracing the EarliestRecorded Concepts of InternationalLaw. The Early
Dynastic Periodin Southern Mesopotamia, 6 J. HIST. INT'L L. 153 (2004).
20. Fur Seal Fisheries in Bering Sea, U.S.-U.K., Apr. 18, 1892, 27 Stat. 952, T.S. No. 140-3, 12
Bevans 226 (1968).
21. Treaty Relating to Boundary Waters and Questions Along the Boundary between Canada and
the United States, U.S.-U.K., Jan. 11, 1909, T.S. No. 548, 12 Bevans 319 [hereinafter Treaty Relating to
Boundary Waters].
22. Id. art. IV.
 DENV. J. INT'L L. & POL'Y VOL. 39:3

arbitration between the United States and Canada in the Trail Smelter Case23
during the late 1930s and 1940s began the development of general principles to
govern state responsibility for environmental injury. In particular, the Trail
Smelter tribunal held Canada responsible, on a theory of strict liability, for injury
to persons and property in the State of Washington resulting from transboundary
emissions of sulfur dioxide. 24 In doing so, the tribunal articulated a principle of
tort law, sic utere tuo ut alienum non laedas (sic utere tuo). As elaborated in Trail
Smelter, it provides that
no state has the right to use or permit the use of its territory in such a
manner as to cause injury by fumes in or to the territory of another or
the properties of persons therein, when the case is of serious
consequence and the injury is established by clear and convincing
25
evidence.
In the Lac Lanoux Arbitration,26 another arbitral tribunal resolved a dispute
between Spain and France concerning a French plan to divert boundary waters
from their natural flow into Spain and thereby create a reservoir in France. The
tribunal formulated a general principle of procedure that requires States,
particularly upper riparian States, to negotiate in good faith with other States
concerning any intended diversion or other changes in the use of shared water
resources. 27 "[T]he reality of the obligation thus undertaken," the tribunal wrote, is
uncontestable and sanctions can be applied in the event, for example, of
an unjustified breaking off of the discussions, abnormal delays,
disregard of the agreed procedures, systematic refusals to take into
consideration adverse proposals or interests, and, more generally, in
case of violation of the rules of good faith.28
The opinion also confirmed that in undertaking a project affecting
transboundary resources, a State (France in the case) must always 29
take into
consideration the interests of other potentially affected States (Spain).
These principles, obvious as they might seem today, formed the foundation of
international environmental law. They also led to the formulation of new sectoral
principles and rules. These include, for example, provisions in the 1997 United
Nations Convention on the Law of Non-Navigational Uses of International
Watercourses 30 as well as two important instruments adopted by the non-
governmental International Law Association: the 1965 Helsinki Rules on the Uses

23. Trail Smelter Case (U.S. v. Canada), 3 R.I.A.A. 1911 (1941).

24. Id. at 1958.
25. Id. at 1965.
26. Lac Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281.
27. Id. at 302.
28. Id. at 301.
29. Id. at 311.
30. Convention on Watercourses, supra note 14.
2011 BASIC FUNCTIONS AND PRINCIPLES

of the Waters of International Rivers 3 1 and the 2004 Berlin Rules on Water
32
Resources.
C. United Nations Conferences
By 1972, the global community was ready to formulate a comprehensive set
of environmental principles. The project was prompted by an accretion of
divergent national practices, a growing appreciation of the need for improving
environmental quality on the basis of international cooperation, and a greater
scientific orientation to complex ecologies. The United Nations General Assembly
therefore convened the first of three conferences on environmental issues. The
1972 Stockholm Conference created four mechanisms: the United Nations
Environment Programme (UNEP), a coordinating mechanism among existing
institutions, a framework for future action, and a set of non-binding general
principles known as the Stockholm Declaration.33 The Declaration's most
significant principles are these:
Principle 21
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 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
34
beyond the limits of national jurisdiction.
Principle 22
States shall co-operate to develop further the international law regarding
liability and compensation for the victims of pollution and other
environmental damage caused by activities within the jurisdiction or
35
control of such States to areas beyond their jurisdiction.
Building on Principle 22, a second U.N.-sponsored conference on
environmental issues was held in 1992, hosted by Rio de Janeiro. It focused on the
critical relationship between the environment and developmental needs,
particularly of developing countries. The Rio Conference-formally, the United
Nations Conference on the Environment and Development (UNCED), also known
as the "Earth Summit"-is remembered for its integration of non-governmental
organizations into the process of formulating law and policy as well as a new
orientation toward a requirement of "sustainable development." The conference

