chapter 3

Origin and H i story

Peter H Sand

I. INTRODUCTION

‘Environmental law has no history’—​or so it would seem if the provocative opening

statement of David Schorr’s historiographic account1 were to be taken at face value. It is,
of course, true that the very term ‘environmental law’ etymologically did not come into
use, in any language, until the mid-​twentieth century. Yet it is equally true that specific
components of the Earth’s natural environment—​land, freshwaters, oceans, biological
and abiotic resources—​have been a subject of human exploitation and attempts at soci-
etal management (including law) for ages, as documented in the burgeoning literature
on ‘environmental history’, ‘green imperialism’, and the history of ‘ecological economics’.
By the same token, the dearth of writings on the environmental dimension in
histories of international law, in turn, may be more apparent than real. The focus of his-
torical research on the emergence of environment-​related legal concepts, principles,
and institutions has primarily been on the study and comparison of developments at the
level of national law. Even so, the interface with international law is easily documented—​
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as in the preambles of many twentieth-​century environmental treaties, which can be

traced back to their domestic origins in nineteenth-​century cultural romanticism.
Simultaneously, in parallel and in close analogy to the development of concepts of
‘vicinage’ (droit de voisinage) in domestic real property law, the emergence of a body
of rules of environmental ‘neighbourliness’ has long been observed in transfrontier
relations between states.
It is important to keep in mind that the field is not confined to public international law
but that it also encompasses ‘transnational’ administrative law and private international

1 David Schorr, ‘Historical Analysis in Environmental Law’ in Markus Dubber and Christopher

Tomlins (eds), Oxford Handbook of Legal History (OUP 2018) 1001. Along the same lines, see Éric Naim-​
Gesbert, ‘Voir les choses à leur vrai début: de l’histoire en droit de l’environnement’ Revue Juridique de
l’Environnement, 44 (2019): 5, 7: ‘Le droit de l’environnement a un passé sans histoire’.

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 Origin and History    51

law (conflict of laws); that is, the entire corpus of international law, public and private,
relevant to environmental problems. Moreover, the continuous impact of domestic en-
vironmental law, public and private, on international law-​making in this field as well as
the related ‘problem of scale’2—​that is, the transferability of empirical generalizations
and theoretical models from one level to another—​makes comparative information and
analysis indispensable.
Most narratives of the historical evolution of international environmental law distin-
guish three major ‘periods’, ‘epochs’ or ‘phases’:3

• the ‘traditional era’ until about 1970 (that is, preceding the 1972 United Nations
Conference on the Human Environment in Stockholm);
• the ‘modern era’ from Stockholm to the 1992 UN Conference on Environment and
Development in Rio de Janeiro (UNCED); and
• the ‘post-​modern era’ from Rio onwards.

Any such periodization is, however, bound to remain approximate and potentially
problematic. As pointed out by Martti Koskenniemi, the reality of international law is
‘historically and synchronically discontinuous’;4 hence, contemporary law typically
reflects traditional, modern, and post-​modern elements alike.

II. THE TRADITIONAL ERA

The shared human use—​and misuse—​of the Earth’s natural resources has been a subject
of international law-​making for centuries, both in a transboundary context across ter-
ritorial jurisdictions and in the context of competing claims to resources in the global
commons outside national jurisdiction.
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A. Shared Transboundary Resources

The Musée du Louvre in Paris and the British Museum in London hold tangible evidence
of the world’s first known legal agreement on boundary water resources: viz, the Mesilim
Treaty, concluded in the twenty-​fifth century BC between the two Mesopotamian
states of Lagash and Umma. The terms of the treaty have been preserved as cuneiform

2 Oran Young, The Institutional Dimensions of Environmental Change: Fit, Interplay, and Scale (MIT

Press 2002) 139.

3 See eg Edith Brown Weiss, ‘The Evolution of International Environmental Law’ Japanese Yearbook of

International Law, 54 (2011): 1.

4 Martti Koskenniemi, ‘Letter to the Editors of the Symposium on Methods in International Law’

American Journal of International Law, 93/​2 (1999): 351, 359.

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 52   Peter H Sand

inscriptions on limestone cones and the ‘stele of the vultures’ commemorating Lagash’s
victorious battle enforcing the treaty.
Mesilim (or Mesalim, born ca. 2600 BC) was the ruler of Kish, a kingdom further to
the north of Lagash and Umma, which held a traditional ‘hegemonic’ position in the
loose alliance of small adjoining Sumerian city-​states in the region between the Tigris
and Euphrates rivers, south of what was to become Babylon.5 Because of the prevailing
precarious rainfall conditions, the agricultural economy of the entire delta area has al-
ways been crucially dependent on irrigation, mainly from the ‘great Tigris’, through an
elaborate system of canals and levees which inevitably require close inter-​community
cooperation. The geographic focus of the Lagash-​Umma agreement, concluded under
Mesilim’s authority as external arbiter, was the fertile Gu-​edena valley, irrigated by
Tigris waters from a canal on the border between Umma and Lagash, with boundaries
marked by stone steles.
Part of the treaty was a crop-​sharing arrangement for a portion of boundary land
downstream on Lagash territory that Umma cultivated under lease against payment of
an annual rental fee. When Umma repeatedly refused to honour its accumulated ten-
ancy debts, hostilities broke out, resulting in the partial destruction of the canal and in
unilateral diversions of water upstream. In several successive military confrontations
over the next forty years (the first known war in history that was, in essence, fought
about water), Umma was ultimately defeated by Lagash and was forced to accept the
reconstruction (and extension) of the canal and the reinstatement of the boundaries as
originally drawn up by Mesilim.
Alas, the treaty so renewed and ‘writ in stone’, and the peace so re-​established, does
not seem to have survived for long and was eventually overtaken and mooted by external
political events (the Akkadian-​Sargonic invasions) in subsequent generations. Even
so, the agreement remains a unique early attempt at resolving a dispute over boundary
waters by formal reference to a superior spiritual order (in this case, the deities of both
parties, repeatedly ‘sworn to’ in the text), and hence may indeed qualify as a precursor of
international law in this field—​a Sumerian version of pacta sunt servanda (agreements
must be kept).
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As early as 1430, the judicial resolution of intergovernmental disputes over shared

