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International Environmental Law
RICHARD J. (TAD) FERRIS JR., MEG CALDWELL, KEVIN T. HAROFF, NICOLE L. LEONARD, AND
GWEN PARKER*
I.
Introduction
Noteworthy international activity relating to the environment took place in a wide variety
of fora in 2003. Though not a comprehensive review, this chapter provides brief updates on
some of the most significant developments. It discusses developments under multilateral
environmental agreements, highlights from major conferences and meetings, and significant
reports and other publications. Those desiring a more comprehensive or detailed analysis of
these subjects are invited to review the sources cited.
II.
General Developments
A.
SUSTAINABLE DEVELOPMENT
The Eleventh Session of the United Nations Commission on Sustainable Development
(CSD-11) met in New York in April and May of 2003 to develop proposals for carrying out
Agenda 21, the Programme for the Further Implementation of Agenda 21, and the Johannesburg
Plan of Implementation.1 The Johannesburg Plan was adopted at the World Summit on
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Sustainable Development, which was held in Johannesburg, South Africa, in August and
September of 2002. The Johannesburg Summit was the most important world conference on
sustainable development since the United Nations’ 1992 Conference on Environment and
Development in Rio de Janeiro, Brazil (the so-called 1992 “Earth Summit”), where Agenda 21
originated.2
Based on decisions made at CSD-11, the Commission on Sustainable Development
(CSD) will now organize its activities in two-year work cycles, focusing on thematic clusters of
issues while also considering the economic, social, and environmental dimensions of sustainable
development.3 Each cycle will include separate review and policy years. During the review
year, the CSD will evaluate progress made in implementing sustainable development goals and
identifying obstacles and constraints. During the policy year, it will adopt measures to speed
implementation and mobilize action.
For the first two-year cycle (2004–05), the CSD will focus on the related issues of water,
sanitation, and human settlements.4 This will be followed by cycles focusing on: energy for
sustainable development, industrial development, air pollution and the atmosphere, and climate
(2006-07); agriculture, rural development, land, drought, desertification, and Africa (2008-09);
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transport, chemicals, waste management, mining, and a ten-year framework of programs on
sustainable consumption and production patterns (2010-11); forests, biodiversity, biotechnology,
tourism, and mountains (2012-13); and oceans and seas, marine resources, small island
developing states, and disaster management and vulnerability (2014-15). The last cycle (2016-
17) will involve an overall appraisal of the implementation of Agenda 21, the Programme of
Further Implementation of Agenda 21, and the Johannesburg Plan of Implementation.
In addition to these focus themes, various cross-cutting issues will be addressed in each
cycle including: poverty eradication; changing unsustainable patterns of consumption and
production; protecting and managing the natural resource base of economic and social
development; sustainable development in a globalizing world; health and sustainable
development; sustainable development of small island developing states; sustainable
development for Africa; other regional initiatives; an institutional framework for sustainable
development; gender equality; and education.
B.
HUMAN RIGHTS
On April 25, 2003, the United Nations Commission on Human Rights adopted Resolution
2003/71, affirming the importance of the relationship between human rights and the environment
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in achieving the goals of sustainable development.5 In Resolution 2003/71, the Commission
reaffirmed that “peace, security, stability and respect for human rights and fundamental
freedoms, including the right to development, as well as respect for cultural diversity are
essential for achieving sustainable development and ensuring that sustainable development
benefits all . . . .”6 It also requested that the United Nations Secretary-General submit a report to
the Commission at its Sixtieth Session on the consideration being given by the United Nations to
the possible relationship between the environment and human rights, taking into account the
contributions that other international organizations are making on this front.
In addition to action at the United Nations, the Secretary-General of the Organization of
American States (OAS) submitted a report on Human Rights and the Environment in the
Americas in May 2003.7 Based on this report, the OAS General Assembly Resolution AG/RES
1926 (XXXIII-O/03), on June 10, 2003, resolved to “continue to promote institutional
cooperation in the field of human rights and the environment between the Organization of
American States and other multilateral institutions, including the United Nations and its
specialized agencies, the World Bank, the Inter-American Development Bank, and regional
development banks.”8 It also called for the Secretary-General to report back to the General
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Assembly at its Thirty-Fourth regular session on the implementation of the resolution.9
III.
Atmosphere and Climate
A.
CLIMATE CHANGE
1.
International Developments
a.
Kyoto Protocol
Kyoto Protocol debates in 2003 centered on the Russian Federation, whose ratification of
the Protocol would bring it into force.10 President Putin has emphasized that Russia will make
the decision based on its national interests.11 The Russian President’s position on the issue is
crucial; the final decision on ratification will rest with the Federal Assembly, but the Assembly
can decide only if the President submits the Protocol for approval.12 Perhaps to help its decision-
makers study the issue, Russia convened a World Climate Change Conference in Moscow from
September 30 to October 3.13
The Ninth Conference of Parties (COP-9) to the United Nations Framework Convention
on Climate Change (UNFCCC), and the Nineteenth Sessions of the Subsidiary Body for
Implementation (SBI-19) and the Subsidiary Body for Scientific and Technological Advice
(SBSTA-19) commenced on December 1, 2003, in Milan, Italy.14 The most notable progress
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was agreement on the use of sinks (afforestation and reforestation) in the Clean Development
Mechanism (CDM).15 In an important political development at COP-9, twenty industrial
countries confirmed that, beginning in 2005, they would jointly grant $410 million on an annual
basis to help developing countries cope with climate change.16
b.
European Union (EU) Developments
The European Council formally adopted a common position on a directive to establish a
greenhouse gas (GHG) emissions trading scheme in the European Community on March 18,
2003.17 Parliament then proposed seventeen amendments to the common position, which the
Commission accepted in full.18 These amendments clarified important aspects of the trading
scheme, including how allowances are to be allocated and the industrial sectors that would be
allowed to participate. Later in the year, the directive was further amended to establish a process
for recognizing emissions credits from the Kyoto Protocol’s project-based mechanisms for use in
the EU trading scheme.19 The final directive establishing the EU trading scheme went into effect
on October 25, 2003. Member States are required to submit their national quota allocation plans
before the end of March 2004.20
In another key development, the EU announced its adoption of a draft regulation to
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reduce fluorinated GHGs.21 Emissions of hydrofluorocarbons (HFCs) and perfluorocarbons
(PFCs) have increased in recent years, as they have been used in some applications to replace the
ozone-depleting substances being phased out under the Montreal Protocol22 and Regulation (EC)
2037/2000.23 The fluorinated GHGs covered by the new regulation are HFCs, PFCs, and sulphur
hexafluoride. The proposal aims to reduce emissions of these fluorinated GHGs by twenty-five
percent (or about twenty-three million tons of CO2 equivalent) by 2010, with greater reductions
later.
c.