31. Report of the Fifty-Second Conference, 52 INT'L L. ASS'N REP. CoNF. 447 (Aug. 14-20,
1966).
32. Berlin Rules, supra note 13.
33. United Nations Conference on the Human Environment, Stockholm, Swed., June 5-16, 1972,
Declaration of the United Nations Conference on the Human Environment, 3-5, U.N. Doc.
A/CONF.48/14/Rev.1, 11 I.L.M. 1416 (June 16, 1972) [hereinafter Stockholm Declaration].
34. Id. princ. 21.
35. Id. princ. 22.
 DENV. J. INT'L L. & POL'Y VOL. 39:3

also created three non-binding instruments: Agenda 21,36 an extensive set of

recommendations on more than 100 topics for ongoing consultation and further
development; the Forest Principles; 37 and the Rio Declaration on Environment and
Development. 38 Agenda 21, in turn, led to the creation of the high-level U.N.
Sustainable Development Commission, which provides an ongoing process of
cooperation in implementing the Agenda 21 recommendations at both national and
international levels. The Commission's emerging capacity to harmonize divergent
state practices and unify international rules, along with new post-9/11 priorities in
the international community, may help explain why the third U.N.-sponsored
conference on the environment, the Johannesburg Conference in 2002, 39 had a less-
than-urgent agenda and an unambitious, generally static outcome.
D. Treaties
The Stockholm Conference was a watershed in the development of
international agreements to protect the environment. Before the conference in
1972, a less than a dozen treaties pertained to the environment whereas today well
over a thousand are in force. These range geographically from the Antarctic
Treaty Protocol on Environmental Protection 40 to the Agreement on the
Conservation of Polar Bears. 41 Among the best-known treaties are the 1999 Basel
Protocol on Liability and Compensation for Damages Resulting from
Transboundary Movements of Hazardous Wastes and their Disposal,42 the Vienna
Convention for the Protection of the Ozone Layer and its Montreal Protocol on
Substances that Deplete the Ozone Layer,43 and the Kyoto Protocol to the U.N.
Framework Convention on Climate Change.44

36. United Nations Conference on Environment and Development, Rio de Janeiro, Braz., June 3-
14, 1992, Agenda 21, U.N. Doc. A/CONF.151/26/Rev.1 (Aug. 12-13, 1992).
37. United Nations Conference on Environment and Development, Rio de Janeiro, Braz., June 3-
14, 1992, Non-legally Binding Authoritative Statement of Principlesfor a Global Consensus on the
Management, Conservations and Sustainable Development of All Types of Forests, U.N. Doc.
A/CONF. 151/26/Rev.1 (Vol. III), Annex III (Aug. 14, 1992).
38. United Nations Conference on Environment and Development, Rio de Janeiro, Braz., June 3-
14, 1992, Rio Declarationon Environment and Development, U.N. Doc. A/CONF. 151/26/Rev.1 (Vol.
I), Annex I (Aug. 12, 1992) [hereinafter Rio Conference].
39. World Summit on Sustainable Development, Johannesburg, S. Afr., Aug. 26 - Sept. 4, 2002,
U.N. Doc. A/CONF. 199/20 [hereinafter Johannesburg Conference].
40. Protocol on Environmental Protection to the Antarctic Treaty, done Oct. 4, 1991, 30 I.L.M.
1455.
41. Agreement on the Conservation of Polar Bears, done Nov. 15, 1973, 27 U.S.T. 3918, T.I.A.S.
No. 8,409.
42. Conference of the Parties to the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal, Basel, Switz., Dec. 6-10, 1999, Report of the
Fifth Meeting of the Conference of the Parties to the Basel Convention, U.N. Doc. UNEP/CHW.5/29
(Dec. 10, 1999).
43. Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, T.IA.S. No. 11,097;
Montreal Protocol on Substances that Deplete the Ozone Layer, Sept.16, 1987, 26 I.L.M. 1541.
44. Conference of the Parties to the Framework Convention on Climate Change: Kyoto Protocol,
adopted Dec. 10, 1997, 37 I.L.M. 22 [hereinafter Kyoto Protocol].
2011 BASIC FUNCTIONS AND PRINCIPLES

