Basic functions and principles of international environmental law in the context of managing water resources.

• Author: Nafziger, James A.R.
• Position: Sustainable Development, Corporate Governance, and International Law

1. INTRODUCTION

   International environmental law plays an important role in shaping and giving effect to institutional policies for managing natural resources. Its rules, principles, and procedures are normative not only when they are binding as hard law but also when they provide non-binding guidance as soft law for national and sub-national policies. In either normative capacity, international environmental law lends greater authority and coherence to divergent sectoral policies and fills gaps where effective policies are incomplete or do not exist. The law also facilitates the transfer of institutional policies and techniques from one political unit or system to another. This harmonizing effect is particularly apparent within integrated regional systems such as the European Union and federal systems such as the United States. But the systems themselves are also becoming more congruent with each other. The growing structural convergence of the European and United States systems is itself a good reason to undertake trans-Atlantic analysis of institutional policies for regulating and managing resources. We can learn a great deal from each other's experiences in having to grapple, more and more, with the same or similar complexities.

   The purpose of this survey is to introduce the essentials of international environmental law and suggest how it can be efficiently integrated into postsecondary education concerning the comparative environmental impacts of different institutional policies for managing natural resources. The focus is on the environmental management of shared water resources. The aim is to give students, whether law-trained or not, a deeper understanding of the uses of international environmental law in a variety of ecological sectors, from the oceans to the mountains, and on all tiers of natural resource management, from local to international.

   This survey therefore summarizes the general legal framework and historical development of international environmental law, then identifies several of its essential functions and general principles, and concludes with a brief commentary on a few of its contributions and challenges to it. Expressing the uses of the law primarily in terms of the essential functions of multilateral agreements and the most important principles is intended to highlight the utility of international environmental law and institutions. At the very least, a familiarity with such functions and principles, within the context of shared water resources, yields a common vocabulary to express diverse policy alternatives.

2. THE GENERAL LEGAL FRAMEWORK

   Public international law, primarily, but also private international law (1) play significant roles in resolving transboundary, environmental disputes. Limited extraterritorial application of national regulatory law is also noteworthy. (2) Although public international law as a whole was once confined, in the positivist tradition, to relations between States, it infuses nearly every sector of human activity today. (3) Regardless of whether particular rules of law are hard, in the sense of being legally binding, or soft, when they are normative but non-binding, they not only govern relations between sovereign States but also shape expectations and decisions within national and sub-national systems. Thus, clean-air issues implicate the law of transfrontier pollution whereas issues of water quality and accessibility engage the international law of watercourses and drainage basins. By the same token, local management of fisheries may need to take account of international rules applicable in coastal zones. International environmental law also promotes such ecological projects as the establishment of natural heritage sites, reserves, other protected areas, and biological diversity programs.

   Several examples illustrate the role of international environmental law in managing water resources. In the Case Concerning the Gabcikovo-Nagymaros Project, (4) Hungary and Slovakia disputed each other's construction of dams on the Danube River. (5) The International Court of Justice, quoting from its advisory opinion in Legality of the Threat or Use of Nuclear Weapons, (6) reiterated that

   [T]he environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment. (7) It should be noted that much of international environmental law is sectoral. For example, wetlands constitute one sector with its own regime, watercourses another, and forests yet a third sector. Of particular significance is the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (also known as the Ramsar Convention), (8) to which the United States and all members of the European Union are parties. It seeks "to stem the progressive encroachment and loss of wetlands ... by combining far-sighted national policies and coordinating international action." (9) Although the treaty was the first to focus sharply on the habitat of an endangered species (waterfowl), its scope has broadened to encompass the entire wetlands ecology. Article 5 mandates that

   The Contracting Parties shall consult with each other about implementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties. They shall at the same time endeavour to co-ordinate and support present and future policies and regulations concerning the conservation of wetlands and their flora and fauna. (10) The Convention further requires parties to engage in the conservation and "wise use" of wetlands, particularly those of international importance that each party designates for inclusion on the Ramsar Convention List. (11) Parties also agree to undertake environmental impact assessments, resource inventories, the establishment of nature reserves, ecological training programs, and consultations with other parties. (12)

   The 2004 Berlin Rules on Water Resources, (13) though soft law, and the 1997 U.N. Convention on the Law of Non-Navigational Uses of International Watercourses, (14) though not yet in force, are also influential. Each of these instruments sets forth important principles, rules, and general practices. The Convention on Watercourses, for example, requires States Parties to cooperate in preventing, reducing, and controlling pollution that may cause significant harm to watercourses and related environments (15) and to protect and preserve the watercourse ecosystems within their control. (16) It also instructs States to settle their disputes related to their treaty obligations according to a graduated process, beginning with negotiations and, as a last resort, concluding with binding arbitration or contentious proceedings before the international Court of Justice. (17)

   This survey might have simply identified other legal authority applicable to individual case studies, or it might have focused sharply on the particular geographical regions addressed by published case studies--for example, the framework of integrated coastal management along the Spanish Mediterranean littoral. (18) Alternatively, the survey might have focused, somewhat more broadly, on the European Union, taking account of its established rules as well as the evolving norms of its marine and other policies. Instead, the survey's scope is global so as to facilitate a comprehensive understanding of the role of international environmental law in shaping and giving effect to a wide variety of institutional policies with environmental impacts.

3. HISTORICAL DEVELOPMENT AND ESSENTIAL CHARACTERISTICS OF INTERNATIONAL ENVIRONMENTAL LAW

   1. Early Initiatives

      The earliest recorded treaty in human history, between the city states of Lagash and Umma in Mesopotamia, in about 3100 B.C., (19) confirms their settlement of a dispute concerning shared water resources. In modem times, bilateral agreements between sovereign States have helped manage fisheries, protect migratory birds, and resolve issues of marine and riparian regulatory jurisdiction. Eventually treaties began to require international collaboration and establish institutions to coordinate national implementation of international agreements. For example, the Fur Seals Conventions of 1893 (20) mandated regional consultations and cooperation to protect that species of wildlife in the North Pacific. The 1909 Treaty Relating to the Boundary Waters and Questions Along the Boundary between Canada and the United States (21) was ahead of its time. It was especially innovative in two respects: its establishment of a bilateral institution, the International Joint Commission, for consultation and dispute resolution; and its ban on "pollution" (22) of boundary waters. Today, we take the term "pollution" for granted, but it was quite novel as a legal concept in 1909 when the Boundary Waters Treaty was concluded. Although the term was originally limited to navigational obstructions, it has evolved to include the contaminants with which we are most apt to associate "pollution" today.

   2. Arbitral Awards

      International environmental law that transcends roles for regulating specific natural resources is, however, of recent origin. In particular, the landmark series of arbitration between the United States and Canada in the Trail Smelter Case23 during the late 1930s and 1940s began the development of general principles to govern state responsibility for environmental injury. In particular, the Trail Smelter tribunal held Canada responsible, on a theory of strict liability, for injury to persons and property in the State of...