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Charles E. Di Leva

Editors' Summary: As transboundary and global environmental problems become more acute, international law becomes critical in addressing these problems. This Article examines the difficulties of establishing an effective international environmental system by analyzing several programs, treaties, and institutions. Despite the failings of the system, the author concludes that international environmental law will play an increasingly significant role.Trends in International Environmental Law: A Field With Increasing Influence

Charles E. Di Leva, Attorney, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice. Mr. Di Leva is a former Senior Programme Officer with the Environmental Law Unit of the United Nations Environment Programme, headquartered in Nairobi, Kenya. The views expressed in this Article are solely the author's and are not intended to represent the views of the Department of Justice or the United Nations Environment Programme.

[21 ELR 10076]

In June 1992, 20 years after the landmark United Nations Stockholm Conference on the Human Environment,¹ world leaders will meet in Brazil for a conference that may direct future international cooperation on the environment. The United Nations Conference on the Environment and Development (UNCED) is not only likely to influence worldwide environmental cooperation, it is slated as the scene for final negotiations and proposed adoption of a Global Climate Change Convention. This agreement could affect the environment and economic development of every nation by imposing worldwide energy consumption limits and conservation practices.²

World leaders at UNCED will be guided by the principles enumerated at the Stockholm Conference. Among these principles, Principle 21 provides that

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 own jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.³ Since 1972, Principle 21 has been the starting point for a number of international treaties seeking to curb transboundary pollution.⁴

Despite widely supported goals, international environmental agreements lack enforcement mechanisms — a factor that many observers consider a major weakness of international law.⁵ Because of this perception, political pressure to change and strengthen the institutions that administer international environmental law is growing, especially from the "Green Party"⁶ politicians of northern Europe. As a result, world leaders attending UNCED will [21 ELR 10077] be asked to provide for "global environmental security"⁷ — the concept that threats posed to our common environment should be addressed by the international community in a manner similar to the threats posed by nuclear weapons.

While global environmental security may be a promising concept,⁸ dealing with environmental challenges may be more difficult than dealing with nuclear weapons buildup. To scale down nuclear buildup, it was necessary to overcome political differences between the superpowers. To achieve global environmental security, it will be necessary to overcome such worldwide problems as staggering population growth in the poorest countries, the seemingly unbreakable link between poverty and natural resource degradation, the increasing transboundary environmental incidents, and conflicting views on how to address global warming.

Regardless of the outcome of UNCED, environmental lawyers will be increasingly involved with these issues.⁹ If international agreements are signed at UNCED, it will be necessary to promulgate national laws and standards because international agreements are not self-executing. Even without new agreements, however, multilateral trade growth will expand the application of international and regional environmental standards. Further, international law and nonbinding "soft law" guidelines will continue to be precursors for national environmental legislation.¹⁰

This Article discusses the difficulties in creating an effective international environmental legal regime. It then addresses some possible international and domestic trends in environmental institutions, laws, and programs.

Difficulties in Creating an Effective International Environmental Legal Regime

Institutional Practices

Although over 100 treaties address international environmental issues, some observers have criticized international environmental law as being ineffective. Much of this criticism is aimed at national and international institutions charged with administering international environmental laws.

Environmentalists legislatures of developed countries are criticized when they enact legislation considered too protective of sovereign interests. African countries and nongovernmental organizations (NGOs) for example have criticized industrial countries for failing to adopt national laws prohibiting the export of hazardous wastes and unregistered pesticides.

Nations have also been criticized for failing to ratify¹¹ conventions that were popular at the time they were adopted. For example, although enough nations ratified the civil liability convention providing compensation for injury from nuclear power plants¹² to enable the convention to enter into force, many nations with nuclear power, including the Soviet Union, did not sign it. Thus, victims of the nuclear reactor disaster at Chernobyl were unable to use the convention's compensation scheme and the Soviet Union could not be compelled to provide compensation under the relevant convention because under international law states are bound only by the international agreements to which they are parties.¹³

Similar criticism has been aimed at the decision by some industrialized countries not to sign or ratify the 1982 United Nations Convention on the Law of the Sea (UNCLOS).¹⁴ Several industrialized countries were not satisfied with the provision in it that overrides claims to seabed minerals and declares the seabed and ocean floor and their resources to be "the common heritage of mankind."¹⁵

Due to its limited authority, the International Court of Justice (ICJ)¹⁶ has also been criticized as being ineffective. The ICJ and most other international tribunals act chiefly as dispute resolution tribunals and lack mechanisms to enforce rulings, aside from generating public opinion or initiating action for economic sanctions. Further, because international treaties are binding only between sovereign states, the ICJ does not provide for private-party (including nongovernmental organizations) rights of action.

Unlike private parties, states can obtain standing before the ICJ and other international dispute resolution mechanisms.¹⁷ States can also opt out of dispute resolution and, [21 ELR 10078] as currently chartered, the ICJ cannot adjudicate disputes unless both parties consent to jurisdiction.¹⁸ Consent can be granted only on a case-specific basis or through prior compromise (e.g., a treaty that specifically refers disputes to the ICJ).¹⁹ Even if dispute resolution takes place, however, discussions are typically funnelled first to nonbinding negotiations, then to mediation, and finally to the ICJ. Adjudication in any of these forms is rarely binding.

The ICJ's charter, like almost all international agreements, fails to provide a mechanism for injunctive or compensatory relief. Even where international agreements provide that domestic courts of competent jurisdiction are empowered to award compensation, as in the civil liability convention providing compensation for injury from nuclear power plants²⁰ and the oil spill conventions,²¹ relatively few countries participate in those agreements.