water resources in Europe can be shown to have drawn on common Roman law sources
going back to the sixth century AD. In fact, the circumstances of the Mesopotamian
Lagash-​Umma dispute were not fundamentally different from those of the Lake Lanoux
controversy over a European boundary river some 4,000 years later: there, the waters
from a lake high up in the French sector of the Eastern Pyrenees had long ensured
the irrigation of farm areas on both sides of the Carol river along the Spanish border,
on the basis of bilateral agreements dating back to the nineteenth century. When the
French government announced plans for a new ‘grand canal’ to divert the Carol waters

5 See Amnon Altman, ‘Tracing the Earliest Recorded Concepts of International Law: The

Early Dynastic Period in Southern Mesopotamia’ Journal of the History of International Law, 6/​2
(2004): 152, 157.

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 Origin and History    53

upstream, for agricultural and power production uses on its territory, a major dispute
erupted which, after forty years of negotiations, was finally resolved by a historic arbitra-
tion in 1957.6
With regard to environmental quality, the 1909 Boundary Waters Treaty between
Canada and the United States succeeded in prohibiting water pollution ‘to the injury
of health or property on the other side of the border’,7 an approach later extended to
transboundary air pollution by the 1939–​41 Trail Smelter arbitration.8 Hunting and
fishing in frontier sectors had already been addressed in bilateral agreements in contin-
ental Europe from the fourteenth century. The Convention concluded in 1781 between
the King of France and the Prince-​Bishop of Basel thus provided for the punishment of
forest, hunting, and fishing delicts in the French-​Swiss border area. In North America,
the 1790 Treaty between the United States and the Creek Indian Nation prohibited un-
authorized attempts by US citizens or inhabitants ‘to hunt or destroy the game on the
Creek lands’.9 The 1856 Bayonne Boundary Treaty between France and Spain, which
preceded the Lake Lanoux arbitration, had also aimed at ‘preventing destruction of the
fishery’ (prévenir la destruction du poisson) in the Bidassoa River.10 And although initial
multilateral agreements regarding the Rhine and the Danube were mainly concerned
with navigation uses, they were followed by several inland fishery conventions for the
Rhine basin since 1869 and for the Danube basin since 1901.11
By contrast, early endeavours to secure binding multilateral agreements on terrestrial
wildlife and wilderness resources ended in failure or near-​failure: The first Convention
on Wildlife Conservation in Africa, signed by several colonial powers in London on 19
May 1900, never entered into force for lack of ratifications; and its successor, the 1933
London Convention Relative to the Preservation of Fauna and Flora in their Natural
State (also primarily covering colonial territories in Africa and Asia), lacked permanent
institutional arrangements, and after unsuccessful attempts at the revision of the treaty
in 1938 and 1953 eventually lapsed in the wake of decolonization. The Convention for the
Protection of Birds Useful to Agriculture, signed in Paris on 19 March 1902, was ratified
by a few European countries only and turned out to be ineffective in practice. The
pioneering initiative by US President Theodore Roosevelt in January 1909 to convene
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a World Conservation Conference at The Hague, to be modelled after the Hague Peace
Conferences, was abandoned in the face of domestic political opposition at the time.12
While bilateral treaties for the protection of migratory birds and game mammals were
subsequently concluded by the United States with Canada and Mexico, it took until 1940
for a multilateral conservation agreement to be reached in this field: the Convention

6
Lake Lanoux Arbitration (Spain/​France) (1957) 12 RIAA 281.
7
art IV.
8 Trail Smelter Arbitration (United States/​Canada) (1938 and 1941) 3 RIAA 1905.
9 art VII.
10 art XXII.
11 See Chapter 30, ‘Freshwater Resources’, in this volume.
12 See Siegfried von Ciriacy-​Wantrup, Resource Conservation: Economics and Policies (3rd edn,

University of California Department of Agriculture 1968) 315.

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 54   Peter H Sand

on Nature Protection and Wildlife Preservation in the Western Hemisphere, under the
auspices of the Organization of American States.

B. Resource-​Sharing in Areas Beyond

National Jurisdiction
Intergovernmental accords for the sharing of marine living resources date back at least
as far as the British-​Portuguese Treaty of 20 October 1353 on fishing rights in the North
Atlantic;13 and the history of bilateral and regional ocean fisheries agreements is well
documented from the eighteenth century onwards. Other living resources outside na-
tional jurisdiction first became the subject of international litigation in the 1893 Bering
Sea Fur Seals arbitration.14 The dispute arose over the pelagic hunting of seals in the
North Pacific by British-​flag vessels beyond the territorial waters of the Pribilof Islands
west of Alaska. Invoking the threat of extinction of the Pribilof population of fur seals,
the US government justified its extraterritorial seizure of the foreign vessels concerned
by claiming to have acted as ‘trustee for the benefit of mankind’. Even though the arbitral
tribunal rejected that claim, successive regional conventions for fur seal conservation
eventually banned most pelagic sealing in the North Pacific.15
The first global whaling conventions and protocols concluded in 1931 and 1937/​
38 were essentially resource-​ sharing agreements for ‘rational’ economic exploit-
ation. While their post-​war successor, the 1946 International Convention for the
Regulation of Whaling, echoed those concerns, its preamble recognized the growing
threat of overfishing and ‘the interest of the nations of the world in safeguarding for
future generations’ the remaining whale stocks. The next major step in international
law-​making for the global commons, the 1959 Antarctic Treaty, explicitly envisaged
cooperative measures regarding ‘preservation and conservation of living resources in
Antarctica’, followed—​in the ‘modern era’ of international environmental law—​by the
1972 Convention for the Conservation of Antarctic Seals, the 1980 Antarctic Marine
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Living Resources Convention, and the 1991 Madrid Protocol on Environmental