Some of the treaties provide detailed, binding rules. For example, the
Stockholm Convention on Persistent Organic Pollutants sets detailed rules for
controlling the effects of chemical pollutants that travel long distances in water or
air and resist degradation. 45 On the other hand, there has been a trend toward so-
called framework treaties that provide only broad guidance, relying not on precise
rules but rather on general directives and procedural commitments by which States
agree to undertake specific initiatives and cooperate with each other in prescribed
processes for policy and rule-making. The Vienna Convention for the Protection
of the Ozone Layer is a particularly good example of a framework agreement
within which required follow-up conferences among the parties have led to
effective protocols and other initiatives such as non-compliance procedures in the
Montreal Protocol. Another trend has been to establish ongoing mechanisms and
institutions for reporting, compliance-monitoring, and dispute resolution.
In a blueprint for general education on the comparative impacts of different
institutional policies, there would be little point in cataloguing the myriad
environmental treaties in force or enumerating their specific provisions in detail.
Instead, it is more instructive to identify the general functions of the treaties, as
follows:
1. Imposition of obligations to notify, consult, and negotiate agreements in
good faith. Example: the post-Chernobyl Convention on the Early
Notification of a Nuclear Accident.46
2. Establishment of qualitative standards, requiring specific technological
safeguards or imposing limits on the emission of pollutants or other adverse
activities. Example: the Kyoto Protocol to the U.N. Framework Convention
on Climate Change.47
3. Limited authorization of hazardous activities, through cooperative review of
proposals for such authorization, grants of permission, and prior informed
consent procedures. Example: the Cartagena Protocol on Biosafety. 48
4. Establishment of liability-and-compensation regimes, often providing for the
award of damages on a theory of strict liability (substance-oriented) or for
enhanced access to courts of law or arbitral tribunals in order to redress
injury (process-oriented). Example: the Civil Liability Convention for Oil
Pollution Damage.49

45. Stockholm Convention on Persistent Organic Pollutants, adopted May 22, 2001, 40 I.L.M.
532.
46. Convention on the Early Notification of a Nuclear Accident, done Sept. 26, 1986, 25 I.L.M.
1369.
47. Kyoto Protocol, supra note 44.
48. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted Jan. 29,
2000, 39 I.L.M. 1027.
49. International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 17
U.S.T. 1523, 973 U.N.T.S. 3.
 DENV. J. INT'L L. & POL'Y VOL. 39:3

5. Provision of funds to provide compensation and technical assistance.

Example: the World Bank/UNEP/UNDP-based Global Environmental
Facility (GEF) 5° for assisting developing countries to address problems
relating to biodiversity, climate change, ozone depletion, and international
water resources.
6. Formulation of regimes for species and habitat protection. Example: the
51
U.N. Convention on Biological Diversity.
7. Exemptions for otherwise questionable schemes of environmental protection
in more general agreements, some of whose non-environmental objects and
purposes may even threaten environmental initiatives. Especially
problematic have been the modalities of free trade, as enshrined in the
General Agreement on Tariffs and Trade (GATT) 52 and related instruments
in the Marrakesh Agreement that established the World Trade
Organization. 53 GATT and WTO dispute-resolution panels have had to deal
with the tensions between trade and environmental disciplines on the basis
of stipulated exemptions. Example: GATT's chapeaus and specific
provisions for natural resource and environment-related exemptions from
otherwise mandatory trade disciplines. (The tuna-dolphin,54 shrimp-turtle,55
and beef hormone rulings 56 of GATT/WTO panels are particularly
instructive.)
E. GeneralPrinciples
International environmental law encapsulates several general principles.
They grew out of substantive and procedural elements that were first articulated in
the foundational arbitral awards. They are enshrined and further elaborated in
U.N.-sponsored declarations and other legal instruments. As time went on, new
principles, often forming the core of binding rules, have helped shape multilateral
treaties and decide cases. Ten governing principles, as follows, are noteworthy.
All of them could be integrated quite easily into case studies suitable for post-
secondary education.

