Legal Studies Year 12 Global Environment

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Legal Studies Year 12 Global Environment

Legal IssuesFor generations, the environment was simply seen as a resource to be exploited. The environment wasused by capitalists, industrialists and developers in any way they saw fit, and quite often, it was profit

motive that drove their decision-making.A persons entitlement to use their land under the common law meant that the effects of their land useonly became an issue after damage to the land had occurred. Such a reactive response meant that thelaw could not prevent environmental damage, but could only act after the damage was done.Consequently, all aspects of the environment were used in a manner that did not adequately considerthe impacts of its use.

Remedies1972 Stockholm ConferenceAccording to the United Nations Environment Programme (UNEP), the main aim of the StockholmConference was to consider the need for a common outlook and for common principles to inspire and

guide the peoples of the world in the preservation and enhancement of the hu man environment. Thisconference produced the Stockholm Declaration, which can be credited with providing the impetus forsustainability becoming the focus for global environmental protection. Declarations have no bindinglegal effect, but they do have an undeniable moral force and provide practical guidance to nation-statesabout how they should behave. The Stockholm declaration arrived at 4 key conclusions:

- Nation states have a responsibility to manage their environments and they are accountable totheir neighbours.

- All people have the right to an adequate environment.- There is a need for intergenerational equity.- There is a need for international cooperation.

While it can be argued that the Stockholm Conference produced nothing concrete in regard tointe rnational law, it did create UNEP. Stockholms real success law in the foundations it provided for allsubsequent international environmental law. It produced non-binding guidelines that were open to verywide interpretation but it did place ecologically sustainable development (ESD) into the globalconsciousness and the UNEP became the major forum for promoting environmental protection.

1992 Rio Conference: The 1992 Earth SummitThe Rio Earth Summit is more formally called the United Nations Conference on Environment andDevelopment (UNCED) and was held in Brazil in 1992. It was hoped that Rio would produce a range ofbinding environmental agreements, but the different perspectives of the 180 represented nation-statesand non- government organizations (NGO s) made it difficult to reach a common consensus.While Stockholm provided the general guidelines for ecologically sustainable development (ESD) it wasRio that produced the general framework. A range of comprehensive statements emerged from Rio.These documents have formed the basic framework by which nation states and the global communityhave been able to implement both domestic and international law aimed at global environmentalprotection. Once again, it is the concept of state sovereignty that has limited the strength and nature ofinternational law in this area.The key documents from Rio are the Rio Declaration and Agenda 21. The Rio Declaration is a non-binding statement that outlines 27 different principles concerning the challenge of utilizing theenvironment in a sustainable manner.


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Agenda 21, another non-binding, document, was designed as the 21 st centurys blueprint for balancingdevelopment with environment. The scope of Agenda 21, and its possible impacts on the economicdevelopment of all nation-states, made a binding document impossible to attain. Consequently, Agenda21, while providing clear guidelines aimed at global environmental protection incorporating ESD, is onlyvoluntary in nature. Agenda 21 covers using resources efficiently, fostering an equitable world,protecting global resources, making the world habitable and increasing the input of disadvantagedgroups (such as children, women and the indigenous communities). The main achievement of Agenda 21is that it placed pressure on nation states to implement ESD. While it has no binding components it ishoped that nation states will act on its conclusions. Its success depends on its implementation bysovereign states and at this stage it is questionable whether this can be achieved.The Biodiversity Convention and the Climate Change Convention were also produced in Rio. Theseconventions are binding on those nation-states that are signatories to them.

International Instruments: Declarations and TreatiesInternational instruments can generally be classified into two categories: soft law and hard law. ThoseInternational instruments that have no legally binding consequences attached to them are referred to assoft law. Declarations fall into this group and these include the Stockholm Declaration and Agenda 21.While they impose moral obligations on nation-states, those that do no comply are not subject to anyrecourse through international law.The second category, hard law, consists of those instruments that do have legally binding consequencesattached to them. Conventions and treaties are hard law. There are numerous environmental examplesof hard law, such as the Biodiversity Convention 1992, CITES 1975 (Convention on International Trade ofEndangered Species of Wild Flora and Fauna) and the Ramsar Convention on Wetlands 1971.

CITES: CITES is an international agreement between Governments. It has 168 signatories and coversover 30 000 plants and animals. The aim of CITES is to ensure that international trade in specimens ofwild animals and plants does not threaten their survival.Ramsar Convention 1971: is an intergovernmental treaty that provides the framework for national

action and international cooperation for the conservation and wise use of wetlands and their resources.There are currently 146 contracting parties to the convention, with 1436 wetland sites designated forinclusion in the Ramsar List of Wetlands of International Importance.