Protection to the Antarctic Treaty. Efforts at extending this approach to other global
res communes (under the label of ‘common heritage of mankind’) were only partly
successful. The Antarctic experience did, however, serve as a precedent for the evolution
of the international regime of natural resources in extraterrestrial space, under Article

13 Latin text in Thomas Rymer (ed), Foedera, conventiones, literae et cuiuscumque generis acta publica,

vol 5 (Néaulme 1704) 763.

14 Bering Sea Fur Seals Arbitration (United States/​United Kingdom) (1893) 28 RIAA 263; see John

Moore (ed), History and Digest of the International Arbitrations to which the United States has been a
Party, vol 1 (G.P.O. 1898) 755.
15 1911 Convention between the United States and Other Powers Providing for the Preservation and

Protection of Fur Seals; 1942 Provisional Fur Seal Agreement between the US and Canada; 1957 Interim
Convention between the US, Canada, Japan, and the USSR on Conservation of North Pacific Fur Seals,
expired in 1984.

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 Origin and History    55

II of the 1967 Outer Space Treaty, and Article 11 of the 1979 Moon Agreement, and in
the high seas area under Article 136 of the 1982 UN Convention on the Law of the Sea
(UNCLOS).

C. Intergenerational Resource-​Sharing?
To be sure, intergenerational responsibility for the conservation of natural resources
has been acknowledged by lawyers since the seventeenth century: With regard to forest
resources, John Evelyn pleaded in 1664 that ‘man should perpetually be planting, so
posterity might have trees fit for their service’;16 and in 1713, Hans Carl von Carlowitz
advocated the sustainable use (nachhaltende Nutzung) of forests for the benefit of fu-
ture generations (denen Nachkommen zum Besten).17 It must be kept in mind, though,
that their concern for forest conservation had very precise economic and strategic
motivations: in the case of Carlowitz (manager of the Duke of Saxony’s silver mines),
the future supply of timber for mine construction and maintenance; and in Evelyn’s
book (commissioned by the British Royal Navy), long-​term timber supplies for ship-​
building—​paralleled in 1669 by Jean-​Baptiste Colbert’s re-​organization of French for-
estry governance through his pioneering ‘Ordonnance des eaux et forêts’. There had
indeed been ominous historical warning signals before: In particular, the decline of
Venetian maritime dominance in the Mediterranean during the sixteenth and early
seventeenth centuries was widely attributed to timber shortages in naval construction,
caused by perpetual deforestation. In retrospect, therefore, the concept of long-​term
sustainability of resource use, now a mantra of modern international environmental
law, may well be said to have its roots in mercantile economics and national geo-​politics
as early as four centuries ago. Its rationale at the time, however, was unabashedly utili-
tarian and anthropocentric, and quite unrelated to questions of ‘eco-​centric’ environ-
mental ethics.
That being said, there remains inter-​temporal fiduciary accountability of each human
generation for any depletion or deterioration of the Earth’s common natural heritage to
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the detriment of future generations; viz, intergenerational equity. In present-​day inter-

national environmental law doctrine, the issue is variously framed in terms of inter-
national ‘public trusteeship’, ‘guardianship’, ‘custodianship’, or ‘stewardship’. However,
its original formulation goes back to Karl Marx in 1865: ‘Even society as a whole, a
nation, or all contemporary societies taken together, are not owners of the Earth. They
are merely its occupants, its users; and as diligent guardians (boni patres familias) must
hand it down improved to subsequent generations.’18

16 John Evelyn, Sylva, or a Discourse of Forest-​Trees, and the Propagation of Timber in His Majesty’s

Dominions (Martyn & Allestry 1664).

17 Hans Carl von Carlowitz, Sylvicultura Oeconomica oder Hausswirtliche Nachricht und

Naturmaessige Anweisung zur Wilden Baum-​Zucht (Braun 1713).

18 Karl Marx, Das Kapital, in Friedrich Engels (ed), Oekonomische Manuskripte 1863-​1867, reprinted in

Marx-​Engels-​Gesamtausgabe vol II/​4 (Dietz 1992) 718.

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 56   Peter H Sand

III. THE MODERN ERA

The beginning of ‘modern’ international environmental law is usually dated to 5 June

1972, the opening day of the first UN Conference on the Human Environment in
Stockholm. Although the Stockholm Conference did not adopt any binding legal in-
strument of its own, the momentous preparatory process triggered four new global
treaties: the 1972 World Heritage Convention (WHC), the 1972 London Dumping
Convention, the 1973 Endangered Species Convention (CITES), and the 1979 Migratory
Species Convention (CMS). It also led to the establishment of the United Nations
Environment Programme (UNEP), as the first global intergovernmental institution in
this field, which in turn then produced more than thirty multilateral (global and re-
gional) legal agreements over the next two decades; and it generated one of the most
influential and enduring international ‘soft law’ instruments, the 1972 Stockholm
Declaration on the Human Environment.