50. World Bank, Documents Concerning the Establishment of the Global Environment Facility,
World Bank Res. No. 91-5 (Nov. 1991).
51. United Nations Conference on Environment and Development: Convention on Biological
Diversity, June 5, 1992, 31 I.L.M. 818.
52. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194.
53. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations,
Dec. 15, 1993, 1867 U.N.T.S. 3.
54. Panel Report, United States - Restrictions on Imports of Tuna, WT/DS21/R (Sept. 3, 1991).
55. Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp
Products,WT/DS58/AB/R (Oct. 12, 1998).
56. Appellate Body Report, United States - EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R (Jan. 16, 1998).
2011 BASIC FUNCTIONS AND PRINCIPLES

1. Prevention of Environmental Harm Principle (the sic utero tuo principle

articulated in the Trail Smelter award 57 and refined as Principle 21 of the
1972 Stockholm Declaration).58
2. Good Neighborliness Principle (the requirement of information-sharing,
notification, consultation, good-faith negotiations, and cooperation in
planning projects with potential environmental impacts and responding to
59
emergencies).
3. Principle of Non-Discrimination (the constraint against responding more
favorably toward one particular State or States affected by harmful activity
60
than other affected States).
4. Principle of Common but Differentiated Responsibilities (the recognition
that developed States, having disproportionately caused environmental
degradation and having the wherewithal to finance environmental
improvements and recompense injury, should bear more of the cost of
sustainable development initiatives).61
5. Precautionary Principle (the requirement, found in most recent
environmental agreements, that in the face of scientific uncertainty about
environmental risks inherent in a particular activity, decisions about that
activity should err on the side of taking effective measures to avoid potential
harm).62
6. Polluter-PaysPrinciple (a rule, well-established in Europe, that the polluter
should internalize and be prepared to pay the costs of remedying any injury
that might result from its activity).63
7. Principle of Inter-GenerationalEquity (the recognition that, in fairness to
future generations, resources should be used in such a way as to maintain 64
abundance and environmental quality for the benefit of future generations).
8. Principlesof TerritorialIntegrity and Permanent Sovereignty Over Natural
Resources (the territorially-based understanding that each sovereign State
has the primary custody of its own resources, subject to principles of good

57. Trail Smelter Case, supra note 23, at 1965.

58. Stockholm Declaration, supra note 33, princ. 21.
59. United Nations Environment Programme, Environmental Law Guidelines and Principles on
Shared Natural Resources, princs. 1, 5-7, 9 (1978).
60. Summary Records of the 2528th Meeting, [1998] Y.B. Int'l L. Comm'n, vol. 1, U.N.
Doc.A/CN.4/SR.2528/1998.
61. EDITH BROWN WEISS ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 197 U.N.
(2d ed. 2007).
62. Rio Conference, supra note 38, princ. 15.
63. Id. princ. 16.
64. The seminal work is EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS:
COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY (1989).
 DENV. J. INT'L L. & POL'Y VOL. 39:3

stewardship including those of preventing environmental harm and ensuring

inter-generational equity).65
9. Principle of a Common Heritage (the understanding that all human beings
are stakeholders in the resources of common areas-outer space, the high
seas, the seabed, and Antarctica-and in the natural heritage within
sovereign States that is of acknowledged global importance and
66
commonality).
10. Principle of Sustainable Development (the requirement, closely related to
that of inter-generational equity, that States must ensure the sustainability
67
over time of their use of natural resources).
After the 1992 Rio Conference, the principle of sustainable development
became a bottom-line or benchmark for international cooperation and planning. In
the Case Concerning the Gabaikovo-Nagymaros Project,68 for example, the
International Court of Justice endorsed this principle, as follows:
Throughout the ages, mankind has, for economic and other reasons,
constantly interfered with nature. In the past, this was often done
without consideration of the effects upon the environment. Owing to
new scientific insights and to a growing awareness of the risks for
mankind-for present and future generations-of pursuit of such
interventions at an unconsidered and unabated pace, new norms and
standards have been developed, set forth in a great number of
instruments during the last two decades This need to reconcile
economic development with protection of the environment is aptly
69
expressed in the concept of sustainable development.
The International Law Commission (ILC), the United Nations' chosen
instrument for the codification and progressive development of international law,
has reinforced these principles in its 2006 Draft Principles on the Allocation of
Loss in the Case of Transboundary Harm Arising out of Hazardous Activities.70
These principles address internationally harmful activity that is not prohibited by
international law. (The ILC's Articles on Responsibility of States for
Internationally Wrongful Acts 71 addresses the responsibility of States for