International Customary LawIt was during the 17 th century that the idea of binding international law became accepted. Article 38 ofthe Statute for the International Court of Justice (ICJ) recognizes international customary law and notesthat it develops through diplomatic relationships and the practices of nation-states. Once accepted,international customary law is of universal application and is thus legally binding on all countries. Suchlaws evolve over time as behavioral norms and the day-to-day practices of countries becomeconsolidated. Many international customary laws have been supplemented by treaties and conventions.

In theory, international customary law should be very effective as all countries are bound to comply withit. However, only those who sign treaties and conventions are bound. Countries are very reluctant to usethe UN judicial forum (ICJ) to intervene in the affairs of other countries to enforce internationalcustomary law.

The United NationsThe UN General Assembly is a forum for nation states to discuss and resolve issues. It comprises allnation states that are signatories to the UN Charter. It is important to realize that the United Nation


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itself does not make international law. Rather it drafts and prepares documents to which Nation-statesdecide to become signatories. The United Nations promotes common goals, and global environmentalprotection has become one of its major platforms in this regard.The Security Council has 15 members. Five of these are permanent members: the US, Russia, the UK,France and China. The remaining ten are elected onto the council by the United Nations GeneralAssembly. The Security Council has the capacity to send UN peacekeepers into areas it deems requiresintervention by armed forces. In theory, the Security Council could intervene if a nation-state created anenvironmental disaster and refused to act, especially if there were global ramifications.The ICJ is the judicial organ of the United Nations. Only nation-states can be parties to a case at the ICJ.The concept of sovereignty limits the enforceability and thus effectiveness of the judicial body. Nations-states may refuse to comply with a ruling or refuse to attend a hearing. If this occurs, little can be doneto compel compliance other than to apply international pressure based on the consensual theory, suchas by using diplomatic pressure, trade sanctions and aid programs.

Regional Inter-Governmental OrganisationsVarious other international bodies not directly linked to the United Nations also play a role in globalenvironmental protection. While the environment may not be their primary concern, their activitiesimpact on the environment. The European Union (EU) has developed an Environment Section aimed atimplementing policies for the 25 nation states now compromising the EU.The Organisation for Economic Cooperation and Development (OECD) has a primary focus on economicaspects of member nations but it too has recognized the need for the environment to be taken intoaccount. The OECD has introduced environment performance reviews in conjunction with their usualeconomic reviews. The OECD Working Party on Environmental Performance has been conducting peerreviews of the environmental performance of OECD member countries since 1992. The central objectiveof the Environmental Performance Review program is to assist member countries to improve theirindividual and collective performances in environmental management and ESD. The review assesses theefforts of each nation state in meeting both domestic objectives and international commitments.

Non-Government OrganisationsGovernments are political in nature and often their perspective on an issue is influenced by a range offactors, such as business and industrial interests. In response to growing environmental awareness overthe last four decad es, various NGOs have emerged to place pressure on governments to take intoaccount environmental considerations. The most prominent of these NGOs are Greenpeace and theWorld Wide Fund for Nature.Greenpeace: Greenpeace is an independent campaigning organization that uses non-violent directaction to expose global environmental problems and to force solutions which are essential to a greenand peaceful future. Greenpeaces goal is to ensure the ability of earth to nurture life in all itsdiversity. Gr eenpeace has 3 core values:

- Independence: Do not accept money from other organizations.

- Bearing Witness: Using peaceful protests to raise awareness and increase the pressure of publicopinion on decision makers.

- Non-violent Direct Action: They strongly believe that violence in any form is morally wrong andaccomplishes nothing.

World Wide Fund for Nature: Works to conserve Australias plants and animals by ending land clearingand degradation, addressing climate change, and preserving and protecting fresh water, marine andland environments. Their core values include:

- Being global, independent and multicultural.


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- Heritage Act 1977Then, in 1979 NSW passed landmark legislation that created a framework for managing and enforcingenvironmental laws. This legislation is the Environmental Planning and Assessment Act 1979 and theLand and Environment Court Act 1979. These Acts illustrate a marked difference between the domestic

jurisdiction and the international arena in terms of compliance.

Case Study: EPA v. Gardener 1997From October 1993 to April 1996, Charles Gardner, while operating a caravan park in Karuah, pumpedover 120 000 litres of raw sewage into the Karuah River. This created an incredibly offensive odourand posed an enormous threat to the health and safety of users of the river. Mr Justice Lloyd madehistory in this case by sentencing Gardner to 12 months in prison and ordering him to pay $420 000 infines and costs. This sent a powerful message to polluters.

Murphyores v. The Commonwealth 1976During the early 1970s, the QLD Government gave permission to Murphyores to und ertakesandmining on Fraser Island because it was seen as an economic opportunity. The federalGovernment wanted the mining to stop but it did not have the Constitutional authority. However, the

Commonwealth has power over imports and exports under Section 51 (i) and it refused to issueMurphyores with an export permit, denying it a market.The case went to the High Court where it was ruled that the denial of a permit was a valid use ofconstitutional power. This case highlighted the increasing importance placed on the environment bythe commonwealth and that it would be prepared to intervene in affairs traditionally handled by thestates if necessary.