A. The Challenge of Pluralism

One paradigmatic change initiated by the Stockholm Conference was the active par-
ticipation of Third World countries, most of which had until then remained sceptical
about global conservation accords, wary of the imposition of neo-​colonial impediments
to their legitimate aspirations of economic development.19 A preparatory report for
the conference (outcome of an expert seminar on ‘Development and Environment’
convened at Founex/​Switzerland in June 1971) echoed these concerns, pointing out that
environmental problems are caused both by development and by the lack of develop-
ment; and in a memorable speech to the plenary on 14 June 1972, Indian Prime Minister
Indira Gandhi provocatively asked the question: ‘Are not poverty and need the greatest
polluters?’ It is no coincidence, therefore, that of the twenty-​six ‘principles’ formulated
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in the Stockholm Declaration, no less than eleven emphasize the continuing special
needs of the developing countries.
The most frequently-​cited section of the Declaration is Principle 21, since incorporated
in the preambles of numerous international conventions, and jurisprudentially
recognized as ‘part of the corpus of international law relating to the environment’.20 It
affirms, on the one hand, the sovereign right of states ‘to exploit their own resources
pursuant to their own environmental policies’, thus restating the axiomatic concept of
permanent sovereignty over natural resources proclaimed by the UN General Assembly
since 1962. On the other hand, it balances and qualifies the concept by a duty to prevent

19
See Chapter 11, ‘Global South Approaches’, in this volume.
20
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [29]
(Legality of Nuclear Weapons).

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 Origin and History    57

transboundary harm ‘to the environment of other states or of areas beyond the limits of
national jurisdiction’, hence expanding the traditional focus of the Trail Smelter arbitra-
tion and its progeny.

B. Normative Innovation
The post-​Stockholm era substantially broadened the international law-​making agenda,
from the classical risks of resource scarcity and extinction, to the new human-​made
risks of industrial pollution and resource degradation by hazardous substances or
activities. Triggered by a series of eco-​disasters (from the 1967 Torrey Canyon oil spill
in the North Atlantic and the 1971 Minamata cases in Japan, to the accidents at Seveso in
1976, Bhopal in 1984, and Chernobyl in 1986), there now was a growing public awareness
of environmental problems that had once seemed local, yet turned out to be globally
shared—​highlighted by seminal publications such as Rachel Carson’s 1962 Silent Spring
and the Club of Rome’s 1972 Limits to Growth, and readily espoused by the civic protest
movements of the late 1960s and early 1970s.
The spectrum of international regulation gradually expanded to include topics such
as the transnational carriage of dangerous goods, and the production and use of po-
tentially harmful chemicals entering international trade. At the same time, new regu-
latory and standard-​setting functions for environmental matters were conferred on
specialized intergovernmental institutions—​either existing sectoral UN agencies like
the International Atomic Energy Agency, International Maritime Organization (IMO),
International Civil Aviation Organization (ICAO), International Labour Organization
(ILO), Food and Agriculture Organization (FAO), and World Health Organization
(WHO), or emergent autonomous or quasi-​ autonomous governance bodies
(Conferences of the Parties, COPs) newly designated and empowered for the purpose.
The regulatory process so initiated inspired several genuine innovations in multilat-
eral law-​making techniques.21 One of the most influential ‘memes’ introduced in the
design of modern environmental agreements was the ‘framework-​protocols’ construct
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first used in the 1976 Barcelona Convention for the Protection of the Mediterranean Sea
Against Pollution, upon a proposal by Spain in 1974. Instead of the traditional model of
a single ‘one-​off ’ treaty instrument, it envisaged the combination of a common frame-
work text (basic normative and institutional principles) with an open series of separate
specific protocols binding only those states willing and ready to take on further-​reaching
commitments. This flexible ‘differential-​speed’ technique of treaty-​making was subse-
quently replicated not only in twelve further regional seas conventions and over thirty
protocols for marine environment protection adopted under UNEP auspices from 1978
onwards; but the ‘framework-​protocols’ architecture has also been followed since by
several other regional and global environmental agreements dealing with atmospheric,

21
See Chapter 24, ‘Multilateral Environmental Treaty Making’, in this volume.

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 58   Peter H Sand

terrestrial, and biological resources, and in related fields such as the 2003 WHO
Framework Convention on Tobacco.
Several of the new agreements also championed a subtle adjustment method which
historically goes back to two of the oldest international organizations: Since the mid-​
nineteenth century, both the Universal Postal Union and the International Telegraphic
Union (forerunner of today’s International Telecommunication Union) have adopted
technical rules by way of ‘regulations’ drafted and periodically revised by expert
meetings rather than by plenipotentiary conferences, and which are then ‘accepted’ by
the administrations of the member states without having to go through the cumber-
some traditional ratification process to enter into force. The method was emulated in
the twentieth century by several international fisheries commissions and by the ‘tech-
nical annexes’ of the ICAO and of the IMO, both of which now use it, inter alia, for their
air pollution standards.22 The rationale, of course, was to make the legal instruments
concerned sufficiently flexible and adaptable to changing natural circumstances and to
scientific/​technological progress. The net outcome of this continuous adjustment pro-
cess has been a gradual transition from quasi-​contractual to quasi-​legislative decision-​
making, and from static treaty instruments to dynamic international regimes.
Curiously, international adjudication or arbitration in environmental matters played
no significant role during the two decades from Stockholm to Rio. Although most of
the multilateral and bilateral agreements adopted during that period contain clauses
for dispute settlement between states, including references to the International Court
of Justice (ICJ) and elaborate arbitration procedures, those were virtually never used
in practice. The main obstacle was a standard requirement making third-​party adju-
dication dependent on ‘common agreement’ by the parties to a dispute unless a party
expressly waives that condition. This restrictive requirement—​as in the 1989 Basel
Convention on Hazardous Wastes—​goes back in substance to a clause first introduced
by the US State Department (in the wake of the ICJ Nicaragua dispute) in the 1983
Cartagena Convention for Marine Environment Protection in the Caribbean Region,
and reiterated in the 1985 Vienna Convention for the Protection of the Ozone Layer,
over strong opposition by sixteen other western countries favouring easier access to ar-
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bitration or the ICJ. In practice therefore, transfrontier pollution disputes still had to
be resolved by domestic court decisions relying on classic conflict-​of-​laws principles,
albeit in conjunction with simultaneous diplomatic negotiations, as illustrated by the
protracted Scarlino Red Slicks (Montedison) cases in the Mediterranean (1974–​89) and
the Alsatian Potash (Chlorides) cases in the Rhine river basin (1976–​91).23

