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In one of his first acts in the White House, President Joe Biden issued an executive order to the effect that the United States, yet again, joins the 2015 Paris Agreement on the combating of climate change. The United States had joined the agreement under President Obama, but Obama’s successor on the White House, President Donald Trump, had pulled the United States from the agreement. When Trump did so, he famously proclaimed that he was elected to represent the people of Pittsburgh, not Paris. To that, of course, one feels the urge to add that the Paris Agreement is really not about benefiting the people of Paris. The only reason why the agreement is called the Paris Agreement is because it was adopted at a climate summit in Paris. Nevertheless, the American zig zag course on the Paris Agreement illustrates how the international efforts to combat climate change has become high politics. It also illustrates how important international environmental law has become. This episode of the International Law Podcast, episode ten, takes a closer look at international environmental law, and I will do so by examining three particular issues that I think are worth highlighting.
The first of these issues concerns how international environments law has evolved. Because, more than any other part of international law, international environmental law was initially developed in successive waves, each initiated by a major conference. These conferences and the declarations that were usually adopted at the end of the conferences serve to focus international attention on environmental issues, and also created much needed political momentum for action. The first of the pivotal conferences was the 1972 Stockholm Conference on the Human Environment. In Stockholm, Sweden, the participating states adopted a declaration on the human environment that contained a number of principles that have proved to be important principles in international environmental law. The Stockholm Conference also helped pave the way for the UN Environment Program that promotes international cooperation on environmental matters, and helped create new legal instruments.
The next major conference worth noting, and therefore also the next important milestone in the development of international environmental law, was the 1992 Rio Conference on Environment and Development, in Brazil. This event is also known as the Earth Summit. It was here that the world began to talk about sustainable development, essentially meaning development that does not compromise the needs of future generations. The Rio Declaration, a declaration that was adopted at the end of the conference, proclaimed arange of principles that have since become cornerstones of international environmental law. The principles include the principle of prevention, the principle of intergenerational equity, the principle of cooperation, the principle of precaution, and a principle of common, but differentiated, responsibilities. I will return to some of those principles later in this episode. In 2012, a second Rio summit tried to refocus energy on renewing the commitment for sustainable development and to address new and emerging challenges. At the conference, seventeen so-called sustainable development goals were adopted. These SDGs are meant to guide the global development agenda up until 2030. Among the goals is the goal to take urgent action to end climate change and its impacts. Other goals include conserving and sustainably using the oceans, sea, and marine resources for sustainable development.
The second issue I want to explore in more detail in this episode concerns the basic principles of international environmental law. Because, to fully understand what international environmental lawis all about and how it develops, one needs to pay close attention to some of its core principles. And here I'm referring to some of the principles that were proclaimed in the various conferences, declarations, that I outlined before.Here, in the following, I will only refer to some of the principles.And at the outset, it's important to understand that the principles are meant to be of general application. And while some of them are hard lawlegal principles, others merely serve to guide how more concrete obligations should be applied or interpreted. Also, some of the principles started out as mere aspirations, but over time, they have hardened and become more legally binding.
The first group of principles have been formulated to enable the prevention of damage to the environment. The first of these states that, while states are entitled to exploit their own resources, they must ensure that activities that occur on their territories do not cause damage to the environment of other states or to areas beyond the limits of national jurisdiction. This principle follows on the heels of a wider, no harm principle, whereby a state does not have the right to use its territory in such a manner that causes injury to the territory of another state. A second core principle in international environmental law that seeks to prevent damage to the environment is that of precaution. This principle essentially states that a lack of scientific certainty about the negative effects of an activity must not prevent states from taking preventive measures.
The second group of principles in international environmental law have been formulated to ensure that there is a sensible balance between, on the one hand, environmental protection, and on the other, a host of other considerations.The ‘polluter pays’ principle, for example, stipulates that it's the acts that are responsible for the pollution that bearsboth the more immediate and the longer-term costs thereof.The principle of Common ButDifferentiated Responsibilities, also known as CPDR, has been formulated to take account of the special needs of developing states, as well as the facts that developedstates generally hold greater responsibility for existing international damage, and also are better equipped to deal with the consequences than developing states.Under the CPDR principle,the burden is primarily laid on developed states. The principle of intergenerational equity seeks to balance the needs of the present and future generations. The principle is linked to the concept of sustainable development that I mentioned earlier, that in broad strokes also seeks to ensure that the needs of the present are balanced with those of future generations.
The third and last issue that I will focus on in this episode takes us back to the introduction to this episode:the fight to combat climate change. As listeners of this podcast are probably all well aware, combating climate change has turned out to be one of the most pressing and difficult political issues of the 21st century. Scientific evidence seems to show that there's an increase in greenhouse gases in the atmosphere, and that this increase is linked to the so-called greenhouse effect, and an increase in global temperature.As concerns about climate change began to grow in the 1980s, the United Nations Framework Convention for Climate Change,the UNFCCC, was adopted in 1992 at the Rio Conference. The primary purpose of the UNFCCC is to stabilize greenhouse gas concentrations in the atmosphere. And at present, the ambition is to keep the increase in global average temperature to below two degrees Celsius from pre-industrial levels. Now, as its name implies, the UNFCCC is a framework convention, and it only contains very few substantial provisions itself. But what the convention does instead is that it creates a Conference of the Parties, or a COP,that is competent to adopt the specific measures that are required to reach the goals set forth in the convention.
One of the early achievements of the UNFCCC was the adoption of the so-called Kyoto Protocol in 1997. But Kyoto was never a success,and by the time the Kyoto Protocol entered into force in 2005, there was general and overall agreement that it was already outdated, as some of the states with the highest emission levels, such as China, India, and Brazil, were, in fact,under no limitation or reduction obligations, according to the protocol. And this, then, takes us to Paris in 2015, when the Paris Agreement was adopted. And the ambition is set out early to keep the increase in global average temperature to well below two degrees Celsius, above pre-industrial levels, and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels.
The agreement does not set strict legally binding targets for all states. What it does instead is that it requires the parties to put forward their best efforts through Nationally Determined Contributions, also known as NDCs, and to strengthen these efforts in the years ahead.Thus, whatever NDCs a state sets forward for itself, it must increase them over time. The Paris Agreement entered into force in November 2016, and by mid-February 2021 it had reached one hundred and ninety ratifying parties. The United States, as I initially mentioned, now seems to be back in the agreement,and that is, no doubt, a good thing. That said, the targets that states have set for themselves so far in the agreement do not appear sufficiently ambitious to keep the temperature below the 1.5 Celsius that the agreement stipulates as its goal; and that is the case even if the targets were somehow to be met, something that, at present, does not look very likely.