Effectiveness of the Law Extended Response The effectiveness of the legal mechanisms which exist to protect the global environment is significantly

restricted. In past years, the environment was simply considered as a resource to be utilized and for this

reason, capitalists, industrialists and developers were able to exploit the environment in a manner

driven by profit motive. It has proved extremely difficult to gain consensus on issues regarding the

preservation of the environment because nation-states generally tend to follow the consensual theory.

A nation-state will not behave in a particular way if it is not in its best interest to do so. Various

international conferences have been held in an effort to achieve sustainable development, but these

often yield negligible results as nation-states can not reach an agreement.

The Stockholm Conference 1972 was a major step towards environmental protection. The most

important achievement of the conference was the Stockholm Declaration. Declarations fall under softlaw, and so this had no legally binding effect on nation states. However, the Stockholm Declaration can

be credited with providing the impetus for sustainability in becoming the focus of environmental

protection. The Declaration also raised awareness regarding global environmental issues, placed

ecologically sustainable development (ESD) into the global consciousness, and imposed a strong moral

obligation on nation-states concerning their treatment of the global environment.


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The next step towards environmental protection was the Rio Earth Summit 1992. However, the differing

views of the 180 represented nation states and NGOs made it difficult to produce any legally binding

environmental agreements. Rio is credited with having produced the general framework for ESD

through a set of inclusive statements which guided nation-states and global community in implementing

domestic and international law aimed at the protection of the global environment. Sadly, the legalstrength and content of international law in this area is heavily restricted by state sovereignty.

The Rio Conference produced two very important documents: the Rio Declaration and Agenda 21.

The Rio Declaration was a set of 27 different principles where intended to guide sustainable

development of the environment for future generations. Being a Declaration, it was not legally binding.

Agenda 21 was another non-binding product of the Rio Conference. It is a blueprint which outlines the

global, national and local actions necessary in balancing development with the environment. Agenda 21

is only voluntary in nature as its possible economic impacts on nation-states made a binding document

impossible to attain. The success of Agenda 21 depends on whether or not nation-states actually act on

its conclusions which is uncertain at this stage.The Rio Declaration and Agenda 21 fall under the soft law category of international law. They only

place moral obligations on nation-states. Conventions and treaties are hard law and have legally binding

consequences attached to them. CITES 1975 (Convention on the International Trade of Endangered

Species of Wild Flora and Fauna) and the Ramsar Convention on Wetlands 1971 are examples of hard

law.

The aim of CITES is to ensure that the international trade in specimens of wild animals and plants does

not threaten their survival. CITES has 168 signatories and covers over 30 000 plants and animals. CITES

is an international agreement between Governments and thus, it is legally binding. This makes it

effective in achieving its aims.

The Ramsar Convention on Wetlands is an intergovernmental treaty that provides the framework for

national action and international cooperation for the conservation and wise use of wetlands and their

resources. The Ramsar convention currently has 146 contracting parties and includes 1436 wetland sites

on its List of Wetlands of International Importance.

The perspective of the Government is heavily influenced by a range of factors, such as industrial

interests and social values. With rising environmental awareness, various NGOs have been formed to

place pressure on Governments and provide a forum for social perspectives. Greenpeace and the World

Wide Fund for Nature are among the most prominent of these NGOs.

Greenpeace is an independent organization that endeavors to expose global environmental problems

and provide solutions for a green future through non-violent direct action. Greenpeace does not accept

money from any organizations and uses peaceful protests to voice their opinions as they believe any

form of violent is morally wrong.


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The World Wide Fund for Nature is an Australian o rganization which works to conserve Australias plants

and animals by ending land clearing and degradation and other methods. WWFs core values include:

Working on a global scale while retaining their independence and multiculturalism, avoiding

unnecessary confrontations and respecting the cultural and economic needs of local and indigenous

people.

Governments and NGOs use the media to shape and manipulate people so that their views become

accepted. An example of this is Natures Organics confronting ne w advertising campaign depicting

various sea creatures being abused in household cleaning situations. The advertisement endorses

Natures Organics for their household cleaning brand, Earth Choice. While the viewers are assured that

no animals were harmed in the making of the advertisement, the confronting images are still effective in

shaping the publics opinion on non-organic household cleaners.

It is clear that the most effective methods of achieving justice concerning the global environment belongto N GOs and the Media. State sovereignty continues to halt international progress in preserving the

environment and thus, the scope of treaties, conventions and declarations are very limited.

Documents

Legal Studies Year 12 Global Environment