Developments in the United States and North America
One of the most notable regional developments of 2003 was the December 12 launch of
continuous electronic trading of GHG emissions allowances and offsets by the Chicago Climate
Exchange (CCX).24 CCX is a voluntary exchange that was established by a cross-section of
North American corporations, municipalities, and other institutions. Each of the twenty-four
participants in the exchange received an emissions allotment equal to the average of its emissions
between 1998 and 2001, and each committed to cut its allotment one percent per year for four
years.25
B.
STRATOSPHERIC OZONE
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The Fifteenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete
the Ozone Layer (MOP-15) was held in Nairobi, Kenya, on November 10–14.26 Research
completed in advance of the meeting underscored the continued vulnerability of the ozone
layer.27 The most controversial issue at MOP-15 was the United States’ request for an
exemption that would allow it to increase its production of the pesticide methyl bromide. This
request met staunch opposition,28 as developed countries are to phase out their use of methyl
bromide by January 1, 2005, under the terms of the Montreal Protocol.29 Unable to resolve the
issue, the Parties re-tabled it for a decision at an extraordinary UNEP meeting to take place in
Montreal, Canada, in March 2004.30
IV.
International Hazard Management
A.
REGULATION OF CHEMICALS
1.
Rotterdam Convention on Prior Informed Consent31
On November 17–21, 2003, the Intergovernmental Negotiating Committee (INC) for an
Internationally Legally Binding Instrument for the Application of Prior Informed Consent (PIC)
Procedure for Certain Hazardous Chemicals and Pesticides in International Trade held its tenth
session (INC-10) in Geneva, Switzerland.32 During 2003, twelve countries deposited
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instruments of ratification of the Rotterdam Convention,33 which will enter into legal force on
February 24, 2004. Because INC-10 is expected to be the final meeting prior to the first
Conference of the Parties (COP-1), which will be scheduled as soon as the Convention enters
into force, INC-10 focused on fleshing out issues in preparation for that meeting.34 In addition,
INC-10 approved the inclusion of four forms of asbestos, DNOC, and certain forms of benomyl,
carbofuran, and thiram under the interim PIC Procedure.
The Fourth Interim Chemical Review Committee (ICRC-4) meeting took place in Rome
on March 3–7.35 ICRC-4 finished Decision Guidance Documents for asbestos, DNOC (4,6-
Dinitro-o-Cresol), Granox TVC, and Spinox T, and addressed proposals to include new
chemicals under the PIC procedure.36 The Secretariat reports that it has received proposals for
the inclusion of five new chemicals (dimefox, endosulfan, endrin, mevinphos, and vinclozolin),
all of which will be considered at ICRC-5.37
2.
Stockholm Convention on Persistent Organic Pollutants (POPs)38
On July 14–18, 2003, the Seventh Session of the Intergovernmental Negotiation
Committee (INC-7) for an International Legally Binding Instrument for Implementing
International Action on Certain Persistent Organic Pollutants met in Geneva, Switzerland.39 It is
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expected that the Convention will go into effect during 2004, with the first Conference of the
Parties (COP-1) anticipated for 2005.40 INC-7 focused on outstanding “housekeeping” issues in
preparation of the first Conference of the Parties.41
3.
Europe’s Convention on Long-range Transboundary Air Pollution (CLTAP)42
In 2003, two new protocols under the CLTAP, the Sixth and Seventh Protocols, went into
effect: (1) the Protocol on Persistent Organic Pollutants (PPOPs);43 and (2) the Protocol on
Heavy Metals (PHM).44 The objective of the PPOPs is to eliminate any discharge or emission of
sixteen chemicals: eleven pesticides, two industrial chemicals, and three
byproducts/contaminants.45 The PPOPs either immediately bans production or schedules the
elimination of included chemicals. The PHM has the objective of controlling human-caused
emissions of three heavy metals—cadmium, lead, and mercury—through best available
technology requirements for industrial polluters and management measures to reduce emissions
from consumer waste.46
B.
TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTE
The first session of the Open-Ended Working Group (OEWG-1)47 of the Basel
Convention met in Geneva, Switzerland from April 28 to May 2, 2003.48 OEWG-1 approved
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$880,000 in funding for fifteen implementation projects for the new ten-year Strategic Plan of
the Basel Convention.49 The meeting addressed other issues raised by the ten-year Strategic
Plan, including: (1) technical guidelines for the management of POPs as waste; (2) end-of-life
management for mobile telephones; and (3) opportunities for cooperation between environmental
non-governmental organizations (NGOs) and industry.50 The second session of the Open-Ended
Working Group (OEWG-2) of the Basel Convention met on October 20–24, 2003, also in
Geneva, Switzerland. The agenda included: (1) approving implementation projects for the ten-
year Strategic Plan; (2) consideration of the Basel Protocol on Liability and Compensation; and
(3) the various national definitions of hazardous waste.51
C.
BIOTECHNOLOGY
On September 11, 2003, the Convention on Biological Diversity’s (CBD) Cartagena
Protocol on Biosafety (CPB)52 went into effect, ninety days after the deposit of the fiftieth
instrument of ratification.53 Under the Protocol: (1) any party exporting living modified
organisms (LMOs) to countries that are a party to the CPB will have to provide information to
that country so it can make an informed decision in advance of importation; (2) party nations
must communicate domestic agricultural use of LMOs, importation, or release of LMOs, and
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national laws designed to implement the CPB to the Biosafety Clearing-House (BCH); (3) all
LMOs transported to or from party nations must be accompanied by proper documentation under
the CPB; and (4) party nations must ensure that risk assessment and management must occur for
all LMOs.54 Early in 2003, version two of the BCH was released, and it will remain in service
until a final version is adopted subsequent to the first meeting of the Parties to the CPB (MOP1).55
V.