65. The cornerstone is Resolution on Permanent Sovereignty Over Natural Resources, G.A. Res.
1803, U.N. GAOR, 17'h Sess., Supp. No. 17 at 15, U.N. Doc. A/5217 (Dec. 14, 1962).
66. Agreement Relating to the Implementation of Part XI of the United Nations Convention of the
Law of the Sea of 10 December 1982, G.A. Res. 48/263, U.N. Doc. A/Res/48/263 (Aug. 17, 1994).
67. Report of the World Commission on Environment and Development, G.A Res. 42/187, 2,
U.N. Doc. A/RES/42/187 (Dec. 11, 1987).
68. Gabcikovo-Nagymaros Project, supra note 4.
69. Id. at 78.
70. Rep. of the Int'l Law Comm'n, Fifty-eighth Session, U.N. GAOR, 61st Sess., Supp. No. 10,
66, U.N. Doc. A/61/10 (2006).
71. Rep. of the Int'l Law Comm'n, Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10,
U.N. Doc. A/56/10 (2001).
2011 BASIC FUNCTIONS AND PRINCIPLES

internationally injurious activity within their jurisdiction that violates international

law, regardless of the activity's environmental consequences).
These Draft Principles are non-binding.72 They are soft law, premised in a list
of the elements of environmental damage for which transboundary remedies are
prescribed. Among the most important principles are "prompt and adequate
compensation for victims of hazardous transboundary activity"; adequate
administrative and judicial competence to ensure such compensation; international
cooperation, including claims-settlement procedures and cooperative funding to
avoid and compensate for injury; notification to other States of potentially
injurious incidents; and best efforts to mitigate or eliminate damages.73
The ILC has also undertaken a project to develop principles on the use of
transboundary groundwater aquifers and aquifer systems, including recharge
zones, discharge zones and external sources with major impacts on groundwater. 4
This project essentially retraces the regimes established by the International Law
Association's 1965 Helsinki Rules and 2004 Berlin Rules.
IV. INSTITUTIONS

As even a brief history of international environmental law and treaty-based

implementation discloses, numerous international institutions are instrumental in
the global system of environmental management. Some of these institutions are
established under general international law not specifically addressed to
environmental concerns. Such institutions include, for example, the International
Court of Justice, the European Union, the Law of the Sea Tribunal, and the
dispute-settlement panels of the World Trade Organization. Other global
institutions, however, have been specifically established by environmental treaties
(for example, the International Union for the Conservation of Nature 75 (IUCN),
established in 1948 as one of the first global environmental bodies, and the
Secretariat for the Convention on International Trade in Endangered Species 76).
Regional institutions, too, have become important. These include several that
were established under general international law (for example, the European Union
and the Arctic Council) and others designed specifically to protect the environment
and manage natural resources. The latter category includes, for example, the South
Pacific Resource and Environmental Protection Agreement,77 the Caribbean

72. Rep. of the Int'l Law Comm'n, Fifty-eighth Session, U.N. GAOR, 61st Sess., Supp. No. 10,
67, U.N. Doc. A/61/10 (2006).
73. Id.
74. International Law Commission, Third Report on Shared Natural Resources: Transboundary
Groundwaters, U.N. Doc. A/CN.4/551 (Feb. 11, 2005).
75. International Union for Conservation of Nature, IUCN - About IUCN,
http://www.iucn.org/about/.
76. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),
art. 12, Mar. 3, 1973, 993 U.N.T.S. 243, 27 U.S.T. 1087.
77. South Pacific Region: Convention for the Protection of the Natural Resources and
Environment of the South Pacific Region, Nov. 25, 1986, 26 I.L.M. 38 (1987).
 DENV. J. INT'L L. & POL'Y VOL. 39:3

Regional Seas Convention, the Asia-Pacific Partnership on Clean Development,79

the Barcelona Convention for the Protection of the Mediterranean Sea Against
Pollution and its Protocols, 80 and the 1974 Helsinki Convention on the Protection
of the Marine Environment of the Baltic Sea Area."
V. CONTRIBUTIONS OF THE LAW AND CHALLENGES TO IT

