31 ELR 10048 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Challenges to Humanity's Health: The Contributions of International Environmental Law to National and Global Public Health

[31 ELR 10048]

In the past 30 years, international environmental law has grown from an obscure field to one of the most dynamic and important areas in contemporary international law. The growth in the significance of international environmental law contrasts with the neglect experts detect in the use of international law to help protect public health. Much of the analysis about the neglect of international law in public health focuses on the World Health Organization (WHO),² which is the specialized agency of the United Nations responsible for international health.³ This focus on WHO's attitude toward international law is important, but it can produce a distorted picture of the relationship between international law and public health if a wider frame of reference is not used.⁴ The contributions of international environmental law to the protection of public health illustrate the importance of a more comprehensive understanding of international law's role in national and global public health.⁵

The discipline of "public health" concentrates on population health as opposed to individual health.⁶ The focus on population health can be seen in such classic public health concerns as infectious disease control. A key public health principle is prevention of morbidity and mortality in populations.⁷ Preventing illness and death requires reducing a population's exposure to health-damaging substances, organisms, and events.

Many countries have developed national environmental laws to protect human health from damaging chemicals, pollutants, and other health-threatening substances or events. While labeled "environmental law," this body of law could also be called "public health law." When we see domestic environmental law as public health law, the neglect of public health law as a field of legal enquiry looks less severe.⁸

The same arguments are valid at the level of international law. Much of "international environmental law" (IEL) concerns the protection of human health. States and international organizations have developed international legal regimes to shield populations from the health-damaging consequences of exposure to pollution and environmental degradation. Not all IEL connects with public health, as illustrated by the protection of endangered animal species.⁹ In addition, even when IEL protects human health, other objectives may be served. International law on climate change, for example, seeks to protect not only human health but also [31 ELR 10049] national societies from potentially catastrophic societal threats, such as rising sea levels. Still, a core function of IEL is to protect human health, which is the raison d'etre for public health. IEL should be seen, therefore, as an important part of the international law that supports public health objectives.

This Article provides a survey of the IEL that promotes and protects human health within and among states. Organizing analysis of IEL and public health is a nearly impossible task. IEL has grown, in a short period of time, into a massive, complex, and fluid area. Rather than marching through all the areas of IEL that support public health, this Article focuses on the international environmental problems that create public health threats. As the environmental/public health problem becomes clear, I give examples from IEL to provide a more detailed understanding of the dynamics of IEL's role in public health. The result is a framework for studying the challenges international environmental problems pose to national and global public health and the difficulties the use of international law confronts in this area.

Section I describes the three categories of international environmental problems that raise public health concerns within and among states: (1) when the unsustainable national exploitation of an environmental resource becomes a public health concern for other countries; (2) when domestic economic activities threaten public health in other states; and (3) when domestic economic activities occurring in many countries threaten common environmental resources and public health in many states.

Sections II-IV then explore the specific nature of each international environmental problem, provide examples of each problem, discuss the political and economic features of each category, analyze the features of international law that appear in each area, and examine international legal regimes developed to address the public health problems that arise. Section V provides concluding observations on the obstacles that make international legal progress against environmental threats to human health difficult.

I. Categories of International Environmental Problems of Public Health Concern

A. Exploitation of National Environmental Resources

The unsustainable exploitation of an environmental resource by a country can be a public health concern for other states. While the resource in question (e.g., a rain forest) is within the jurisdiction of a single state and is thus subject to its sovereignty, how that state uses the resource can be of public health concern to other states. Deforestation within a country takes on international public health importance because it may stimulate the spread of new and old infectious diseases and destroy biological diversity that is important to medical and pharmaceutical research.

B. Transboundary Pollution

Certain domestic activities, such as operating factories, threaten public health in other states. The activity occurs within the jurisdiction of one sovereign state, but its effects cross borders to create health problems in other countries. Transboundary air and water pollution represent examples of this international environmental problem—the pollution originates in one state but causes health and environmental damage in others.

C. Degradation of Common Environmental Resources

Domestic activities taking place in multiple states threaten environmental resources used by all humankind. Scientists believe that emissions of greenhouse gases from multiple countries contribute to changes in the earth's atmosphere, resulting in global warming and public health problems. The atmosphere, the ozone layer, and the high seas are common environmental resources and the unsustainable use of them by states can produce public health threats on a global scale.

Each international environmental problem has its own dynamics, obstacles, and solutions; Sections II-IV below delve into these details for each category. The three problems share some difficulties, especially the gulf between developed and developing countries over how to achieve international environmental objectives, but other complexities do not appear in each category. In addition, environmental challenges that can be categorized together are often different in important ways despite their similarities. For example, while international trade in hazardous substances and transboundary air pollution can be categorized together as domestic activities that threaten public health in other states, the differences between the two are as important as their common elements. The analysis below identifies these differences as well as the similarities.

II. Protection of National Environmental Resources of Public Health Concern to Other States

A. Factual Elements of This International Environmental Problem

As indicated above, the first international environmental problem of public health concern involves the unsustainable exploitation of a national environmental resource by the state in which the resource is located. Sustainable use of a resource means that its use "meets the needs of the present without compromising the ability of future generations to meet their own needs."¹⁰ There are two key factual aspects of unsustainable exploitation of a national environmental resource. First, the resource is located within the territory of a sovereign state. Rain forests serve as an example. Rain forests do not, of course, stop at the borders of states because they extend across a wide geographical area in which a number [31 ELR 10050] of states can be found. The rain forest is, in essence, artificially broken up so that several states have sovereignty over the rain forest as national environmental resources.

Second, the unsustainable national exploitation of the resource creates problems for public health domestically and internationally. Important here is that such exploitation is probably taking place in a number of states. The unsustainable exploitation produces public health threats for other states and peoples, making it an international issue. Desertification of arable land, for example, contributes to food and water shortages, malnutrition, and opportunistic diseases that flourish in undernourished populations.¹¹ Because ecosystems are linked, desertification in one country stresses ecosystems across borders, producing public health threats in more than one nation.

These facts converge to produce the appropriate policy response: the state in which the unsustainable exploitation takes place should alter its policies to alleviate the public health threats such exploitation creates. Achieving this objective involves political, economic, and international legal complications explored below.

B. Examples of Unsustainable Exploitation of National Environmental Resources of Public Health Concern in Other States

Two examples of unsustainable exploitation of national environmental resources are desertification and deforestation. Desertification occurs through the unsustainable uses of land, sometimes combined with drought, that degrade the ecosystem so that it no longer supports activities important to human health, such as farming, livestock grazing, and access to fresh water. The public health problems created by desertification are recognized, for example, in the preamble of the Convention to Combat Desertification where the states parties recognized desertification's negative impact on poverty, health, nutrition, and food security.¹²

The unsustainable exploitation of forest areas also raises public health concerns. First, forest exploitation can expose native inhabitants to infectious diseases for which they are immunologically unprepared.¹³ Second, deforestation causes humans to come into contact with new pathogens (e.g., viruses causing hemorrhagic fevers, such as Lassa, Marburg, and Ebola)¹⁴ or to create new habitats for the disease vectors of existing diseases, such as malaria-transmitting mosquitos.¹⁵ Third, deforestation destroys biological diversity.¹⁶ The destruction of plant species eliminates the possibility of studying biologically diverse species for medical and pharmaceutical purposes. Deforestation, thus, destroys a public health resource. Fourth, deforestation compounds other global environmental problems, such as global warming, that pose global public health threats.¹⁷ Forests act as "carbon sinks" by absorbing carbon dioxide, but their destruction reduces the ability of terrestrial ecosystems to counterbalance anthropogenic carbon-based pollution.¹⁸

C. Political and Economic Features of This International Environmental Problem

Political and economic considerations complicate addressing a state's unsustainable exploitation of its environmental resources. Economically, conservation requires the state to forgo benefits of further exploitation (e.g., continued high levels of timber exports) while incurring costs in preserving the resource (e.g., forest conservation and management). While conservation may yield more benefits through sustainable harvesting over the long term, most governments do not operate with a long-term perspective in economic development matters. To induce a state to engage in conservation rather than unsustainable use requires financial and technical assistance from the international community so that the burden of conservation is shared among concerned states.

Politically, the state in question is usually a developing state, which gives it a different perspective on use of its environmental resources. Its priority is economic development, and it sees environmental protection as a luxury. Developing states are also skeptical that developed countries will provide the financial and technical assistance needed to make conservation an equitable burden. Tensions between developed and developing countries mark the politics of this international environmental problem and create a difficult milieu in which to protect the environment and public health.

D. International Legal Features of This International Environmental Problem

The international legal dynamics of dealing with the unsustainable [31 ELR 10051] exploitation of national environmental resources are characterized by a clash between (1) traditional international legal principles; and (2) emerging or nascent international environmental norms. The state in which the environmental resource exists can appeal to traditional rules of international law that give it the right to exploit the resource according to its own policies. The first such principle is the general principle of sovereignty. Under international law, sovereignty means that a state has jurisdiction over its territory and population.¹⁹

The second principle is the rule that a state has permanent sovereignty over the natural resources found within its territory. While implicit in the principle of sovereignty, the rule on permanent sovereignty over natural resources solidified in international law during the post-1945 period as developing countries emerging from decolonization struggled with foreign ownership of their natural resources, largely mineral resources such as oil. In 1962, the United Nations General Assembly captured this solidification in its Resolution on Permanent Sovereignty Over Natural Resources,²⁰ which declared that states had an inalienable right "freely to dispose of their natural wealth and resources in accordance with their national interests"²¹ and "the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned."²²

Supporting the rules on sovereignty and permanent sovereignty over natural resources is the international legal principle of nonintervention in the domestic affairs of states. Article 2.7 of the United Nations Charter provides, for example, that nothing in the Charter authorizes "the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State …."²³ How a state uses its natural resources is a matter within its domestic jurisdiction, and international law prevents other states and international organizations from intervening in such uses. The principles of sovereignty, permanent sovereignty over natural resources, and nonintervention point to the conclusion that the only restrictions in international law on a state's exploitation of its natural resources arise from treaty law or customary international law (CIL).

The counter-argument is that exploitation of a national environmental resource is no longer exclusively the concern of the state in question. As suggested above, desertification and deforestation can cause public health problems in other states, giving those states an interest in the resource exploitation. These transboundary effects indicate that disciplining state sovereignty for environmental and public health protection is legitimate in international law.

International legal disciplines arise in both traditional and new rules of international law relevant to the environment. Long-standing international legal principles of state responsibility have relevance in connection with the unsustainable exploitation of a national environmental resource. Under CIL, a state cannot use its territory, or allow activities to occur on its territory, that cause damage in other states.²⁴ If it breaches this duty, then it is responsible for the damage caused.²⁵ The problem with these principles in connection with desertification or deforestation is that the damage is either hypothetical (e.g., deforestation may cause public health damage in other jurisdictions) or hard to trace back to specific policies. Principles of state responsibility are more relevant to the second category of international environmental problems—the regulation of domestic activities that cause environmental or public health damage in other states (see Section III below).

The other traditional CIL doctrine that might discipline permanent sovereignty over natural resources is the doctrine of the abuse of rights.²⁶ The idea is that a state's unsustainable exploitation of a national environmental resource does not violate any rule of international law, but liability may still result from lawful exploitation that causes injury or damage to another state.²⁷ The doctrine of the abuse of rights is, however, controversial in international law,²⁸ making an appeal to it problematical in disciplining the unsustainable exploitation of a national environmental resource.

In the absence of effective disciplining mechanisms from traditional international law, analysis turns to new or emerging rules of IEL. International environmental lawyers argue that today CIL and environmental treaties impose duties of conservation and sustainable development on states.²⁹ Such duties discipline the unsustainable exploitation of national environmental resources by piercing the shield of sovereignty. These kinds of international legal claims are, however, controversial. As Birnie and Boyle have argued, "how far it can be assumed that international law now imposes on states a general obligation of conservation and sustainable development of natural resources and the natural environment remains an open question."³⁰

At the center of this controversy are disagreements over the meaning of the duties of conservation and sustainable development. While state practice might support broad principles of conservation and sustainable development, it does not reveal consensus about what the duties demand in specific circumstances. What is needed in connection with [31 ELR 10052] environmental problems are, however, concrete duties. Otherwise the duties of conservation and sustainable development remain normatively indeterminate and practically unhelpful.

Politics has much to do with the duties of conservation and sustainable development remaining superficially general. Developed and developing countries differ about how to interpret the principle of sustainable development, and behind these differing interpretations reside the bitter politics of North-South relations. The differences between developed and developing countries on the meaning of sustainable development can be glimpsed by comparing provisions in the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment³¹ (largely a product of developed countries) and the 1992 Rio Declaration of the United Nations Conference on Environment and Development³² (heavily influenced by the participation of developing countries).

Principle 2 of the Stockholm Declaration provides that "the natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate."³³ Principle 2 illustrates the Stockholm Declaration's primary emphasis on environmental protection. Only later, at Principle 21, does the Stockholm Declaration recognize that "States have … the sovereign right to exploit their own resources pursuant to their own environmental policies …."³⁴

The Rio Declaration reverses the emphasis, and Principle 2 declares the state's sovereign right to exploit its own natural resources pursuant to its own environmental and development policies.³⁵ Further, Principle 2 of the Rio Declaration uses the term "environmental and development policies,"³⁶ while Principle 21 of the Stockholm Declaration uses just "environmental policies."³⁷

The tension highlighted by comparing the Stockholm and Rio Declarations goes to the heart of the political controversy between the North and South over environmental protection and the meaning of sustainable development. As a general matter, developed countries stress environmental protection, and developing countries stress economic development. In many areas of environmental concern, "sustainable development" remains little more than an abstract phrase in international law.

Thus, pitted against entrenched, traditional principles of international law (i.e., sovereignty, permanent sovereignty over natural resources, and nonintervention) are less well-grounded and controversial principles of customary IEL (i.e., general duties of conservation and sustainable development). In the perceived need to discipline the unsustainable exploitation of national environmental resources of public health concern to other states, sovereignty, and international law's recognition of it, stand as obstacles. In addition, the mechanisms available to advance more robust duties of conservation and sustainable development, such as authoritative third-party adjudication or resolution of environment/development conflicts, are rarely utilized in these controversial contexts.

E. International Law Specifically Relating to Desertification and Deforestation

Section II.D focused on the dynamics confronting the international legal regulation of the unsustainable exploitation of national environmental resources of public health concern to other states. CIL was the source of the controversial rules on conservation and sustainable development in that analysis. This subsection looks at the international law that has developed on desertification and deforestation. The main source of international legal rules here is treaty law (or the lack thereof). The analysis describes the disciplines states have agreed to accept through treaties.

1. Desertification

In 1994, the United Nations Convention to Combat Desertification (UNCCD) was opened for signature.³⁸ It came into force in December 1996 after it had been ratified by 50 countries. As of July 31, 2000, UNCCD had been ratified by 167 states.³⁹ Thus, a large majority of the world's states have accepted UNCCD's duties.

From the international legal dynamics of this type of international environmental problem sketched in Section II.D, we anticipate that the "bargain" struck in UNCCD involves (1) commitments to combat desertification from developing countries experiencing it, in exchange for (2) commitments from developed countries to provide financial, technical, and technological help to the developing countries to assist them in fulfilling their duties to combat desertification. We also anticipate that the desertification regime in UNCCD would be undermined if either part of the "bargain" has not been fulfilled. The following paragraphs outline the substantive nature of the duties in UNCCD and whether the "bargain" has held or shows signs of problems.

a. Substantive Duties in UNCCD

The heart of UNCCD can be found in Articles 5 and 6. In Article 5, states parties affected by desertification undertake to [31 ELR 10053] combat desertification.⁴⁰ In Article 6, developed country states parties undertake to support the desertification strategies of affected states parties through, among other things, (1) providing "substantial financial resources and other forms of support to assist affected developing country Parties … effectively to develop and implement their own long-term plans and strategies to combat desertification"; (2) promoting "the mobilization of new and additional funding"; and (3) promoting and facilitating "access by affected country Parties, particularly affected developing country Parties, to appropriate technology, knowledge, and know-how."⁴¹

The bulk of the UNCCD elaborates on these basic duties. Thus, Articles 9-15 detail obligations for the establishment and implementation of national, subregional, and regional action programs.⁴² Articles 16-18 provide duties on scientific and technical cooperation, including the transfer of technologies appropriate for combating desertification.⁴³ Articles 19-21 elaborate on duties that support affected states parties' fight aginst desertification, including the duties on developed states parties to mobilize financial resources and technology transfers.⁴⁴ Articles 22-25 set up institutional organs to oversee UNCCD's implementation, namely the Conference of the Parties, the Secretariat, and the Committee on Science and Technology.⁴⁵

b. Has the "Bargain" Held?