Natural Resource Management and Conservation
A.
BIOLOGICAL DIVERSITY
The ninth meeting of the Subsidiary Body on Scientific, Technical, and Technological
Advice (SBSTTA-9) of the Convention on Biological Diversity (CBD)56 was held in Montreal,
Canada, from November 10–14, 2003.57 Delegates to SBSTTA-9 focused on two main themes:
protected areas, such as those under the World Parks Congress, and technology transfer and
cooperation.58 Delegates also considered integrated ecosystem approaches to biodiversity,59
sustainable usage of resources,60 and climate change,61 among other areas. Sixteen separate
recommendations were adopted, including the encouragement of sustainable forest use practices
in developing nations and the enhancement of educational programs among the Parties.
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SBSTTA-9 was preceded on November 6–8, 2003, by an International Workshop on
Protected Forest Areas (Workshop), at the request of the Conference of Parties to the CBD.62
The Workshop promulgated five specific recommendations, urging SBSTTA-9 to: (1) assess the
adequacy of protected forest areas with an eye for gaps and weaknesses; (2) establish networks
of protected forest areas with (3) complementing restoration areas; (4) assess the efficacy of
protected forest areas in terms of biodiversity conservation; and (5) ensure that protected forest
areas are maintained and managed.63
B.
DESERTIFICATION
The sixth Conference of the Parties (COP-6) to the United Nations Convention to
Combat Desertification (CCD)64 was held in Havana, Cuba, from August 25 to September 5,
2003.65 The Parties reached several recommendations for implementing the CCD, two of which
were favoring parochial projects for land rehabilitation by local populations and promoting
economic opportunities in the drylands. The Parties also directed the Secretariat to work with
allied groups to better assess popular participation in CCD projects and to develop better public
awareness of CCD issues.
C.
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
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The forty-ninth meeting of the Standing Committee for the Convention on Trade in
Endangered Species of Wild Fauna and Flora (CITES)66 was held on April 22–25, 2003, in
Geneva, Switzerland.67 Unlike the previous forty-eight such meetings, this meeting was open to
non-governmental organizations (NGOs). The delegates reviewed efforts of several nations to
halt illegal trade in Asian big cats, in part through enhancement of ecotourism, and the efforts of
the Secretariat to research internal trade in ivory, both in existing ivory markets and of exports
from ivory stockpiles in Botswana, Namibia, and South Africa.
CITES enforcement in general was also a topic of the meeting. The Secretariat observed
that although many parties to CITES had formulated and submitted CITES Legislation Plans,
many had not. In light of good-faith legislative progress, the deadline for submission was
extended to the fiftieth meeting for Cameroon, the Dominican Republic, Panama, and South
Africa. A decision to issue a formal caution to fifty-seven other Parties to CITES warning of
non-compliance with the Legislative Plan requirement was also made. In addition, the
Secretariat announced that it had notified Denmark and Norway that recent trade in whale meat
between Norway and the Faroe Islands constituted a CITES violation.
D.
FISHERIES AND MARINE MAMMALS
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UN Food and Agriculture Organization
The Committee on Fisheries (COFI) of the United Nations Food and Agriculture
Organization (FAO) held its twenty-fifth session in February 2003.68 The Committee recognized
the continued importance of its Code of Conduct for Responsible Fisheries and related
International Plans of Action (IPOAs) in promoting long-term sustainable development in
fisheries and aquaculture. Current IPOAs address issues relating to sharks, seabirds,
overcapacity of large-scale fishing vessels, and the high and growing incidence of illegal,
unreported, and unregulated (IUU) fishing.69 The Committee highlighted the need for improved
management of deep-sea fisheries, especially discrete high seas stocks, and noted the need for
further development of international law in this area. Following a report from the SubCommittee on Aquaculture’s April 2002 meeting, the Committee recognized the importance of
aquaculture “as a means to increase fishery production, to generate income and foreign
exchange, to help restore and relieve pressure on wild populations, to alleviate poverty, to
increase food security and to provide for diversification of employment.”70
2.
G8 Marine Environment and Tanker Safety Action Plan
At their June 2003 meeting, the members of the G871 acknowledged the growing pressure
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on the marine environment and the impact of over-fishing and pollution on marine biodiversity.72
In response to the scale and urgency of the threat to marine fisheries, the G8 agreed to develop
and implement a variety of approaches and tools, including the Ecosystem Approach discussed
by the FAO. The group also agreed to the urgent development and implementation of the FAO’s
IPOA to eliminate IUU fishing.
In addition to fisheries issues, the G8 addressed the threat to marine environments
represented by the world’s fleet of single hulled tankers—exemplified by the sinking of the
Prestige in late 2002 and the subsequent spilling of over 12,000 tons of oil into the Atlantic
Ocean.73 As a first step, the group agreed to accelerate the phasing out of single hulled tankers
and further agreed to accelerate the adoption of guidelines on places of refuge for vessels in
distress, increase compensation funds for victims of oil pollution, and improve the training of
seafarers, including the imposition of mandatory minimum qualifications.74
3.
International Whaling Commission
The International Whaling Commission (IWC) continues to work on its Revised
Management Scheme (RMS) inspection and observer system. Although the Revised
Management Procedure (RMP) for commercial whaling has been endorsed, the RMS must be
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completed before the Commission will establish catch limits above zero.75 At its fifty-fifth
annual meeting in June, the IWC rejected proposals to create sanctuaries in the Southern Pacific
and the Southern Atlantic, and to change the provision for the Southern Ocean Sanctuary. The
Commission also passed resolutions urging countries to terminate, or not to commence, special
permit catches and asking Japan to discontinue its special permit catches of Antarctic minke
whales.
VI.
International Economy and the Environment
A.