We have seen that international environmental law can provide substantive

guidance for utilizing natural resources responsibly and promoting sustainable
development. We have also seen that the law can help avoid and resolve disputes.
These and other uses of the law can be conveniently and efficiently expressed in
terms of several treaty functions and general principles. Together, they form an
authoritative framework of relatively stable expectations about both the substance
and procedures for institutionalized resource management.
It is important to recall that international environmental law applies not only
at the international level of authority but at national and sub-national levels as well.
Depending largely on national constitutions, legal traditions and political will, the
authority of international environmental law varies among national systems. In
some systems it may control decision-making even in a purely domestic context.
For example, the High Court of Australia, in a landmark decision of 1983,82 held
that the listing of wilderness areas in Tasmania as World Heritage Sites under the
1972 World Heritage Convention effectively barred plans for a large-scale
83
hydroelectric dam project.
In the United States, a seminal judicial decision by the Supreme Court in
Missouri v. Hollanc 4 held that a migratory bird treaty between the United States
and Great Britain (as the then treaty-making authority in Canada) was the Supreme
Law of the Land.85 The decision thereby granted federal agents the authority to
enforce the country's cooperative obligations to Canada under the treaty, even
though doing so required the federal government to preempt the established
authority of the States over wildlife conservation. 86 The implications of Missouri
v. Holland are not limited, however, to treaty obligations. The Supreme Court
ruled long ago that all international law, including international custom and
general principles, is "our law," with the same legal compulsion as Acts of

78. Convention for the Protection and Development of the Marine Environment of the Wider
Caribbean Region, Mar. 24, 1983, S. Treaty Doc. No. 98-13 (1984).
79. See Charter, Asia-Pacific Partnership on Clean Development and Climate, adopted Jan. 11-13,
2006.
80. Convention for the Protection of the Mediterranean Sea Against Pollution, Feb. 16, 1976, 15
I.L.M. 285.
81. Convention on the Protection of the Marine Environment of the Baltic Sea Area, Mar. 22,
1974, 13 L.L.M. 544.
82. Commonwealth v. Tasmania (1983) 158 C.L.R. 1 (Austl.).
83. Id. 2.
84. State of Missouri v. Holland, U.S. Game Warden, 252 U.S. 416 (1920).
85. Id. at 430-33.
86. See Sebastian T. Patti, The Resurrection and Expansion of the Migratory Bird Treaty Act, 50
U. COLO. L. REv. 165,169 (1979).
2011 BASIC FUNCTIONS AND PRINCIPLES

Congress and treaties under the Supremacy Clause of the United States
Constitution. 87 If, however, a particular treaty is not deemed to be self-executing,
it requires an Act of Congress to become effective within United States
jurisdiction. That is usually the case if, for example, a treaty requires the
appropriation of money, commits the government to a contractual obligation, or
89
imposes new human rights standards.
Examples of substantive contributions for which international environmental
law can take partial credit include the gradual improvement of the ozone layer, the
amelioration of water resource problems in the Zambezi River Basin, better
controls over trafficking in endangered birds, wetlands recovery in parts of the
United Kingdom, and the avoidance of environmentally risky activities in
Antarctica. Procedural contributions of international environmental law include
detailed processes of consultation, reporting, planning, and negotiation under such
instruments as the Vienna Convention on the Ozone Layer, 90 as well as a reliance
on non-governmental advocacy groups for mobilizing public opinion and pressures
in support of environmental standards and requirements. The WTO's shrimp-turtle
decision, 91 for example, specifically
92
acknowledged the status of NGOs as
stakeholders in decision-making.
The challenges ahead are daunting, from the nagging issue of global warming
to the appearance offshore of oxygen-starved hypoxic zones. Difficult
conundrums of law and policy loom ahead, too, such as those at the intersections
of the environment with trade and economic development. For example, the
exportability of valuable timber from tropical rain forests has raised critical issues
of trade, economic development, and the environment, particularly in the Amazon
Basin. Creating or refining institutions and institutional policies to help avoid and
resolve complex controversies of this sort will tax the ingenuity, good will and
good-faith commitments of private interests and public authorities alike. It seems
clear, however, that international environmental law has taken its place, among
other influences, in shaping and giving effect to institutional policies that affect
natural resources so as to minimize potential harm to the environment.

87. See The Paquete Habana, The Lola, 175 U.S. 677 (1900).
88. Medellin v. Texas, 552 U.S. 491 (2008).
89. See, e.g., James A.R. Nafziger, Treaties, in THE OXFORD COMPANION TO AMERICAN LAW
809, 809-11 (Kermit L. Hall ed., 2002).
90. Vienna Convention for the Protection of the Ozone Layer, supranote 43.
91. Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/AB/R (Oct. 12, 1998).
92. ld. 83-86, 91.