International institutions have also inadequately addressed incidents involving multinational corporations (MNCs) or enterprises (MNEs). Following the tragedy in Bhopal, the Union of India urged creation of means to ensure that "MNEs controlling a majority interest in a hazardous enterprise located abroad are deemed to have a nondelegable, strict duty to ensure that the activity does not cause harm."²² Under this theory, activities of the subsidiary that cause local harm would automatically invoke the parent's liability. As a leading commentator in the field has pointed out, "[I]t would not appear unreasonable to conclude that, in principle, parent corporations should be held accountable as the quid pro quo for the economic benefit they derive from the foreign subsidiary."²³

But clearly, this liability should be imposed through internationally accepted norms. If left to unilateral means, some MNEs may be tempted to lobby the host country to adopt weaker standards or to shop for the most lax jurisdictions. Thus, events like the incident at Bhopal create pressure to set international norms for MNEs²⁴ or for nations that headquarter major industries to consider proposing legislation such as a foreign environmental practice act.²⁵

Yet, even where international standards have been ratified and are practicable, there is a tendency to revert to sovereign jurisdiction and domestic law. In Volkswagenwerk Aktiengesellschaft v. Schlunk,²⁶ for example, the U.S. Supreme Court ruled that Michigan's longarm jurisdiction statute could be used to effect service of process on a German corporation by authorizing service of process on a domestic subsidiary. This prompted diplomatic notes of protest from several countries that had joined with the United States in ratifying a treaty intended to govern foreign service of process in these circumstances: the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.²⁷ The Supreme Court's ruling may affect U.S. plaintiffs unfavorably. It provides foreign jurisdictions with an excuse to allow their citizens to serve U.S. defendants under their own laws — laws likely to be less stringent than those in the United States. Further, it provides an excuse for foreign courts to refuse to enforce U.S. judgments overseas for failure to comply with the Hague Convention.²⁸

The difficulties in creating an effective international environmental legal regime discussed in this section are similar to the problems that plague specific environmental programs, which are discussed in the next.

National Environmental Programs

[] Export of Hazardous and Other Wastes. Although illegal waste exports may not be as widespread as feared,²⁹ industrialized countries have been criticized for failing to enact laws that protect developing countries from shipments [21 ELR 10079] of hazardous wastes.³⁰ While some countries, Sweden, for example, require that the receiving country have the same standards as the exporting country, thereby protecting developing countries from improper disposal of imported hazardous waste, most countries do not even have waste export laws.³¹

Concern about the dumping of wastes in developing countries led to a 1987 United Nations General Assembly resolution that the Secretary-General of the United Nations, through the United Nations Environment Programme, prepare a global convention to control transboundary movement of hazardous wastes. Two years later, the United Nations adopted the Basel Convention.

The Basel Convention seeks to prohibit transboundary movement and disposal of hazardous and "other" wastes unless there is written consent by all the countries involved, including transit countries. Further, the exporting state must be certain that the wastes will be managed by the importing state in an environmentally sound manner.

Despite uncertainty about its ratification, the Basel Convention, which was hammered out by the United Nations Environment Programme (UNEP) in less than two years is, a complicated agreement that responds to the developing world's claim of "garbage imperialism." While the Basel Convention did not satisfy many who argued for a total ban on the transboundary movement of hazardous wastes to protect cash-poor Third World countries, such a ban may have been politically unrealistic. Further, the Basel Convention may resolve the call for a ban by providing for bilateral, multilateral, and regional agreements.³² Under the Basel Convention, a party can issue notification of its decision to ban waste imports, thereby prohibiting parties or nonparties from importing to it.³³

Despite many carefully reasoned provisions, the Basel Convention epitomizes several problems with international treaties. For example, before approving an export, exporting countries must ensure that the export's disposal in the foreign country will be managed in an "environmentally sound" manner,³⁴ which "means taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes."³⁵

How the term is ultimately defined, however, will have to await the adoption by the parties of "technical guidelines." Although, according to Resolution 8, adoption is supposed to take place at the first meeting of the parties to the convention,³⁶ it may take much longer. With the difficulty the U.S. Environmental Protection Agency (EPA) encountered setting national landfill standards, the task for setting international technical guidelines is even more formidable.

But, even if the Basel Convention enters into force, regulating transboundary shipments under the convention will depend on the parties reaching an agreement on the definition of "hazardous wastes." This task may be more difficult than simply listing wastes, as was done under the London Dumping Convention for dumping of wastes at sea.³⁷ Because that London Dumping Convention does not define wastes in a manner that tracks domestic legislation, unlike Basel, it does not require consistency with domestic law.

The Basel Convention also suffers from unenforceability: "ironically the very problem that triggered enactment of the Convention — responsibility for inappropriate disposal of the waste — went unresolved. Although the exporting country must readmit the waste, the larger question of who will pay the cost associated with cleaning up the problem remains unaddressed."³⁸

Like many international treaties, the Basel Convention leaves open the question of liability: "The Parties shall cooperate with a view to adopting, as soon as practicable, a protocol setting out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement of hazardous waste and other wastes."³⁹

To work around these difficulties, parties to the Convention may attempt to find loopholes in the Basel Convention regime and to control exports through bilateral agreements. In the future, monitoring enforcement of waste shipments pursuant to bilateral agreements should be much simpler than for shipments regulated solely under the convention.⁴⁰ With fewer parties, enforcement activities [21 ELR 10080] can be streamlined to minimize the role of an international secretariat. To avoid weakening the provisions of the convention, any bilateral agreements entered into should be executed in a manner that does not allow parties with unequal bargaining power to find loopholes in the Basel Convention regime.