An exhaustive analysis of UNCCD's implementation is beyond this subsection's scope, but, despite initial progress, evidence exists that the "bargain" shows signs of strain on both ends. In connection with implementation of action programs against desertification by affected states parties in Africa, a November 1999 nongovernmental organization (NGO) analysis argued that problems are present at all levels of UNCCD's implementation.⁴⁶ Onchere wrote that "attempts to implement the Convention have identified major constraints at each level of action."⁴⁷ Action at the regional and subregional level is hampered by poor communication between countries, lack of technical and human resources, lack of political goodwill among nations concerned, low commitment from international organizations, and scanty or nonexistent donor support for cross-border activities.⁴⁸ At the national level, implementation has been hurt by passage of inadequate or inappropriate legislation, the low priority given by governments to desertification, unfavorable economic and external funding climate, inappropriate and unclear donor policies, lack of technical and human resources, poor infrastructure, and—in some countries—ongoing famine, civil wars, and civil unrest.⁴⁹ At the local level, implementation has been undermined by "the unfavorable economic climate, inappropriate legislation, prevailing low levels of technical and human resources, and the imposition of top-down government policies."⁵⁰

Mentioned in the factors hurting implementation of the duty to combat desertification was the problem of inadequate financial support from developed states parties. This problem is also reflected in official UNCCD documents. An August 1999 document reviewed information contained within national reports submitted under Article 20 of UNCCD and noted the following:

Developed country Parties have, to various extents, supported the UNCCD process in all African countries and the national reports provide information on the level of financial and technical support provided. But the reports also reveal that African country Parties perceive the involvement of international partners in the UNCCD process as being lower than expected, especially in the context of article 6(b) and (c) of the Convention [the duties to provide substantial financial resources and to promote mobilization of new resources].⁵¹

While these signs of strain in the "bargain" supporting UNCCD do not mean it is collapsing, they suggest that the states parties to this treaty have a long way to go before the treaty regime becomes effective against desertification.

2. Deforestation

Despite calls for a global forest conservation treaty, no general treaty on the sustainable use of forests exists to date. Numerous nonbinding documents, however, have been issued, including the Statement of Forest Principles (SFP)⁵² and the deforestation chapter in Agenda 21,⁵³ both of which emerged from the 1992 Earth Summit in Rio. Not surprisingly, "the SFP covers familiar themes—the sovereign right to exploit resources, the need for sustainable use of forest resources, the special needs of developing countries, and the need for resource transfers to the developing world for forest management, etc."⁵⁴ The nonbinding forest documents, [31 ELR 10054] in other words, do not clarify the tension between sovereignty over national environmental resources and claims that duties of conservation and sustainable use discipline such sovereignty.

Aspects of deforestation are addressed in the 1992 Convention on Biological Diversity (CBD).⁵⁵ As of August 14, 2000, the CBD had 178 states parties.⁵⁶ The CBD's objectives "are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources."⁵⁷ In this regime, the international legal dynamics analyzed earlier in Section II.D appear again. The protection of environmental resources requires states in whose territory they are located to take effective action. These states are almost always developing countries because the concern is largely with biological diversity in tropical rain forests. Other states (largely developed countries) have environmental, public health, and commercial interests in preserving biodiversity. Again, we need a "bargain": developing countries agree to take action to preserve biodiversity in return for financial, technical, and technological assistance from developed countries.

The biodiversity context has a sharper edge than desertification because developed states, and their pharmaceutical companies, want access to the biologically diverse genetic resources of tropical forests in developing countries. Developing countries likewise have an interest in preventing western pharmaceutical companies from committing "biopiracy": taking genetically valuable resources and information out of a developing country, refining them back home, patenting new medicines and scientific discoveries, and selling these for profit, but without any money flowing back to the developing country.⁵⁸ Control over access to genetic resources for commercial and public health reasons compound the tension between developed and developing countries in this type of international environmental problem.

The duties in the CBD are similar to those in the UNCCD. States parties undertake to protect biodiversity within their territories.⁵⁹ States parties agree to engage in scientific and technical cooperation,⁶⁰ to transfer technologies relevant to the conservation and sustainable use of biodiversity,⁶¹ and to share the benefits of biotechnological research with the states parties that provided the genetic resources.⁶² Developed states parties agree to provide "new and additional financial resources to enable developing country Parties to meet the … costs to them of implementing measures which fulfil the obligations of this Convention."⁶³

Given developed states' interest in the genetic biodiversity available in certain developing states, the CBD's provisions emphasize the sovereignty of developing states over the biodiversity in their territories. Article 3, for example, announces the familiar principle that "States have … the sovereign right to exploit their own resources pursuant to their own environmental policies."⁶⁴ The duties of developing states parties are also qualified throughout the CBD by phrases such as "as far as possible and as appropriate" and "in accordance with its particular conditions and capabilities,"⁶⁵ which widens the discretion a developing state party has under the treaty. In terms of access to genetic resources, Article 15 rings the sovereignty theme as well: "Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation."⁶⁶

The CBD's emphasis on sovereignty over genetic resources within a state's boundaries has not prevented controversies from flaring up over developed country pharmaceutical companies' attempts to gain intellectual property rights through bioprospecting. A perceived clash between the CBD and the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) over intellectual property rights to genetic resources and inventions derived therefrom has, in the opinion of some, slowed progress on protecting biodiversity under the CBD.⁶⁷

Like UNCCD, the CBD suffers implementation problems:

Implementing the CBD has proved difficult. The International Institute for Sustainable Development observed after the fourth Conference of the Parties to the CBD that some people are distressed that "six years after Rio, the 'innocence of youth' excuse can no longer be used and that the CBD is not maturing into an institution that is applying effective procedures." One problem is that the CBD process seems overwhelmed by the diversity of topics within its mandate. Overshadowing everything is the conflict between the biodiversity visions of the developed and developing worlds. As Macilwain recently observed: "The gap between what the developed world wants from biodiversity, and what the developing world thinks it should retain for itself, seems to be widening. Tensions between the two sides seem unlikely to relax in the near future."⁶⁸

[31 ELR 10055]

III. Regulation of Domestic Activities That Threaten Public Health in Other States

A. Factual Elements of This International Environmental Problem

The second category of international environmental problems involves the operation of domestic economic activities that create environmental and public health threats in other states through the transboundary movement of pollution, hazardous substances, or nuclear radiation. There are two factual aspects of this category of problems. First, the activity occurs within the territory of a sovereign state. Second, the domestic activity creates problems for public health in other countries, making it an international concern.

These facts converge to produce the appropriate policy response: the state in which the domestic activity occurs has to alter its policies to mitigate or eliminate the public health threats the activity creates. Achieving this objective involves political, economic, and international legal complications different from the category of international environmental problems examined in Section II above and that are explored below.

B. Examples of Domestic Activities That Can Cause Public Health Threats in Other States

Four examples in this category are (1) generation of and international trade in hazardous (and potentially hazardous) substances; (2) transboundary air and water pollution; (3) nuclear radiation emitted in nuclear power plant accidents; and (4) international trade in genetically modified organisms. In each case, the health-threatening agent is produced within a single country's jurisdiction but then "escapes" either by design (trade), forces of nature (prevailing winds), or mistake (accidents) and has potentially adverse health consequences in other states.

All four examples are of global public health concern. WHO has, for example, stated the following:

The transboundary movement of hazardous wastes and long-range transport of air pollution are two environmental problems of great international concern…. There … have been many instances of hazardous waste being shipped to developing countries in order to take advantage of inadequate environmental regulations and cheaper prices. Under such circumstances waste is likely to be disposed of in ways that can damage health and contaminate the environment…. The main concern relating to long-range transport of air pollution is deposition of harmful substances and reduced air quality in locations far removed from the original sources of pollution.⁶⁹

Public health threats similarly arise with transboundary water pollution through both infectious and noncommunicable diseases.⁷⁰ WHO also sees public health threats in the radiation releases during nuclear power plant accidents: "Following a nuclear accident and resultant increased exposure to radiation, cancer rates in the exposed population may rise."⁷¹ Increased cancer rates followed the most serious nuclear accident in history that occurred at Chernobyl in the former Soviet Union in 1986.⁷² Experts have also raised potential environmental and health concerns connected with international trade in genetically modified organisms, such as corn and wheat.⁷³

C. Political and Economic Features of Regulating Domestic Activities That May Cause Public Health Threats in Other States

Political and economic considerations complicate international regulation of domestic activities that may cause public health problems in other countries. Economically, the "export" of pollution or dangerous products is a convenient way for a country and its companies to shift costs onto other governments and peoples. Experts see economic externalities in transboundary pollution, which means that the countries and companies producing the pollution do not internalize all the costs such pollution creates. The policy objective, therefore, becomes getting the polluter to internalize more or all of the cost of pollution. Or, more succinctly, make the polluter pay. The "polluter pays" principle means higher production costs in the country where the pollution originates, which portends higher prices for consumers in that country. This economic dynamic makes it easy to see why transboundary pollution is economically attractive to countries and their companies. The need for making companies internalize pollution costs also raises thedifficult economic issue: how much regulation is needed to produce an efficient result? In other words, at what point will the costs of regulation outweigh the benefits? Reaching a cost-benefit equilibrium in pollution regulation is not easy.

Politically, a number of issues are pertinent. First, the transboundary polluters are often (but not always) powerful developed states and, therefore, can frustrate international efforts to deal with this international environmental problem. Second, there is the "silent conspiracy" among states engaging in and affected by transboundary pollution. A state may be adversely affected by another state's transboundary pollution, but unwilling to challenge that state because it is also "exporting" its pollution across borders. No state wants to throw what Brownlie called the "normative boomerang" that might return against the thrower.⁷⁴ Third, in some situations, tensions between developed and developing countries complicate international cooperation, [31 ELR 10056] such as happened with the transboundary trade in hazardous substances.

D. International Legal Features of Regulating Domestic Activities That May Cause Public Health Threats in Other States

The international legal dynamics of this global environmental problem are different from those analyzed in connection with the unsustainable exploitation of national environmental resources. While we might think that the principle of sovereignty deters international regulation of domestic activities that cause transboundary pollution, the deterrent effect is not strong. International law has long contained a rule, mentioned in Section II above, that a state may not allow its territory to be used in ways that cause damage within other countries. Birnie and Boyle assert that "it is beyond serious argument that states are required by international law to take adequate steps to control and regulate sources of serious global environmental pollution or transboundary harm within their territory or subject to their jurisdiction."⁷⁵ Experts often point to the Trail Smelter Arbitration as evidence of this CIL rule. In this case, the arbitral panel held Canada responsible under international law for the damage caused in the United States by pollution from a Canadian smelter.⁷⁶ The rule can also be found, for example, in Principle 21 of the Stockholm Declaration: states must "ensure that activities within their jurisdiction or control do not cause damage to the environment of other states."⁷⁷ This CIL principle is, in effect, a duty to (1) prevent, reduce, and control environmental harm; and (2) compensate other states for damage caused by pollution originating in a country's territory.⁷⁸

Whether the existence of this CIL rule is "beyond serious argument" is, however, questionable. In fact, arguments against the existence of this rule have been made. Here is Bodansky's analysis:

Do the purported norms of customary international environmental law—such as the prohibition on transboundary harm—represent regularities in state behavior? … The short answer seems to be "no." Consider, for example, the duty to prevent transboundary pollution, generally viewed as one of the most firmly established norms of customary international environmental law. Although I am unaware of any systematic empirical study of this issue, transboundary pollution seems much more the rule than the exception in interstate relations. Pollutants continuously travel across most international borders through the air and by rivers and ocean currents. In a few cases, states have undertaken efforts to reduce these pollution flows—generally, through treaties. Leaving aside the question of whether these treaties can create or are evidence of a customary norm, they apply to the relations among only a small fraction of the 180-plus countries of the world, and presumably cover only a small part of the total flow of transboundary pollution. As Schachter concludes. "To say that a state has no right to injure the environment of another seems quixotic in the face of the great variety of transborder environmental harms that occur every day."⁷⁹

Additional complexity arises in connection with international trade in hazardous substances. Unlike transboundary air, water, and radiation pollution, hazardous waste exports avoid the alleged duty to prevent, reduce, and control environmental harm because the receiving state allows the wastes to be imported (unless illegal imports are involved). The importing state has jurisdiction over what products come into its territory. The exporting country, therefore, is not violating any CIL rule in generating hazardous wastes and exporting them to willing importing countries.⁸⁰ While accurate as a matter of abstract international legal principles, the reality of international trade in hazardous substances is different and has required the creation of treaty law.

For transboundary air, water, and radiation pollution, and for international trade in hazardous substances and genetically modified products, traditional CIL rules are either ineffective or inapplicable. All these international environmental problems are now subject to treaty law because the customary rules do not regulate adequately domestic activities that cause harm in other states.

E. International Law Specifically on Transboundary Air and Water Pollution

1. Air Pollution

Treaty law on transboundary air pollution has developed internationally, regionally, and bilaterally and features both substantive and procedural duties. In addition, states have experimented in this area with a technique known as the "framework-protocol" approach to making IEL.

The environmental and public health objective of treaties on transboundary air pollution is to prevent, reduce, and control pollution that can have transboundary effects. Substantively, duties in treaties range from little more than restatements of the CIL rule to prevent, reduce, and control pollution to specific obligations to reduce certain kinds of pollutants by defined amounts.

The United Nations Convention on the Law of the Sea (UNCLOS) contains rules on transboundary air pollution that have global scope because of the widespread acceptance of the treaty by states all over the world.⁸¹ Article 212.1 of UNCLOS provides that states parties must "adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, [31 ELR 10057] applicable to the air space under their sovereignty."⁸² What is interesting about this provision is that it imposes a duty not to pollute marine areas beyond the control of any sovereign state. UNCLOS supports, therefore, the norm in Principle 21 of the Stockholm Declaration that states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of areas beyond the limits of national jurisdiction.⁸³ But as a substantive duty, Article 212.1 does not go beyond the CIL obligation to prevent, reduce, and control pollution because it sets no specific standards that states parties have to meet.⁸⁴

Regionally, the only treaty on transboundary air pollution is the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (LRTAP) and its related protocols.⁸⁵ This treaty regime applies in the European region, with North American participation, because transboundary air pollution has been severe in this region. As of July 3, 2000, LRTAP has 47 states parties, mainly from Europe but also including the United States and Canada.⁸⁶

LRTAP is a "framework" convention supplemented by protocols and is an example of the "framework-protocol" approach to crafting IEL. The framework-protocol approach has also been used in the development of international legal regimes to fight atmospheric ozone depletion and global warming (see Section IV below). The idea behind the framework-protocol approach is to create a dipolmatic and legal process that gradually produces more precise duties. The framework convention contains general obligations and establishes the institutions (e.g., Conference of Parties, Secretariat, scientific and technical committees) that will work to make the regime more effective. One of the goals of these institutions is to adopt protocols that contain specific duties and move the regime closer toward redressing the environmental problem.

As a framework convention, LRTAP sets out general obligations for the states parties and establishes the regime's institutional bodies and arrangements. The duties in LRTAP are general and often procedural in nature. Article 2 contains an obligation "to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution."⁸⁷ This echoes the generality of the CIL norm to prevent, reduce, and control and does not get specific about how states parties should fulfill the duty. LRTAP also contains a number of "procedural duties," such as duties to consult,⁸⁸ exchange information,⁸⁹ review policies,⁹⁰ and cooperate in connection with reducing and preventing transboundary air pollution.⁹¹ Articles 10 and 11 establish the Executive Body and the Secretariat to oversee the development of the LRTAP regime.⁹²

More substantive obligations appear in protocols to LRTAP that seek to reduce and control emissions of specific pollutants and their transboundary fluxes. Two protocols deal with reducing sulfur emissions⁹³; one seeks to control emissions of nitrogen oxides (NO_x)⁹⁴; another aims to control emissions of volatile organic compounds⁹⁵; the fifth seeks reductions of emissions of heavy metals (i.e., cadmium, lead, and mercury)⁹⁶; and the sixth seeks to eliminate any discharges, emissions, and losses of persistent organic pollutants (POPs).⁹⁷ The seventh protocol is a "multi-effects, multi-pollutant protocol" to distinguish it from the previous pollutant-specific protocols, and it seeks to cut emissions of sulfur, NO_x, volatile organic compounds, and ammonia.⁹⁸

The protocols advance the control and prevention of transboundary air pollution by imposing specific emission reduction duties. The 1994 protocol on sulfur emission reductions requires, for example, states parties to "reduce and maintain their annual sulphur emissions in accordance with the timing and levels specific in annex II."⁹⁹ Annex 2 sets targets for the states parties to meet in reducing sulfur emissions.¹⁰⁰ Rather than a vague duty to prevent, reduce, and control, the protocols set precise, objective obligations for states parties, and these duties impose the costs of reduction on the polluting state, which conforms to the "polluter-pays" principle.

An important feature of the framework-protocol approach is the "inverse triangle effect." Many countries join the framework convention, but not as many accept the duties in protocols. This phenomenon can be illustrated by looking at the number of states that have accepted the various pieces of the LRTAP regime. See Figure 1.

