Legal Studies Year 12 Global Environment

Legal Issues
For generations, the environment was simply seen as a resource to be exploited. The environment was
used 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 use
only became an issue after damage to the land had occurred. Such a reactive response meant that the
law 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 consider
the impacts of its use.

Remedies
1972 Stockholm Conference
According to the United Nations Environment Programme (UNEP), the main aim of the Stockholm
Conference 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 human environment. This
conference produced the Stockholm Declaration, which can be credited with providing the impetus for
sustainability becoming the focus for global environmental protection. Declarations have no binding
legal effect, but they do have an undeniable moral force and provide practical guidance to nation-states
about 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 to
their 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 to
international law, it did create UNEP. Stockholms real success law in the foundations it provided for all
subsequent international environmental law. It produced non-binding guidelines that were open to very
wide interpretation but it did place ecologically sustainable development (ESD) into the global
consciousness and the UNEP became the major forum for promoting environmental protection.

1992 Rio Conference: The 1992 Earth Summit

The Rio Earth Summit is more formally called the United Nations Conference on Environment and
Development (UNCED) and was held in Brazil in 1992. It was hoped that Rio would produce a range of
binding environmental agreements, but the different perspectives of the 180 represented nation-states
and non-government organizations (NGOs) made it difficult to reach a common consensus.
While Stockholm provided the general guidelines for ecologically sustainable development (ESD) it was
Rio 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 community
have been able to implement both domestic and international law aimed at global environmental
protection. Once again, it is the concept of state sovereignty that has limited the strength and nature of
international law in this area.
The key documents from Rio are the Rio Declaration and Agenda 21. The Rio Declaration is a nonbinding statement that outlines 27 different principles concerning the challenge of utilizing the
environment in a sustainable manner.

Agenda 21, another non-binding, document, was designed as the 21st centurys blueprint for balancing
development with environment. The scope of Agenda 21, and its possible impacts on the economic
development of all nation-states, made a binding document impossible to attain. Consequently, Agenda
21, while providing clear guidelines aimed at global environmental protection incorporating ESD, is only
voluntary in nature. Agenda 21 covers using resources efficiently, fostering an equitable world,
protecting global resources, making the world habitable and increasing the input of disadvantaged
groups (such as children, women and the indigenous communities). The main achievement of Agenda 21
is that it placed pressure on nation states to implement ESD. While it has no binding components it is
hoped that nation states will act on its conclusions. Its success depends on its implementation by
sovereign 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. These
conventions are binding on those nation-states that are signatories to them.

International Instruments: Declarations and Treaties

International instruments can generally be classified into two categories: soft law and hard law. Those
International instruments that have no legally binding consequences attached to them are referred to as
soft 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 any
recourse through international law.
The second category, hard law, consists of those instruments that do have legally binding consequences
attached to them. Conventions and treaties are hard law. There are numerous environmental examples
of hard law, such as the Biodiversity Convention 1992, CITES 1975 (Convention on International Trade of
Endangered 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 covers
over 30 000 plants and animals. The aim of CITES is to ensure that international trade in specimens of
wild 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 for
inclusion in the Ramsar List of Wetlands of International Importance.

International Customary Law

It was during the 17th century that the idea of binding international law became accepted. Article 38 of
the Statute for the International Court of Justice (ICJ) recognizes international customary law and notes
that 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. Such
laws evolve over time as behavioral norms and the day-to-day practices of countries become
consolidated. 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 with
it. However, only those who sign treaties and conventions are bound. Countries are very reluctant to use
the UN judicial forum (ICJ) to intervene in the affairs of other countries to enforce international
customary law.

The United Nations

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

itself does not make international law. Rather it drafts and prepares documents to which Nation-states
decide to become signatories. The United Nations promotes common goals, and global environmental
protection 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 General
Assembly. The Security Council has the capacity to send UN peacekeepers into areas it deems requires
intervention by armed forces. In theory, the Security Council could intervene if a nation-state created an
environmental 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. Nationsstates may refuse to comply with a ruling or refuse to attend a hearing. If this occurs, little can be done
to compel compliance other than to apply international pressure based on the consensual theory, such
as by using diplomatic pressure, trade sanctions and aid programs.

Regional Inter-Governmental Organisations

Various other international bodies not directly linked to the United Nations also play a role in global
environmental protection. While the environment may not be their primary concern, their activities
impact on the environment. The European Union (EU) has developed an Environment Section aimed at
implementing policies for the 25 nation states now compromising the EU.
The Organisation for Economic Cooperation and Development (OECD) has a primary focus on economic
aspects of member nations but it too has recognized the need for the environment to be taken into
account. The OECD has introduced environment performance reviews in conjunction with their usual
economic reviews. The OECD Working Party on Environmental Performance has been conducting peer
reviews of the environmental performance of OECD member countries since 1992. The central objective
of the Environmental Performance Review program is to assist member countries to improve their
individual and collective performances in environmental management and ESD. The review assesses the
efforts of each nation state in meeting both domestic objectives and international commitments.