International Trade in Endangered Species. Despite the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)⁴¹ and the 1979 Convention on Conservation of Migratory Species of Wild Animals (CMS),⁴² international enforcement efforts have been criticized as ineffective in stopping the illegal international trade in endangered plan and animal species. These treaties could be more effective if, rather than focusing on enforcing trade bans, they implemented the economic incentives necessary to encourage developing countries to stop the trade in species and the loss of habitat critical for the survival of endangered species.⁴³ Further, because CITES fails to prohibit trade with nonparties, enforcements efforts are weak.

Although the United States has enacted enabling legislation to implement the CITES international treaty requirements,⁴⁴ illegal ivory, exotic birds, rhino horns, and plant trade, and loss of wildlife habitat have flourished.⁴⁵ Unfortunately, like the effort to control illegal traffic in hazardous wastes, "enlightened" efforts by industrialized countries to adopt laws that curtail such activity have little effect when developing (often the exporting) countries are just starting to create environmental bureaucracies that have little or no legislation.

Although CITES was one of the first conventions to establish its own secretariat — an implementing office that collates information, monitors enforcement, and sets up meetings of the parties to the convention — that office is not equipped to provide enforcement, nor is it focused on the issue of habitat loss, which, if not controlled, may render prevention of illegal traffic moot.⁴⁶

Like other international conventions, CITES does not infringe upon sovereignty by regulating land use. While countries may agree to the listing of endangered species, Kenya and other wildlife-rich developing countries would be far less cooperative with the CITES regime if the international community sought to enact laws that control land use. Such action would be viewed as "modern imperialism."

Biological Diversity. Concern for sovereign rights also poses difficulties for UNEP, the U.N. Food and Agriculture Organization (FAO), and the International Union for the Conservation of Nature (IUCN) in drafting a global convention for the preservation of biological diversity.⁴⁷ While the treaty seeks to recognize that preservation of rare habitat is necessary for the "common heritage of mankind," the fear of impinging on sovereignty was clear at a recent meeting organized by UNEP, FAO, and IUCN to discuss a proposed biological diversity convention. "Common heritage" refers to the concept that certain natural resources, such as seabed minerals, belong to all mankind and are not subject to claims of sovereignty or exploitation. The report of the working group⁴⁸ to draft the convention reflected the skittishness at embracing this concept: "The group felt that whenever the concept of 'common heritage' is used, it does not mean the establishment of collective international rights to resources within national jurisdictions nor does it infringe upon permanent sovereignty of States over natural resources."

Oil Spill Legislation. The reluctance to change traditional notions of sovereignty has also been evident in the reluctance of the U.S. Congress to ratify the Protocol of 1984 to Amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 (the CLC)⁴⁹ and the Protocol of 1984 to Amend the International Fund for Compensation for Oil Pollution Damage, 1971 (Fund Convention).⁵⁰ These conventions would have created an international standard of liability, an internationally enforced compulsory insurance scheme, U.S. jurisdiction for spills in U.S. waters, and recognition in foreign courts of judgments obtained in U.S. courts. Despite the strong support of the White House and the State Department, these conventions have not been ratified by the United States. Failure to ratify the international regime occurred, in part, because the CLC requires that suits to recover for oil spill damage under the treaty be brought in accordance with the CLC. Thus, the implementing legislation would have preempted domestic state law. Even if it had not preempted state law, however, the CLC follows the European practice of "channeling liability." Unpopular in the United States, this practice dictates that except in cases of willful acts by third parties, liability suits for pollution may only be brought against the shipowner for pollution damage. For the most part, suits are prohibited against other agents or servants.

Air Pollution. The international environmental effort [21 ELR 10081] has perhaps been most effective in addressing transboundary air pollution. At the recent Second Meeting of the Parties to the Montreal Protocol,⁵¹ the United States and other parties decided to establish a $ 100 million "financial mechanism" trust fund to enable developing countries to reduce their reliance on chlorofluorocarbons (CFCs). This may be a precursor to future transfers of technology to the developing world to foster environmental protection. Although, finding and paying for CFC substitutes costs billions of dollars, the United States and the other 43 parties to the protocol have recognized that it is in the world's interest to stop its production.⁵²

Perhaps more importantly, actions under the Montreal Protocol may provide impetus for a global convention to control emissions of greenhouse gases. Some skeptics state that the Montreal Protocol's success depends on the creation of a market for CFC substitutes carved out by industrial giants E.I. du Pont de Nemours & Co., Inc., and the British-based Imperial Chemical Industry (ICI Chemicals & Polymers Ltd.). They argue such a market isnot likely for more traditional fossil-based fuels. Further, the chances of having countries like China ratify and comply with a climate change convention may seem unlikely when China's ability to enter the "developed world" may be tied to its tapping vast domestic reserves of greenhouse gas-producing coal.

Nevertheless, just as market incentives triggered the production of CFC alternatives, the same may be true if scientists convince politicians of the need for alternatives or conservation practices related to greenhouse gas-producing energy sources.⁵³ Indeed, to supply the demand for CFC substitutes, industry required only one year to produce alternatives. While, for example, it is difficult to envision the international market responding to the perceived need for greenhouse gas controls on dairy animals, which are large producers of methane, international cooperative work now underway by the Intergovernmental Panel on Climate Change⁵⁴ provides a foundation for this effort.

Possible Trends in the International Environmental Legal Regime

International Organizations

International law has weaknesses, but the recent citation to Chapter VII of the United Nations Charter as partial authority for sanctions against Iraq following the invasion of Kuwait demonstrates its importance and the need to turn to the United Nations to resolve disputes. Soon, ecological disputes may also require the response of international organizations. For example, as many countries view the accessibility to natural resources like oil as a "security interest" significant enough to warrant military or economic sanctions, transboundary ecological threats to natural resources like rain forest devastation may give rise to discussion of trade sanctions.⁵⁵

Currently, however, the United Nations lacks an executive environmental agency. Its only agency dedicated solely to the environment, UNEP, was assigned an important but limited role as a "co-ordinator and catalyst for environmental action."⁵⁶ Its limited budget does not allow it to fund large-scale projects or to play a role in environmental compliance or monitoring. Further, based in Nairobi, Kenya,⁵⁷ UNEP's small staff of only 200 professionals works far from United Nations' headquarters in New York and with less than optimal telecommunications abilities. In addition, because UNEP and other U.N. agencies, such as FAO and the UNDP, are involved in environmental projects it would be useful if a central environmental agency or organizational office could ensure co-ordination among these agencies.