Figure 1: The "Inverse Triangle Effect" and the LRTAP Regime

[SEE ILLUSTRATION IN ORIGINAL]

[31 ELR 10058]

Figure 1 illuminates a reluctance by many states that ratify framework conventions to accept more onerous obligations laid out in protocols. This inverse triangle effect can also be seen in connection with the framework-protocol strategies on ozone depletion and climate change (see Section IV below). The inverse triangle effect undermines the regime's ability to deal effectively with the environmental problem. Thus, in the four LRTAP protocols that are in force, the average protocol acceptance rate is 49%, less than half the total number of LRTAP states parties. While these statistics do not necessarily mean that improvements in air quality are absent, they suggest that the problem of transboundary air pollution is not being adequately addressed. Evidence for this conclusion comes from the United Nations Economic Commission for Europe, which argues that a rationale for the new multi-effects, multi-pollutant protocol is that "despite improvements, the amounts of air pollutants that sweep across national boundaries are still far too high. Some of these pollutants … continue to cause serious damage both to health and the environment."¹⁰¹

Before leaving air pollution, it is important to note that the biggest public health threat from air pollution comes not from transboundary pollution but from local pollution. Local air pollution created by burning coal, wood, or biomass for heating and cooking in inadequately ventilated buildings in rural areas in developing countries contributes to respiratory diseases and lung cancer. WHO estimates that about 3 million deaths annually are caused by air pollution, with 2.8 million resulting from exposure to indoor air pollution.¹⁰² WHO believes that around 60% of the global incidence in acute respiratory infections are connected with indoor [31 ELR 10059] air pollution in developing states.¹⁰³ Does international law have relevance to the public health threats caused by local air pollution?

The first problem with seeing a role for international law in reducing local air pollution is finding the cross-border harm or threat. The morbidity and mortality caused by local air pollution is local, and the transboundary public health implications are indirect:

The international threat of infectious diseases stimulated by local air pollution is indirect in that such pollution produces conditions conducive to acute respiratory infections, which can spread to other States. In addition, the continued stimulation of acute respiratory infections generates more antimicrobial usage and misuse, which contribute to the development of drug resistant pathogens. The continued presence of a reservoir of acute respiratory infections in the developing world agitated by local air pollution is a global public health problem that requires addressing through international law.¹⁰⁴

The second problem with local air pollution is how to categorize it as an international environmental problem. Local air pollution does not fall within the kind of international environmental problem being examined in this section but rather exhibits the characteristics of the unsustainable exploitation of a national environmental resource of public health concern to other states, which was analyzed in Section II above. The national environmental resource in question is the air in local communities, and it is being unsustainably exploited through pollution from various sources. All the international legal, economic, and political problems discussed in Section II apply to using international law to regulate local air pollution.

Another international legal argument that could be used to improve local air quality is the claim that national governments in developing countries have to improve local air quality to fulfill individuals' human rights to health and environment. The human right to health is contained in a number of international human rights treaties, including the International Covenant on Economic, Cultural, and Social Rights.¹⁰⁵ The right to health, however, is plagued by uncertainty because no definitive meaning for it can be discerned in international law.¹⁰⁶ Much of the uncertainty flows from the principle of progressive realization, which applies to all economic, cultural, and social rights.¹⁰⁷ This principle allows governments to make the right to health dependent on the availability of economic resources. In connection with local air pollution caused by the burning of wood, coal, or biomass in improperly ventilated rural dwellings, a developing country government could plead lack of adequate resources to regulate such practices under the principle of progressive realization. In short, right-to-health arguments do not provide a strong foundation from which to attack the public health problem of local air pollution.

Whether international law contains a human right to a decent environment is controversial. Birnie and Boyle assert that the majority of international lawyers would agree that there "is no independent right to a decent environment" under international law.¹⁰⁸ Even if the human right to a decent environment was firmly established in international law, it would be an economic, cultural, and social right affected by the principle of progressive realization. Attacking local air pollution from the right to a decent environment would be no more successful than coming at the problem from the right to health.

2. Water Pollution

a. Local Water Pollution

As with air pollution, the biggest public health threats from water pollution occur locally rather than transnationally. But local water pollution is also an example of unsustainable exploitation of a national environmental resource of public health concern in other states rather than the problem of domestic activities directly threatening public health in other countries. The brief international legal discussion above about local air pollution applies equally to local water pollution.

An initiative by the United Nations Economic Commission for Europe and WHO's Regional Office for Europe, however, does attempt to use treaty law to improve local water quality. In June 1999, a Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes was adopted at an intergovernmental meeting.¹⁰⁹ (This convention will be discussed below in connection with transboundary water pollution.) The protocol's purpose is "to promote at all appropriate levels, nationally as well as in transboundary and international contexts, the protection of human health and well-being, … within a framework of sustainable development, through improving water management, including the protection of water ecosystems, and through preventing, controlling and reducing water-related diseases."¹¹⁰ Although this protocol refers to transboundary and international contexts, the bulk of the treaty obliges states parties to establish systems to ensure safe drinking water and sanitation for their respective peoples. The protocol [31 ELR 10060] contains an international legal action plan for improving local water quality and reducing the public health problems caused by local water pollution.

b. Transboundary Water Pollution

Transboundary water pollution is an important international environmental issue that falls within the category under analysis in this part of the Article. Domestic economic activities pollute rivers, which carry the pollutants downstream where they adversely affect the environment and public health of other states. Many rivers are "international rivers," meaning that more than one state utilizes the river for navigation, irrigation, drinking water, and other commercial purposes. How an international river is utilized becomes a matter of diplomacy and international law.

The CIL duty not tocause harm to other states applies in the context of transboundary water pollution. But, as noted earlier with air pollution, this duty flies in the face of transboundary water pollution that happens everyday. States concerned about the problem of transboundary water pollution have pushed beyond the traditional CIL rule through treaty law. A feature of the treaty law on transboundary water pollution is that the treaties do not prohibit polluting uses of international watercourses, except for very dangerous pollutants, such as highly toxic chemicals and radiation.¹¹¹ Outside these dangerous contexts, pollution is only "impermissible if it deprives other states of their claim to equitable utilization."¹¹² Treaty law on transboundary water pollution, thus, is balancing the right to equitable utilization of the international watercourse and the right not to be harmed by pollution.

This balancing can be seen in the 1997 United Nations Convention on the Law of Non-Navigable Uses of International Watercourses (U.N. Watercourse Convention).¹¹³ Articles 5 and 6 of the U.N. Watercourse Convention contain the principle of equitable utilization of international watercourses,¹¹⁴ while Article 7 requires states parties to "take all appropriate measures to prevent the causing of significant harm to other watercourse States."¹¹⁵ The treaty does not define "significant harm."

So, in its equitable utilization of an international watercourse, a state party may pollute as long as it does not cause "significant harm." Article 21.2 reinforces this observation because it imposes the duty to "prevent, reduce and control the pollution of an international watercourse that may cause significant harm to other watercourse States or to their environment, including harm to human health and safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse."¹¹⁶ The U.N. Watercourse Convention also contains numerous procedural duties, such as the duty to cooperate,¹¹⁷ to exchange data,¹¹⁸ and to give notice of and consult about planned uses of an international watercourse that may adversely affect another watercourse state.¹¹⁹

Similar substantive and procedural duties appear in the United Nations Economic Commission for Europe's 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes.¹²⁰ States parties must take all appropriate measures to prevent, control, and reduce any "transboundary impact," which is defined as

any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party.¹²¹

The regime also includes procedural duties of information exchange, cooperation, consultations, and notice.

3. Summary on Air and Water Pollution and International Law

An interesting feature of the international law on air and water pollution is that the international regulation of domestic polluting activities is most advanced in the European region, with North American participation. This fact reflects the high-level of industrialization in this region and the local and transboundary pollution problems that come with industrialized economies. Thus, many states in this region have a national interest in reducing the environmental and public health effects of transboundary pollution. In addition, many of these states possess sophisticated domestic regulatory systems that allow them to implement, monitor, and enforce pollution control regulations. This is important because duties to reduce, prevent, and control transboundary pollution found in the treaties have to be implemented nationally and locally through laws and regulations. The absence of such regulatory capabilities hinder a state's efforts to transform the general treaty duties into concrete national law and policy. Finally, it must be pointed out that the advanced state of international law on air and water pollution in the European region still only addresses a portion of the global scope of these environmental problems.

F. International Law Specifically on Industrial, Nuclear, and Maritime Accidents With Transboundary Effects

Another category of domestic activities in one state that can cause environmental and public health damage in other [31 ELR 10061] states involves industrial, nuclear, and maritime accidents. As major industrial accidents in Italy (1976), India (1984), and Switzerland (1986); nuclear accidents in the United States (1979), the former Soviet Union (1986), and Japan (1999); and maritime accidents involving the Torrey Canyon (1967), Amoco Cadiz (1978), and Exxon Valdez (1989) illustrate, such accidents can threaten the environment and public health locally, nationally, or internationally. Section III.E above dealt with transboundary pollution occurring through the normal operation of economic activities; this subsection looks at the international law relevant to abnormal events in the life of peaceful economic activities.

The CIL duties to prevent, reduce, and control transboundary pollution apply to the pollution caused by industrial, nuclear, and maritime accidents. In these three contexts, this duty translates into an obligation to prevent such accidents from occurring. In addition, under CIL states are required to minimize damage from accidents that occur and to provide assistance in emergency situations to states attempting to deal with such environmental disasters. States have regionally and globally developed treaty law to supplement and strengthen the CIL obligations in connection with both nuclear and non-nuclear accidents.

This treaty law expresses five fundamental principles: (1) prevention of accidents; (2) preparedness for accidents; (3) minimizing effects of accidents through effective response strategies; (4) notification of accidents with the potential to cause transboundary effects to other states; and (5) cooperation and coordination with other states in dealing with accidents. The following subsections outline each principle in connection with both industrial and nuclear power plant accidents.

1. Industrial Accidents

The United Nations Economic Commission for Europe has written:

Industrial operations may involve substances that do not usually represent a great threat to our health or our environment but are nevertheless potentially hazardous. Even the safest plant is never totally risk-free. In Europe, the well-publicized industrial accidents at Seveso in Italy in 1976 and Basel in Switzerland ten years later have brought this message home to us. Both accidents wreaked havoc with the environment. In Seveso, the release of dioxin contaminated the surrounding area and poisoned local residents. In Basel, the pollution of the Rhine—in France and Germany, as well as in Switzerland—following a fire at a chemical warehouse killed thousands of fish. As a result, risk assessment and accident prevention have received much more attention in the past two decades.¹²²

These two events produced the effort by the United Nations Economic Commission on Europe to develop two treaties relevant to transboundary effects of industrial accidents: (1) the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Environmental Impact Assessment Treaty)¹²³; and (2) the 1992 Convention on the Transboundary Effects of Industrial Accidents (Industrial Accidents Treaty).¹²⁴

The Environmental Impact Assessment Treaty requires states parties to undertake an environmental impact assessment of any activity that is likely to cause a significant transboundary environmental impact.¹²⁵ Annex 1 to the treaty lists 17 activities for which an environmental impact assessment must be undertaken, including crude oil refineries, power plants, chemical installations, and deforestation of large areas.¹²⁶ The Environmental Impact Assessment Treaty also requires states parties to notify, consult, and cooperate with states parties likely to be affected by the transboundary environmental impact of a proposed activity.¹²⁷ These procedural duties continue after the proposed project has been completed. The Environmental Impact Assessment Treaty does not prohibit a state party from going ahead with an activity that is likely to cause significant transboundary environmental impact,¹²⁸ but it attempts to prevent, reduce, and control significant adverse transboundary environmental harm potentially originating in various industrial activities. Thirty countries and the European Union had ratified the Environmental Impact Assessment Treaty as of July 20, 2000.¹²⁹

The Industrial Accidents Treaty has been ratified by 16 countries and the European Union as of September 22, 1999.¹³⁰ This treaty requires states parties to take action "to protect human beings and the environment against industrial accidents by preventing such accidents as far as possible, by reducing their frequency and severity and by mitigating their effects."¹³¹ It also requires states parties to identify hazardous activities within their jurisdictions that are capable of causing adverse transboundary environmental effects in cases of accidents and notify other states parties that could be affected.¹³² Additionally, states parties must take all appropriate measures to prevent industrial accidents,¹³³ [31 ELR 10062] including minimizing possible adverse transboundary environmental harm in siting new hazardous activities.¹³⁴ Further, states parties have to establish and maintain emergency preparedness plans for industrial accidents and cooperate to make their emergency strategies compatible to mitigate the effects of an accident.¹³⁵ An industrial accident notification system is also to be built under the treaty to facilitate responses to accidents,¹³⁶ and states parties are obliged to render assistance to any state party asking for help to cope with an industrial accident.¹³⁷ The Industrial Accidents Treaty, thus, contains provisions that support the five fundamental principles of handling accidents with adverse transboundary environmental and public health potential: prevention, preparedness, mitigation, notification, and cooperation.

Less settled in CIL and treaty law is the principle of compensation for transboundary environmental harm caused by industrial accidents. CIL principles of state responsibility hold that a state that causes damage in the territory of another state through the operation of activities in its own territory in violation of an international legal duty is liable to the damaged state (e.g., Trail Smelter). A violation of the duty to prevent as far as possible industrial accidents, therefore, would produce liability if such accident caused damage in another state. These CIL rules support the "polluter-pays" principle. This doctrinal framework echoes the framework of domestic tort law (i.e., duty, breach of duty, damage, and liability).

One problem with this framework is determining whether a state has been "negligent" in connection with its CIL duties on preventing transboundary environmental damage. Another problem deals with environmental damage caused without any breach of a duty. Some international lawyers claim that liability still attaches under CIL if the activity in question was ultrahazardous.¹³⁸ This is a theory of strict liability, such as exists in domestic tort law.

The support for negligence and strict liability doctrines in actual state practice, however, is weak. Environmental treaties rarely include any provisions on state responsibility for environmental damage. The Industrial Accidents Treaty, for example, simply provides that "the Parties shall support appropriate international efforts to elaborate rules, criteria and procedures in the field of responsibility and liability."¹³⁹ Such a treaty provision underscores the weakness of the claim that CIL meaningfully imposes liability on states in which industrial accidents occur that cause transboundary environmental and public health harm.

2. Nuclear Accidents

International law on nuclear energy contains the five basic principles of prevention, preparedness, mitigation, notification, and cooperation in connection with accidents at nuclear power facilities. The dynamics of the international legal regime on nuclear accidents, however, are different from the one for other types of industrial accidents. A significant difference is the involvement of special international organizations devoted to international cooperation on nuclear energy, especially the International Atomic Energy Agency (IAEA).¹⁴⁰

Birnie and Boyle captured the dynamics of international law's involvement with nuclear energy when they argued that:

nuclear installations are potentially hazardous undertakings whose risk to health, safety, and the environment is best met by regulation. Because the consequences of failure to regulate adequately may cause injury or pollution damage to other states and the global environment, international regulation—the setting of common standards, supervised by international institutions—offers the best means of ensuring a generally accepted minimum level of environmental protection. The benefits of such an approach accrue to the international community, which gains protection from unilaterally chosen levels of risk, but the burdens fall on national governments, which lose the freedom to determine for themselves the most appropriate balance of safety and development in their own territories.¹⁴¹

International regulation of nuclear power facilities combines both binding and nonbinding rules and standards. One of IAEA's primary functions is to establish international standards for national nuclear facilities for the protection of health and the environment.¹⁴² Regional organizations involved in nuclear safety, such as the European Atomic Energy Community (Euratom), the Nuclear Energy Agency of the Organization for Economic Cooperation and Development (NEA-OECD), and the Arab Atomic Energy Agency (AAEA), also develop safety standards for nuclear plants. IAEA nuclear safety standards are recommendatory only, except when nuclear activities are undertaken with direct IAEA assistance, in which case the standards are mandatory.¹⁴³ NEA-OECD and AAEA standards are also nonbinding, but Euratom's standards are mandatory.¹⁴⁴ IAEA nuclear safety standards cover five basic areas: "governmental organization of regulation of nuclear power [31 ELR 10063] plants; safety in nuclear power plant siting; safety in the design of nuclear power plants; safety in nuclear power plant operation; and quality assurance for safety of nuclear power plants."¹⁴⁵ Although nonbinding, many countries use IAEA standards as the basis for national legislation, which means that IAEA standards "have resulted in an appreciable degree of harmonization."¹⁴⁶

The IAEA's nonbinding nuclear safety standards are supplemented by the 1994 Convention on Nuclear Safety (CNS).¹⁴⁷ The CNS entered into force in 1996, and as of April 12, 1999, it had 50 states parties.¹⁴⁸ The CNS seeks to achieve a high level of nuclear safety worldwide, establish effective defenses against potentially adverse radiological effects from the operation of nuclear installations, and prevent accidents at nuclear power plants.¹⁴⁹ The treaty imposes obligations on states parties to ensure the safety of nuclear installations in their siting,¹⁵⁰ design and construction,¹⁵¹ operation,¹⁵² and in connection with emergency preparedness.¹⁵³

These provisions do not, however, require states parties to adopt IAEA standards in order to be in compliance with the treaty, nor does the CNS set minimum substantive safety standards for national nuclear energy facilities. Both the nonbinding IAEA standards and the CNS indicate that "States have … affirmed their individual responsibility for ensuring nuclear and radiation safety, security, and environmental compatibility, while acknowledging the central role of the IAEA in encouraging and facilitating co-operation on safety and radiological protection."¹⁵⁴

Each state party also must submit for periodic review by the other states parties a report on the measures taken to implement the CNS.¹⁵⁵ The idea behind the CNS periodic review process is to create incentives and pressure on states parties to improve their national nuclear safety regimes. The CNS, thus, sets up a diplomatic process that aims to increase harmonization based on IAEA standards. As noted in the summary report of the first review meeting of the CNS states parties, the CNS contains a commitment from each state party "to subject its National Report, and the nuclear safety programme it describes, to a peer review by the other Contracting Parties."¹⁵⁶ The summary report of the first review meeting noted that

the Contracting Parties concluded that the review process had proven to be of great value to their national nuclear safety programmes, starting with the self-assessment involved in producing the national reports followed by the review of national reports by other Contracting Parties, with exchange of questions and comments, and finally the very open discussions at the Review Meeting.¹⁵⁷

Self-reporting by states parties to a treaty has historically not proved effective in strengthening an international legal regime, so perhaps it is too early to tell if the CNS reporting process cuts against this trend. One statement from the summary report of the first review meeting suggests that some of the typical problems with self-reporting may plague the CNS: "the Contracting Parties noted that the review had to rely on the accuracy and completeness of the information provided by each country in its National Report and in its answers to the questions asked of it."¹⁵⁸ This situation limits the scope that the states parties can legitimately use information obtained from the IAEA or NGOs that contradicts national reports.

