Final Examination, Winter Term 2003 

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Table of Contents:
1. Question 1
2. Question 2
3. Question 3
4. Endnotes

1.  "AT THE TIME OF THE STOCKHOLM CONFERENCE, TECHNIQUES WERE BEING DEVELOPED TO ENSURE THAT INTERNATIONAL TREATIES MIGHT EXERCISE A MORE POTENT, ONGOING IMPACT UPON THE POLICIES AND PRACTICES OF THE STATES WHICH RATIFIED THEM."

 WHAT TECHNIQUES HAS THE INTERNATIONAL COMMUNITY DEVELOPED IN THE LAST THIRTY YEARS TO BRING ABOUT COMPLIANCE WITH INTERNATIONAL LAW WITHIN SOVEREIGN STATES

It is the first acknowledgement by the community of nations of new principles of behavior and responsibility which must govern their relationship in the environmental era.  And it provides an indispensable basis for the establishment and elaboration of new codes of international law and conduct which will be required to give effect to the principles set out in the Declaration.

Maurice Strong, head of the UNCED[1]

            The enthusiasm displayed by Mr. Strong when speaking about the Stockholm Declaration is one shared by the entire international environmental community.  Stockholm represented the most successful attempt at bringing about a system of international law through which international agreements could be negotiated.  Prior to the 1972 Conference there was no real mechanism through which international law could be negotiated or enforced.  The sixties were witness to a proliferation in environmental advocacy[2]. The growing awareness on environmental issues brought about during the 60’s was only reinforced in the 70’s as domestic law began increasingly responding to “well-documented impacts of industrialization”.[3]  Within the United States, advocates for the environment finally saw their dream materializing as environmental law started to become a legitimate issue for national policymaking.[4] 

Through the passage of several federal statutes that addressed environmental concerns as well as the 1969 National Environmental Protection Act[5], the United States joined an ever growing number of industrialized countries that were finally taking steps towards protecting the environment and securing a better tomorrow for future generations.  Like the industrialized countries, developing countries were attempting to address environmental issues but were faced with a different set of challenges.  When addressing environmental concerns with their neighbors, the developing countries were seeking to participate in the agreements but were hesitant to fully comply with them out of fear of losing their national autonomy to the industrialized countries.[6]  This concern was successfully addressed by the Parties at the Stockholm conference. 

In 1972 UN Conference on the Human Environment in Stockholm was attended by one hundred and thirteen countries.[7] This conference would be considered one of the most successful UN conferences ever held up to that time.[8] The UN General Assembly stated that the “main purpose” of the conference was to . .

. . . serve as a practical means to encourage, and to provide guidelines for, action by Governments and international organizations designed to protect and improve the human environment, and to remedy and prevent its impairment, by means of international co-operations, bearing in mind the particular importance of enabling developing countries to forestall occurrence of such problems.[9] 

With this in mind the one hundred and thirteen delegates went to work on developing a strategy for addressing environmental concerns.  The Stockholm conference provided techniques that have influenced and allowed for the creation of more specific techniques that have been incorporated to the realm of international law.  The three most important products bestowed upon the international law system by the conference include the Stockholm Action Plan, the United Nations Environment Program, and the Stockholm Declaration.[10] 

The Stockholm Action plan is a comprehensive effort to help in the identification of environmental issues that would require international action.[11] The plan consists of 106 priority recommendations which are organized into five different program areas: 

• Planning and managing human settlements for environmental quality;
• Addressing the environmental aspects of natural resources management;
• Identifying and controlling pollutants of broad international significance;
• Exploring and strengthening the educational, informational, social and cultural aspects of environmental issues; and
• Addressing the integration of development and environment[12]

Out of the Action Plan came the creation of Earthwatch (a global environmental assessment program) which plays a vital role in providing the international community with information about the biosphere.[13]The Action plan also played a role in influencing the agenda of the United Nations Environment Program.[14] 

            An important progeny of the Stockholm Conference was the United Nations Environment Program (also known as UNEP).[15]  This organ of the United Nations holds general authority over global as well as domestic environmental issues.[16]  UNEP has also held a pivotal role in the development and negotiation of major international treatise.[17]  The UNEP also serves as the secretariat for several treatise and is responsible for gathering and dispersing information among the international environmental community.[18]  The third product of the Stockholm conference was deemed the Stockholm Declaration.  The concept introduced by this body of negotiations has provided the groundwork for the acceptance of sustainable development as a principle objective within international environmental law.[19]  The concept of sustainable development addresses the issues that were brought to the table by the developing countries.  Stated within the Stockholm Declaration are three principle areas which provide for the link between international cooperation and international law, these include: 