For these reasons, UNEP is a target for revision during UNCED. As the Declaration of the Hague indicates,⁵⁸ a number of European nations want a more powerful United Nations environmental agency. The signatories state:

The principle of developing within the framework of the United Nations, new institutional authority, either by strengthening existing institutions or by creating a new institution….

* * *

The principle of appropriate measures to promote the effective implementation of and compliance with the decisions of the new institutional authority, decisions which will be subject to control by the International Court of Justice ….

These goals, combined with the increased attention to the environment, the General Assembly and other U.N. officials based in New York could move UNEP from Nairobi following UNCED, or keep UNEP as a regional center with the major role for environmental decisionmaking to take place in New York or a major European center, such as Geneva.

Some have called for the creation of a "United Nations EPA," with the ability to prevent violations of international standards. If one were established, perhaps it could limit its role to the global commons, areas outside national jurisdiction, where it could encourage compliance with treaties, such as the London Dumping Convention or the Antarctica Treaties. [21 ELR 10082]

The difficulties in reaching global consensus on environmental goals will also generate increased attention on regional activities. In 1989, the European Economic Community began a new initiative to collect penalties for violations of EEC environmental directives. In addition, there are widespread initiatives within various Regional Seas Programmes, established under UNEP's Ocean and Coastal Areas Programme Activity Center. The Regional Seas concept was started under UNEP auspices in 1976 with the adoption and ratification of the Convention for the Protection of the Mediterranean Sea Against Pollution and Related Protocols.⁵⁹ Today, eight of these programmes are in force. Two more are under negotiation and several others are planned. The regional seas approach allows countries with similar geographic interests to jointly address such environmental problems as oil spill response and protection of endangered species.

As funding mechanisms and economic incentives to enable developing countries to achieve environmental safeguards grow in importance, increased environmental activity is also likely among the multilateral development banks. The World Bank announced in 1989 that it would be reorganizing to ensure greater consideration of environmental concerns at earlier stages of developmental projects. For example, the World Bank and the Asian Development Bank informed UNEP that lending projects will be reviewed in light of UNEP's nonbinding guidelines on environmental impact assessment.⁶⁰

International Adjudication

Other proposals seek to increase access to the ICJ⁶¹ or to create adjudicatory mechanisms to handle transboundary disputes. While other international fora for dispute resolution exist,⁶² the ICJ is the most suitable for these matters. It has an administrative apparatus in place and 15 judges. Proposals to strengthen the ICJ include removing the requirement that both parties consent to jurisdiction before being subject to the court's jurisdiction. It also may be feasible, because Article 26 of the court's statute provides for the creation of a special panel within the court that is equipped to handle the complexity of environmental disputes.

Precedent also exists for the ICJ to handle environmental disputes. In the Trail Smelter Arbitration,⁶³ the ICJ adjudicated a dispute brought by the United States because of air pollution in the State of Washington that came from a Canadian smelter. Ruling against Canada, the Tribunal stated:

Under the principles of international law … no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another, or of the properties of persons therein, when the case is of serious consequences and the injury is established by clear and convincing evidence.⁶⁴

This ruling, together with the Corfu Channel Case (United Kingdom v. Albania),⁶⁵ the Lac Lanoux Arbitration (France v. Spain),⁶⁶ and later, Principle 21 of the Stockholm Declaration, forms the customary international law concerning transboundary pollution.

These rulings indicate that the ICJ is competent to address complex transboundary pollution issues. While, under its Charter, the court can adjudicate only disputes between states, other means to address environmental disputes could easily be created. The Office of the Executive Director of UNEP could serve as an environmental ombudsman⁶⁷ with authority to hear disputes from environmental organizations or individuals, and to investigate the practices of companies suspected of violating international guidelines.

There may also be increased reference to the 1982 United Nations Law of the Sea provisions for the settlement of disputes. Parties may refer disputes to the ICJ, to arbitration procedures, to a newly created International Tribunal for the Law of the Sea, or to a special Seabed Disputes Chamber.⁶⁸

The pressure to open access for dispute resolution to NGOs and to private persons might best be resolved through some form of screening procedure or special chamber. The claim would be directed to an agency or body of expertise in the area under dispute (hence, the use of UNEP for environmental disputes). In addition, the "defendant" nation would be permitted to appear.⁶⁹ Procedures could also be set up to screen claims by NGOs acting on behalf of individual claimants.

U.S. Initiatives

The United States, like many nations, has international environmental initiatives underway. Just as some countries now prohibit unlicensed export and import of wastes, various proposed bills in the United States have proposed⁷⁰ [21 ELR 10083] to control exports of waste and to implement the Basel Convention. The Bush Administration has also proposed that the United States prohibit all exports except those to countries with which the United States has a bilateral agreement. While it is unlikely that the United States will follow the Swedish law or the German proposal to ban exports altogether, some form of control requiring written consent and compliance with the Basel Convention will be required.