IAEA nuclear safety standards and the CNS are part of the international legal strategy to prevent nuclear accidents. International law on nuclear energy recognizes, however, that accidents might still occur and that international cooperation is necessary to deal with them. The International Court of Justice in the Corfu Channel Case recognized a CIL duty requiring states to warn other states of known hazards.¹⁵⁹ IAEA began developing guidelines on notification of nuclear accidents and on mutual assistance procedures after the 1979 nuclear incident at Three Mile Island in the United States.¹⁶⁰ The 1986 Chernobyl disaster in the former Soviet Union elevated nuclear accident notification and international assistance into the realm of treaty law in the form of (1) the Convention on Early Notification of a Nuclear Accident (Early Notification Treaty)¹⁶¹; and (2) the Convention on Assistance in the Caseof Nuclear Accident or Radiological Emergency (Accident Assistance Treaty).¹⁶²

Under the Early Notification Treaty, a state party must notify "forthwith" the IAEA and any affected states parties of

any accident involving facilities or activities of a State Party or of persons or legal entities under its jurisdiction or control, … from which a release of radioactive material [31 ELR 10064] occurs or is likely to occur and which has resulted or may result in an international transboundary release that could be of radiological safety significance for another State.¹⁶³

A state party making such a notification also must provide the IAEA and the affected states parties "promptly" with "information relevant to minimizing the radiological consequences in those States."¹⁶⁴ The Early Notification Treaty is thus meant to deal with one of the biggest problems experienced during the Chernobyl disaster, which was the Soviet Union's failure to notify countries in the path of radiological pollution of what had occurred. As of April 1, 1999, the Early Notification Treaty had 84 states parties.¹⁶⁵

Whether the Early Notification Treaty will prevent states parties from failing to notify, or from delaying proper notification, is not certain. Recent nuclear incidents have not tested the notification requirement. The Japanese government did not report the nuclear accident at the Tokaimura nuclear facility in September 1999 because it did not believe that the accident triggered its notification duty under the Early Notification Treaty. The IAEA concurred that the accident did not have transboundary implications.¹⁶⁶ This nuclear accident raises the issue, however, whether the Early Notification Treaty allows states parties to fail to notify because they did not believe the accident had transboundary implications or that any transboundary release was not of "radiological significance" for other states parties.

The Accident Assistance Treaty sets up a procedure for states parties and the IAEA to provide assistance to a state party struggling with a nuclear accident. The mechanism in the treaty is triggered by a request for assistance by the state party dealing with a nuclear accident.¹⁶⁷ The request for assistance is not mandatory but is in the discretion of the state party. The assistance request can go directly to specific states parties or the IAEA. States parties asked to provide assistance are under no mandatory duty to do so, as the treaty allows them to decide whether they are able to render the kind of assistance requested.¹⁶⁸ The IAEA shall respond to calls for assistance in accordance with its Statute and the Accident Assistance Treaty.¹⁶⁹ The treaty's mechanism supports the general principle of cooperative mitigation of transboundary effects of nuclear accidents.

On the issue of state liability for transboundary harm caused by a nuclear accident, the relevant international law is no more precise than it is with industrial accidents. However, some treaty law exists in connection with the liability question. The 1963 Vienna Convention on Civil Liability for Nuclear Damage¹⁷⁰ and the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy¹⁷¹ contain similar principles: "The exclusive and strict liability of the operator of a nuclear installation, on limitation of liability in amount and in time, and on the jurisdiction of the courts of the installation State."¹⁷² Strict liability of the operator is also the guiding principle of the 1962 Convention on the Liability of Operators of Nuclear Ships¹⁷³ and the 1971 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Materials.¹⁷⁴ Also relevant is the 1972 Convention on International Liability for Damage Caused by Space Objects,¹⁷⁵ when the space objects in question contain or are powered by nuclear material.

According to Birnie and Boyle, these conventions on nuclear liability are "weak precedents for any particular theory or standard of state responsibility for harm; they seem inconsistent with the view that states are absolutely or strictly responsible in international law for damage emanating from their territory even in cases of ultra-hazardous activities."¹⁷⁶ The problem is worse with nuclear accidents as "the Chernobyl accident made it clear that the existing liability regime is not adequate to ensure equitable and rapid compensation, particularly in the event of large-scale damage."¹⁷⁷ No affected state made any claim against the Soviet Union after Chernobyl, and the Soviet Union made no offers of compensation.¹⁷⁸ Although the IAEA has been working on strengthening the liability regime since 1988, to date there do not appear to be any significant changes on the horizon that would increase state (as opposed to private operator) liability under international law.

3. Maritime Pollution and Accidents

International law regulates pollution from ships, which arises either in the ordinary course of a vessel's journey or in connection with accidents. (Land-based pollution of the marine environment is dealt with more generally in Section IV below.) Certain ships, especially oil tankers, carry hazardous cargoes that, if spilled, can damage ecosystems and human health. The international legal approach to preventing pollution from maritime commerce and accidents resembles what applies to industrial and nuclear accidents: prevent, reduce, and control pollution from maritime vessels. To [31 ELR 10065] achieve this objective, states have elaborated international standards through treaties and the International Maritime Organization (IMO). These standards involve many maritime issues, including navigational safety, vessel construction, and proficiency in operation of maritime vessels, that contribute to reducing pollution.¹⁷⁹

States have also developed treaty law on maritime pollution specifically. The most important treaty in this area is the International Convention for the Prevention of Pollution From Ships (MARPOL).¹⁸⁰ MARPOL sets international standards for the prevention of pollution, including construction standards for new vessels.

One of the biggest problems with dealing with maritime pollution from ships has been the enforcement of international safety and pollution standards. Traditionally, the state in which the vessel was registered or whose flag the ship flew had jurisdiction for the regulation of the vessel under international law. But coastal and port states also have an interest in making sure vessels follow pollution prevention standards because vessels enter and leave their sovereign waters and maritime zones. Treaty law has developed a complicated system of enforcement jurisdiction in which flag states, coastal states, and port states all participate. UNCLOS contains the full set of rules, which will only be briefly outlined here. UNCLOS reaffirms the principle that the flag state has responsibility to prevent and control pollution from vessels flying its flag.¹⁸¹ But UNCLOS requires flag states to have regulations on the books that are at least as effective as the international standards established by relevant international organizations (i.e., MARPOL and IMO).¹⁸² Flag states also have full powers to enforce their regulations against ships flying their flag wherever the violation took place.¹⁸³

Under UNCLOS, coastal states may adopt laws and regulations for the prevention, reduction, and control of vessel-source pollution for application in their territorial sea, as long as such regulations do not hamper the right of innocent passage.¹⁸⁴ Coastal states may also have pollution laws for their exclusive economic zones (i.e., a zone in which the coastal state has exclusive control over all economic resources out to 200 nautical miles from the coast),¹⁸⁵ but such laws must conform to generally accepted international standards.¹⁸⁶ Coastal state enforcement jurisdiction extends to violations of its laws when the violations occur in its territorial sea and exclusive economic zone.¹⁸⁷ Port states can institute investigations and proceedings against violations of international pollution control standards (1) when such violations occur within their territorial sea or exclusive economic zone; (2) when asked by another state whose laws have been violated by pollution from the vessel; (3) when asked by the flag state to institute proceedings; or (4) if the violations occurred on the high seas.¹⁸⁸ While coastal and port states get enforcement powers under UNCLOS, the flag state has a right of enforcement preemption with respect to violations of pollution control rules, unless the proceedings address a case of major damage to the coastal state or the flag state has repeatedly disregarded its obligations to enforce effectively international rules and standards against violations committed by its vessels.¹⁸⁹

For maritime accidents, UNCLOS imposes a notification duty familiar from the industrial and nuclear accident contexts: "When a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems likely to be affected by such damage, as well as competent international organizations."¹⁹⁰ UNCLOS also creates obligations to cooperate on maritime pollution and to create contingency plans for responding to pollution incidents in the marine environment.¹⁹¹

G. International Law on International Trade in Hazardous Substances

Another domestic activity that threatens public health in other states is the international trade in hazardous substances. Hazardous substances are generated in one state and then exported to other states, where their inadequate handling and disposal may cause environmental and public health damage. International trade in hazardous substances is analogous to transboundary air and water pollution, except that the state importing the hazardous substances has (theoretically at least) control over whether the substances enter its territory. The state "importing" transboundary air or water pollution does not have such control. This difference becomes the centerpiece for the international legal regimes regulating transboundary trade in hazardous substances.

The difficulty with transboundary air and water pollution and industrial and nuclear accidents was creating sufficient duties on sovereign states to regulate activities under their control. The sovereignty of a state adversely affected [31 ELR 10066] by polluting activities located in other states was of little value in keeping the pollution out of its jurisdiction. In connection with trade in hazardous substances, the international legal regimes use sovereignty as a regulatory mechanism to reduce environmental and public health damage. This resembles the use of port state and coastal state sovereignty to prevent, reduce, and control vessel-source pollution of the maritime environment.

Another feature of the transboundary movement of hazardous substances is that the environment and public health in the developing world have suffered from the exportation of hazardous substances by developed states. Developing countries often imported such substances without the environmental, public health, and regulatory infrastructure to deal with them. The result was damage to the environment and public health. The international legal regimes addressing the transboundary movement of hazardous substances aim to protect the environment and public health in developing countries.

The discussion below describes the international legal regimes regulating (1) international trade in hazardous wastes; and (2) international trade in hazardous chemicals and pesticides. Mention is also made of current efforts to create international legal rules on controlling international trade in persistent organic pollutants.

1. International Law on Transboundary Trade in Hazardous Wastes

The international legal regime regulating transboundary trade in hazardous wastes is centered on the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention),¹⁹² which as of August 15, 2000, had 136 states parties.¹⁹³ A combination of factors led states to construct this regulatory regime. The increasing generation of hazardous wastes, particularly in developed countries, was meeting with decreasing options for disposal in the countries where they were generated. Hazardous waste disposal in developed states was becoming difficult and expensive because of public opposition to the siting of disposal facilities and more stringent environmental regulations. Developing countries became attractive places to dispose of hazardous wastes because such countries generally had "lower environmental standards, an absence of public opposition due to lack of information, less stringent or non-existent laws and regulations, and a lack of control over compliance."¹⁹⁴ As Kummer argued,

it is this situation, in which the economic and regulatory imbalance between the generating and importing states is exploited for financial reasons, that poses the gravest threat to the environment and human health. Typically the importing country will not have adequate facilities to treat and dispose of the wastes safely, nor the technical, legal and institutional capacities to monitor the transactions.¹⁹⁵

The Basel Convention's fundamental principles are:

(1) The generation of hazardous wastes should be reduced to a minimum (principle of waste minimization).

(2) Where it is unavoidable, the wastes should be disposed of as close as possible to the source of generation (principle of proximity of disposal).

(3) In a number of instances, the export of hazardous wastes is prohibited absolutely: hazardous wastes may not be exported from OECD [developed] to non-OECD [developing] countries, or from any party state to Antarctica, or to a state not party to either the Basel Convention or a treaty establishing equivalent standards, or to parties which have banned the import of hazardous wastes.

(4) In all other cases, transboundary hazardous waste movements must conform to the provisions of the Convention: they are permissible only if they present the best solution from an environmental viewpoint; if the principles of environmentally sound management and non-discrimination are observed; and if they take place in conformity with the regulatory system established by the Convention.

(5) The cornerstone of this regulatory system is the prior informed consent (PIC) of the prospective states of import and transit.

(6) Hazardous wastes that have been exported illegally, as well as legally exported hazardous wastes that cannot be safely disposed of in the state of destination, must be re-imported into the state of origin.¹⁹⁶

The ban on the exportation from OECD to non-OECD countries was adopted after the Basel Convention went into effect. Developing countries, particularly those in Africa, were unhappy that the Basel Convention did not prohibit the exportation of hazardous wastes from developed to developing countries. In response, African states negotiated the Bamako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa in 1991.¹⁹⁷ In 1994, at the second meeting of the Basel Convention states parties, the ban on exportation from OECD to non-OECD countries was adopted. The ban deals with the concerns about developed countries dumping their hazardous wastes in developing states.

The ban on exporting hazardous wastes to states not party to the Basel Convention is also important because it prevents hazardous wastes being disposed of in environmentally [31 ELR 10067] mentally unsound ways by non-states parties.¹⁹⁸ This provision includes peoples living in states that have not joined the Basel Convention under the protections of the treaty.

In the context of permissible hazardous waste exports, the Basel Convention uses sovereignty as a regulatory instrument through the prior informed consent (PIC) procedure. Basically, the PIC procedure requires an exporting state to notify a potential importing state of any intended shipment of hazardous wastes and health and regulatory information about the wastes.¹⁹⁹ The importing state has to respond to this notification with permission to import or denying consent to import.²⁰⁰ The PIC procedure allows importing states more informed opportunities to determine whether they want hazardous waste shipments allowed into their jurisdictions. The PIC procedure does not give the importing state any more power over its borders than exists in general international law, but it does provide the importing state with better information to allow a state to wield its sovereign power in an environmentally sound way.

Both exporting and importing states are not allowed to permit the transboundary movement of hazardous wastes unless they believe that such wastes will be disposed of in an environmentally sound manner.²⁰¹ This burden rests heavier on the state in which the hazardous waste is generated because it ultimately has the responsibility to ensure that the waste is disposed of properly. The same applies for the duty to re-import illegally exported waste or waste that cannot be properly disposed of in the original destination and the duty to dispose of wastes as close to the source of origin as possible.²⁰² These rules accord with the general "polluter-pays" principle. They also shift responsibility for environmentally sound decisions largely from developing to developed country governments where there has historically been greater environmental and regulatory competence.