22
See Chapter 34, ‘Aviation and Maritime Transport’, in this volume.
23
Italian Republic et al v Cefis, Montedison et al, Pretura di Livorno 27 April 1974, and Tribunale di
Livorno 7 July 1976 Italian Yearbook of International Law, 3 (1977): 294, 298; Prud’hommie des Pêcheurs de
Bastia v Montedison & SIBIT, French Cour de Cassation 3 April 1978, and Tribunal de Grande Instance
de Bastia 4 July 1985 Foro Italiano 112/​IV (1987): 499; see also Chapter 27, ‘Judicial Development’ and Part
IX, ‘International Environmental Law in National/​Regional Courts’, in this volume.

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 Origin and History    59

C. Emergence of an International Environmental

Law Discipline
Yet, at the same time, the ‘greening’ of international law and governance became some-
thing of a missionary goal and meta-​narrative to an entire generation of dedicated
‘environmentalists’. Professional networks of international environmental lawyers had
come into existence, as part of a global ‘epistemic community’, mainly under the auspices
of the International Union for Conservation of Nature and Natural Resources,24 which
had begun to play a pioneering role in the drafting of several regional and global en-
vironmental instruments, including the African Convention on the Conservation of
Nature and Natural Resources in 1968; the WHC, CITES and CMS treaties in 1972–​79;
the revision of the 1971 Ramsar Convention on Wetlands of International Importance
in 1982–​87; and ultimately the Convention on Biological Diversity (CBD) in 1988–​92.
With courses on environmental law now part of the law school curriculum in a growing
number of countries, international environmental law emerged as a ‘distinct academic
discipline’.25
There also was a rush of new initiatives for the international codification of trans-​
sectoral environmental law ‘principles’, including the 1974 OECD Principles concerning
Transfrontier Pollution, the 1978 UNEP Principles on Shared Natural Resources,
the 1982 World Charter for Nature, the 1982 Montreal Rules of International Law
Applicable to Transfrontier Pollution proposed by the International Law Association,
and the 1987 Legal Principles proposed by the World Commission for Environment
and Development. The UN International Law Commission (ILC), the focus of whose
work in this field had initially been on international water law, began to draft principles
of responsibility and liability for environmental harm in 1978; and in 1991, the Institut
de Droit International, in turn, embarked on the drafting of general principles and
procedures for the implementation of international environmental law.
Much of the new body of international law so emerging consisted of ‘vertical
transplants’ of concepts derived from national environmental law, such as the tech-
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nique of ‘environmental impact assessments’, originally developed under the 1970 US

National Environmental Policy Act, subsequently spread to other legal systems world-
wide, incorporated in several multilateral treaties, and ‘globalized’ by international jur-
isprudence. Similarly, the ‘precautionary approach’ was first enacted as a rule of general
environmental legislation in Sweden (1969) and Switzerland (1983), to guide admin-
istrative decision-​making under conditions of uncertainty. Even though its interpret-
ation and policy implications remain controversial, it has since been adopted in several

24
See Chapter 40, ‘Epistemic Communities’, in this volume.
25
As acknowledged in 1991 by the editors of the Harvard Law Review, ‘Developments in the
Law: International Environmental Law’ Harvard Law Review, 104/​7 (1991): 1484 (editor-​in-​chief of the
review at the time was Barack Obama); see also Chapters 7 and 8, ‘Scholarship’ and ‘Legal Imagination
and Teaching’, in this volume.

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 60   Peter H Sand

regional and global agreements, and codified as one of the key principles of the 1992 Rio
Declaration on Environment and Development.

IV. THE POST-​MODERN ERA

Inevitably perhaps, the proliferation of new multilateral environmental instruments and

norms also raised new questions and expressions of alarm about ‘treaty congestion’, and
about the effectiveness of the existing international legal structure in this field. With the
state of the world’s environment continuing to deteriorate, international environmental law
as a ‘mobilizing myth’26 risked suffering a severe loss of credibility—​a symptom typical of
post-​modernity.27

A. Coping with the Implementation Gap

The 1992 Rio Conference (UNCED), while adding yet another layer of global treaties,
offered a historic opportunity for stocktaking. In March 1991, the UNCED Preparatory
Committee had entrusted its Working Group III (on legal and institutional matters) with
the task of preparing ‘an annotated list of existing international agreements and inter-
national legal instruments in the environmental field, describing their purpose and scope,
evaluating their effectiveness, and examining possible areas for the further development
of international environmental law’.28 The assessment produced under this mandate,
analyzing 124 agreements on the basis of evaluation criteria laid down by the UNCED
Preparatory Committee, was first in a series of similar ‘effectiveness surveys’ undertaken
over the next decade; and the periodic follow-​up reviews now built into several global
and regional environmental agreements may indeed be considered among the important
‘lessons learned’ during the post-​Stockholm era.
Not least as a result of UNCED’s increased emphasis on effective treaty implementa-
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tion, the range of reporting duties for contracting parties has tended to expand, from
scientific monitoring of environmental data to ‘compliance monitoring’ of govern-
mental action, in some cases backed up by external verification schemes. Historically,
controls of compliance with agreed multilateral standards originated in the 1920s in the
ILO, where they continue to ensure the application of global ILO conventions, inter alia
for protecting the working environment. In agreements for ocean resource management

26
René-​Jean Dupuy (ed), The Future of the International Law of the Environment (Nijhoff 1985) 513.
27
Jean-​François Lyotard, The Post-​Modern Condition: A Report on Knowledge (Manchester University
Press 1984) xxiv.
28 UNCED Preparatory Committee Decision 2/​3, UN Doc A/​46/​48, 1, annex I (1991).

