By Adrian Zienkiewicz and Eugene Matos De Lara
Man-made ecological disasters arise through the mismanagement of energy resources, technological and industrial accidents and often the prioritization of unmitigated output over sustainable environmental development. No matter how these disasters occur, there are long term economic repercussions and a negative impact on the quality of life. What then is the role of international law in disaster risk reduction?
A prelude to a more uniform regime was the United Nations Conference on the Human Environment of 1972 based around the idea that human activity was able to have a long-lasting influence on surrounding environments — it is only natural to ensure environmental stability, as humans’ fragile existence on this Earth is predicated by nature’s preservation. An action plan and 26 governing principles originated through this Conference. The following Rio Conference of 1992, on the backdrop of notable disasters such as Bhopal, Chernobyl, and the Exxon Valdez oil spill, strengthened the commitments to environmental protection. The MARPOL Convention and the UNCLOS through its part XII are international treaties reserved to maritime law, focusing on the prevention of pollution. The IAEA serves as an international regulatory body for the peaceful use of nuclear energy, and more importantly its safe waste disposal.
The Sendai Framework, a product of the 2015 World Conference on Disaster Risk Reduction and successor to the Hyogo Framework for Action to the sets out objectives, namely, to encourage cooperation between nation-states and deliver assistance to those affected by disasters. The Building Back Better strategy delineated by this document reflects these elements in providing humanitarian and financial relief in the wake of disasters, as well as preventing future disasters through sufficiently durable infrastructure and social initiatives.
The UN Sustainable Development Goals launched the same year operate in parallel to entice countries to work towards a more sustainable future while the UNISDR reveals that disasters account for global losses of up to US$1.5T. Draft Articles on the ‘Protection of Persons in the Event of Disasters’ submitted by the International Law Commission in 2016 mentions the reduction of the risk of disasters through its article 9, and plays a complementary role to international treaties as stated by article 18. The UNECE Industrial Accidents Convention and the Paris Agreement are other examples of international tools aimed at raising awareness on the effects of anthropogenic activities and climate change which contribute to the scale and frequency of disasters. Despite its short existence, the Sendai Framework appears to be the prime legal regime on risk reduction due to the presence of patterned behavior, in that 187 UN member states adopted the framework and NGOs actively participate in its promotion. With the presence of clear norms and rules, it will retain its status unless supplanted by a more comprehensive document.
The distinction between man-made and natural disasters (otherwise known as “Acts of God”) exists, yet some natural disasters that occur due to heightened human activity blurs lines. For instance, earthquakes would be included in the natural disaster category, but what of forest fires aggravated by man-made contaminants? States that accept to be parties in trials have encountered lawsuits specifically on environmental matters. Coupled with internal legislation, which does not necessarily need to be extensive but at the least include reasonable protective statutes, there is an increased sense of responsibility.
The Aarhus Convention brought signatories to make municipal, national and multilateral legislation public access. This would effectively encourage citizens to participate in public debate, as States would react and adopt sensible environmental laws. International environmental law, as in other sectors, lacks hard sanctions for violations of its treaties, albeit the EU created criminal sanctions through its institutions. Directive 2008/99/EC, through its article 3, cites an inclusive list of offenses, and stipulates in article 5 that offenses are “punishable by effective, proportionate and dissuasive criminal penalties”. EU member states that had insufficient legislation were encouraged to modify it and include criminal penalties that incorporate the three criteria of article 5. In the U.S., where most remedies are not bound by a “ceiling” amount, companies and third parties will be held responsible and charged with multi-million-dollar fines or forced to hefty settlements. To note also, the only universally ratified treaties in UN history, the Vienna Convention of 1985 and the following Montreal Protocol, serve to protect the ozone layer.
The harm principle, in which actions are limited to preventing harm done on other parties, is seen primarily through the Trail Smelter arbitration case. The case demonstrates that remedies through transboundary pollution can be obtained, and that States are accountable to each other for any such environmental harm done. The landmark decision from the ICJ in Costa Rica v Nicaragua allotted remedies to Costa Rica in 2018 for ecological damage perpetrated on its territory by Nicaragua. The Court’s finding that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law” will likely serve as a key persuasive precedent on future environmental damages disputes. Multilateral environmental agreements that break down could proceed to negotiation, arbitration, or legal action in front of international courts of law. Even though court cases are rare, one is presented with a large degree of flexibility to hold parties responsible for their actions. Dispute settlements that coincide with particular economic interests can also be brought before the WTO.
The objective of international environmental law is most certainly that of the prevention of environmental harm rather than the assessment of damages after the fact. Prevention is logical as there would be no accommodable reparation to the destruction of ecosystems. Thorough national legislation and international cooperation lead to effective strategies of protection, as private corporations and public agencies are held to a high degree of accountability. It is national mechanisms that enforce the international principles, and States that have inadequate laws are eventually subject to public pressure. A proposal to create a distinct international environmental court could be initiated to quell concerns between States in times where globalization has led, coincidentally, to both unprecedented productivity and environmental degradation.
About the authors:
Author: Adrian Zienkiewicz
is a law student at Université de Montréal. He has a marked interest for all spheres of public international law. Environmental and Energy Law are his real passions.
Co-author: Eugene Matos de Lara
(MA, MBA, LL.L, JD, LLB, BA.pol.pad, BA.dvm, BA.sc PMP) is currently working for the International Institute for Middle-East and Balkan studies, based in Ljubljana, and the Geneva Desk for Cooperation. Multilingual internationally published legal graduate with an extensive corporate legal background, and exposure to private international law, international relations, politics, public administration and public affairs.