The Basel Convention also contains the procedural duties of cooperation,²⁰³ information exchanges,²⁰⁴ and notification in case of an accident involving hazardous wastes.²⁰⁵ As for liability for damage resulting from transboundary movement of hazardous wastes, the Basel Convention merely requires states parties to cooperate with a view to adopting a protocol on liability and compensation.²⁰⁶ The state parties to the Basel Convention did, however, negotiate and open for signature in December 1999 a Protocol on Liability and Compensation (Basel Protocol).²⁰⁷ The Basel Protocol seeks "to provide for a comprehensive regime for liability as well as adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes, including incidents occuring because of illegal traffic in those wastes."²⁰⁸ The Basel Protocol addresses the liability of the various private actors involved in transboundary shipments of hazardous wastes (e.g., exporters, importers, and disposers), and thus it follows treaties that set up liability regimes for private enterprises in the nuclear materials context. Nothing in the protocol clarifies the responsibility or liability of states in connection with damage caused by transboundary shipments of hazardous wastes.²⁰⁹

Evaluations of the Basel Convention vary in their praise and criticism. The treaty supports general principles of IEL, such as the "polluter-pays" principle and the duty to prevent, reduce, and control pollution. In addition, PIC "does offer a model for regulating other problems of transboundary trade, whether in hazardous chemicals or technologies, and it affords evidence of the development of customary principles which may govern these activities."²¹⁰ (See discussion below of the regulation of international trade in (1) hazardous chemicals and pesticides; and (2) genetically modified organisms.) Some concerns, however, have been expressed that the ban on the export of hazardous wastes from developed to developing countries, combined with the PIC procedure, places a premium on the existence of effective regulatory infrastructure and resources on the part of states parties.²¹¹ Many developing states may not possess such regulatory capabilities. In addition, the Basel Convention's regulatory scheme may have forced trade in hazardous waste underground as illegal transboundary movements continue to be a growing problem.²¹²

2. International Trade in Hazardous Chemicals and Pesticides

Beginning in 1996, states began to negotiate a treaty to apply PIC to international trade in hazardous chemicals and pesticides. The negotiations started through the initiatives of the United Nations Environment Programme (UNEP) and the United Nations Food and Agriculture Organization [31 ELR 10068] (FAO). These negotiations demonstrated that PIC had wider appeal. In September 1998, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention)²¹³ was opened for signature. The Rotterdam Convention will enter into force upon submission of the 50th ratification of the treaty.²¹⁴

The Rotterdam Convention's objective is

to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties.²¹⁵

The treaty applies to certain hazardous chemicals and pesticide formulations but does not apply to narcotic drugs, radioactive materials, wastes, chemical weapons, pharmaceuticals, food additive chemicals, food, and de minimis quantities of chemicals used for research or individual purposes.²¹⁶

The Rotterdam Convention applies PIC to certain chemicals and pesticides listed in Annex 3 of the treaty.²¹⁷ The Rotterdam Convention contains procedures for listing and delisting of hazardous chemicals and pesticides on Annex 3 that involve a Chemical Review Committee.²¹⁸ Annex 3 contains chemicals for which all uses have been banned or for which uses are severely restricted.²¹⁹ Annex 3 can also contain severely hazardous pesticide formulations.²²⁰ The Chemical Review Committee can make recommendations to the Conference of Parties that new chemicals or pesticides be added to Annex 3.

The PIC procedure in the Rotterdam Convention contains obligations for both importing and exporting states parties. Importing states parties have to notify the Secretariat of their import laws and regulations concerning chemicals and pesticides listed in Annex 3.²²¹ The Secretariat then disseminates this information to all states parties.²²² If a state party bans or severely restricts the importation of a chemical or pesticide, it must apply the prohibition or restriction to all imports and to any domestic production of the substance regulated.²²³ This ensures that the importing state party will not discriminate as between exporting states parties and as between exporting states parties and its own nationals.

Exporting states parties must communicate information received from the Secretariat on importing state party rules to all relevant parties within its jurisdiction²²⁴ and take action to ensure that exporters within its jurisdiction comply with importing state party rules on hazardous chemical and pesticide importation.²²⁵ In addition, when a chemical or pesticide that is banned or severely restricted in the exporting state party is exported, the exporting state party has to notify the importing state party and provide them with specified information.²²⁶ The notification obligation ceases when (1) the chemical or pesticide in question has been listed on Annex 3; (2) the importing state party has informed the Secretariat of its import rules for that chemical or pesticide; and (3) the Secretariat has disseminated the importing state party's rules to the other states parties.²²⁷

The Rotterdam Convention also includes duties on information exchange²²⁸ and technical assistance to developing countries.²²⁹ Questions of noncompliance and the consequences of noncompliance, such as liability, are handled by the provision that states: "The Conference of the Parties shall, as soon as practicable, develop and approve procedures and institutional mechanisms for determining non-compliance with the provisions of this Convention and for treatment of parties found to be in non-compliance."²³⁰

It is too early to evaluate the impact of the Rotterdam Convention on health and environmental dangers flowing with transboundary movements of hazardous chemicals and pesticides. Like the Basel Convention, it utilizes sovereignty as a regulatory tool by increasing information flows. Such information flows allow developing countries to make decisions about whether to allow such substances into their territories. Two problems that weaken the Basel Convention also lurk on the Rotterdam Convention's horizon: weak domestic regulatory infrastructure and capabilities in developing countries and the prospect of increasing illegal trade in hazardous chemicals and pesticides. At the adoption of the Rotterdam Convention, African countries raised concerns about both the technical and financial assistance they would need to implement it and the problem of illicit trafficking.²³¹

[31 ELR 10069]

3. Negotiation of an Internationally Binding Agreement on POPs

POPs:

are chemical substances that persist in the environment, bioaccumulate through the food web, and pose a risk of causing adverse effects to human health and the environment. With the evidence of long-range transport of these substances to regions where they have never been used or produced and the consequent threats they pose to the environment of the whole globe, the international community has now, at several occasions called for urgent global actions to reduce and eliminate releases of these chemicals.²³²

The health and environmental threat posed by POPs was evident in connection with the LRTAP 1998 Protocol on Persistent Organic Pollutants, which attempts to deal with POPs transported in transboundary air pollution. The POPs currently of most concern are polychlorinated biphenyls (PCBs), dioxins, furans, aldrin, dieldrin, dichlorodiphenyltrichloroethane (DDT), endrin, chlordane, hexaclorobenzene, mirex, toxaphene, and heptachlor. Health and environmental concerns about these and other POPs extend beyond the region covered by the United Nations Economic Commission for Europe. In 1997, UNEP's Governing Council instructed the UNEP Executive Director to convene an intergovernmental negotiating committee to develop an internationally binding agreement on POPs.²³³ Between 1997 and March 2000, the Intergovernmental Negotiating Committee (INC) has met four times. At the third INC meeting in September 1999, UNEP's Executive Director noted the scale of concern about POPs in observing that more than 400 participants came to the third INC meeting from 110 countries, 10 international organizations, and more than 70 NGOs.²³⁴

No draft POPs treaty has yet been accepted by the INC process. A preliminary draft text has been partially developed, and this preliminary text has been discussed in the second through fourth INC sessions.²³⁵ While it is too early to evaluate a negotiating text, its provisions reveal a desire to deal comprehensively with POPs by addressing POPs production, wastes, stockpiles, and transboundary trade. One interesting controversy that has arisen in the POPs treaty negotiations is the potential effect of a POPs regime on the use of DDT for malaria control purposes. Unqualified duties to prohibit the production, movement, and use of DDT could adversely impact public health strategies aiming to control the mosquito vectors for malaria and other infectious diseases. As the UNEP Executive Director stated in opening the third INC session, "DDT requires special attention and caution."²³⁶

H. International Trade in Genetically Modified Organisms

International trade in genetically modified organisms is another area in which experts have raised concerns about domestic activities, namely biotechnology and genetic engineering, potentially causing problems for human health in other countries through their import and use. In this respect, trade in geneticallymodified organisms resembles transboundary trade of hazardous wastes. Environmental and public health worries about genetically modified foods and other living organisms has grown rapidly in the last few years, creating a significant international controversy about the international trade in such products.

Much of the controversy revolves around whether genetically modified organisms represent environmental and public health threats. The United States and other countries that export biotechnology products have complained that the environmental and human health fears about so-called Frankenstein foods have no scientific foundation or evidence. The resemblence with trade in hazardous wastes breaks down here because there is no scientific question that hazardous wastes pose environmental and public health threats. Scientific uncertainty pervades discourse about trade in genetically modified products, which has raised the profile of the precautionary principle in IEL.

As a general matter, the precautionary principle holds that environmental action is justified even in a situation of scientific uncertainty when the costs of inaction might be high.²³⁷ The precautionary principle has been used in a number of environmental treaties, such as the ozone and climate change regimes (see Sections IV.F and IV.G below), and in trade treaties.²³⁸ Whether the precautionary principle is a rule of CIL, however, is controversial. In one respect, the question whether the precautionary principle is a CIL rule is strange. Under traditional rules of international law, a state has sovereign power to determine what products are imported [31 ELR 10070] into its territory. If a state decided to base import restrictions on the precautionary principle, the general principle of sovereignty supports such use. In other words, CIL allows a state to base its import policies on the precautionary principle if it chooses.²³⁹

The controversy arises if a state accepts a treaty rule that prohibits or restricts its use of a precautionary approach in import policy.²⁴⁰ For many concerned about genetically modified organisms, the World Trade Organization's Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) restricts the robust use of the precautionary principle in import policy because the SPS Agreement requires a scientific basis and evidence for health-related trade restrictions.²⁴¹ The SPS Agreement recognizes the precautionary approach in Article 5.7 for situations of scientific uncertainty,²⁴² but the SPS Agreement overall places a burden on importing countries of demonstrating the scientific basis for their health-related import restrictions.

With trade in genetically modified organisms, the conflict between the "science paradigm" in international trade law²⁴³ and the precautionary principle in IEL came to a head in negotiations for a protocol to the CBD on biosafety. In Article 19.3 of the CBD, the states parties agreed to consider the need for a protocol addressing the safe transfer, handling, and use of living modified organisms resulting from biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity.²⁴⁴ After often acrimonious negotiations, CBD states parties adopted the Cartagena Protocol on Biosafety (Cartagena Protocol) in January 2000.²⁴⁵

As in the Basel Convention, the Cartagena Protocol uses sovereignty as a regulatory device through the advanced informed agreement (AIA) procedure, which resembles the PIC procedure in the hazardous wastes and chemicals contexts. Under AIA, the state party of export has to notify, or require the exporter to notify, the importing state party prior to the intentional transboundary movement of a living modified organism that will be intentionally introduced into the environment of the importing state party.²⁴⁶ The importing state party then has to decide whether to allow the importation of the living modified organism in question.²⁴⁷ Importing states parties can simplify the procedure by declaring in advance imports of living modified organisms that are exempt from the AIA procedure.²⁴⁸ Importing states parties must base import decisions on a risk assessment, but may require the exporter to carry out the risk assessment, thus shifting the scientific burden.²⁴⁹ Importantly, the Cartagena Protocol imbeds the precautionary principle because it states that scientific uncertainty shall not prevent an importing state party from making decisions with regard to importation of live modified organisms.²⁵⁰

The AIA procedures, however, do not apply to pharmaceuticals and what are called living modified organisms intended for direct use as food, feed, or for processing (LMO-FFPs).²⁵¹ The Cartagena Protocol subjects LMO-FFPs to a less rigorous importation procedure, which involves importing states parties notifying the Biosafety Clearing-House (a new entity established under the Cartagena Protocol) of final decisions about the importation of LMO-FFPs.²⁵² Major exporters of genetically modified grains, such as corn and wheat, demanded that these products, when intended for use as food, feed, or food processing, face a less onerous import procedure.²⁵³ The strong precautionary principle applies, however, to the LMO-FFP importation procedure.²⁵⁴

The potential of the Cartagena Protocol to advance public health objectives remains obscure. First, the fears about genetically modified organisms causing human health problems are currently not supported by much, if any, scientific evidence. Concerns about genetically modified organisms threatening biodiversity seem to have more (although still controversial) credibility. Even in the environmental protection context, some have argued that the greatest threat to biological diversity comes not from LMOs but from living organisms that have not [31 ELR 10071] been genetically modified.²⁵⁵

There is a question whether trying to protect human health through the Cartagena Protocol is legitimate, given that the regime under which the Cartagena Protocol was adopted is supposed to address biological diversity not direct threats to human health. The Cartagena Protocol itself states that the prevention and reduction of risks to biological diversity includes taking into account risks to human health.²⁵⁶ The CBD's definition of "biological diversity," however, does not mention human health. In addition, the Cartagena Protocol expressly excludes pharmaceuticals,²⁵⁷ which are directly relevant to public health; and the Cartagena Protocol implicitly excludes food safety issues because of the different treatment accorded LMO-FFPs.²⁵⁸ Given the foregoing, Gupta asks and answers the pertinent health question:

What, then, might a reference to "taking into account impact on human health" mean? The official interpretation is that it is meant to cover indirect impacts on human health, which may arise from direct impacts on biological diversity. What these indirect impacts might be, however, remains unclear.²⁵⁹

Second, the relationship between the Cartagena Protocol and the SPS Agreement remains uncertain. While the Cartagena Protocol attempted to finesse the potential conflict between these two agreements,²⁶⁰ whether conflict will result remains to be seen. States that are not likely to join the Cartagena Protocol, such as the United States, could challenge measures taken by Cartagena Protocol states parties under the SPS Agreement without reference to the Cartagena Protocol. Whether state practice under the Cartagena Protocol affects the interpretation of the SPS Agreement remains to be seen.²⁶¹

Third, it is not clear at the moment how many states will join the Cartagena Protocol and whether states with big biotechnology industries will agree to the Cartagena Protocol's rules. While states parties can still apply the AIA procedure and the precautionary principle to LMO exports of non-states parties, disputes about such application cannot be resolved within the terms of the Cartagena Protocol. These disputes are more likely to end up before the World Trade Organization's dispute settlement body under the SPS Agreement, which again makes the relationship between the Cartagena Protocol and the SPS Agreement critical.

IV. Protection of Common Environmental Resources Important to Global Public Health

A. Factual Elements of This International Environmental Problem

The third category of international environmental problems involves the degradation of common environmental resources by domestic activities that causes concern for human health and the environment. There are three factual aspects of this kind of international environmental problem. First, the environmental resource in question does not fall within any state's or states' jurisdiction(s). The resource is a common resource, such as the oceans, atmospheric ozone layer, and the global climate. Second, such common resources are being degraded by activities that take place within sovereign states. The activities are subject only to the jurisdiction of the state in which they take place. Third, the degradation of the common resource is multilateral, meaning that damage is being produced by pollution from many states. The reduction of pollution from one state will not, as a general matter, materially slow the degradation. The reductions have to be multilateral.

These facts converge to produce the appropriate policy response: many states have to regulate their domestic activities in a harmonized way to reduce degradation of common environmental resources. Achieving this objective involves political, economic, and legal complications different from the first two categories of international environmental problems examined in Sections II and III above.

B. Examples of the Degradation of Common Environmental Resources That Causes Public Health Concern

Three examples in this category of international environmental problems are (1) land-based pollution of the world's oceans; (2) depletion of the stratospheric ozone layer; and (3) anthropogenic changes to the world's climate. Degradation [31 ELR 10072] of other common environmental resources occurs, as illustrated by concern about pollution in Antarctica, but this problem is not directly a public health concern given that humans do not inhabit Antarctica.

While vessel-source marine pollution (examined above in Section III) is a problem, the biggest sources of marine pollution are land-based. WHO has observed:

Most of the pollution load of the oceans, including municipal, industrial and agricultural wastes and run-off as well as atmospheric deposition, derives from land-based activities and affects the marine environment's most productive areas. Resultant risks to marine life and human health have been identified as: sewage, POPs, radioactive substances, heavy metals, oils …, nutrients, sediment mobilization and litter.²⁶²

Land-based sources of marine pollution also contribute to the development of "algal blooms" that are breeding grounds for pathogenic microbes.²⁶³ Phytoplankton in algal blooms also are capable of producing powerful toxins that find their way into the human food chain, causing morbidity and mortality from food poisoning.²⁶⁴ Land-based marine pollution that degrades the ocean environment provides an example of how a local source of pollution can contribute to global public health concerns.

Depletion of the Earth's ozone layer also creates international public health worries. The major concern is that depletion of the ozone layer will lead to an increase in skin cancer in fair-skinned populations because of increased exposure to ultraviolet radiation.²⁶⁵ There are also fears that this increased exposure could weaken the human immune system and create opportunities for infectious diseases.²⁶⁶ A weakening of the immune system would be particularly troubling for (1) populations in developing countries where "the margin between health and infectious disease is very narrow"²⁶⁷; and (2) persons suffering from diseases that put long-term stress on the immune system, such as HIV/AIDS,²⁶⁸ which also produces concern about the implications of ozone depletion for people in developing countries.

Public health experts have identified a large number of public health problems that global climate change may trigger. WHO, UNEP, and the World Meteorological Organization sponsored a task group to analyze the potential affects of climate change on human health, and the results were published in 1996 in Climate Change and Human Health. This report summarized the anticipated health impacts of climate change by placing the impacts in categories of direct and indirect health effects. The direct impact would come in the form of morbidity and mortality from heat waves and increased severity in storms and droughts.²⁶⁹ Indirect health impact would come in various forms of "socioeconomic disruption caused by environmental deterioration,"²⁷⁰ such as increased geographical distribution of disease-carrying vectors (e.g., mosquitos), increases in waterborne diseases (e.g., cholera), and shifts in agricultural productivity and their effects on malnutrition and hunger.²⁷¹ Global warming could also stimulate the growth of algal blooms on the planet's oceans.²⁷² The possible public health impact of global warming has been one of the key factors in making climate change such a high profile global issue in the 1990s.²⁷³

C. Political and Economic Features of Protecting Common Environmental Resources of Public Health Importance

International attempts to protect common environmental resources such as the oceans, ozone layer, and global climate have run headlong into the bitter conflicts between developed and developing countries over "environmental protection v. economic development." Such a split in the international system about how to address degradation of common environmental resources produces obstacles to the construction of an effective international legal regime. As indicated above, the nature of this international environmental problem requires multilateral solutions. States cannot unilaterally, bilaterally, or regionally make much of a dent in the global problem. This situation creates incentives that make dealing with such problems difficult.