INTERNATIONAL ECONOMY AND ENVIRONMENTAL STANDARDS
The development and adoption of environmental standards—which include standards for
environmental and sustainability reporting, standardized environmental management systems
(EMSs), and voluntary standards of conduct—continued apace in 2003. In the United States, the
Securities and Exchange Commission (SEC) adopted rules to implement the provisions of the
Sarbanes-Oxley Act of 200276 concerning disclosure controls and procedures.77 Although the
SEC has required disclosure of environmental liabilities for years, Sarbanes-Oxley spurred
greater attention to the issue by requiring chief executive officers and chief financial officers to
personally certify the accuracy of annual and quarterly reports, creating the potential for personal
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liability.78 Similarly, the United Kingdom announced that it would use existing powers under the
Companies Act of 1985 to establish a statutory requirement for large companies to provide an
Operating and Financial Review (OFR).79 Draft regulations on the OFR are expected soon.
The year also brought sustained growth in the use of EMSs that conform to a recognized
standard. ISO 14001 continued to be the most influential such standard. As of January 1, 2003,
nearly 50,000 ISO 14001 certificates had been issued in 118 countries.80 The European Union’s
Eco-Management and Audit Scheme (EMAS), which incorporates and goes beyond ISO 14001,
also continued to be recognized as an influential standard for EMSs. However, the number of
EMAS registrations declined slightly in 2003.81 In an effort to facilitate benchmarking among
EMAS participants within a given economic sector, the European Commission adopted guidance
on the selection and use of environmental performance indicators.82
B.
INTERNATIONAL TRADE AND THE ENVIRONMENT
1.
Bilateral and Regional Trade Initiatives
Developments in this area have focused primarily on the Western Hemisphere. After the
collapse of World Trade Organization (WTO) talks in Cancun in September 2003, governments
are taking “a more incremental approach,” focusing on smaller bilateral trade agreements.83 The
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U.S. Congress affirmed bilateral agreements with Chile and Singapore in 2003, and will likely
consider Free Trade Agreements (FTAs) with Morocco and Australia in 2004. Negotiations for
bilateral agreements with Uruguay and Panama will also take place next year.84
a.
U.S.-Chile Free Trade Agreement
The U.S.-Chile Free Trade Agreement has represented the most controversial bilateral
FTA from an environmental perspective. The U.S. Trade Representative’s (USTR) Final
Environmental Review of the agreement found that “changes in the pattern and magnitude of
trade flows attributable to the FTA will not have any significant environmental impacts in the
United States,” and it noted that while a majority of the Trade and Environmental Policy
Advisory Committee believed environmental provisions were superior to those found in previous
trade agreements, environmental cooperation measures lacked adequate funding.85
b.
North American Free Trade Agreement
Chapter 11 of NAFTA continued to generate controversy in 2003. The U.S. Senate killed
a proposed amendment to the Trade Act of 200286 that would have limited the application of
Chapter 11.87 Meanwhile, the Ninth Circuit ruled that the Bush administration violated
environmental laws by not adequately reviewing the air quality impact of Mexican trucks on
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U.S. highways.88 A NAFTA arbitration panel had determined in 2001 that the refusal to permit
Mexican trucks beyond restricted border zones violated the free trade agreement, and President
Bush announced his intention to comply with the decision at that time.89 In Canada, two groups
challenged the constitutionality of Chapter 11 in the Superior Court of Ontario.90
c.
Central American Free Trade Agreement (CAFTA)
The final round of negotiations for CAFTA between the United States, Costa Rica, El
Salvador, Honduras, Nicaragua, and Guatemala began on December 8, 2003.91 The agreement
reached on December 17, 2003, contains environmental provisions that the USTR describes as
significantly stronger than those included in the Chile FTA.92 The CAFTA documents commit
parties to enforce their own environmental laws, or face repercussions under CAFTA’s dispute
settlement procedures. Trade officials completed an environmental cooperation agreement prior
to concluding the negotiations, though this typically takes place after the completion of a FTA.
According to the USTR, the cooperation agreement focuses on strengthening the signatories’
development and enforcement of environmental laws, protecting endangered species, promoting
clean technologies, and improving public participation.
C.
INTERNATIONAL FINANCE AND THE ENVIRONMENT
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During 2003, greater attention was given to the environmental and social policies of
private financial institutions. At the 2003 Annual Meeting of the World Economic Forum in
Davos, Switzerland, more than 100 advocacy groups signed the Collevecchio Declaration, which
calls on financial institutions to implement more environmentally responsible lending policies.93
Several banks responded by joining with the International Finance Corporation (IFC), the
private-sector arm of the World Bank, to draft and adopt voluntary sustainability guidelines.94
Known as the “Equator Principles,” the guidelines were drafted by ABN Amro, Barclays,
Citigroup, and WestLB in collaboration with the IFC.95 The principles are modeled directly on
the IFC’s social and environmental guidelines, and address a range of issues through a process of
risk categorization and assessment. By the end of 2003, nineteen banks had adopted the Equator
Principles.96
Additional progress was also made on developing common approaches for evaluating the
environmental impacts of projects financed by export credit agencies (ECAs).97 In November
2003, the Organization for Economic Cooperation and Development (OECD) Working Party on
Export Credits and Credit Guarantees revised the draft agreement that was negotiated in
December 2001.98 Members of the Working Party were requested to confirm their acceptance of
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the agreement, and the document will then come before the OECD Council of Ministers for
formal adoption.
VII.
Environmental Security
The year’s developments in environmental security underscored the multi-faceted nature
of the issue.99 In the United States, the focus was on the relationship between environmental
security and terrorism.100 Domestic security continued to dominate in policy discussions of
issues such as energy,101 chemical storage,102 and radioactive waste disposal.103 On the foreign
policy front, little specific action took place during 2003.104 Both the Administration and
Congress focused on addressing security vulnerabilities. One example of Congressional action
was the Chemical Security Act of 2003. Introduced concurrently in the House and Senate, the
Act sought to increase protection against unauthorized use for dangerous chemicals used in the
industrial sector.105
International efforts to address environmental security focused on improving
environmental management as a means of promoting social stability and human development.
Important developments in this area occurred at the fifth “Environment for Europe” Ministerial
Conference, held in Kiev, Ukraine in May 2003.106 One example was the launch there of the
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Environment and Security Initiative, which will promote environmental management to help
reduce instability and insurgency in South Eastern Europe and Central Asia.107
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Any views or opinions expressed in this text are those of the authors in their personal
capacity, and do not represent the views of the organizations for which they work.