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 Origin and History    61

and conservation, compliance controls—​including mutual observer, boarding, and in-

spection schemes—​have also had a long-​standing tradition.29
In the 1990s, a new variety of ‘non-​adversarial and non-​confrontational’ compliance
controls began to make its appearance in the design of international environmental
agreements, side by side with the existing (though notoriously un-​used) dispute settle-
ment clauses. In practice, non-​compliance often does not flow from deliberate disre-
gard, but from an ambiguity of norms or from limitations on implementation capacity,
especially in developing countries. Hence the remedy advocated by proponents of a
‘managerial’ approach was a series of facilitations and incentives for voluntary com-
pliance, ranging from temporary dispensations to technical-​administrative assistance
programmes. The pluralist North/​South structure so emerging was first translated into
permanent dualistic (‘double-​weighted’) decision-​making procedures in the Montreal
Protocol’s Multilateral Fund (established by the 1990 London Amendments), and in
the World Bank’s Global Environment Facility (GEF, established in 1991/​1994). It was
consolidated in Principle 7 of the 1992 Rio Declaration, under the terms of ‘common
but differentiated responsibility’, restated in the 1992 UN Framework Convention
on Climate Change Articles 3 and 4, and in the preambles of subsequent agreements
such as the 2001 Stockholm Convention on Persistent Organic Pollutants and the 2013
Minamata Convention on Mercury.30

B. Civil Society Concerns

The UNCED is also credited with having ushered in a ‘participatory revolution’,31 by
opening international law-​making processes to access by civil society. With over 1,400
non-​governmental organizations registered as observers, it served as a precedent not
only for reforms in UN accreditation rules, but it also inspired a whole range of new
initiatives for increasing the role of individuals and non-​governmental civic groups in
the creation and operation of international environmental regimes. Among the most
prominent examples is the establishment of the World Bank’s Independent Inspection
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Panel in 1993.32 The Panel was set up in the wake of public protests over environ-
mental and human rights encroachments by large-​scale Bank-​funded development
projects (such as the Narmada Dam in India), to hear and investigate complaints by
affected community groups in project areas, regarding non-​compliance by the respon-
sible authorities with the Bank’s applicable environmental and social standards. Since

29
See Chapters 51, 52, and 56, ‘Compliance Theory’, ‘Transparency Procedures’, and ‘Non-​Compliance
Procedures’, in this volume.
30 See Chapters 19, 54, and 55, ‘Differentiation’, ‘Financial Assistance’, and ‘Technology Assistance and

Transfers’, in this volume.

31 Kal Raustiala, ‘The “Participatory Revolution” in International Environmental Law’ Harvard

Environmental Law Review, 21/​2 (1997): 357. See Chapters 21 and 38, ‘Public Participation’ and ‘Non-​State
Actors’, in this volume.
32 World Bank, IBRD Resolution 93-​10 (22 September 1993).

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 62   Peter H Sand

1993, the Panel has considered over 120 requests, thirty-​four of which have been fully
investigated; and its operating procedures (updated in 2014) served as a model for
similar complaint and review mechanisms in many other international institutions.
At a regional level, further symptoms of the rising demand for accountability
and public participation were the 1998 Aarhus Convention (in the European/​North
American context), and the corresponding 2018 Escazú Regional Agreement in Latin
America and the Caribbean. Most European countries had long clung to a centuries-​
old tradition of administrative secrecy (arcana imperii), denying public access to gov-
ernment files, including licensing data for environmentally hazardous activities.
The one exception was Sweden: Starting with the Freedom of the Press Act of 1766,
Swedish citizens had a general right of access to public data that is unmatched in any
other legal system. Two centuries later, in North America, the 1966 US Freedom of
Information Act (FOIA) and the ‘toxics release inventory’ (established under the 1986
US Emergency Planning and Community Right-​to-​Know Act) opened public access
both to government-​held and privately-​held environmental risk information. After
European Union (EU) Directive 90/​313/​EEC on Freedom of Access to Information on
the Environment (modelled after FOIA), Europe gradually followed suit.33 The Aarhus
Compliance Committee (established in 2002) has since dealt with a total of some
sixty-​eight complaints from the public, for non-​compliance with environmental treaty
provisions by thirty-​one states and the EU. ‘Sunshine methods’ of mandatory informa-
tion disclosure thus came to be recognized as effective incentives for compliance with
environmental treaties, and as a new ‘third wave’ of self-​regulatory instruments of ‘in-
formational governance’.

C. The Quest for Synergy

With more than 1,300 multilateral and close to 3,000 bilateral environmental agreements
currently recorded, international environmental law is of course prone to the risk of
‘fragmentation’ of contemporary international law which has figured prominently on
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the agenda of the ILC since 2002.34 In the visionary words of Wilfred Jenks, ‘conflict
of law-​making treaties . . . must be accepted as being in certain circumstances an inev-
itable incident of growth’.35 To cope with the problem of sectoral and/​or geographical
overlaps—​both within the environmental law spectrum and at the interface with other
regulatory regimes such as international economic law, human rights, and humani-
tarian law36—​there have been several at rationalizing interaction, including ambitious

33 See Peter Sand, ‘The Right to Know: Freedom of Environmental Information in Comparative and

International Law’ Tulane Journal of International and Comparative Law, 20/​1 (2011): 203.
34 See Chapter 5, ‘Fragmentation’, in this volume.
35 Wilfred Jenks, ‘Conflict of Law-​making Treaties’ British Yearbook of International Law, 30

(1953): 401, 405.