In the near future, the United States is also likely to consider legislation to institute UNEP's nonbinding guidelines on prior informed consent procedures (PIC) applied to the transboundary shipments of hazardous chemicals.⁷¹ The UNEP nonbinding guidelines for the exchange of information on chemicals in international trade⁷² propose a system forbidding the transboundary shipment of severely restricted chemicals unless the importing state explicitly consents. Further, these guidelines would establish a system under the UNEP International Register of Potentially Toxic Chemicals (IRPTC) to alert member countries of the decisions about chemical hazards made by other member countries. Thus, risk information can be disseminated to developing countries that may have been the repositories of unsafe fertilizers and pesticides.⁷³

There are also recent internationally oriented amendments to the Clean Air Act. These include a provision to ensure further study of the stratospheric ozone and climate change issues.⁷⁴ There are also provisions to establish a program to monitor and improve air quality in regions along the U.S.-Mexican border and to cooperate with Mexico in monitoring pollution in Mexico City.⁷⁵

Other federal agencies are increasingly involved in international environmental issues. The Justice Department's Environment and Natural Resources Division has seen a dramatic increase in litigation involving international issues under almost all major environmental statutes. The cases include enforcement cases, such as the first criminal prosecution under the export provisions of RCRA § 3017 for illegal disposal in Mexico. Six cases have been filed against importers of CFCs that allegedly violated the EPA's implementing regulations for the Montreal Protocol. In addition, efforts to enforce the Comprehensive Environmental Response, Compensation, and Liability Act⁷⁶ are beginning to involve international issues as it becomes necessary to pursue multinational enterprises or foreign defendants in order to obtain recovery of the EPA's costs from viable entities.⁷⁷ The Environment Division's Wildlife Section has successfully prosecuted a number of smugglers of rare or endangered animals.

Regulatory cases are also raising interesting international issues. In 1984, Canada and several northeastern United States brought a citizen suit claiming that the U.S. EPA had a duty pursuant to the Clean Air Act's International Air Pollution provision⁷⁸ to revise the state air quality implementation plans of states allegedly causing acid rain deposition in plaintiff's territory. In August 1990, the U.S. Circuit Court of Appeals for the District of Columbia ruled that EPA is not required to initiate a rulemaking proceeding setting the international pollution abatement procedures until EPA can identify the specific sources in the United States responsible for acid deposition in Canada.⁷⁹

A case brought by a Canadian concern raises an interesting hybrid of environmental and trade issues.⁸⁰ It involves a challenge to EPA's ban on the import, manufacture, and distribution of asbestos products, many of which originate in Canada. Among other challenges, the Canadian concern argues that EPA's rulemaking interferes with international tariff regulations under the General Agreement on Tarriffs General Agreement Tariffs and Trade.⁸¹ With the dramatic growth in international trade and foreign acquisitions, and increasing environmental controls on chemicals, these conflicts may increase between trade and environment.⁸²

Conclusion

International environmental law will not replace domestic law as the primary source of control over international and domestic environmental practices, however, transboundary issues require environmental lawyers to become aware of this growing body of law. Further, while most environmental progress will be made at the national level, the United Nations will have a crucial role forging international agreements and enabling developing countries to obtain the technology transfer and funding mechanisms necessary to comply with these agreements and other environmental standards. By fostering environmental compliance in developing countries, perhaps the United Nations can also [21 ELR 10084] enhance environmentally sound trade relationships that can promote economic growth while reducing natural resource and environmental degradation.

The United Nations' success will not come easily. Clarifying its environmental organizational structure will be a prominent issue at UNCED, and perhaps beyond 1992. At the same time the United Nations will address the environmental and economic differences between developed and developing countries. It will be unfortunate if the conference in Brazil generates the belief that the "political" East-West conflict of the post-World War II years may be replaced by a "development" conflict between the North and South; between those that utilized their natural resources to develop wealth before the transboundary impact of environmental degradation was fully understood, and those just now seeking to fully develop their natural resources. In light of this difficult future, critics of the U.N. might best be reminded of Sir Winston Churchill's comment that "the United Nations was not intended to get us to heaven, just to keep us from going to hell."

1. United Nations Conference on the Human Environment, Stockholm, Sweden, June 1972.

2. As part of this process, the United States intends to host in February 1991, the first intergovernmental meeting to review a framework convention to control greenhouse gases. The United Nations Environment Programme (UNEP) and the World Meteorological Organization plan to have this convention ready for signature before or by UNCED in June 1992.

3. Stockholm Declaration on the Human Environment, reprinted in Report of the United Nations Conference on the Human Environment, U.N. Doc. CONF.A/48/14 and Corr. 1 (1972). [hereafter Stockholm Declaration], reprinted in 11 I.L.M. 1416 (1972).

4. The most significant recent treaties were prepared under the auspices of UNEP. The Vienna Convention for the Protection of the Ozone Layer, adopted and opened for signature Mar. 22, 1985 (entered into force Sept. 22, 1988), reprinted in 26 I.L.M. 1516 (1987), committed the international community to take action against substances depleting the ozone layer. Because the Convention did not set specific measures to do so, it was followed by the Montreal Protocol on Substances That Deplete the Ozone Layer, adopted and opened for signature Sept. 16, 1987, (entered into force Jan. 1, 1989), reprinted in 26 I.L.M. 1541 (1987) [hereafter Montreal Protocol]. The Montreal Protocol established pollutant consumption and production levels for the first time in an international agreement. In addition to the ozone treaties, the most recent treaty to address transboundary pollution is the Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and Their Disposal, adopted and opened for signature Mar. 22, 1989, reprinted in 28 I.L.M. 649 (1989). The Basel Convention was signed by 56 nations in March 1989, and has been endorsed by 116 nations. It needs ratification by 20 countries in order to enter into force. At this time, five countries have ratified the convention.

5. To a certain extent, this criticism is unfair due to the nature of international law. While sanctions are quite limited in public international law, it is correct that "[l]aw cannot coerce States in matters which are primarily political…. When international law breaks down the fault lies not with international law itself, but with those who operate within the international legal system." R. Wallace, International Law 2 (1986).