The first such politico-economic problem is the free rider problem. In connection with these common resource situations, a state has an incentive to "free ride" on the sacrifices of other states. It can enjoy the benefits of a preserved common resource without sacrificing for the benefits. Or, it joins the effort after much of the heavy lifting has been done in order to enjoy the benefits at minimal cost. The framework-protocol approach, used in both the ozone layer and climate change contexts, allows a state to free ride with a patina of legitimacy.

The second politico-economic problem is the hold out problem. States that are important to bring into the regime "hold out" for a better deal. This technique has also been referred to as "greenmail." Developing countries have incentives to greenmail developed countries because they perceive that the developed countries will give them a better deal to get them into the treaty regime. With respect to developing countries and the hold out problem, IEL has developed special incentives for developing countries, including [31 ELR 10073] less onerous pollution reduction duties, technical assistance, and financial assistance.

The third politico-economic problem is the problem of environmental responsibility. Developing countries, particularly in the climate change context, balk at changing their economic development plans to deal with a problem created largely by the pollution generated by industrialized states. Developing countries expect developed states to make the first sacrifices and to bear the burden initially because they are primarily responsible for the environmental degradation of the common environmental resources.

A fourth politico-economic problem is the problem of scientific uncertainty. In the ozone depletion and climate change contexts, the effects of anthropogenic pollution on the atmosphere are not fully understood, creating scientific uncertainty. How these common environmental resources naturally work, how they regulate themselves, how anthropogenic pollution affects them, and whether their degradation will produce the predicted adverse consequences for human health are only dimly understood by scientists. Construction of international legal rules proceeds more efficiently when scientific consensus exists on the nature of the threat and the measures necessary to deal with it. Scientific uncertainty becomes useful in arguing for waiting until the science clarifies before action is taken. Political and economic opposition to significant changes can be disguised as a desire for more scientific information and research.

D. International Legal Features of Protecting Common Environmental Resources of Public Health Concern

Protecting common environmental resources such as the oceans, ozone layer, and the global climate has forced states, international organizations, and NGOs to develop and adopt new international legal principles and approaches. The traditional CIL rule prohibiting transboundary harm from pollution does not apply to this international environmental problem because the environmental resource being harmed does not fall within the jurisdiction of any state. The general principles of sovereignty and nonintervention in a state's domestic affairs also mean that the domestic activities causing harm to a common environmental resource are within the exclusive jurisdiction of the sovereign state. In addition, common environmental resources are open for legitimate and reasonable use by all states under international law (e.g., fishing and navigation on the high seas). The traditional framework of international law provides no incentive for a state to reduce its contribution to the degradation of a common environmental resource. This situation has been famously described as the "tragedy of the commons."²⁷⁴

As with unsustainable exploitation of a national environmental resource, sovereignty looms large in connection with protecting common environmental resources. No other state or organization can legitimately regulate the domestic activities of a country that contributes to common environmental resource degradation. The international legal challenge has been threefold: create (1) duties for states to address the degradation of common environmental resources; (2) principles and approaches to allow degradation of common resources to be regulated through international law; and (3) incentives for states to make economic sacrifices necessary to protect the environmental resource.

States have developed in IEL a duty to prevent, reduce, and control pollution of areas beyond national jurisdiction. This norm can be found in Principle 21 of the Stockholm Declaration and in many multilateral treaties and international environmental instruments.²⁷⁵ As Birnie and Boyle point out, "whereas the older formulations of the 'no harm' principle … had dealt only with transboundary harm to other states, many of these later conventions point to international acceptance of the proposition that states are now required to protect global common areas."²⁷⁶ The principle of preventing, reducing, and controlling pollution of global common resources suffers, however, from the same problems as the similar duty not to cause transboundary harm to other states: (1) it flies in the face of what occurs; and (2) the duty is too general to provide specific guidance against a concrete threat. This general duty has had to be fleshed out in treaties addressing specific environmental problems.

Concerned states, NGOs, and international environmental lawyers faced the challenge of how to translate the general duty of not harming common environmental resources into effective action in treaty law. Getting states to accept onerous treaty obligations has always been hard, and the environmental context exhibits this dynamic. The objective was to move the treaty obligations beyond the generality and ambiguity of the background customary norm. One strategy used was the framework-protocol approach to treatymaking. (This technique was examined above in connection with transboundary air pollution and the LRTAP regime.) Framework-protocol strategies have been used for both depletion of the ozone layer and global warming, and these regimes are analyzed below. Land-based marine pollution is not within a framework-protocol approach but is handled through UNCLOS. The central question explored below in analyzing these regimes is whether they have succeeded in moving states parties toward specific duties that contribute to the protection of common environmental resources.

The problem of scientific uncertainty also factored into strategies about how to mitigate degradation of common environmental resources. Part of the theory behind using the framework-protocol approach in both the ozone depletion and global warming contexts was the scientific uncertainty about the problems themselves. The framework [31 ELR 10074] convention was designed to begin a process through which international environmental measures could be designed to address the potential threat. As the science clarified, protocols would be negotiated to make state party duties more specific. But the process of environmental protection needed to begin before scientific certainty was achieved. The principle that supported early environmental action in the treaties was the precautionary principle.

Even assuming that scientific certainty or at least scientific consensus exists, sovereignty continues to loom large in dealing with degradation of common environmental resources. As noted above, the CIL duty not to harm common global areas, such as the ozone layer, is too general to support specific legal claims and arguments. Sovereign states, as a general matter, do not feel disciplined by this CIL rule. Whether a treaty regime sufficiently disciplines sovereignty has to be analyzed regime by regime; but, as will be seen below, the inverse triangle effect can adversely affect treaty law on protecting common environmental resources.

The sovereignty problem has forced states, NGOs, and international lawyers to create sufficient incentives to encourage states to make economic sacrifices to protect common environmental resources. Typically, the incentives are designed to overcome the free rider and hold out problems mentioned earlier, especially with respect to developing countries. The incentives basically come in one of two forms: (1) financial and technical assistance to developing countries to help them implement and comply with the treaty rules; and (2) differential duties under which developing countries' treaty burdens are less onerous than those of developed countries. These incentive strategies have been central to two of the three treaty regimes examined below and, thus form part of the international legal dynamics of dealing with degradation of common environmental resources.

E. International Law on Land-Based Marine Pollution

Duties to regulate land-based marine pollution can be found in UNCLOS and numerous regional treaties dealing with maritime pollution. These duties have encouraged some international environmental lawyers to argue that CIL requires states to prevent marine pollution from land-based sources. This duty, however, remains general and ineffective in both treaties and CIL. This situation has produced calls for states to negotiate a legally binding agreement to regulate land-based pollution of the marine environment.

UNCLOS requires states parties to take all measures "that are necessary to prevent, reduce, and control pollution of the marine environment from any source," including land-based sources.²⁷⁷ States parties must "adopt laws and regulations to prevent, reduce, and control pollution of the marine environment from land-based sources, … taking into account internationally agreed rules, standards, and recommended practices and procedures."²⁷⁸ Experts have criticized these provisions. Churchill and Lowe asserted that the UNCLOS rule on land-based marine pollution "is so imprecisely and broadly formulated that it is unlikely to have much practical effect."²⁷⁹ Birnie and Boyle concur, arguing that the key provision on land-based marine pollution—Article 207—"does not require states to take effective measures."²⁸⁰ The situation is not much better regionally as "the regional treaties negotiated under UNEP's Regional Seas Programme do not contain much more than what is found in UNCLOS in connection with land-based marine pollution."²⁸¹

Two regional treaties negotiated outside UNEP, however, were negotiated to regulate land-based pollution in more detail. The 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources,²⁸² addressing the North Sea and the Northern Atlantic, and the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea²⁸³ "regulate land-based pollution through the use of 'black lists' of prohibited pollutants and 'grey lists' of controlled pollutants."²⁸⁴ (These two treaties were subsequently consolidated in the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic.)²⁸⁵ Given the unsatisfactory state of treaty law, it is not possible to argue that CIL contains more detailed or substantive duties on land-based marine pollution.

This raises the question why international law is weak in connection with the worst form of marine pollution. Churchill and Lowe explain:

Land-based pollution is the most "national" source of maritime pollution. It emanates from an area that is under the sovereignty of a State and in which other States enjoy no rights (unlike the position in relation to other forms of marine pollution). There is only one State (the territorial State) that can legislate for such pollution and enforce that legislation (unlike shipping and dumping).²⁸⁶

Sovereignty is used in this context to promote economic development over environmental protection, especially in connection with developing countries:

Those wishing to protect their freedom to decide for themselves how to develop may rely on assertions of national autonomy in the use of territory and permanent sovereignty over natural resources to limit the possibilities for international regulation, oversight, and enforcement, as they have done for nuclear power.²⁸⁷

[31 ELR 10075]

The lack of an effective global legal regime on land-based marine pollution has been lamented for many years. In the 1990s, calls were made for states to negotiate a global treaty to regulate land-based marine pollution. In 1995, for example, 100 states and the European Community adopted the Global Programme of Action for the Protection of the Marine Environment From Land-Based Activities, which included as one of its objectives the negotiation of "a global, legally binding instrument" to reduce land-based marine pollution.²⁸⁸ How such an instrument would address the sovereignty problem is unclear. In some respects, the problem of land-based marine pollution parallels the problems of local air and water pollution in that solutions would have to intrude on domestic economic activities. Any treaty on land-based marine pollution would, like the 1999 Protocol on Water and Health discussed in Section III.E above, have to regulate activities deep in the heart of sovereignty.

F. International Law on the Depletion of the Ozone Layer

States have attacked ozone depletion through the frame-work-protocol approach. The framework convention is the 1985 Vienna Convention for the Protection of the Ozone Layer (Vienna Convention),²⁸⁹ and the protocol is the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol).²⁹⁰ The Montreal Protocol has itself been amended a number of times by its states parties since its adoption (i.e., the 1990 London Amendment, 1992 Copenhagen Amendment, 1997 Montreal Amendment, and 1999 Beijing Amendment). The Vienna Convention establishes the framework, process, and institutions through which the states parties cooperate on reducing emissions of ozone-depleting substances. Obligations to reduce certain ozone-depleting substances by specific amounts are found in the Montreal Protocol and its amendments. The obligations to reduce emissions of ozone-depleting substances have, as a general matter, become more detailed and significant with successive amendments to the Montreal Protocol.

The ozone framework-protocol approach also illustrates its utility in a case of scientific uncertainty. When states negotiated the Vienna Convention, the nature and extent of ozone depletion was still not clear, but, relying on the precautionary principle, states set up the mechanism to deal with ozone depletion as the threat scientifically clarified. This clarification happened rapidly, as illustrated by the adoption of the Montreal Protocol two years after the Vienna Convention. The ozone depletion regime is, for these reasons, often viewed as one of the more successful international environmental treaties.

The ozone depletion regime contains the special incentives for developing countries mentioned earlier as being important to these kinds of efforts. Under Article 5.1 of the Montreal Protocol, a developing country is "entitled to delay for 10 years its compliance with the control measures" contained in the Montreal Protocol.²⁹¹ The Montreal Protocol also contains provisions for financial assistance for developing states parties²⁹² and technology transfer to developing states parties.²⁹³ All states parties must also ban the export and import of any substances controlled under the Montreal Protocol to and from any state not party to the Montreal Protocol,²⁹⁴ which also acts as an incentive for states to join the regime.

The inverse triangle effect of the framework-protocol strategy can be seen in the ozone depletion regime. See Figure 2.

Figure 2: The "Inverse Triangle Effect" and the Ozone Regime

[SEE ILLUSTRATION IN ORIGINAL]

There is no significant difference between the number of states parties to the Vienna Convention and the Montreal Protocol, which is a sign of the strength of this international legal regime. Fewer states parties have ratified later amendments to the Montreal Protocol, but, apart from the [31 ELR 10076] 1997 Montreal Amendments, the ratification numbers are still high. In addition, these numbers obscure the fact that most industrialized countries—the biggest emitters of ozone-depleting substances—have accepted the amendments to the Montreal Protocol through the 1992 Copenhagen Amendments. (It is probably too early still to know how widely the 1997 Montreal and 1999 Beijing Amendments will be accepted.) This means that a sustained commitment to reductions in emissions of ozone-depleting substances has been made by the countries with the responsibility to reduce. Such a commitment from industrialized states helps explain the success of the ozone depletion regime. The development of economically feasible substitutes for ozone-depleting substances has also assisted states parties to accept commitments to reducing emissions of ozone-depleting substances, which shows how technological advances can help reduce degradation of common environmental resources.

Despite the successes achieved by the ozone depletion regime, scientists observe that the hole in the ozone layer continues to grow and that the peak of the impact of ozone-depleting substances in the stratosphere had not yet occurred. This means that commitment will need to be sustained for many more years as the fruit of emission reductions might not be present for decades. At the 1999 Meeting of the Parties to the Montreal Protocol in Beijing, NGOs expressed concern about the lack of progress on reductions and controls of ozone-depleting substances.²⁹⁵ Controversies also existed at the Beijing meeting between developed and developing states about how much money was needed to replenish the Montreal Protocol's implementation fund for developing countries, and whether access to these funds should be conditioned on developing countries fulfilling requirements.²⁹⁶ Also of concern for the future of the ozone depletion regime is the growing illicit traffic in ozone-depleting substances.²⁹⁷ This problem echoes worries about illegal trading in hazardous wastes, chemicals, and pesticides noted earlier. The Montreal Amendment to the Montreal Protocol includes a requirement for states parties to establish a licensing system for ozone-depleting substances moving in international commerce in order to deter and defeat illegal trading activities.²⁹⁸

G. International Law on Climate Change

States have also applied the framework-protocol approach to dealing with global climate change. The framework convention is the 1992 United Nations Framework Convention on Climate Change (FCCC),²⁹⁹ and the only protocol to date is the 1997 Kyoto Protocol to the FCCC (Kyoto Protocol).³⁰⁰ As of May 25, 2000, the FCCC had 184 states parties.³⁰¹ As of September 12, 2000, the Kyoto Protocol had only 29 states parties, all of them developing countries.³⁰² See Figure 3. These numbers point to major problems with the international legal regime on climate change.

Figure 3: The "Inverse Triangle Effect" and the Climate Change Regime

[SEE ILLUSTRATION IN ORIGINAL]

The FCCC is a framework convention because it sets up the process through which the states parties will work toward the "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system."³⁰³ The FCCC contains no duties to reduce greenhouse gas emissions by any specific amounts. Developed states parties agree to "adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs."³⁰⁴ Developed states parties also agree to shoulder duties that do not apply to developing countries, including: (1) providing financial resources to developing states parties to assist their compliance with the FCCC; and (2) promoting appropriate technology transfers to developing states parties.³⁰⁵

[31 ELR 10077]

Developing states parties' fulfillment of their duties under the FCCC "will depend on the effective implementation of developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties."³⁰⁶ In the FCCC's system of differential duties, and the text's emphasis on developing countries' economic development priority, can be found the difficult politics of global warming. Many developing countries believe that developed countries must bear the burden of reducing the threat of global warming because developed states caused the problem. There is unwillingness on the part of many developing countries to sacrifice economic development to correct a problem generated by the polluting behavior of developed nations. Many developed countries, by contrast, are willing to have more significant burdens but insist that developing countries must also reduce greenhouse gas emissions if the international community is to address global warming.

The North-South politics of climate change are exacerbated by continuing scientific controversies about whether global warming is occurring, and if so, what the environmental and public health consequences will be. The FCCC is, like the Vienna Convention, based on the precautionary principle—it is better to err on the side of environmental protection even if there is some level of scientific uncertainty. But, "while scientific uncertainty is no bar to international legal action under the precautionary principle, the economic stakes in the climate change context are so huge that the precautionary principle faces serious political obstacles to concrete action."³⁰⁷ Given that no economically feasible alternatives to fossil fuel consumption are available, the economic costs of reducing greenhouse gas emissions encourage countries to emphasize scientific uncertainty in order to deter international legal regulation of global warming.