36 See Chapters 43–​47, ‘Trade’, ‘Investment’, ‘Human Rights’, ‘Migration’, and ‘Disaster’, in this volume.

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 Origin and History    63

proposals for global reform.37 The historical forerunner of regional synergies in the
marine environment in particular was the International Council for the Exploration
of the Sea established in 1902, which continues today to perform scientific advisory
services for four different multilateral treaties, and which has been acclaimed as ‘the
oldest and most successful international agency connected with conservation’.38
Even though full-​scale mergers of multilateral environmental agreements—​as in the
case of the 1992 Oslo-​Paris Convention on the Protection of the Marine Environment
of the North-​East Atlantic—​remain the exception, there are numerous examples of in-
novative arrangements for ‘interplay’ between treaty regimes, usually in the form of
‘memoranda of understanding’ (MOUs) between their respective governing bodies.
Thematic ‘clustering’ has thus led to joint secretariat services and back-​to-​back COP
meetings between three of the Geneva-​based chemical-​related conventions (since
2010), and to joint programming through liaison groups between seven biodiversity-​
related treaties. However, as it stands at present, the complex of (co-​)existing global
and regional environmental agreements hardly qualifies as a coherent international re-
gime of its own. It may at best be described as a decentralized network, horizontally
intertwined by administrative cooperation instruments to ensure a measure of norma-
tive compatibility.39
To some extent, judicial interpretation and review has served as a harmonizing factor.
Compared to previous periods, ‘an unparalleled growth in the environmental jurispru-
dence of international tribunals’ has indeed been noted since the first decade of the new
millennium.40 Even though academic proposals for a specialized global environmental
court were unsuccessful, and the designation of a special environmental chamber in
the ICJ was discontinued in 2006, the sheer authority of ICJ pronouncements proved
decisive in anointing some environmental rules as what is now widely considered cus-
tomary international law.41 Examples were the 1996 Advisory Opinion on the Legality of
Nuclear Weapons, the 1997 Gabčíkovo-​Nagymoros case,42 the 2010 Pulp Mills on the River
Uruguay case,43 the 2014 Antarctic Whaling case,44 and the 2015/​2018 Nicaragua Border
Area case.45 A similar legitimizing effect appears to accrue to the environment-​related
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37
On the background of recent efforts towards a ‘Global Pact for the Environment’ (UNGA Res 72/​
277 of May 2018), see Yann Aguila and Jorge Viñuales (eds), A Global Pact for the Environment: Legal
Foundations (CUP 2019).
38
Ciriacy-​Wantrup (n 12) 307.
39 Young (n 2) 111.
40 Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment

(3rd edn, OUP 2009) 37; see also Chapters 27 and 60, ‘Judicial Development’ and ‘International
Environmental Law Disputes before International Courts and Tribunals’, in this volume.
41 See Chapter 23, ‘Customary International Law and the Environment’, in this volume.
42 The Gabčíkovo-​Nagymaros Project (Hungary/​Slovakia) (Judgement) [1997] ICJ Rep 7.
43 Pulp Mills on the River Uruguay (Argentina/​Uruguay) (Judgement) [2010] ICJ Rep 14.
44 Whaling in the Antarctic (Australia/​Japan, New Zealand intervening) (Judgement) [2014] ICJ

Rep 226.
45 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica/​Nicaragua) and

Construction of a Road in Costa Rica along the San Juan River (Nicaragua/​Costa Rica) (Judgement) [2015]

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 64   Peter H Sand

decisions of other international judicial or quasi-​

judicial bodies, including the
International Tribunal for the Law of the Sea (ITLOS), the Permanent Court of
Arbitration (PCA), and the UN Compensation Commission, thereby associating them
to the ongoing evolution of the nascent normative corpus of international environ-
mental law.

V. CONCLUSION: BEYOND THE

TERRITORIAL IMPERATIVE

A striking feature of traditional international environmental law was its territoriality,

firmly grounded in the ‘territorial obsession’ of international lawyers diagnosed by
Georges Scelle,46 and culminating in the political topology of his declared adversary
Carl Schmitt.47 The 1939/​1941 Trail Smelter awards had in fact been confined to envir-
onmental injury ‘in or to the territory of another [state]’; and while the 1972 Stockholm
Declaration extended the Trail Smelter rule to areas outside the geographical limits of
any national jurisdiction, the spatial (transboundary) perspective still pervades the doc-
trinal discourse.48
One much-​neglected aspect in this context has been the extraterritorial applica-
tion of multilateral environmental agreements,49 either by virtue of their sheer scope,
as in the instruments adopted under the auspices of the 1959 Antarctic Treaty re-
gime, and in instruments dealing with the Earth’s upper atmosphere and outer space;
or by specific jurisdictional provisions providing for application to ‘activities beyond
the limits of national jurisdiction’, as in Article 4 of the CBD and Article I of the 2003
African Convention on the Conservation of Nature and Natural Resources (Maputo
Convention). Nowhere is this ‘deterritorialization’ more visible than in global climate
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ICJ Rep 665; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica/​Nicaragua)
(Judgement of 2 February 2018 on Compensation owed by Nicaragua to Costa Rica) ICJ.
46
Georges Scelle, ‘Obsession du territoire: essai d’étude réaliste du droit international’ in Frederik van
Asbeck et al (eds), Symbolae Verzijl (Nijhoff 1958) 347; see also Dino Kritsiotis, ‘Public International Law
and Its Territorial Imperative’ Michigan Journal of International Law, 30/​3 (2009): 547.
47 Carl Schmitt, The Nomos of the Earth in the International Law of Jus Publicum Europaeum (Telos