6. "Green Party" is a term that refers to European political parties that focus chiefly on environmental issues.

7. See Timoshenko, International Environmental Law and the Concept of Ecological Security, Breakthrough, Global Education Associates. Summer/Fall 1989, at 22-25 (discussing Soviet Foreign Minister Eduard Shevardnadze's call for the creation of an international ecological security system, reiterating Mikhail Gorbachev's statements to the 43rd United Nations General Assembly concerning the global ecological threat).

8. But see discussion at infra note 55-60 and accompanying text.

9. The increase in international environmental enforcement activity is evident from the docket of the Department of Justice, Environment and Natural Resources Division. There are currently over 40 internationally related matters in the Division involving 20 different countries.

10. For example, UNEP promulgated the Goals and Principles of Environmental Impact Assessment, U.N. Doc. UNEP GC.14/17 Annex III (June 1987). These guidelines are being used by some regional development banks when deciding whether to fund development projects.

11. Ratification of a treaty is the final step in its enactment. At the conclusion of the treaty negotiation, the delegation representing the state (usually representing the executive branch of the state) may agree to adopt it, and it may also have authority to sign it. Neither step is enough for a treaty to attain the full force of international law, although they may be sufficient for a treaty to become customary international law. Following these steps, a treaty typically begins passage through domestic legislatures. This process can take years and may end without ratification. The U.S. approval process requires that the Senate consent with a two-thirds vote. U.S. CONST. art. II, § 2.

12. Vienna Convention on Civil Liability for Nuclear Damage, opened for signature May 29, 1963, 2 I.L.M. 727 (1963).

13. See Vienna Convention on the Law of Treaties, opened for signature May 23, 1964, 632 U.N.T.S. 131, art. 34 ("A treaty does not create either obligations or rights for a third state without its consent.").

14. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, U.N. Doc. CONF.A/62/122(1982), reprinted in 21 I.L.M. 1261 (1982) (not yet in force).

15. UNCLOS art. 136. While UNCLOS has yet to obtain the 60 ratifications necessary to enter into force, many of the other provisions of the Law of the Sea have obtained the force of international law due to customary use and their derivation from other accepted international legal principles (e.g., the recognition of sovereign rights within the exclusive economic zone (art. 55)).

16. U.N. CHARTER art. 1(l) ("There are established as the principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat."). The Court consists of 15 elected members who serve nine-year terms. The Court is to consist of members who represent "the main forms of civilization and of the principal legal systems of the world." I.C.J. Stat., art. 9.

17. Nongovernmental organizations are allowed to apply for observer status before the ICJ in a matter in which they can demonstrate the requisite interest. See ICJ Rules of Procedure. One author has stated the reason for refusing access to private parties as follows:

Allowing non-state parties access to international tribunals is incompatible with the traditional notion of the State as the proper subject of international law, and creates difficulties for the Court in contentious proceedings due to the inequality of the parties. In a practical sense, states are understandably reluctant to risk finding themselves defendants in potential flood of lawsuits by individuals, or by private organizations of dubious legitimacy which claim to represent the interest of humanity.

Garrett, Resolving International Environmental Disputes Between Private Parties and States, 1 EMORY J. INT'L DIS. RESOLUTION 81, 93 (1986).

18. I.C.J. Stat., art. 36(1)-(2).

19. The ICJ handles two types of cases: contentious disputes and matters calling for an advisory opinion. Jurisdiction in contentious cases rests on consent of the parties and, for both types of cases, the decision concerning the applicable law depends on the prior consent of the parties. The court shall apply, in order of priority, international treaties, international custom ("customary law"), the "general principles of law recognized by civilized nations," and "judicial decisions and teachings of the most highly qualified publicists of the various nations." I.C.J. Stat., art. 38.

20. See, e.g., Convention on Third-Party Liability in the Field of Nuclear Energy, Paris, July 29, 1960.

21. See International Convention on Civil Liability for Oil Pollution Damage, Brussels, Nov. 29, 1969 (Civil Liability Convention); Protocol of 1984 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollition Damage, Brussels, Dec. 18, 1971 (Fund Convention).

22. Handl, Environmental Protection and Development in Third World Countries: Common Destiny-Common Responsibility, 20 N.Y.U. J. INT'L L. & POL. 603, 624 (1988).

23. Id.

24. See generally International Investment and Multinational Enterprises: Responsibility of Parent Companies for Their Subsidiaries, Organization of Economic Cooperation and Development, OECD/I.F. 80.1 (1980).

25. See, e.g., Neff, Not in Their Backyards, Either: A Proposal for a Foreign Environmental Practice Act, 17 ECOLOGY L.Q. 477 (1990).

26. 108 S. Ct. 2104 (1988).

27. Done at The Hague, Nov. 15, 1965 (entered into force Feb. 10, 1969). 20 U.S.T. 361; T.I.A.S. No. 6638; 658 U.N.T.S. 163. Twenty-eight countries are parties to this convention. The views of the concurring Justices in Schlunk agree that, consistent with the convention, a litigant may serve process on a foreign corporation by serving a domestic subsidiary, because such process is not "service abroad." However, they contend that the majority reaches its conclusion "by depriving the Convention of any mandatory effect, for in the majority's view, the forum's internal law defines conclusively whether a particular process is service abroad, which is covered by the convention, or domestic service, which is not." 108 S. Ct. at 2112. Thus, the majority's ruling has been criticized by commentators and several countries as promising to undermine the possibility of reciprocal treatment under the convention. If the convention is no longer the exclusive means to serve foreign defendants, what means of service should foreign defendants assume is proper? The Schlunk exception may result in U.S. defendants receiving inconsistent treatment abroad, and in foreign courts refusing to enforce U.S. judgments. See Reisenfeld, Service of United States Process Abroad: A Practical Guide to Service Under the Hague Service Convention and the Federal Rules of Civil Procedure, 24 INT'L LAW. 55, 65-66 (1990). Proposed changes to FED. R. CIV. P. 4 may help to clarify this situation.