Richard J. (Tad) Ferris Jr., Director, International Section at Beveridge & Diamond, P.C.;
Meg Caldwell, Lecturer on Law and Director of the Environmental and Natural
Resources Law and Policy Program at Stanford Law School; Kevin T. Haroff and Nicole
L. Leonard at Squire, Sanders & Dempsey L.L.P.; and Gwen Parker, J.D., Stanford Law
School (2003). The authors wish to thank Zachary M. Fabish, Peter Morgan, Justin
Pidot, and Lisa M. Saltzburg for their contributions. The authors also wish to
acknowledge the assistance of Holly Kaufman, President, Environment & Enterprise
Strategies (http://www. environmentstrategies.com), and Josh Eagle, Lecturer on Law
and Coordinator, Stanford Fisheries Policy Project, who reviewed portions of the
manuscript.
1.
See Commission on Sustainable Development: Report on the Eleventh Session, E.S.C.,
11th Sess., Supp. No. 9, U.N. Doc. E/CN.17/2003/6, (2003), available at
http://www.un.org/esa/sustdev/csd/csd11/CSD11.htm [hereinafter CSD-11 Report].
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Agenda 21, which was adopted at the 1992 Earth Summit, was the United Nations’
principal blueprint for achieving sustainable development in the 21st Century. See
Agenda 21 Table of Contents, U.N. Department of Economic and Social Affairs, Division
for Sustainable Development, at
http://www.un.org/esa/sustdev/documents/agenda21/index.htm.
3.
CSD-11 Report, supra note 1, at 17.
4.
Id. at 11-12.
5.
Resolution 2003/71: Human Rights and the Environment as Part of Sustainable
Development, U.N. No. 2003E/CN.4/2003/L.11/Add.7 (Apr. 25, 2003), U.N.
Commission on Human Rights, 59th Session, available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES.2003.71.En?Open
document.
6.
Id. ¶ 1.
7.
Human Rights and the Environment in the Americas, OAS Committee on Judicial and
Political Affairs, Draft Resolution, OAS Doc. CP/CAJP-2032/03 (2003), available at
http://scm.oas.org/doc_public/ENGLISH/HIST_03/CP11391E08.doc.
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Human Rights and the Environment in the Americas, OAS General Assembly, AG/RES
1926 (XXXIII–O/03) (2003), ¶ 1, available at
http://www.oas.org/juridico/english/ga03/agres_1926.htm.
9.
Id. ¶ 5.
10.
The Protocol will take effect when it is ratified, accepted, approved, or acceded to by at
least fifty-five Parties to the United Nations Framework Convention on Climate Change
(UNFCCC), including enough Parties listed in Annex I of the Convention such that they
together represent at least fifty-five percent of that group’s total carbon dioxide emissions
for 1990. Kyoto Protocol to the UN Framework Convention on Climate Change, Dec.
10, 1997, U.N. Doc. FCCC/CP/1997/7/Add.2, reprinted in 37 I.L.M. 22, 42 art. 24(1)
(1998). As of November 26, 2003, 120 Parties had ratified, accepted, approved, or
acceded to the Protocol; and the Annex I Parties accounted for 44.2% of that group’s
1990 carbon dioxide emissions. UNFCCC Secretariat, Kyoto Protocol: Status of
Ratification, at http://unfccc.int/resource/kpstats.pdf.
11.
See, e.g., Veronika Voskoboinikova, Russia Intends to Ratify the Kyoto Protocol—Putin,
TASS (Moscow), Sept. 3, 2002; Greg Walters, President Has Not Decided on Kyoto,
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MOSCOW TIMES, Sept. 30, 2003. See also Is Kyoto Dead? ECONOMIST, Dec. 6, 2003, at
73 (reviewing possible explanations for Russia’s shifting stance).
12.
See WILLIAM E. BUTLER, THE RUSSIAN LAW OF TREATIES (1997); Julia Yoo, Note,
Participation in the Making of Legislative Treaties: The United States and Other Federal
Systems, 41 COLUM. J. TRANSNAT’L L. 455, 471-475 (2003).
13.
See Press Release, World Climate Change Conference Press Center, Summary Report of
the World Climate Conference (Oct. 2003), available at
http://www.wccc2003.org/press/summ_e.htm.
14.
See generally Summary of the Ninth Conference of the Parties to the U.N. Framework
Convention on Climate Change: 1-12 December 2003, 12 EARTH NEGOTIATIONS BULL.
(IISD) 1 (Dec. 15, 2003), available at http://www.iisd.ca/ climate/cop9/ [hereinafter
Summary of COP-9].
15.
For the draft decision that was recommended by the SBSTA on this issue, see U.N.
Framework Convention on Climate Change, Methodological Issues: Land Use, Land-use
Change and Forestry: Definitions and Modalities for Including Afforestation and
Reforestation Activities Under Article 12 of the Kyoto Protocol, U.N. Doc.
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FCCC/SBSTA/2003/L.27 (Dec. 9, 2003), available at http://unfccc.int/
resource/docs/2003/sbsta/l27.pdf. An advance, unedited version of the corresponding
COP decision is available at http://unfccc.int/cop9/latest/ sbsta_l27.pdf.
16.
UNFCCC COP-9 Highlights: Thursday, 4 December 2003, 12 EARTH NEGOTIATIONS
BULL. (IISD) 1 (Dec. 5, 2003).
17.
EUR. PARL. DOC. 15792/1/02, 2001/0245 (COD) (Mar. 18, 2003).
18.
Commission of the European Union, Opinion of the Commission, COM (2003) 463,
2001/0245 (COD), available at http://europa.eu.int/eur-
lex/en/com/pdf/2003/com2003_0463en01.pdf.
19.
Commission of the European Union, Proposal for a Directive of the European Parliament
and of the Council, COM(03)403, 2001/0245 (COD), available at
http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0403en01.pdf.
20.
Council Directive 2003/87/EC, arts. 9, 30, 2003 O.J. (L 275) 32, 35, 40 (Oct. 13, 2003),
available at http://europa.eu.int/eur-
lex/pri/en/oj/dat/2003/l_275/l_27520031025en00320046.pdf.
21.
Commission of the European Union, Proposal for a Regulation of the European
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Parliament and of the Council, COM(03)492, 2003/0189 (COD), available at
http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0492en01.pdf.
22.
Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, S. Treaty
Doc. 100-10, 1522 U.N.T.S. 3, 26 I.L.M. 1550 (entered into force Jan. 1, 1989). The text
of the Protocol, as subsequently amended and adjusted, is available at
http://www.unep.org/ozone/pdfs/Montreal-Protocol2000.pdf.
23.
Commission Regulation 2037/2000 of 29 June 2000 on Substances that Deplete the
Ozone Layer, 2000 O.J. (L 244) 1, available at http://europa.eu.int/eur-
lex/pri/en/oj/dat/2000/l_244/l_24420000929en0001 0024.pdf.
24.
See generally Chicago Climate Exchange, Trading on the Chicago Climate Exchange, at
http://www.chicagoclimatex.com/trading/.
25.
See generally Chicago Climate Exchange, Key Features, at http://www.chicago
climatex.com/about/.
26.
Report of the Fifteenth Meeting of the Parties to the Montreal Protocol on Substances
that Deplete the Ozone Layer, U.N. Environment Programme, 15th Meeting, U.N. Doc.
UNEP/OzL.Pro.15/9 (2003), available at
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http://www.unep.org/ozone/Meeting_Documents/5A_MeetingMOP.asp [hereinafter
MOP-15 Report].
27.
See generally World Meteorological Organization, Executive Summary, Scientific
Assessment of Ozone Depletion (2002), available at
http://www.unep.org/ozone/pdfs/execsumm-sap2002.pdf.
28.
For example, several countries formally declared their intention to “take all appropriate
measures to limit the consumption of methyl bromide to those strictly necessary
applications that are in keeping with the spirit of the Protocol and will not lead to an
increase in consumption after phase-out.” MOP-15 Report, supra note 26, at 107.
29.
Id. art. 2H.5.
30.
Id. at 76-77.
31.
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade, opened for signature Sept. 11, 1998,
reprinted in 38 I.L.M. 1 (1999). The prior informed consent (PIC) procedure adopted
under the Rotterdam Convention aims to protect human health and the environment by
promoting shared responsibility among nations that import and export certain hazardous
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chemicals.
32.
See generally Summary of the Tenth Session Intergovernmental Negotiating Committee
for an International Legally Binding Instrument for Application of the Prior Informed
Consent Procedure for Certain Hazardous Chemicals and Pesticides in International
Trade: 17–21 November 2003, 15 EARTH NEGOTIATIONS BULL. 1 (IISD) (Nov. 24, 2003),
available at http://www.iisd.ca/download/pdf/enb1598e.pdf [hereinafter INC-10 (PIC)
Report].
33.
See Rotterdam Convention Secretariat, Signatures & Ratifications, at
http://www.pic.int/en/ViewPage.asp?id=345.
34.
INC-10 (PIC) Report, supra note 32, at 9.
35.
Report of Interim Chemical Review Committee, U.N. Environment Programme,
Rotterdam Convention Interim Chemical Review Committee, 4th Sess., U.N. Doc.
UNEP/FAO/PIC/ICRC.4/18 (Mar. 7, 2003), available at
http://www.pic.int/incs/icrc4/wc18)/English/ICRC4-18e.pdf.
36.
INC-10 (PIC) Report, supra note 32, at 2.
37.
Rotterdam Convention Secretariat, 2003 News, at
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http://www.pic.int/en/ViewPage.asp?id=160.
38.
Stockholm Convention on Persistent Organic Pollutants, opened for signature May 23,
2001, reprinted in 40 I.L.M. 532 (2001). The Stockholm Convention identifies twelve
POPs that signatory countries are to reduce use of and eliminate by promoting best
available techniques and practices. These chemicals fall into three categories: pesticides,
industrial chemicals, and unintended byproducts. The convention also aims to prevent
the development of new POPs and establishes criteria for identifying new chemicals for
inclusion.
39.
See generally Summary of the Seventh Session of the Intergovernmental Negotiating
Committee for an International Legally Binding Instrument for Implementing
International Action on Certain Persistent Organic Pollutants: 14-18 July 2003, 15
EARTH NEGOTIATIONS BULL. (IISD) 1, (July 21, 2003), available at
http://www.iisd.ca/download/pdf/enb1581e.pdf [hereinafter Summary of Seventh Session
(POPs)]. For a complete list of INC-7 documents, see
http://www.pops.int/documents/meetings/inc7/en /meetdocen.htm.
40.
The Convention lists the ratification status at
32
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http://www.pops.int/documents/signature/signstatus.htm.
41.
Summary of Seventh Session (POPs), supra note 39, at 10.
42.
Convention on Long-Range Transboundary Air Pollution, opened for signature Nov. 13,
1979, 1302 U.N.T.S. 217 (entered into force Mar. 16, 1983), available at
http://www.unece.org/env/lrtap/full%20text/1979.CLRTAP.e.pdf. The Convention was
intended to promote international cooperation for the abatement of air pollution.
43.
Draft Protocol to the Convention on Long-Range Transboundary Air Pollution on
Persistent Organic Pollutants, U.N. Economic Commission for Europe (Mar. 31, 1998),
reprinted in 37 I.L.M. 505 (1998) (entered into force Oct. 23, 2003).
44.
Convention on Long-Range Transboundary Air Pollution on Persistent Organic
Pollutants, Protocol on Heavy Metals, U.N. Economic Commission for Europe, (June 24,
1998) (entered into force Dec. 29, 2003), available at
http://www.unece.org/env/lrtap/hm_h1.htm.
45.
Press Release, United Nations Economic Commission for Europe, Protocol to Control
Persistent Organics to Enter Into Force (Aug. 5, 2003), available at
http://www.unece.org/press/pr2003/03env_p19e.htm.
33
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46.
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Press Release, United Nations Economic Commission for Europe, Protocol to Control
Heavy Metals to Enter Into Force (Oct. 7, 2003), available at
http://www.unece.org/press/pr2003/03env_p21e.htm.
47.
OEWG-1 was established to assist the Conference of Parties of the Basel Convention in
assessing the implementation of the Convention’s work plan. INTERNATIONAL INSTITUTE
FOR SUSTAINABLE DEVELOPMENT, RECENT MEETINGS: CHEMICAL MANAGEMENT (2003),
at http://www.iisd.ca/recent/recentmeetings.asp?id=4 [hereinafter RECENT MEETINGS].