Press 2003) 98 (‘spatial context of all law’); see Oliver Simons, ‘Carl Schmitt’s Spatial Rhetoric’ in Jens
Meierhenrich and Oliver Simons (eds), Oxford Handbook of Carl Schmitt (OUP 2016) 776, 788.
48 See Daniel Khan, ‘Territory Taking Centre Stage in International Law: Some Preliminary Thoughts

on the Rise of Territoriality to the Bedrock of Modern Statehood’ in Pierre d’Argent (ed), Droit des
frontières internationales: The Law of International Borders (Pedone 2016) 57.
49 See Günther Handl, Joachim Zekoll, and Peer Zumbansen (eds), Beyond

Territoriality: Transnational Legal Authority in an Age of Globalization (Nijhoff 2012); Markus

Vordermayer, ‘The Extraterritorial Application of Multilateral Environmental Agreements’ Harvard
International Law Journal, 59/​1 (2018): 59.

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 Origin and History    65

change law, which in the wake of sea-​level rise now faces the prospect of island states
without territory.
Conversely, in common marine spaces beyond territorial waters, coastal states have
continuously extended claims for national control (‘sea-​grab’), often under environ-
mental labels—​from Canada’s successful ‘custodial protection’ claim to ice-​covered
coastal zones (100 miles, legitimated by UNCLOS Article 234), to creeping European
claims of ‘ecological protection zones’ in the Mediterranean (out to approximately sixty
miles since 2003–​06), British claims for ‘environment protection and preservation
zones’ surrounding overseas territories in the Indian Ocean and the Antarctic Southern
Sea (200 miles since 2003–​12), and US claims for ‘marine national monuments expan-
sion’ of the country’s Pacific territories (out to fifty miles since 2006, and to a full 200
miles since 2014).
The ‘territorial temptation’ in the ocean environment has its historical parallels
in the international law of genetic resources: Whereas Article 1 of the International
Undertaking on Plant Genetic Resources adopted by FAO in 1983 had still proclaimed
‘the universally accepted principle that plant genetic resources are a heritage of mankind
and consequently should be available without restriction’, Article 15 of the 1992 CBD
recognized ‘the sovereign rights of States over their natural resources’ and the ‘authority
to determine access to genetic resources’ for the countries of (territorial) origin of such
in-​situ resources. This about-​turn—largely motivated by the developing countries’ le-
gitimate fears of neo-​colonial exploitation by multinational bio-​pirates—​has since
been confirmed by Article 10 of the 2001 FAO International Treaty on Plant Genetic
Resources for Food and Agriculture (ITPGRFA), which recognizes ‘the sovereign rights
of States over their own plant genetic resources’.
So is the pendulum swinging back to the other extreme—​to that ‘formidable defen-
sive concept’of national territorial sovereignty?50 True, the new treaty language seems
to acknowledge that states can ‘own’ genetic resources in their territory, in the way in
which the preamble of the WHC recognized cultural and natural heritage sites as ‘prop-
erty, to whatever people they may belong’. Yet the apparent analogy to private property
rights is potentially misleading here: Just as the rights of coastal states in their 200-​miles
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exclusive economic zones (EEZs) beyond territorial waters are qualified by specific
duties owed to other states and to the international community,51 the rights of ‘countries
of origin’ over in-​situ genetic resources are matched by specific conservation duties and
by obligations to facilitate access for other parties to the CBD;52 and by the multilat-
eral system of access and benefit-​sharing under the FAO Plant Gene Treaty.53 A more
appropriate analogy in both cases therefore, may be ‘public trusteeship’, for the benefit

50 Philip Allott, ‘International Law and International Revolution: Reconceiving the World’ in

David Freestone, Surya Subedi, and Scott Davidson (eds), Contemporary Issues in International Law: A
Collection of the Josephine Onoh Memorial Lectures (Kluwer 2002) 77, 95.
51 UNCLOS, arts 61–​70.
52 arts 5–​15.
53 art 10.

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 66   Peter H Sand

of present and future generations. The message then is simple: The sovereign rights of
nation-​states over certain common environmental resources are not proprietary, but fi-
duciary.54 The challenge is to come up with mechanisms that will effectively monitor the
performance of the trustees.

BIBLIOGRAPHY
Philip Allott, ‘International Law and the Idea of History’ Journal of the History of International
Law 1/​1 (1999): 1
David Christian, ‘World Environmental History’ in Jerry Bentley (ed), Oxford Handbook of
World History (OUP 2011) 125
Martti Koskenniemi, ‘Why History of International Law?’ Rechtsgeschichte: Journal of the Max
Planck Institute for European Legal History, 4 (2004): 61
Peter Sand (ed), The History and Origin of International Environmental Law (Edward
Elgar 2015)
Jorge Viñuales, ‘The Influence of Environmental Protection on the Fabric of International Law’
in Riccardo Mazzeschi and Pasquale De Sena (eds), Global Justice, Human Rights and the
Modernization of International Law (Springer International 2018) 255
Copyright © 2021. Oxford University Press, Incorporated. All rights reserved.

54 Birnie et al (n 40) 84; Peter Sand, ‘The Rise of Public Trusteeship in International Environmental

Law’ Environmental Policy and Law, 44 (2014): 210, 213; see Marx (n 18); and cf. Robert Falkner and Barry
Buzan, ‘The Emergence of Environmental Stewardship as a Primary Institution of Global International
Society’ European Journal of International Relations, 25/​1 (2019): 131.

Rajamani, L., & Peel, J. (Eds.). (2021). The oxford handbook of international environmental law. Oxford University Press, Incorporated.
Created from vls-ebooks on 2022-10-30 [Link].