28. Reisenfeld, supra note 27, at 65 n.45.

29. Development and International Economic Co-operation: Environment, Illegal Traffic in Toxic and Dangerous Products and Wastes: Report of the Secretary General, U.N. Doc. A/44/362 (1989) (coauthored by author).

30. For example, § 3017 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6938, ELR STAT. RCRA 024, controls the export and import of hazardous wastes, but it does not address "nonhazardous" wastes and has no means to require that wastes are properly disposed of in the receiving country. Nor does RCRA require consent from any transit countries.

The United States' two bilateral agreements on the import and export of waste with Canada and Mexico also do not require that Canadian or Mexican disposal sites meet environmental standards.

31. The import/export provisions prohibit any export of hazardous waste unless EPA is notified, the exporting country consents, a copy of the written consent accompanies the shipment, and the shipment is conforming to all documents. There are also criminal penalties for violation of the controls. See also 40 C.F.R. § 262.50 et seq.

There are no controls over the export of wastes such as fly and bottom ash waste, mining wastes, which are not considered hazardous under § 3001(b)(3)(A)(i), (ii) of RCRA, 42 U.S.C. § 6921(b)(3)(A)(i), (ii), ELR STAT. RCRA 010. Household wastes shipped to a foreign country for resource recovery are also exempt from export controls. § 3001(i), 42 U.S.C. § 6921(i), ELR STAT. RCRA 011. Efforts to reform the export laws concerning exports of pesticides are currently under debate in the U.S. Congress. See Pesticide Export Reform Act, H.R. 3950, S. 2830.

32. See supra note 4. Article 11(1) of the Basel Convention, entitled "Bilateral, Multilateral and Regional Agreements," provides for such agreements provided they "do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention." Article 11(1) also adds that the provisions of a bilateral agreement "shall stipulate provisions which are not less environmentally sound than those provided by this Convention in particular taking into account the interests of developing countries."

33. In fact, African countries, through the Organization of African Unity, have been negotiating a protocol to institute a total ban on imports of hazardous, radioactive, and other wastes to Africa.

34. Basel Convention, art. 11(1).

35. Id., art 2(8).

36. Id., art. 4, P.2.

37. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the "London Dumping Convention"), Dec. 29, 1972, Annexes I-III. Done at London, Dec. 29, 1972, 26 U.S. 2403, T.I.A.S. No. 1046 U.S. 120 (entered into force Aug. 30, 1975).

38. Hackett, An Assessment of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 5 AM. U.J. INT'L L. & POL'Y 291, 321 (1990).

39. Progress toward adopting liability protocols for international treaties has been slow. The International Maritime Organization and the International Atomic Energy Agency have also been unable to adopt liability protocols for the treaties to which they serve as secretariat.

40. See Helfenstein, U.S. Controls on International Disposal of Hazardous Waste, 22 INT'L LAW. 775 (1988).

41. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, reprinted in 12 I.L.M. 1085 (1973) (entered into force July 1, 1975).

42. Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, reprinted in 19 I.L.M. 15 (1980) (entered into force Nov. 1, 1983).

43. See Petsonk, The Role of the United Nations Environmental Programme (UNEP) in the Development of International Environmental Law, 5 AM. U.J. INT'L L. & POL'Y 351, 387 (1990) and passim (discussing, inter alia, the manner in which economic incentives can further international environmental protection).

44. See 16 U.S.C. § 1537a.

45. The Endangered Species Act, 16 U.S.C. § 1531 et seq. and the Lacey Act, 16 U.S.C. § 1531 et seq., provide civil and criminal sanctions for violations of foreign law, thereby authorizing U.S. government enforcement authorities to apply the wildlife laws of other countries in the United States. For an excellent discussion of the difficulties in curtailing illegal trade in endangered species see Kosloff & Trexler, The Convention on the International Trade in Endangered Species: Enforcement Theory and Practice in the United States, 5 B.U. INT'L L.J. 327-61, 360 (1987).

46. See Kosloff, supra note 45, at 337.

47. There have also been discussions concerning proposals to prepare a forestry convention and a convention to address pollution from land-based sources. Guidelines already exist concerning land-based pollution as UNEP has adopted the Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources, U.N. Doc. UNEP/WG.120/3 (1985).

48. Report of the Ad Hoc Working Group on the Work of Its Second Session in Preparation for a Legal Instrument on Biological Diversity of the Planet, U.N. Doc. UNEP/Bio. Div. 2/3, at 3, para. 11 (Feb. 23, 1990).

49. U.N. Doc. UNEP/GC.15/Inf.2 at 81 (Nov. 29, 1969).

50. U.N. Doc. UNEP/GC.15/Inf.2 at 98 (Dec. 18, 1971).

51. See Montreal Protocol supra at note 4.

52. In support of the Montreal Protocol, pursuant to the Clean Air Act, 42 U.S.C. § 7457(b), ELR STAT. CAA 024, the U.S. EPA has implemented regulations to enforce the protocol, and the Department of Justice has prosecuted six cases against alleged importers of CFCs for violation of these regulations. 40 C.F.R. pt. 82 (1989).

53. Conversation with Paul Horwitz, former Secretary to the Ozone Secretariat, the UNEP-organized office charged with administering the Montreal Protocol.

