1. International Environmental Regime — Overview

This is the overview of Environmental Law, Unit V — the International Environmental Regime. The unit begins with the legal problems that arise when pollution crosses borders, then follows the main declarations, conventions and agreements through time, from Stockholm in 1972 to the Paris Agreement. This post is the map and the timeline. Each topic has its own Note.

The Problem This Topic Solves

Pollution does not respect borders. Smoke, acid rain, a polluted river or a changing climate can harm people in a country that did nothing to cause it. A national court cannot order a foreign polluter or a foreign government to stop. International law therefore had to build its own rules: when a State is legally responsible, what it must do to prevent harm, and how States cooperate when no single State can solve the problem.

The result is a layered set of instruments. Some are declarations that are not binding. Some are treaties that bind the States that ratify them. Some are institutions that coordinate the rest. Students find the unit hard because these are many names and dates. This overview groups them by purpose and shows the order in which they arose.

The Group at a Glance

The table below places each Note in a group and gives the key fact to remember.

Transboundary Pollution and State Responsibility

Transboundary pollution is pollution that starts in one State and causes, or threatens, harm in another State or in areas beyond national jurisdiction. It can be point-to-point, such as cross-border smoke, or diffuse and global, such as ozone depletion. The no-harm principle, that a State must not allow its territory to be used so as to seriously injure another State, was first authoritatively established in the Trail Smelter Arbitration (1938 and 1941). The International Court of Justice added to it in the Corfu Channel Case (1949) and, in Pulp Mills on the River Uruguay (2010), extended it into a duty to carry out a prior environmental impact assessment. Full study: Transboundary Pollution.

State responsibility needs conduct attributable to the State and a breach of an international obligation. A State can be responsible for a private polluter because its own wrong is the failure to regulate activity in its territory. The standard is due diligence, meaning reasonable preventive measures, and not automatic strict liability. The remedies are cessation of the wrongful conduct and full reparation. Diffuse harms such as climate change are very hard to bring as State responsibility claims, which is why cooperative treaties were built. Full study: State Liability for Transboundary Environmental Harm.

International law classically binds States and not companies, so a foreign victim cannot easily sue a multinational parent. The Bhopal Gas Tragedy (1984) is the main example: the suit in the United States was dismissed on forum non conveniens grounds, and the case returned to India, where a US $470 million settlement was reached. Responses so far are soft law, such as the UN Guiding Principles on Business and Human Rights, 2011, and recent UK decisions such as Vedanta Resources plc v. Lungowe (2019) and Okpabi v. Royal Dutch Shell plc (2021). Full study: Liability of Multinational Corporations and Companies.

The Foundations: Stockholm, UNEP, Nairobi and Johannesburg

The UN Conference on the Human Environment met in Stockholm from 5 to 16 June 1972 and adopted the Stockholm Declaration, a preamble and 26 Principles. It is non-binding soft law but is the founding text of modern international environmental law. It led to the creation of UNEP by UN General Assembly Resolution 2997 (XXVII) on 15 December 1972. UNEP is a catalytic and coordinating body headquartered in Nairobi. It does not enforce, and it co-created the IPCC in 1988. Full study: Stockholm Declaration on the Human Environment, 1972 and Role of UNEP.

The Nairobi session of 1982, held on Stockholm's tenth anniversary, produced the non-binding Nairobi Declaration. It found that degradation had worsened, and it led to the Brundtland Commission (UN General Assembly Resolution 38/161, 1983) and its 1987 report "Our Common Future". The Johannesburg summit of 26 August to 4 September 2002, called Rio+10, produced the Johannesburg Declaration and a Plan of Implementation. It consolidated the three pillars of sustainable development: economic, social and environmental. Full study: Nairobi Declaration, 1982 and Johannesburg Declaration on Sustainable Development, 2002.

Conventions on Species and Habitats

The Ramsar Convention was signed on 2 February 1971 and entered into force on 21 December 1975. It is the oldest modern global environmental treaty. Its two core obligations are to designate at least one wetland for the Ramsar List and to promote "wise use" of all wetlands. Sites whose character is threatened may be placed on the Montreux Record. India acceded on 1 February 1982. Full study: Ramsar Convention, 1971.