The difficulty of global warming politics was revealed in the negotiation of the Kyoto Protocol, which was meant to get developed states parties to make specific cuts in their greenhouse gas emissions. Despite some creative mechanisms to help reduce greenhouse gas emissions, such as allowing trading in emission "credits," the Kyoto Protocol is perceived widely (but not universally) as a failure. The primary reason is that the biggest emitter of greenhouse gases in the world—the United States—has refused to accept any obligations to reduce its emissions, particularly as long as developing countries are not willing to accept any reduction obligations. Leading developing country greenhouse gas emitters, such as China and India, refused to consider even voluntary commitments to reduce their emissions. As of September 12, 2000, not one developed state party to the FCCC had ratified the Kyoto Protocol, meaning that no state has bound itself under international law to reduce its greenhouse gas emissions (developing countries, of course, have no duties to reduce emissions under the Kyoto Protocol). While the fifth meeting of the Conference of Parties of the FCCC, concluded in November 1999, called for rapid ratification of the Kyoto Protocol to accelerate the fight against global warming,³⁰⁸ the underlying political and economic controversies have not disappeared or even dissipated. All these facts indicate that "the fireworks of, and fallout after, the negotiation of the Kyoto Protocol suggest that international legal progress against climate change is still in the very distant future, if it is there at all."³⁰⁹

V. Conclusion

This Article demonstrates IEL's importance to the pursuit of public health at the national and global levels. IEL proves perhaps the richest area in which to find international public health law. The richness is displayed not only in the quantity of IEL regimes designed to protect population health but also in the diversity of health-protecting legal approaches, mechanisms, and principles developed through international environmental diplomacy. From this international legal richness, it is not unreasonable to conclude that IEL's core and central purpose is the protection of public health.

This Article reveals not only IEL's importance to national and global public health, but also the obstacles that make international legal progress against environmental threats to health difficult. One sees in IEL how the structure of the international system creates problems for efforts to deal with local, transboundary, and global environmental pollution and degradation. Also apparent are the political and economic inequalities between developed and developing countries that mark the contemporary international system. Environmental pollution and degradation are, in these respects, excellent case studies in the world politics of public health.³¹⁰

Structural and material inequalities in international relations exacerbate tensions between traditional international legal norms, such as the sovereignty principle, and international environmental norms, such as the duty to prevent, control, and reduce pollution. CIL has proved an awkward and inefficient source of international law for reducing these tensions. At the level of treaty law, the picture is mixed. While states and international organizations have developed sophisticated treaty regimes globally (e.g., ozone depletion) and regionally (e.g., long-range transboundary air pollution), in other areas there is no treaty law (e.g., local air pollution and deforestation) or treaty law that does not advance much beyond CIL (e.g., land-based sources of marine [31 ELR 10078] pollution and climate change). Even sophisticated treaty regimes suffer from lack of participation (e.g., the inverse triangle effect) or implementation failures, which may stem from a serious lack of political will or regulatory capacity at the state level.

Environmental pollution and degradation serve, in these respects, as sobering reminders that international law is necessary, but not sufficient, to protect and promote public health on a national and global basis. As the processes of globalization continue to transform international relations, the need for international law to foster public health and the shortcomings of such law will both be increasingly on display.

1. The author is an Associate Professor of Law at Indiana University School of Law, Bloomington, B.A., University of Kansas; M.Phil. (International Relations), University of Oxford; J.D., Harvard Law School; B.C.L., University of Oxford. This Article is based on Chapter 9 (International Environmental Law and Public Health) of DAVID P. FIDLER, INTERNATIONAL LAW AND PUBLIC HEALTH: MATERIALS ON AND ANALYSIS OF GLOBAL HEALTH JURISPRUDENCE (Transnational Pubs., Inc. 2000). I thank Heiki Fenton and Transnational Publishers for allowing me to adapt Chapter 9 in this Article. I would like to thank John Turner of the Environmental Law Reporter for giving me the opportunity to adapt this chapter for publication in the ELR, and John Applegate of Indiana University School of Law for his review and comments. ShafiqaAhmadi provided valuable research assistance during the preparation of this Article.

2. For arguments about the neglect of the use of international law in the public health area, see Allyn Lise Taylor, Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health, 18 AM. J.L. & MED. 301 (1992); Katarina Tomesevski, Health, in 2 UNITED NATIONS LEGAL ORDER 859 (Oscar Schachter & Christopher C. Joyner eds., 1995); David P. Fidler, The Future of the World Health Organization: What Role for International Law?, 31 VAND. J. TRANSNAT'L L. 1079 (1998); and David P. Fidler, International Law and Global Public Health, 48 U. KAN. L. REV. 1 (1999).

3. See WHO CONST. pmbl.: "The Contracting Parties agree to the present Constitution and hereby establish the World Health Organization as a specialized agency within the terms of … the Charter of the United Nations."

4. See Fidler, International Law and Global Public Health, supra note 2, at 26 ("Simply focusing on WHO's attitude toward international law in the post-1945 period would produce a distorted picture of the place of health in international law.").

5. See id. at 26-40 (analyzing how embedded the value of health is in contemporary international law).

6. See INSTITUTE OF MEDICINE, THE FUTURE OF PUBLIC HEALTH 39 (1988) ("What unites people around public health is the focus on society as a whole, the community…."); International Federation of Red Cross and Red Crescent Societies and Francois Bagnoud Center for Health and Human Rights, Public Health: An Introduction, in HEALTH AND HUMAN RIGHTS: A READER 29, 29 (J.M. Mann et al. eds., 1999) [hereinafter Public Health: An Introduction] (stating that "it is clear that public health deal with society: groups of people and actions affecting many people").

7. See Public Health: An Introduction, supra note 6, at 29 ("Public health actions seek to promote the health of the community.").

8. This observation does not minimize the importance of arguments for more attention to be paid to public health by lawyers and legal academics. See, e.g., LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW (2000).

9. See, e.g., International Convention for the Regulation of Whaling, Dec. 2, 1946, 155 L.N.T.S. 349; Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 12 I.L.M. 1055; Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 I.L.M. 15; Convention for the Conservation of Antarctic Marine Living Resources, May 20, 1980, 19 I.L.M. 841.

10. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 43 (1987).

11. See generally Secretariat of the Convention to Combat Desertification, Fact Sheet 3—The Consequences of Desertification, at http://www.unccd.int/publicinfo/factsheets/showFS.php?number=3 (last visited Sept. 7, 2000) and Fact Sheet 10—Desertification, Global Change, and Sustainable Development, at http://www.uncced.int/publicinfo/factsheets/showFS.php?number=10 (last visited Sept. 7, 2000).

12. See Convention to Combat Desertification in Those Countries Experiencing Drought and/or Desertification, Particularly in Africa, June 17, 1994, 33 I.L.M. 1332, pmbl. [hereinafter Desertification Convention].

13. See, e.g., Case 7615 (Brazil), in ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 1984-1985, at 24 (1985) (exploitation of Amazonian rain forest exposed members of the Yanomami Tribe to infectious diseases for which they were immunologically unprepared).

14. See, e.g., Ann Gibbons, Where Are "New" Diseases Born?, 261 SCIENCE 680 (1993).

15. See JARED DIAMOND, GUNS, GERMS, AND STEEL: THE FATES OF HUMAN SOCIETIES 205 (1997).

16. See Andrew Hurrell, Brazil and the International Politics of Amazonian Deforestation, in THE INTERNATIONAL POLITICS OF THE ENVIRONMENT 398, 400 (A. Hurrell & B. Kingsbury eds., 1992) (noting that "forests and forest products have great potential … scientific and medicinal value: as genetic material for plant breeding, as natural insecticides, or as pharmaceutical products").

17. See id.

18. See CLIMATE CHANGE AND HUMAN HEALTH 20-21 (A.J. McMichael et al. eds., 1996).

19. See IAN BROWNLIE, THE PRINCIPLES OF PUBLIC INTERNATIONAL LAW 106 (5th ed. 1998).

20. See General Assembly Resolution on Permanent Sovereignty Over Natural Resources, G.A. Res. 1803 (XVII), Dec. 14, 1962.

21. Id. pmbl.

22. Id. P1.

23. U.N. CHARTER art. 2.7.

24. See BROWNLIE, supra note 19, at 436.

25. See id.

26. See id. at 446-48.

27. See id.

28. See id. at 448.

29. See PATRICIA W. BIRNIE & ALAN E. BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT 112 (1992) [hereinafter BIRNIE & BOYLE] (noting that CIL imposes "on states obligations of conservation, sustainable development, and ecological protection to avoid over-exploitation and permanent loss of some categories of internationally significant resources").

30. Id. at 122.

31. See Declaration of the United Nations Conference on the Human Environment, June 16, 1972, 11 I.L.M. 1416 [hereinafter Stockholm Declaration].

32. See Declaration on Environment and Development of the United Nations Conference on Environment and Development, June 14, 1992, 31 I.L.M. 874 [hereinafter Rio Declaration].

33. Stockholm Declaration, supra note 31, princ. 2.

34. Id. prine. 21.

35. See Rio Declaration, supra note 32, princ. 2.

36. Id.

37. See Stockholm Declaration, supra note 31, princ. 21.

38. See Desertification Convention, supra note 12.

39. See Status of Ratification and Entry Into Force of the UNCCD, at http://www.unccd.int/convention/ratif/doeif.php (last visited Sept. 11, 2000).

40. See Desertification Convention, supra note 12, art. 5.

41. Id. art. 6.

42. See id. arts. 9-15.

43. See id. arts. 16-18.

44. See id. arts. 19-21.

45. See id. arts. 22-25.

46. See N.M. Onchere, NGO View on Implementation in Africa, in DOWN TO EARTH: THE NEWSLETTER OF THE CONVENTION TO COMBAT DESERTIFICATION No. 12, Nov. 1999, at 2.

47. Id. at 3.

48. See id.

49. See id.

50. Id.

51. Review of the Reports on Implementation of Affected African Country Parties, Including the Participatory Process and on Experiences Gained and Results Achieved in the Preparation and Implementation of National Action Programmes, ICCD/COP(3)/5/Add.2, Aug. 23, 1999. P96.

52. 1992 Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, June 13, 1992, 31 I.L.M. 881.

53. Agenda 21, Chapter 11, at http://www.igc.apc.org/habitat/agenda21/ch-11.html (last visited Sept. 11, 2000).

54. DAVID P. FIDLER, INTERNATIONAL LAW AND INFECTIOUS DISEASES 269 (1999).

55. Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818.

56. CBD Ratification—August 14, 2000, at http://www.biodiv.org/conv/RATIFY_date.htm (last visited Sept. 11, 2000).

57. Convention on Biological Diversity, supra note 55, art. 1.

58. For discussion of "biopiracy," see VANDA SHIVA, BIOPIRACY: THE PLUNDER OF NATURE AND KNOWLEDGE (1996); Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World of International Intellectual Property Protection, 6 IND. J. GLOBAL LEGAL STUD. 11 (1998).

59. Convention on Biological Diversity, supra note 55, arts. 5-11.

60. See id. arts. 12 and 18.

61. See id. art. 16.

62. See id. art. 19.

63. Id. art. 20.

64. Id. art. 3.

65. See, e.g., id. arts. 5-11.

66. Id. art. 15.

67. See FIDLER, supra note 54, at 266-67.

68. Id. at 268 (citations omitted).

69. WHO, Health and Environment in Sustainable Development: Five Years After the Earth Summit, WHO/EHG/97.8, at 126-27.

70. See id. at 164-65.

71. Id. at 165.

72. See id.

73. See, e.g., Reuters News Service, "Frankenstein Food" Spurs Division—U.N. Conferees Debate Genetically Altered Crops and Global Needs, HOUS. CHRON., Feb. 20, 1999, available at 1999 WL 3975259.

74. See Ian Brownlie, State Responsibility and International Pollution: A Practical Perspective, in INTERNATIONAL LAW AND POLLUTION 120, 123 (D.B. Magraw ed., 1991).

75. BIRNIE & BOYLE, supra note 29, at 89.

76. Trail Smelter Arbitration, 33 AM. J. INT'L L. 182 (1939), and 35 AM. J. INT'L L. 684 (1941).

77. Stockholm Declaration, supra note 31, princ. 21.

78. See BIRNIE & BOYLE, supra note 29, at 89.

79. Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 IND. J. GLOBAL LEGAL STUD. 105, 110-11 (1995) (citations omitted).

80. The same arguments hold true for international trade in genetically modified products, except that detecting what products are genetically modified is a harder problem than detecting a shipment of hazardous wastes.

81. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261 [hereinafter UNCLOS].

82. Id. art. 212.1.

83. See Stockholm Declaration, supra note 31, princ. 21.

84. See BIRNIE & BOYLE, supra note 29, at 404.

85. See Geneva Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 18 I.L.M. 1442 [hereinafter LRTAP].

86. Convention on Long-Range Transboundary Air Pollution, Status of Ratification as of 03 July, 2000, at http://www.unecc.org/env/lrtap/conv/lrtap_st.htm (last visited Sept. 11, 2000).

87. LRTAP, supra note 85, art. 2.

88. See id. art. 5.

89. See id. arts. 4 and 8.

90. See id. arts. 4 and 6.

91. See id. arts. 7 and 9.

92. See id. arts. 10 and 11.

93. See Protocol on the Reduction of Sulphur Emissions or Their Transboundary Fluxes, July 8, 1985, 27 I.L.M. 707 and Protocol on Further Reduction of Sulphur Emissions, June 14, 1994, 33 I.L.M. 1542.

94. See Protocol Concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, Oct. 31, 1988, 28 I.L.M. 212.

95. See Protocol Concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes, Nov. 18, 1991, 31 I.L.M. 573.

96. See Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Heavy Metals, June 24, 1998, at http://www.unece.org/env/lrtap/protocol/98hm.htm (last visited Sept. 11, 2000).

97. See Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants. June 24, 1998, at http://www.unece.org/env/lrtap/protocol/98pop.htm (last visited Sept. 11, 2000).

98. Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to Abate Acidification, Eutrophication, and Ground-Level Ozone, U.N. Doc. EB.AIR/1999 (1999).

99. Protocol on Further Reduction of Sulphur Emissions, supra note 93, art. 2.

100. See id. Annex 2.

101. U.N. Doc. EB.AIR/1999, supra note 98.

102. See WHO, Health and Environment in Sustainable Development, supra note 69, at 87.

103. See id. at 173.

104. FIDLER, supra note 54, at 256.

105. See International Covenant on Economic, Cultural, and Social Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICECSR], art. 12 (providing for the right to health). For a list of human rights treaties that contain the right to health, see DAVID P. FIDLER, INTERNATIONAL LAW AND PUBLIC HEALTH: MATERIALS ON AND ANALYSIS OF GLOBAL HEALTH JURISPRUDENCE 303 (2000).

106. See FIDLER, supra note 54, at 181-97. For an extensive effort to find a definitive meaning for the right to health, see BRIGTT C.A. TOEBES, THE RIGHT TO HEALTH AS A HUMAN RIGHT IN INTERNATIONAL LAW (1999).

107. See ICECSR, supra note 105, art. 2 (stating that each state party shall take steps "to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant").

108. See BIRNIE & BOYLE, supra note 29, at 192.

109. Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, June 17, 1999, U.N. Doc. MP.WAT/AC.1/1999/1 (1999).

110. Id. art. 1.

111. See BIRNIE & BOYLE, supra note 29, at 225-26.

112. Id. at 226-27.

113. See United Nations Convention on the Law of Non-Navigable Uses of International Watercourses, May 21, 1997, 36 I.L.M. 700.

114. See id. arts. 5 and 6.

115. Id. art. 7.

116. Id. art. 21.2.

117. See id. art. 8.

118. See id. arts. 9 and 11.

119. See id. arts. 12 and 17.

120. Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Mar. 17, 1992, 31 I.L.M. 1312.

121. Id. arts. 1 and 2.

122. Convention on the Transboundary Effects of Industrial Accidents, U.N. Economic Commission for Europe, at http://www.unece.org/env/teia/english/intro.htm (last visited Sept. 7, 2000).

123. See Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 30 I.L.M. 800 [hereinafter Environmental Impact Assessment Treaty].

124. See Convention on the Transboundary Effects of Industrial Accidents, Mar. 17, 1992, 31 I.L.M. 1330 [hereinafter Industrial Accidents Treaty].

125. SeeEnvironmental Impact Assessment Treaty, supra note 123, art. 2.3.

126. See id. Annex 1.

127. See id. arts. 2.4, 2.5, 3, 4, and 5.

128. See id. art. 6.

129. See Convention on Environmental Impact Assessment in a Transboundary Context: Status of Ratification, U.N Economic Commission for Europe, at http://www.unece.org/env/eia/ratification.htm (last visted Sept. 11, 2000).

130. See Convention on the Transboundary Effects of Industrial Accidents: Parties, U.N. Economic Commission for Europe, at http://www.unece.org/env/teia/english/parties.htm (last visited Sept. 7, 2000).

131. Industrial Accidents Treaty, supra note 124, art. 3.1.

132. See id. art. 4.

133. See id. art. 6.

134. See id. art. 7.

135. See id. art. 8.

136. See id. art. 10.

137. See id. art. 12.

138. For discussion, see BIRNIE & BOYLE, supra note 29, at 142-45.

139. Industrial Accidents Treaty, supra note 124, art. 13.

140. As of December 1, 1999, the IAEA had 130 member states. Member States of the IAEA, at http://www.iaea.org/worldatom/About/members.html (last visited Sept. 8, 2000).