54. Organized under the auspices of UNEP and the World Meteorological Organization.

55. Schrijver, International Organization for Environmental Security, 20 BULL. OF PEACE PROPOSALS 115-122 (1989). Schrijver notes, however, that there could also be adverse consequences to the elevation of the concpet of ecological security to the concept of international security. Specifically, he notes that the United Nations Charter legitimizes the right of self-defense in the event that the U.N. Security Council is unable to unanimously agree on security measures — a reasonable scenario. Thus, where the Security Council cannot agree on sanctions, a nation might use unilateral forceful means to respond to a threat to its environment. Environmental issues may therefore pose additional security problems for the U.N. system to handle. Id. at 116. See also Roling, The Concept of Security and the Function of National Armed Power in THE CURRENT LEGAL REGULATION OF THE USE OF FORCE 288 (A. Cassese, ed., 1986).

56. See UNEP Profile [no U.N. Doc. no.] [available through UNEP].

57. UNEP is the only United Nations organization to be based in a developing country. It has small regional offices around the world. For this reason, the pressure to focus more environmental decisionmaking in New York or Geneva should be handled in a manner that ensures that Nairobi, as a symbolic and important developing-world city, continues to have a significant role in environmental matters.

58. Declaration of The Hague, The Hague, March 11, 1989, reprinted in Selected Legal Materials, 5 AM. U.J. INT'L L. & POL'Y 567 (1990).

59. Convention for the Protection of The Mediterranean Sea, done at Barcelona, Feb. 16, 1976, reprinted in 15 I.L.M. 290 (1976) (entered into force Feb. 12, 1978).

60. U.N. Doc. UNEP/GC. 14/17, Annex III (June 1987).

61. A recent article seeking access to the ICJ by a nongovernmental organization proposing to represent low-lying island nations threatened by sea rise due to global warming, states that

The notions of liability, responsibility, illegality, and duty to compensate may support certain legal actions by a low-lying state or group of such states against one or more industrialized states, or justify an application to the ICJ for an advisory opinion. Developing the applicable principles through litigation will also assist states to develop their own policy positions for participation in the convention process.

Zaelke & Cameron, Global Warming and Climate Change — An Overview of the International Legal Process, 5 AM. U.J. INT'L L. & POL'Y 249, 262 (1989).

62. Article 33 of the United Nations Charter recognizes a number of other means for dispute resolution: "negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of [the parties] own choice." According to Article 95 of the Charter, the Court is not the exclusive means for resolving international disputes.

63. Trail Smelter (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (1941).

64. Id. at 1965.

65. 1949 I.C.J. 4.

66. 53 AM. J. INT'L L. 156 (1959).

67. Schrijver, supra note 55, at 120.

68. See art. 287. Under Article 287, natural or juridical persons may appear before the Seabed Disputes Chamber in cases concerning contract disputes.

69. Garret, supra note 17, at 97.

70. The Administration's proposal is to prohibit exports except to countries with which the United States has a bilateral agreement. At this time, the United States has bilateral agreements only with Canada and Mexico. Agreement Between United States of America and United Mexican States on Co-operation for the Protection and Improvement of the Environment in the Border Area, done at La Paz, Baja, California, Aug. 14, 1983, T.I.A.S. No. 10827, reprinted in 22 I.L.M. 1025 (1983), Annex III; Agreement of Co-operation Between United States of America and United Mexican StatesRegarding Transboundary Movement of Hazardous Wastes & Hazardous Substances (done at Washington, D.C., Nov. 17, 1986, entered into force January 29, 1987, reprinted in 26 I.L.M. 15 (1987)). Agreement Between Government of United States of America and Government of Canada Cross-Transboundary Movement of Hazardous Waste done at Ottawa Oct. 28, 1986, referenced in 26 I.L.M. 593 (1987) (notification reproduced from 86 Dept. of St. Bull. 90-92 (Jan. 1987)).

71. The chemicals covered by UNEP's PIC procedure are similar to those chemicals regulated under the Toxic Substance Control Act (TSCA). 15 U.S.C. § 2601 et seq., ELR STAT. TSCA 003.

72. See Amended London Guidelines for the Exchange of Information on Chemicals in International Trade, U.N. Doc. UNEP/GC./15/9/Add.2/Supp. 3 (1989).

73. The U.S. EPA has taken the position that proposals to amend the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., ELR STAT. FIFRA 002, in order to regulate pesticide exports should include a means to allow full implementation of the PIC procedure under the auspices of UNEP and the FAO. The PIC procedure aims to prevent shipments of chemicals to countries that have given notification that they do not want to receive a "banned or severely restricted" chemical product. See also supra note 30.

74. See S. 1630, 101st Cong., 2d Sess. § 821.

75. See id. at § 815.

76. 42 U.S.C. § 9601 et seq., ELR STAT. CERCLA 007.

77. See, e.g., United States v. Ivey, No. 89-CV-71179-DT, slip op. (E.D. Mich. S.D. Aug. 19, 1990), in which the United States in a CERCLA cost-recovery action obtained long-arm jurisdiction serving process in Canada upon a Canadian resident who had operated a hazardous waste disposal operation in Michigan.

78. 42 U.S.C. § 7415, ELR STAT. CAA 017.

79. Her Majesty v. U.S. EPA, No. 88-1778 (D.C. Cir. Aug. 31, 1990).

80. Corrosion Proof Fittings v. EPA, No. 89-4596 (5th Cir.)

81. General Agreemenet on Tariffs and Trade, Oct. 30, 1947 61 Stat. (5), (6), T.I.A.S. No. 1700, 55 U.N.T.S. 194.

82. Also controversial are the proposals to amend the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., ELR STAT. NEPA 003, so that it to applies extraterritorially. Clearly, these proposals raise serious questions about the interplay between environmental concerns and foreign policy initiatives. S. 1089, H. 1113.