Legal foundation of IEL and EUEL

Question 1

What is international environmental law (IEL)?

Answer 1

• no one definition on what the ‘environment’ is under int. law
• a descriptive definition: it is based on treaties and principles, a set of rules rather then a ‘regime’, usually aims at particular problems (ex. climate change, air pollution)

Question 2

What is an issue with IEL?

Answer 2

It falls under int. law, a decentralized system. There is no one legislature or court, and states are only bound to take environmental action if they want to be bound because they are sovereign states (exception, jus cogens).

Question 3

What is the foundation of international environmental law (IEL)?

Answer 3

• it is founded by a web of treaties/conventions/agreements
• a numerous soft law instruments that are important for the development of IEL, ex. stockholm declaration and rio declaration
• decisions from courts, ex. trail smelter (transboundary harm) and Pulp Mills (EIA, transboundary harm)

Question 4

What is the brief history of modern IEL?

Answer 4

• modern IEL can be traced directly to int. legal developments that took place in the 2nd half of the 19th century
• before 1945 it began with bilateral agreements of regional ones to prevent over-expoloitation (fisheries agreements, wildlife, migratory birds, nature concervation, water)
• after 1945 the UN was established with the UN conference on human environment being held in Stockholm in 1972, creating the Stockholm declaration (soft law instrument on environmental principles) and the conference also lead to the creation of UNEP
• Rio declaration was produced at the UN’s conference on environment and development (UNCEP)/earth summit to guide states on the future of sustainable development
• Agenda 21 was also adopted at the earth summit in Rio, a non-binding action plan for a global partnership on sustainable development
• after UNCEP a number of int. treaties and regional agreements were adopted

Question 5

What are three key elements of a state’s compliance with IEL?

Answer 5

• implementation: national laws adjust according to int. obligations, some states are more serious then others, effectiveness of IEL depends on how it is handled nationally
• enforcement: injured state takes a state responsible for injury in front of an int. court (ex. trail smelter), not many cases, not yet a case where a state has argued that another state has damaged its own environment, damage to environment beyond areas of national jurisdiction (ex. fur seals), enforcement by int. organisations (sometimes possible/based on treaty provisions, usually soft) and nationally by non-state actors (Aarhus convention)
• dispute settlement: UN charter art. 33 (peaceful settlement), legal means (arbitration, int. courts)

Question 6

What is EU environmental law (EUEL)?

Answer 6

• no one definition available, centres around topics and environmental problems (ex. climate change, biodiversity)
• a directive from 2003 that really started regulating environmental law
• development: from few topics, to a comprehensive system for the environment, still growing, has an effect on the internal market

Question 7

What is the objective of EUEL? And where can this be found?

Answer 7

• perserving, protecting and improving the quality of the environment
• protecting human health
• prudent and rational utilisation of natural resources
• promoting measures at int. level to deal with regional or worldwide environmental problems, and in particular combating climate change (this specific reference is an addition confirming EU practice)
• found in: TFEU art. 191 (1)

Question 8

What is the legal basis for passing environmental legislation in the EU?

Answer 8

TFEU art. 192 (1) and (2). (1) is the usual legal basis. The difference between these two if how many votes and which institutions need to be involved.

Question 9

What are the different actors/institutions in the EU? And what are their roles?

Answer 9

• commission (executive power): prepares legal proposals, key role in control and survaillance over member states
• council of the EU and the european parliament (legislative power): in most instances they share this competance (see TFEU art. 192 (1) and (2))
• CJEU (judicial power): ensuring the interpretation and application of EU law