141. BIRNIE & BOYLE, supra note 29, at 348-49.

142. See Statute of the International Atomic Energy Agency, Oct. 23, 1956, 276 U.N.T.S. 3, art. III.A.6.

143. Mohamed Elbaradei et al., International Law and Nuclear Energy: Overview of the Legal Framework, 37 IAEA BULL. N.P. (1995), at http://www.iaea.org/worldatom/Periodicals/Bulletin/Bull373/rames.html (last visited Sept. 12, 2000). See also Gordon Linsley & Wolfram Tonhauser, An Expanding International Legal Regime: Environmental Protection and Radioactive Waste Management, 42 IAEA BULL. 24 (2000).

144. See Elbaradei et al., supra note 143.

145. Id.

146. BIRNIE & BOYLE, supra note 29, at 353.

147. See Convention on Nuclear Safety, Sept. 20, 1994, 33 I.L.M. 1514 (1994).

148. First Review Meeting of the Contracting Parties to the Convention on Nuclear Safety: Summary Report, P1 at http://www.iaea.or.at/worldatom/glance/legal/revmtg0199.html (last visited Sept. 8, 2000).

149. Convention on Nuclear Safety, supra note 147, art. 1.

150. See id. art. 17.

151. See id. art. 18.

152. See id. art. 19.

153. See id. art. 16.

154. BIRNIE & BOYLE, supra note 29, at 353.

155. See Convention on Nuclear Safety, supra note 147, art. 5.

156. First Review Meeting of the Contracting Parties to the Convention on Nuclear Safety: Summary Report, supra note 148, P7.

157. Id. P52.

158. Id. P6.

159. See Corfu Channel, 1949 I.C.J. 1.

160. See Elbaradei et al., supra note 143.

161. Convention on Early Notification of a Nuclear Accident, Sept. 26, 1986, 1439 U.N.T.S. 275 [hereinafter Early Notification Treaty].

162. Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, Sept. 26, 1986, 1457 U.N.T.S. 133 [hereinafter Accident Assistance Treaty].

163. Early Notification Treaty, supra note 161, arts, 1 and 2.

164. Id. arts. 2 and 5.

165. IAEA, Convention on Early Notification of a Nuclear Accident, at http://www.iaea.org/worldatom/glance/legal/cenna.html (last visited Aug. 22, 2000).

166. IAEA. Technical Briefing on the Radiation Accident in Japan, Oct. 1, 1999, at http://www.iaea.org/worldatom/Press/P_release/1999/techbrief.shtml (last visited Sept. 8, 2000).

167. See Accident Assistance Treaty, supra note 162, art. 2.1.

168. See id. art. 2.3.

169. See id. art. 2.6.

170. Convention on Civil Liability for Nuclear Damage, May 21, 1963, 2 I.L.M. 727.

171. Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960, 956 U.N.T.S. 251.

172. Elbaradei et al., supra note 143.

173. Convention on the Liability of Operators of Nuclear Ships, May 25, 1962, 57 AM. J. INT'L L. 268 (1963).

174. Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Materials, Dec. 17, 1971, 974 U.N.T.S. 255.

175. Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 U.N.T.S. 187.

176. BIRNIE & BOYLE, supra note 29, at 368.

177. Elbaradei et al., supra note 143.

178. See BIRNIE & BOYLE, supra note 29, at 369.

179. Some of the treaties in which these standards are found include the Convention on Load Lines, Apr. 5, 1966, 640 U.N.T.S. 133; the Convention on the International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, 1050 U.N.T.S. 16; the International Convention on Safety of Life at Sea (SOLAS), Nov. 1, 1974, 1184 U.N.T.S. 2; ILO Convention No. 147 Concerning Minimum Standards in Merchant Ships, Oct. 29, 1976, 1259 U.N.T.S. 335; and the IMO Convention on Standards of Training, Certification, and Watchkeeping for Seafarers, July 7, 1978, 1361 U.N.T.S. 2.

180. International Convention for the Prevention of Pollution From Ships, Nov. 2, 1973, 12 I.L.M. 1319.

181. UNCLOS, supra note 81, art. 211.2.

182. See id.

183. See id. art. 217.1.

184. See id. art. 211.4.

185. See id. arts. 55-75 (laying out the international legal regime on exclusive economic zones).

186. See id. art. 211.5.

187. See id. art. 220.

188. See id. art. 218.

189. See id. art. 228.

190. Id. art. 198.

191. See id. arts. 197 and 199.

192. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, U.N. Doc. UNEP/WG.190/4 (1989) [hereinafter Basel Convention].

193. See Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal: Status of Ratification/Accession/Acceptance/Approval as of 15 August, 2000, at http://www.unep.ch/basel/ratif/ratif.html (last visited Sept. 8, 2000).

194. KATHARINA KUMMER, INTERNATIONAL MANAGEMENT OF HAZARDOUS WASTES: THE BASEL CONVENTION AND RELATED LEGAL RULES 7 (1995).

195. Id. at 7-8.

196. Id. at 47-48.

197. Bamako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, Jan. 29, 1991, 30 I.L.M. 775.

198. See Basel Convention, supra note 192, art. 4.5.

199. See id. art. 6.1.

200. See id. art. 6.2.

201. See id. arts. 4.2(d) and 4.8.

202. See id. arts. 8-9.

203. See id. art. 10.

204. See id. arts. 10 and 13.

205. See id. art. 13.

206. See id. art. 12.

207. Basel Protocol on Liability and Compensation for Damage Resulting From Transboundary Movements of Hazardous Wastes and Their Disposal, Dec. 10, 1999, at http://www.unep.ch/basel/pub/Protocol.html (last visited Sept. 13, 2000). The Basel Protocol was open for signature to Basel Convention states parties until December 10, 2000.

208. Secretariat of the Basel Convention, Brief Description of the Basel Protocol on Liability and Compensation, at http://www.unep.ch/basel/Protocol/Protodes.html (last visited Sept. 13, 2000). See also Basel Protocol, supra note 207, art. 1.

209. See Basel Protocol, supra note 207, art. 16 ("The Protocol shall not affect the rights and obligations of the Contracting Parties under the rules of general international law with respect to State responsibility.").

210. BIRNIE & BOYLE, supra note 29, at 342.

211. See KUMMER, supra note 194, at 81.

212. See Report of the Fourth Meeting of the Conference of the Parties to the Basel Convention, UNEP/CHW .4/35, Mar. 18, 1998, P56 ("Several representatives expressed deep concern about illegal traffic and emphasized the need to give the issue higher priority, while a number of representatives noted the need to develop guidance and procedures to deal with alleged cases of illegal traffic.").

213. Rotterdam Convention on the Prior Informed Consent for Certain Hazardous Chemicals and Pesticides in International Trade, U.N. Doc. UNEP/FAO/PIC/CONF/5, Annex 3, Sept. 11, 1998.

214. See id. art. 26.1. As of September 7, 2000, the Rotterdam Convention had 11 states parties. Status of Signature and Ratification, Acceptance, Approval, and Accession as of 7 September, 2000, at http://www.pic.int/ (last visited Sept. 12, 2000).

215. Rotterdam Convention, supra note 213, art. 1.

216. See id. art. 3.

217. See id. arts. 10-13.

218. See id. arts. 5-9.

219. See id. arts. 2(b)-(c).

220. See id. arts. 2(d) and 6.

221. See id. art. 10.2.

222. See id. art. 10.10.

223. See id. art. 10.9.

224. See id. art. 11.1(a).

225. See id. art. 11.1(b).

226. See id. art. 12.

227. See id. art. 12.5.

228. See id. art. 14.

229. See id. art. 16.

230. Id. art. 17.

231. See Rotterdam Convention, supra note 213, Annex 2.

232. UNEP, Persistent Organic Pollutants, at http://irptc.unep.ch/pops/newlayout/aitstdefaultbody.html (last visited Sept. 8, 2000).

233. UNEP, Development of an International Legally Binding Instrument, at http://irptc.unep.ch/pops/newlayout/body/htm (last visited Sept. 8, 2000).

234. Klaus Topfer, Working Together for a POPs Treaty for the Next Millennium, Opening Remarks at the Third Session of the Intergovernmental Negotiating Committee for a Treaty on Persistent Organic Pollutants (Sept. 6, 1999), at http://irptc.unep.ch/pops/POPs_Inc/INC_3/SpeechTopfer.htm (last visited Sept. 8, 2000).

235. See Report of the Intergovernmental Negotiating Committee for an International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants on the Work of Its Second Session, UNEP/POPS/INC.2/6, Jan. 29, 1999; Report of the Intergovernmental Negotiating Committee for an International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants on the Work of Its Third Session, UNEP/POPS/INC.3/4, Sept. 17, 1999; Report of the Intergovernmental Negotiating Committee for an International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants on the Work of Its Fourth Session UNEP/POPS/INC.4/5, Mar. 25, 2000.

236. Topfer, supra note 234.

237. See BIRNIE & BOYLE, supra note 29, at 97-98 (discussing the precautionary principle).

238. See the Agreement on the Application of Sanitary and Phytosanitary Measures, Final Act Embodying the Result of the Uruguay Round of Multilateral Trade Negotiations, MTN/FA II-AIA-4, Apr. 15, 1994 [hereinafter SPS Agreement].

239. Similar conclusions are reached when considering a state's unilateral action to reduce certain activities within its territory (e.g., reducing emissions of greenhouse gases) under a precautionary approach. The state does not need the precautionary principle to justify such action within its territory under international law. In this context, the precautionary principle is a policy reason for legal action not a legal reason for political action.

240. There is also controversy about whether CIL mandates the use of the precautionary principle, but the arguments for such a CIL mandate are weak. As Birnie and Boyle argue, "difficult questions concerning the point at which [the precautionary principle] becomes applicable to any given activity remain unanswered and seriously undermine its normative character and practical utility." BIRNIE & BOYLE, supra note 29, at 98.

241. See SPS Agreement, supra note 238, arts. 2.2, 3.3, and 5.1.

242. See id. art. 5.7.

243. For analysis of the science paradigm in international trade law, see David P. Fidler, Trade and Health: The Global Spread of Disease and International Trade, 40 GERM. Y.B. INT'L L. 300 (1997).

244. See Convention on Biological Diversity, supra note 55, art. 19.3.

245. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, at http://www.biodiv.org/biosafe/Protocol/html/Biosafe-Prot.html (last visited Sept. 13, 2000).

246. See id. arts. 7 and 8.1.

247. See id. art. 10.

248. See id. art. 13.

249. See id. art. 15.

250. See id. art. 10.6.

251. Id. arts. 5 and 11.

252. See id. art. 11.1.

253. See AARON COSBEY & STAS BURGIEL, INTERNATIONAL INSTITUTE FOR SUSTAINABLE DEVELOPMENT, THE CARTAGENA PROTOCOL ON BIOSAFETY: AN ANALYSIS OF RESULTS 8(2000).

254. See Cartagena Protocol, supra note 245, art. 11.8.

255. See Robert Paarlberg, The Global Food Fight, 79 FOREIGN AFF. 32-33 (2000) arguing that:

The hypothetical threat to biosafety posed by GM crops remains demonstrably smaller than the actual threat posed by invasions of exotic but non-GM plant and animal species. By some estimates, exotic species movements (having nothing to do with genetic engineering) currently generate tens of billions of dollars in losses to agriculture annually in the developing world. If these countries are truly concerned with biosafety, GM crops should hardly be their first focus.

For analysis of the larger problem of biological invasion, see CHRIS BRIGHT, LIFE OUT OF BOUNDS: BIOINVASION IN A BORDERLESS WORLD (1998).

256. See Cartagena Protocol, supra note 245, art. 2.2.

257. See id. art. 5. The language of Article 5 states that pharmaceuticals for human use are excluded "that are addressed by other relevant international agreements or organisations." While this technically opens the possibility that the Cartagena Protocol can be applied to the international trade in pharmaceuticals not so addressed, it is also clear that other agreements, namely the SPS Agreement, and international organizations, such as the World Health Organization, address pharmaceuticals.

258. See COSBEY & BURGIEL, supra note 253, at 2.

259. Aarti Gupta, Governing Trade in Genetically Modified Organisms: The Cartagena Protocol on Biosafety, ENVIRONMENT, May 2000, at 9.

260. See, e.g., Cartagena Protocol, supra note 245, pmbl.: "Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements, Understanding that the above recital is not intended to subordinate this Protocol to other international agreements, ….".

261. Some experts believe that the Cartagena Protocol positively affects the SPS Agreement. See COSBEY & BURGIEL, supra note 253, at 12:

The significance of the Protocol's precautionary provisions seems to be that they fill in some of the gaps in the SPS Agreement. They enrich the SPS Agreement by adding details that help operationalize the precautionary principle in the context of LMOs…. Here, an environmental agreement is in effect giving specificity to a trade agreement.

262. WHO, Health and Environment in Sustainable Development, supra note 69, at 55 (citation omitted).

263. See LAURIE GARRETT, THE COMING PLAGUE 560-67 (1994).

264. See CLIMATE CHANGE AND HUMAN HEALTH, supra note 18, at 102.

265. See WHO, Health and Environment in Sustainable Development, supra note 69, at 126.

266. See id. at 127.

267. CLIMATE CHANGE AND HUMAN HEALTH, supra note 18, at 169.

268. See id.

269. See id. at 216.

270. Id.

271. See id.

272. See id. at 102.

273. See FIDLER, supra note 54, at 251-52.

274. See, e.g., Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).

275. See, e.g., Stockholm Declaration, supra note 31, princ. 21: and Rio Declaration, supra note 32, princ. 13.

276. BIRNIE & BOYLE, supra note 29, at 91.

277. UNCLOS, supra note 81, arts. 194.1 and 194.3.

278. Id. art. 207.1.

279. ROBIN R. CHURCHILL & VAUGHN A. LOWE, THE LAW OF THE SEA 278 (2d ed. rev. 1988).

280. BIRNIE & BOYLE, supra note 29, at 308.

281. FIDLER, supra note 54, at 262.

282. Convention for the Prevention of Marine Pollution From Land-Based Sources, June 4, 1974, 13 I.L.M. 352.

283. Convention on the Protection of the Marine Environment of the Baltic Sea, Mar. 22, 1974, 13 I.L.M. 546.

284. FIDLER, supra note 54, at 263.

285. Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, at http://www.ospar.org/eng/html/welcome.html (last visited Sept. 12, 2000).

286. CHURCHILL & LOWE, supra note 279, at 278.

287. BIRNIE & BOYLE, supra note 29, at 308-09.

288. Washington Declaration on Protection of the Marine Environment From Land-Based Activities, UNEP (OCA)/LBA/IG.2/6, Annex 2, P17, Nov. 1, 1995.

289. Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, 26 I.L.M. 1529.

290. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1550, composite text containing all amendments at http://www.unep.org/ozone/mont_t.htm (last visited Sept. 12, 2000).

291. See id. art. 5.1.

292. See id. art. 10.

293. See id. art. 10A.

294. See id. art. 4.

295. See Beijing Environmental Meeting Lashed by Protesters, OZONE DEPLETION NETWORK ONLINE TODAY, Dec. 10, 1999, available at 1999 WL 30859293 (reporting that "representatives from environmental, health and consumer groups expressed their disdain for the UN's efforts in protecting the Earth's stratospheric ozone layer").

296. See Report of the Eleventh Meeting of the Parties to the Montreal Protocol on Substances That Deplete the Ozone Layer, UNEP/OzL.Pro. 11/10, PP51-62, Dec. 17, 1999.

297. See id. P106.

298. Montreal Amendment to the Montreal Protocol on Substances That Deplete the Ozone Layer, art. 4B, at http://www.unep.org/ozone/Montreal-Amendment.htm (last visited Sept. 12, 2000).

299. United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849 [hereinafter FCCC].

300. Kyoto Protocol to the United Nations Framework Convention on Climate Change, U.N. Doc. FCCC/CP/1997/L.7/Add.l., Dec. 11, 1997.

301. See Update on Ratification of the Convention, at http://www.unfccc.de/text/resource/conv/ratlist.pdf (last visited Sept. 8, 2000).

302. See Kyoto Protocol: Status of Ratification as of 12 September, 2000, at http://www.unfccc.int/resource/kpstats.pdf (last visited Sept. 12, 2000).

303. FCCC, supra note 299, art. 2.

304. Id. art. 4.2(a).

305. See id. arts. 4.3 and 4.5.

306. Id. art. 4.7.

307. FIDLER, supra note 54, at 273.

308. Press Release, U.N. FCCC Ministers Pledge to Finalize Climate Agreement by November 2000 (Nov. 5, 1999), at http://www.unfccc.de/media/cop5pressf.html (last visited Sept. 8, 2000).

309. FIDLER, supra note 54, at 274.

310. For more on the world politics of public health, see FIDLER, supra note 105, at 67-86.

31 ELR 10048 | Environmental Law Reporter | copyright © 2001 | All rights reserved