The Bonn Convention on the Conservation of Migratory Species of Wild Animals was signed on 23 June 1979 and entered into force on 1 November 1983. It covers all migratory wild animals, not only birds. Appendix I lists endangered species that get strict protection. Appendix II lists species that benefit from international cooperation through separate agreements such as AEWA and ACAP. India has been a Party since 1983 and hosted COP13 at Gandhinagar in February 2020. Full study: Bonn Convention on the Conservation of Migratory Species, 1979.

The Convention on Biological Diversity was opened for signature at the Rio Earth Summit on 5 June 1992, after its text was adopted on 22 May 1992, and entered into force on 29 December 1993. Its three objectives are conservation, sustainable use and fair and equitable benefit sharing. It is supplemented by the Cartagena Protocol on Biosafety (2000) and the Nagoya Protocol (2010). India ratified it in 1994 and implemented it through the Biological Diversity Act, 2002. Full study: Convention on Biological Diversity, Rio Earth Summit, 1992.

The Climate Treaties

The UNFCCC was adopted on 9 May 1992, opened for signature at Rio, and entered into force on 21 March 1994. Article 2 states the objective of stabilising greenhouse gas concentrations. Article 3 sets out common but differentiated responsibilities and respective capabilities, and the precautionary principle. It divides parties into Annex I, Annex II and non-Annex I countries, and India is a non-Annex I country. The Conference of the Parties is its supreme body. Full study: UN Framework Convention on Climate Change, 1992.

The Kyoto Protocol was adopted on 11 December 1997 and entered into force on 16 February 2005. It set binding targets only for Annex I countries, about 5.2 per cent below 1990 levels for 2008 to 2012. It created three flexible mechanisms: emissions trading, Joint Implementation and the Clean Development Mechanism. The Doha Amendment (2012) set a second period for 2013 to 2020 but did not enter into force. Full study: Kyoto Protocol, 1997.

The Paris Agreement was adopted at COP21 on 12 December 2015 and entered into force on 4 November 2016. It replaced Kyoto's top-down division with Nationally Determined Contributions from every party. Its goal is to hold warming well below 2 degrees Celsius and pursue 1.5 degrees. NDCs must be strengthened every five years, with a Global Stocktake. India ratified on 2 October 2016, set a net-zero target for 2070 and updated its NDC in 2022. Full study: COP21 and the Paris Agreement, 2016. The Sustainable Development Goals (2015) are soft law and are covered in Sustainable Development Goals.

How to Tell Them Apart

The most useful distinction in this unit is between declarations and treaties. Declarations such as Stockholm, Nairobi and Johannesburg are not binding, but they shape later law. Conventions and protocols such as the CBD, the UNFCCC, Kyoto and Paris bind the States that ratify them. Kyoto and Paris are instruments adopted under the UNFCCC, and the Paris Agreement did not replace it.

The table below compares the two climate instruments students mix up most.

A Practical Example

A coal plant just inside Country A emits sulphur dioxide that falls as acid rain on the forests of Country B. Country B cannot send inspectors into Country A, and a private landowner in B cannot easily sue the plant in a foreign court. The route is State against State. Country B can rely on the no-harm principle from Trail Smelter, argue that A failed in due diligence, and ask for cessation and reparation. Pulp Mills adds that A should have carried out an impact assessment and given notice before approving the plant.

If the plant belongs to a multinational group, the victims face the problem of separate corporate personality. Bhopal shows the difficulty, and the recent UK cases show one route: suing the parent in its home court where it exercised real control. For the long-term problem of emissions, the answer is the climate regime: the UNFCCC, with Paris as the current instrument.

Quick Revision Points

• Responsibility: Trail Smelter (1938, 1941), Corfu Channel (1949), Pulp Mills (2010); due diligence; Bhopal; Vedanta (2019) and Okpabi (2021).
• Foundations: Stockholm 1972 (26 Principles), UNEP (15 December 1972), Nairobi 1982, Brundtland 1987, Johannesburg 2002.
• Species: Ramsar 1971, Bonn 1979, CBD 1992 (Cartagena 2000, Nagoya 2010).
• Climate: UNFCCC 1992, Kyoto 1997, Paris 2015; NDCs; net zero 2070 (India).
• Declarations are non-binding; conventions and protocols bind ratifying parties.
• Paris did not replace the UNFCCC; Kyoto and Paris were adopted under it.