5International Environmental Law Ten Years On

• Author: Philippe Sands
• Published date: 01 November 1999
• Date: 01 November 1999
• DOI: http://doi.org/10.1111/1467-9388.00207

Volume 8 Issue 3 1999 International Environmental Law

International Environmental

Law Ten Years On

International Environmental

Law Ten Years On

Philippe Sands

The idea for FIELD emerged in 1989. At that time the

subject of international environmental law scarcely

existed as a coherent body of rules within the inter-

national legal order. There had been signif‌icant strides

in environmental law at the national level, and the Euro-

pean Community was developing an extensive body of

rules applicable at the regional level. But for the most

part the motley group of international environmental

agreements hung together as a disaggregated collection

addressing particular subject matters. In the United

Kingdom graduate courses in international environmen-

tal law were emerging, including at London University

under the direction of Patricia Birnie and Alan Boyle. But

there were no dedicated textbooks on the subject. The

f‌irst English language treatise was published in 1992.

And at the time none of the major treatises on general

international law included chapters or sections on the

environment. Gradually this has changed: the Yearbook

of International Environmental Law has been published

annually since its establishment by Gunther Handl in

1990; most treatises on public international law include

chapters dedicated to the environment;

1

and undergrad-

uate and graduate courses on international environmen-

tal law are offered at law schools and universities around

the world.

Judging by the courses, the dedicated treatises and

chapters it would be hard to deny that the environment

has now become a mainstream subject of international

law. It is a subject which features on the agenda of vir-

tually all international organizations, whether regional or

global, and has been addressed by the principal inter-

national courts and tribunals. Of particular note in this

regard are the recent decisions of the International

Court of Justice in the Nuclear Weapons Advisory Opi-

nions

2

in 1996 and the Gabcikovo/Nagymaros dispute

between Hungary and Slovakia

3

in 1997, as well as WTO

Appelate Body’s decision in the Shrimp/Turtle case

4

in

1998. The environment has been integrated into judg-

ments of human rights bodies, including the European

Court of Human Rights (see in particular the case of

Lopez Ostra v. Spain

5

in 1994), and at the time of writing

a potential environmental award from an International

Centre for Settlement of Investment Disputes (ICSID)

Arbitral Tribunal is awaited, and Australia and New Zea-

land have commenced proceedings against Japan for

overf‌ishing of blue-f‌in tuna in the Pacif‌ic Ocean. Over-

Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

239

arching these developments are an impressive number

of new multilateral environmental agreements address-

ing water resources, air quality and biodiversity. Of

particular note are the provisions of the 1992 Climate

Change Convention and its 1997 Kyoto Protocol,

imposing far-reaching obligations and establishing leg-

ally complex new techniques of regulation.

Ten years on there have clearly been important develop-

ments. Indeed, it is in the environmental f‌ield that new

approaches have emerged which have important impli-

cations for other areas of international law: one thinks

in particular of the singular role played by non-state

actors in the elaboration and enforcement of rules of

international environmental law, and the linkage which

has been made between the provision of f‌inancial

resources and the fulf‌ilment by developing countries of

their environmental obligations.

Nevertheless, there is a sense that most international

environmental agreements have not achieved their

objectives. With limited exceptions (one thinks of the

moratorium on whaling, the prohibition on the disposal

of radioactive materials in the marine environment and –

perhaps – efforts to protect the ozone layer from further

depletion) environmental resources are being depleted

at an ever greater rate. We are told that the prospects

for conf‌lict over the use of shared natural resources has

never been greater, particularly in relation to freshwater,

air quality and f‌isheries.

What is to be done? It seems to me that there are six

areas which might be focused on.

First, greater emphasis needs to be given to the tech-

niques for assessing environmental risk to assist in

decision-making and establishing priorities. Different

communities have different approaches: one need look

no further than the current differences of emphasis as

to risk between the United States and the European

Union on genetically modif‌ied organisms. Recent prac-

tice before international tribunals – the International

Court in the Gabcikovo/Nagymaros case and the WTO

Appellate Body in the Beef Hormones case

6

– also indi-

cates the absence of a common approach identifying

minimum standards to be applied to assist legislators