• [providing] resources to support developing countries in carrying out their responsibilities,
• cooperation among nations,
• and action by international organizations in the common interest[20]

By identifying the need for mutual cooperation not only through the acceptance of international agreements but in support (whether through resources or any other kind of support) of fellow nations in the pursuit of better tomorrow, the Stockholm Declaration addressed the concerns of the developing countries.  The Stockholm Declaration also placed the responsibility of environmental protection under the auspices of national and local governments.[21]  The 1972 Stockholm Conference has provided the groundwork for the formulation of future environmental agreements and international law.  The break through success of the Conference has sparked a trend of international conventions which have as their focus the issue of environment protection.  The three principle products of the Conference (the Action Plan, UNEP, and the Stockholm Declaration) have provided the springboard off of which many subsequent agreements have been modeled after.

2.  WITH RESPECT TO ANY ONE TREATY REGIME WITH WHICH YOU ARE FAMILIAR, DISCUSS THE ROLE OF NGOs AND THE SCIENTIFIC COMMUNITY IN THE DEVELOPMENT OF INTERNATIONAL LAW AND POLICY FOR SOLVING AN ENVIRONMENTAL PROBLEM

The participation of non-state actors has been a significant factor in shaping the Montreal Protocol.  Both industry and non-governmental environmental organizations have closely monitored the Protocol’s development and provided the critically important impetus for rapid implementation[1] 

            The role of Non-Governmental Organizations (here on referred to as NGO’s) as well as the scientific community has allowed for the rapid implementation (in a relative way) of the regulations set forth by the Vienna Convention of the Protection for the Ozone Layer, as well as its subsidiary amendment, the Montreal Protocol.  The role played by these two entities has proven to be indispensable to this and other treaty regimes.  Not only due these bodies represent a concerned constituency, but they also provide tools and resources that help supplement the treatise so as to allow for the faster implementation of the Protocol. 

            Though within the sphere of international law, NGO’s “are not allowed to participate in, nor are they subjects of international law,”[2] they do bring to the table many tools and resources that would otherwise not be available.  For example, NGO’s have at their disposal the “capacity to build networks, gather and analyze technical information, and gain the attention of policymakers in many countries.”[3]  The ability of NGO’s to do the aforementioned tasks, provides a greater legitimacy for them within international law.  The NGO’s have exploded within the last 20 years[4].  There are now 29,495 registered international organizations in addition to 24,326 registered NGOs[5].  Given this statistic it is easy to understand why, even though they are not considered subjects of the system of international law, NGOs have the level of clout that they do within the arena of international law. 

            In relation to the Montreal Protocol, NGOs have played a major role in the level of implementation that this Protocol has experienced.  Many NGOs help in the monitoring of the development and implementation of the Protocol within the signatory countries.  Through their ability to network and share information as efficiently as they do, NGOs have been able to spark the rapid implementation of the Protocol.  The increasingly important role of the NGOs is witnessed in the implementation of the addition of methyl bromide to the list of hazardous chemicals to the Montreal Protocol in 1992.[6]  UNEP acknowledged that if this addition, as well as the Protocol, were to be successful it would require a “high level of awareness” among the stakeholders within the Protocol.[7]  Realizing this, UNEP launched a project entitled, “Enhancing the Capability of Local Agricultural Organizations and Non-governmental Organizations in Methyl Bromide Communication” in February of 2001.[8]  This step marked the first direct use of an NGO in the implementation of international law.  In response to the responsibility of fostering greater communication between the parties, NGOs as well as local agricultural organizations established a network of communication that spanned over 13 countries.[9]  Along with creating this communication network, NGOs were given the capacity and opportunity to promote methyl bromide alternatives, as well as “networking with other NGOs across the globe, and [assisting] the National Ozone Units, who are often without a large staff or other means to coordinate a sustained outreach program.”[10]  When addressing the importance of NGOs within international law, we must also acknowledge the importance of the scientific community.