48.
See generally Report of the Open-Ended Working Group of the Basel Convention, U.N.
Environment Programme, 1st Sess., U.N. Doc. UNEP/CHW/OEWG/1/16 (June 3, 2003),
available at http://www.unon.org/css/doc/chw/oewg_1/oewg1_16/16eReport.pdf
[hereinafter Report on OEWG-1].
49.
Id. at 4-6.
50.
Id.; RECENT MEETINGS, supra note 47.
51.
Open-Ended Working Group of the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal, Annotated Provision Agenda, U.N.
Environment Programme, 2nd Sess., U.N. Doc. UNEP/CHW/OEWG/2/1/Add.1 (Oct. 7,
34
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2003), available at http://www.basel.int/meetings/oewg/oewg2/1a1e.pdf. As of this
writing, an advance copy of the report of the meeting was available at
http://www.basel.int/meetings/oewg/oewg2/12e.pdf.
52.
The CPB seeks to regulate and control the risks from the transboundary movements of
living modified organisms pose to human health and biodiversity. See generally
SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY, CARTAGENA PROTOCOL
ON BIOSAFETY: FROM NEGOTIATION TO IMPLEMENTATION (2003), available
at
http://www.biodiv.org/doc/publications/bs-brochure-02-en.pdf.
53.
Letter from Hamdallah Zedan, Executive Secretary of the Convention on Biological
Diversity, to ICCP and CBD National Focal Points (June 13, 2003), available at
http://www.biodiv.org/doc/notifications/2003/ntf-2003-050-bs-en.pdf. An additional
twenty-five countries have ratified the CPB. For current ratifying countries, see
http://www.biodiv.org/biosafety/signinglist.aspx.
54.
Press Release, Convention on Biological Diversity Secretariat, Cartagena Protocol on
Biosafety Takes Effect (Sept. 9, 2003), available at
http://www.biodiv.org/doc/press/presskits/bs/pr-01-en.pdf.
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55.
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Notification, Version 2.0 of the Pilot Phase of the Biosafety Clearing-House Launched,
Executive Secretary of the Convention on Biological Diversity, CBD Doc.
SCBD/BSP/KGM/33111 (Feb. 1, 2003), available at
http://www.biodiv.org/doc/notifications/2003/ntf-2003-014-cpb-en.pdf.
56.
Adopted on May 22, 1992 at the Earth Summit in Rio de Janeiro, the CBD entered into
force on December 29, 1993.
57.
See generally Report of the Subsidiary Body on Scientific, Technical and Technological
Advice on the Work of its Ninth Meeting, U.N. Environment Programme, Convention on
Biological Diversity, U.N. Doc. UNEP/CBD/COP/7/4 (Nov. 23, 2003), available at
http://www.biodiv.org/doc/meetings/cop/cop-07/official/cop-07-04-en.pdf.
58.
Id. at 13.
59.
Id. at 69-71.
60.
Id. at 110.
61.
Id. at 124-126.
62.
See generally Report of the International Workshop on Protected Forest Areas, U.N.
Environment Programme, Convention on Biological Diversity, U.N. Doc.
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UNEP/CBD/SBSTTA/9/INF/39 (Nov. 9, 2003), available at
http://www.biodiv.org/doc/meetings/sbstta/sbstta-09/information/sbstta-09-inf-39-en.pdf.
63.
Id. at 12.
64.
Adopted on June 17, 1994, the UNCCD entered into force on December 26, 1996.
65.
See generally Report on the Conference of the Parties on its Sixth Session, U.N.
Convention to Combat Desertification, 6th Sess., U.N. Doc. ICCD/COP(6)/11/Add.1
(Nov. 7, 2003), available at
http://www.unccd.int/cop/officialdocs/cop6/pdf/11add1eng.pdf.
66.
CITES entered into force on July 1, 1975, after adoption on March 3, 1973.
67.
See generally Summary Report, Forty-Ninth Meeting of the Standing Committee,
Convention on Trade in Endangered Species of Wild Fauna and Flora, SC49 Summary
Report (Rev. 1) (2003), available at http://www.cites.org/eng/cttee/standing/49/E49-
SumRep.pdf.
68.
Report of the Twenty-Fifth Session of the Committee on Fisheries, Food and Agriculture
Organization of the U.N., Committee on Fisheries, FAO Doc. FIPL/R702(En) (2003),
available at http://ftp.fao.org/docrep/fao/006/y5025e/Y5025E00.pdf [hereinafter Twenty37
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Fifth Session Report].
69.
Current IPOAs are available at http://www.fao.org/fi/ipa/ipae.asp.
70.
Twenty-Fifth Session Report, supra note 68.
71.
The member nations of the G8 are Germany, Canada, the United States, France, Italy,
Japan, the United Kingdom, and Russia. The European Union participates with observer
status. G8 Members, 2003 Evian Summit, at
http://www.g8.fr/evian/english/navigation/the_g8/g8_members.html.
72.
Marine Environment and Tanker Safety—A G8 Action Plan, 2003 Evian Summit, at
http://www.g8.fr/evian/extras/514.pdf.
73.
See John Whitfield, Uncertainty Shrouds Prestige Tanker Spill, NATURE (Nov. 23, 2003),
available at http://www.nature.com/nsu/021118/021118-14.html.
74.
Marine Environment and Tanker Safety — A G8 Action Plan, supra note 72.
75.
Press Release, International Whaling Commission, 55th Annual Meeting Final Press
Release (June 2003), available at http://www.iwcoffice.org/FinalPressRelease2003.htm.
76.
Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (2002) (codified as
amended in various sections of 15 U.S.C.).
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77.
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See Sarbanes-Oxley Act of 2002 §§ 302, 906; Management’s Reports on Internal Control
Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic
Reports, 68 Fed. Reg. 36,636 (June 18, 2003) (to be codified at 17 C.F.R. pts. 210, 228,
229, 240, 249, 270, and 274).
78.
See, e.g., Andrew C. Cooper, Yet Another Thing to Worry Over: The Current Emphasis
on Corporate Transparency Puts a Focus on Old Rules About Environmental Disclosure,
26 NAT’L L.J. S1 (Sept. 29, 2003).
79.