Non-Government Organisations
Governments are political in nature and often their perspective on an issue is influenced by a range of
factors, such as business and industrial interests. In response to growing environmental awareness over
the last four decades, various NGOs have emerged to place pressure on governments to take into
account environmental considerations. The most prominent of these NGOs are Greenpeace and the
World Wide Fund for Nature.
Greenpeace: Greenpeace is an independent campaigning organization that uses non-violent direct
action to expose global environmental problems and to force solutions which are essential to a green
and peaceful future. Greenpeaces goal is to ensure the ability of earth to nurture life in all its
diversity. Greenpeace 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 public
opinion on decision makers.
- Non-violent Direct Action: They strongly believe that violence in any form is morally wrong and
accomplishes nothing.
World Wide Fund for Nature: Works to conserve Australias plants and animals by ending land clearing
and degradation, addressing climate change, and preserving and protecting fresh water, marine and
land environments. Their core values include:
- Being global, independent and multicultural.

Seeking peaceful resolutions and avoiding unnecessary confrontations.

Respecting the cultural and economic needs of local and indigenous peoples during the
execution of field programs.

The Media
The Media are one of the most powerful sources on the planet. The media have the potential to not
only shape popular opinion, but determine it. 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 new 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.

Role of International Tribunals

A multitude of organizations are involved in global environmental protection but there is no one
unifying body with the power to compel nation states to behave in a particular way. While there are
obvious benefits in having a specialist organization to control, coordinate and enforce global
environmental protection, the concept of sovereignty and the consensual theory will always infringe on
its effectiveness. Some people and groups, notably NGOs, have expressed the need for an
Environmental Ombudsman or an International Environment Court (similar to the International Criminal
Court) but the ability of such a body to impose real enforcement is questionable. Researchers and some
scientists have suggested that only a global environmental disaster will force progress in this area.
The Environmental Chamber at the ICJ was formed in 1993. This chamber was established by the world
community in recognition of the increasing importance of global environmental protection. Its primary
function is to provide a forum for conflict resolution between nation-states concerning matters with
environmental implications. As with the entire ICJ, there are limits to the effectiveness of the chamber:
- Cases are complex, expensive and time consuming and in irreversible matters, the damage is
already done. The ICJs responses tend to be reactionary rather than proactive.
- The voluntary nature of attending ICJ proceedings means that nation states can choose whether
to be involved.
- The adversarial nature of proceedings can damage already delicate relations between countries.
- There can be problems identifying perpetrators due to the transboundary nature of pollution.
- Only nation state can be called before it, and so transnational corporations can evade direct ICJ
proceedings.

Australias Role in Global Environmental Protection

Under the Australian Constitution the environment can only be considered a residual power.
Consequently, the states have the bulk of the power to make environmental laws. Just like the rest of
the world, Australia was unaware of the consequences of exploiting the environment until relatively
recently. New South Wales passed the Forestry Act in 1916 but it was primarily concerned with the
regulation of the timber industry and made little reference to the responsible management of this finite
source. During the 1960s and the 1970s, New South Wales passed a range of laws that were clearly
aimed at the protection of the environment. They include the:
- Clean Air Act 1961
- Clean Waters Act 1970
- National Parks and Wildlife Act 1974

- Heritage Act 1977

Then, in 1979 NSW passed landmark legislation that created a framework for managing and enforcing
environmental laws. This legislation is the Environmental Planning and Assessment Act 1979 and the
Land 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 1997
From October 1993 to April 1996, Charles Gardner, while operating a caravan park in Karuah, pumped
over 120 000 litres of raw sewage into the Karuah River. This created an incredibly offensive odour
and posed an enormous threat to the health and safety of users of the river. Mr Justice Lloyd made
history in this case by sentencing Gardner to 12 months in prison and ordering him to pay $420 000 in
fines and costs. This sent a powerful message to polluters.
Murphyores v. The Commonwealth 1976
During the early 1970s, the QLD Government gave permission to Murphyores to undertake
sandmining on Fraser Island because it was seen as an economic opportunity. The federal
Government 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 issue
Murphyores 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 of
constitutional power. This case highlighted the increasing importance placed on the environment by
the commonwealth and that it would be prepared to intervene in affairs traditionally handled by the
states 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 soft
law, 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.

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 legal
strength 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.

The World Wide Fund for Nature is an Australian organization 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 new 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 belong
to NGOs 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.