            Without the scientific community we would lack a major resource in environmental law.  The scientific community provides, obviously, factual evidence to questions on the health of the environment.  The push for the protection of the Ozone Layer can be attributed to the work conducted by F. Sherwood Rowland and Mario Molina in their article entitled Stratospheric Sink for Chloroflouromethanes: Chlorine Atoms-Catalyzed Destruction of Ozone which was published in 1974 in the magazine Nature.[11]  Their article provided the “first credible explanation of what happens to CFC and their potential role in [the] destruction of the ozone layer.”[12]  This discovery sparked much concern over the state of the ozone layer as well as a series of events that have been implemented in order to remedy the problem.  During the 1970’s, after its creation during the Stockholm Conference, the United Nations Environmental Program began to focus on “the role of CFC’s in ozone depletion and so funded a World Meteorological Organization (WMO) study as well as producing policy documents on ozone layer protection.”[13]  The results presented (in 1975) by the WMO its first intergovernmental scientific statement warned of the dangers of ozone layer depletion as well as provided the grounds for legal action to address the issue.[14] In 1976, UNEP called for “an examination of the need and justification for recommending any national and international controls over the release of man-made chemicals.”[15]  In the same year the UNEP Governing Council authorized a meeting of experts (which were designated by governments, intergovernmental and non-governmental organizations).[16]  This meeting was prepared and conducted over by the WMO as well as UNEP, in Washington, DC, at the beginning of March in 1977.  The result of this meeting was the adoption of the “World Plan of Action on the Ozone Layer”.  This Plan consisted of a 21-point research plan which covered the “monitoring of ozone and solar radiation, the assessment of the effect of ozone depletion on human health, ecosystems and climate, and the development of ways of assessing the costs and benefits of control measures.”[17]The next major step in addressing the issue of ozone depletion was taken in 1985 with the Vienna Convention of the Protection of the Ozone Layer.  Future discoveries would bring about further meetings of the parties and several amendments that would better serve their goal of fixing the ozone problem.  All of this, without the scientific community, would not have come about.  Through the use of the research and analysis that is provided by the scientific community, governments are informed as to the environmental problems that are to be addressed if we are to protect the environment for tomorrow’s generations. 

3.  DISCUSS WHETHER CURRENT INTERNATIONAL LAW IS ADEQUATE FOR SUSTAINABLE USE  OF THE WORLD'S RESOURCES.  ILLUSTRATE YOUR ARGUMENT BY DRAWING ON THE HISTORY OF INTERNATIONAL EFFORTS TO PROMOTE FREE TRADE AND PROTECTS THE ENVIRONMENT.

But just as the laws of each state . . . have in view the advantage of that state, so by mutual consent it has become possible that certain laws should originate as between all states, or a great many states: and it is apparent that the laws thus originating had in view the advantage not of particular states, but of the great society of states . . . And that is what is called the law of nations . . .

            Hugo Grotius[1]

            The current state of international law has witnessed an increase awareness of environmental issues.  Since the 1970’s there has been a boom in multi-national legislation which addresses concerns about the environment.  One such piece of international legislation or treaty is embodied by the Montreal Protocol.  This international agreement has at is core the concern for the well being of the ozone layer, which affects every nation, but has also experienced problems with implementation due to its effect on certain industries within various nations.  The Montreal Protocol is a prime example of the type of agreements and treaties that should be addressed by the global community, and at the same time provides for an interesting case study as to the characteristics of sustainability and environmental protection which are at the heart of international environmental law. 

            International law has experience several evolutionary changes which have provided it with greater legitimacy as well as greater enforcement capabilities.  One of these evolutions is witnessed in the move from the traditional practice of conventional law to a push for a more interactive system of law which has at its core forums which play a crucial role in the “shaping of contemporary international law.”[2] This new face of international law provides a stronger sense of equality within the global community, since it allows states to address concerns about their developmental sustainability during the drafting of international policy. 

            Though each international environmental agreement tends to focus its attention on a specific environmental concern, it must also take into account several factors that would inhibit the full implementation of the treaty within each respective country.  The main concern which must be addressed within the treaty making process is the issue of sustainable development while at the same time addressing the environmental concerns of the global community.  Due to the lack of enforcement possessed by the UN and other IGOs, the system of international law has accidentally provided the means through which global environmental concerns while at the same time leaving the enforcement of the agreements up to the individual countries.  This characteristic of international law helps provide a balance between addressing both the issue of sustainable development and the concern for the

Last Revised
May 22, 2007

Copyright © Eduardo Aguilar 2003. All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture or print.