408 H.C. JOUR. 126, 61WS (daily ed. July 10, 2003) (written statement of Jacqui Smith,
Minister for Industry and the Regions), available at http://www.parliament.the-
stationery-office.co.uk/pa/cm200203/cmhansrd/cm030710/wmstext/30710m01.htm.
80.
INT’L ORG. FOR STANDARDIZATION, THE ISO SURVEY OF ISO 9000 AND ISO 14000
CERTIFICATES, TWELFTH CYCLE: UP TO AND INCLUDING 31 DEC. 2002 5 (2003).
81.
Evolution of Net EMAS Registrations: Quarterly Data, EU Eco-Management and Audit
Scheme, at http://europa.eu.int/comm/environment/emas/pdf/5_5articles.pdf.
82.
See Commission Recommendation (EC) No. 2003/532/EC of 10 July 2003, 2003 O.J. (L
184) 19.
39
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83.
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Brian Stempeck, Trade: US Officials Focusing on Smaller Free Trade Agreements, 10
GREENWIRE No. 9 (Dec. 4, 2003).
84.
Press Release, U.S. Trade Representative, U.S.-Uruguay Announce Bilateral Investment
Treaty (Nov. 21, 2003); Press Release, U.S. Trade Representative, USTR Notifies
Congress of Intent to Initiate Free Trade Talks with Panama, (Nov. 18, 2003). Both
releases are available at
http://www.ustr.gov/regions/whemisphere/ftaa2003/news.htm#pr.
85.
U.S. TRADE REPRESENTATIVE, FINAL ENVIRONMENTAL REVIEW OF THE U.S.-CHILE FREE
TRADE AGREEMENT (2003), available at http://www.ustr.gov/environment/tpa/chile-
environment.pdf.
86.
Bipartisan Trade Promotion Authority Act of 2002, 19 U.S.C. §§ 3801–3813 (2000).
87.
Katherine Yung, Foreign Firms’ Suits Are Messy for Environmentalists, DALLAS
MORNING NEWS, July 13, 2003, at 2D.
88.
Public Citizen v. Dep’t of Transp., 316 F.3d 1002 (9th Cir. 2003).
89.
9th Cir. Stalls Mexican Trucks on U.S. Highways for Impact on Air Quality, 23
HAZARDOUS WASTE LIT. REP. No. 12, at 3 (Jan. 31, 2003).
40
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90.
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Press Release, Canadian Union of Postal Workers, New Evidence that NAFTA is
Unconstitutional (May 30, 2003), available at
http://www.cupw.ca/pages/document_eng.php?Doc_ID=424.
91.
Stempeck, supra note 83.
92.
Brian Stempeck, Trade: White House Finishes Central American Agreement, 10
GREENWIRE No. 9 (Dec. 18, 2003).
93.
For the full declaration, see http://www.foe.org/camps/intl/declaration.html.
94.
For a general discussion of such voluntary guidelines, see Sophie Hsia, Foreign Direct
Investment and the Environment: Are Voluntary Codes of Conduct and Self-Imposed
Standards Enough? 9 ENVTL. LAW. 673 (2003).
95.
For a discussion of the Equator Principles and criticisms of them, see Tom Nelthorpe,
Principled Finance? PROJECT FIN., June 1, 2003, at 20.
96.
For a list of the banks and the text of the principles, see http://www.equator-
principles.com/principles.shtml.
97.
See generally Export Credit Agencies: Movement Toward Common Environmental
Guidelines, but National Differences Remain, U.S. General Accounting Office, Report to
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Congressional Requestors, GAO Doc. GAO-03-1093 (Sept. 2003), available at
http://www.gao.gov/new.items/d031093.pdf.
98.
See 100th Meeting of the Working Party on Export Credits and Credit Guarantees,
Organisation for Economic Co-operation and Development, Nov. 3-6, 2003, available at
http://www.oecd.org/dataoecd/39/30/21331492.pdf.
99.
For helpful surveys of environmental security issues, see the annual reports of the
Woodrow Wilson International Centers for Scholars, Environmental Change and Security
Project, available at
http://wwics.si.edu/index.cfm?fuseaction=topics.home&topic_id=1413.
100.
Several intersections between environmental security and terrorism are explored in more
detail in Volume 9 of the Widener Law Symposium Journal. See, e.g., Michael B.
Gerrard, Disasters First: Rethinking Environmental Law After September 11, 9 WID. L.
SYMP. J. 223 (2003); Jeremy Firestone & James Corbett, Responding to Terrorism:
Maritime Transportation: A Third Way for Port and Environmental Security, 9 WID. L.
SYMP. J. 419 (2003).
101.
Arctic Coastal Plain Domestic Energy Security Act of 2003, H.R. 39, 108th Cong.
42
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(2003); Energy Policy Act of 2003, H.R. 6, 108th Cong. (2003).
102.
See, e.g., Chemical Security Act of 2003, H.R. 1861, 108th Cong. (2003); Chemical
Security Act of 2003, S. 157, 108th Cong. (2003).
103.
See, e.g., Low-Level Radioactive Waste Act of 2003, S. 1045, 108th Cong. (2003).
104.
A notable exception to this trend occurred on December 8, 2003, when the United States
and China renewed a bilateral agreement for cooperation on environmental protection.
Clean energy and transportation, air quality management, and public health figure
prominently in the new agreement. See Daniel J. Dudek, Environment Deal a Big Prize,
CHINA DAILY, Dec. 11, 2003, available at
http://www.china.org.cn/english/international/82134.htm.
105.
Chemical Security Act of 2003, H.R. 1861, 108th Cong. (2003); Chemical Security Act
of 2003, S. 157, 108th Cong. (2003). The Senate Committee on Environment and Public
Works passed a more recent version of the Act in October 2003. Chemical Facilities
Security Act of 2003, S. 994, 108th Cong. (2003).
106.
See generally Report of the Fifth Ministerial Conference: Environment for Europe, U.N.
Economic and Social Council, Economic Commission for Europe, U.N. Doc.
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ECE/CEP/96 (2003), available at
http://www.unece.org/env/documents/2003/ece/cep/ece.cep.96.e.pdf.
107.
Information on the Environment and Security Initiative’s activities is available at
http://www.iisd.org/natres/security/envsec.
44