International Environmental Law and the Caribbean Environment
| Author | Winston Anderson |
| Pages | 19-41 |
Page 19
2. International Environmental Law
and the Caribbean Environment
Caribbean adherence to the territorial-
ity of national law is well established; it
is an underlying presumption sometimes
expressed in the language of environmental legisla-
tion that restricts regulation a nd management to
the environment located “within the jurisdiction”
of t he legislating state.1 Notwithsta nding, protec-
tion and preservation of t he Caribbean environ-
ment is inextricably linked to and dependent on the
protection and preservation of the global environ-
ment, and vice versa.
ere is a physical, geographical, and ecologi-
cal unity to the environment2 that is only palely
reected in the transfrontier migration of species
such as birds and shes, in the dispersion of marine
pollutants across oceans, and in the emissions of
carbon-based gases by individual nations that com-
bine to contribute to global ozone depletion and
climate change. At the most elemental, molecular
level, the environment is one. ere is therefore a
necessary and inherent relationship between inter-
national legal eorts to protect the global environ-
ment and Caribbean environmental law. In this
way, protection of the environment in the C arib-
bean becomes dependent on the participation by
Caribbean states in international environmental
laws.
ere is another way in which international envi-
ronmental law is relevant to the Caribbean envi-
ronment. Since 1972, international environmental
law has developed extensively. e domestic envi-
ronment of states has become increa singly inter-
nationalized, resulting in the erosion of domestic
jurisdiction, as postulated in the traditional con-
cept of sovereignty envisaged in a rticle 2 of the
1. See, e.g., Environmental Management Act, No. 3, §2, Ch. 35:
05 (2000) (Trin. & Tobago).
2. For a more complete discussion, see chapter 1 above.
United Nations Charter. Alan Boyle conrms that
the extensive scope of international environmen-
tal law and policy has intruded into all aspects of
environmental protection, including “the reserved
domain of domestic sovereignty.”3 ere is a real
sense, then, to viewing internationa l environmen-
tal law a s part of the juridical response, even in
respect of environmental problems that manifest
themselves prima rily within national and regional
borders.
International Environmental Law
International environmental law is a specialized
branch of public international law comprising
international rules concerned with the protection
of the global environment. e subject4 empha-
sizes a number of large, overarching themes: the
correlation between economic development and
environmental problems and between trade and
development; the relationship between “devel-
oped” and “developing” countries; international
regulation as contrasted with national sovereignty;
the role of governments as compared with non-
governmental actors; and the relationship between
science, ecology, and diplomacy. Actual environ-
mental problems addressed include population
growth versus available resources; loss of biologi-
cal diversity ; endangerment and loss of species
and habitats; atmospheric pollution; marine water
3. Alan Boyle, e Role of International Human Rights Law in the
Protection of the Environment, in H R A
E P, 43, 51-52 (A. Boyle & M.
Anderson eds., 1996).
4. See generally P B A B, I L
E (2002); P S, P
I E L (2003); D H.
M ., T L G: A Report for the
Club of Rome’s Project on the Predicament of Mankind (1972)
(“[T]o explore the future of a world that was growing rapidly
but had limited resources.”).
Page 20 Principles of Caribbean Environmental Law
resource issues; transportation and disposal of
waste and hazardous substances; a nd management
of freshwater resources.5
e development and application of interna-
tional environmental law represent seminal chal-
lenges to the trad itional international legal order,
given that certain principles and doct rines of pub-
lic international law tend to mi litate against the
adoption of a truly global response to international
problems. e controlling principle of public inter-
national law is “state sovereignty”: Article 2 of the
Charter of the United Nations6 (United Nations
Charter or UN Charter) states, “e Organization
is based on t he principle of the sovereign equality
of all its Members,” and academic writers have sug-
gested t hat “the sovereignty and equality of states
represents the basic constitutional doctrine of the
law of nations.”7
Territorial Sovereignty
ere are four principal corollaries to the doctrine
of sovereignty and equality of states that are rel-
evant to environmental protection. e supremacy
of the state is reected in the traditional notion of
territorial sovereignty, whereby a state has exclu-
sive jurisdiction over its territory and perma nent
population living there. As Judge Huber said in the
Island of Palmas Case,8 “territorial sovereignty . . .
involves the exclusive right to display the activities
of a state.” is statement implies exclusive right
over natural resources found within the territorial
limits of the state, a s well a s within areas of mari-
time jurisdiction; therefore, prima facie, a state may
aggressively pursue a policy of economic develop-
ment at the expense of environmental protection.
Duty of Nonintervention
ere is a duty of nonintervention in the terri-
tory of a foreign state. In the L otus case (France
v. Turkey)9 it was said: “[T ]he rst and foremost
restriction imposed by international law upon a
state is that—failing the existence of a permissive
rule to the contrar y—it may not exercise its power
in any form in the territory of another state.” e
5. M ., supra note 4, at 25-31, 34-38.
6. U.N. Charter art. 2, para. 7.
7. I B, P P I L,
287 (1990).
8. XX R. Int’l Arb. Awards, 829, 838 (1928).
9. D. J. H, C M I L
269 (2004).
rule of nonintervention applies, not just to states,
but also to international organizations. e United
Nations, the world’s foremost international organi-
zation, provides in its Charter: “Nothing contained
in the present Charter sha ll authoriz e the United
Nations to intervene in matters which are essen-
tially w ithin the domestic jurisdiction of any state
or shall require the Members to submit such mat-
ters to settlement under the present Charter; but
this principle shall not prejudice the application of
enforcement measures under Chapter VII.”10 As a
general rule, therefore, neither states nor interna-
tional organizations ca n take action within the ter-
ritory of another state to protect the environment;
this rule appears to be the case even if preservation
of the environment is essential to the world ecology.
Freedom of the Global Commons
Traditional public international law recognizes the
right of f reedom of action beyond the boundar-
ies of “state territory”—that is, in areas k nown as
the “global commons.” Historically, global com-
mons, such as the high seas, the sea bed below
the h igh seas, unclaimed land territories, and the
atmosphere, belonged to no one; they were “com-
mon property,” or res nullius, and could be used
equally by everyone. e freedom to sh and dis-
pose of waste in the high seas is largely responsible
for the depletion of shing stocks in many parts of
the world. A commons implies freedom of action,
which frequently leads to ruination of the shared
resource.11
Consent to Be Bound
Any limitations on the competence of states to act
can only arise from obligations freely undertaken
by those states, and customary international law
and treaties are the primar y and normal means by
which a state may indicate consent to be bound.
Environmental limitations cannot be imposed on
states without their consent.
Sources of International
Environmental Law
e most authoritative list of sources of interna-
tional environmental law, as for other branches of
10. U.N. Charter, art. 2, para. 7.
11. Garrett Hardin, e Tragedy of the Commons, 162 S 1241
(1968).
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