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Public International Law/Law of the Sea

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A. Introduction
Most practitioners of international law will be familiar with the law of the sea as the specialised field of law that governs how states share and divide the ocean and its resources. The significance of this law lies in its being an important legal argumentative resource for states and corporations seeking to enter into cooperative endeavours, as well as in asserting their own interests and authority in relation to the ocean. This chapter will proceed as follows. After this introduction, Part B offers a brief history of the law of the sea until its codification into the 1982 United Nations Convention on the Law of the Sea ('Law of the Sea Convention', 'LOSC'). Part C gives an outline of the maritime zones as defined in the LOSC. Part D closes this chapter with some remarks on the contemporary challenges confronting the law of the sea.

B. History of the Law of the Sea
The law of the sea has been described as ‘a persistently important theme’ of international law ‘from the very beginning’, (see Founding Myths) but remained uncodified as a treaty for many centuries. Prior to the Hague Conference for the Codification of International Law in 1930, the law of the sea referred to a collection of various customs that different nations observed in relation to the ocean. Some of these customs included different measurements for, as well as ways of measuring, the breadth of a belt of water known as the territorial sea, over which a coastal state was said to exercise sovereignty, and different ways of regulating the passage of foreign vessels in those waters. States practised these customs unilaterally, or without regard for the interests of other states. These customs became topics for debate at the 1930 Hague Conference. However, the Conference concluded without producing a law of the sea treaty due to disagreement on the question of the breadth of the territorial sea.

After World War II, the United Nations convened the first Conference on the Law of the Sea (‘UNCLOS I’) in Geneva in 1958. Four separate Geneva law of the sea conventions were adopted at the end of UNCLOS I, namely: the Convention on the Territorial Sea and the Contiguous Zone (‘CTS’); the Convention on the High Seas (‘CHS’); the Convention on Fishing and Conservation of the Living Resources of the High Seals (‘CFCLR’); and the Convention on the Continental Shelf (‘CCS’). In particular, the CTS formally codified the customary law that the sovereignty of a coastal state extended from its land territory to the territorial sea. But like the 1930 Hague Conference, the question of the breadth of the territorial sea remained unsettled. UNCLOS I also concluded with the adoption of an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (‘OPSD’), but many states refused to ratify it. Because the conventions were adopted separately, states were free to choose the treaties they wished to ratify. The result was that the Geneva conventions did not achieve high numbers of ratification.

A second UN Conference on the Law of the Sea (‘UNCLOS II’) was soon convened in 1960 in order to address the questions of the breadth of the territorial sea and the settlement of disputes, which remained unresolved under the Geneva law of the sea conventions. Again, sharp disagreements among states over those questions meant that UNCLOS II did not produce any treaties.

By the late 1960s, a large number of states had gained independence from imperial rule. (see Decolonisation) These states were previously unable to send delegations to UNCLOS I and II and felt that many of the provisions of the Geneva conventions did not reflect their needs and issues. Many newly independent states sought greater control over fishery resources, mineral resources in areas beyond national jurisdiction, preservation of the marine environment, national security from threats coming from the ocean, and marine technology. Another source of dissatisfaction with the Geneva conventions was the fact that the breadth of the territorial sea remained unsettled. On this point, many newly independent states sought a wider territorial sea, while former imperial powers wanted to keep the territorial sea as narrow as possible in order to preserve the vast geographical scope of international waters or the high seas. The newly independent states generally held a mistrust for international law developed by their former imperial powers. These new states sought a new ocean regime that would address their specific interests.

The newly independent states garnered enough numbers in the UN General Assembly to establish a Sea-bed Committee in 1968. Originally, this Committee was meant to study the possibility of a regime for the exploration and exploitation of mineral resources of the seabed beyond national jurisdiction based on the notion of the ‘common heritage of mankind’. It later evolved into a preparatory body for the third UN Conference on the Law of the Sea (‘UNCLOS III’) that ran for nearly a decade from 1973 to 1982 between Geneva, Caracas, and New York.

Both the newly independent states and the former imperial powers agreed that UNCLOS III should aim to produce a single and universally-ratified ocean treaty from which states would not be allowed to make reservations (see Reservations) or exceptions. Ratification would mean that states are signing up to the ocean treaty as a single package. Both groups of states recognised that the topics of the law of the sea formed an interrelated field in which compromises between competing interests were essential for the success of the then-future ocean treaty. UNCLOS III divided its work into three main committees, dealing with the seabed regime, the law of the sea in general, and the marine environment and marine scientific research. Even then, delegates acknowledged that the work of one committee had important implications for the other two committees. For example, the question on the breadth of the territorial sea was directly related to the question of where exactly ‘areas beyond national jurisdiction’ began. If a belt of water was ‘territorial sea’, then it fell under the sovereignty of a coastal state, while waters in areas beyond national jurisdiction might be subject to ‘common heritage of mankind’ principles or other less restrictive regimes. One of these areas beyond national jurisdiction was known simply under the general designation of 'The Area', which consists of the seabed and ocean floor and subsoil beyond the limits of national jurisdiction. The Area will be described in more detail in Part C.

Individual committees each produced informal single negotiating texts (‘ISNTs’) as their bases for discussion at the committee level. In 1977, these ISNTs were merged into a single ‘Informal Composite Negotiating Text’ (‘ICNT’). The ICNT was the first coordinated attempt to articulate the various parts of the law of the sea as a single coherent treaty text. UNCLOS III adopted provisions through a combination of consensus and majority voting, with a view to preventing a few recalcitrant states from blocking an emerging consensus on a point of law.

Efforts to reach consensus over the draft convention failed when the new Reagan administration in the United States ordered a thorough review of the draft convention in 1980. The US and other industrialised and maritime powers were specifically opposed to part of the draft convention that established a regime for the seabed beyond national jurisdiction, which meant that the draft convention had to be adopted by a vote. On 30 April 1982, the LOSC’ was adopted by 130 votes in favour, 4 against, and 17 abstentions. The Convention opened for signature in Montego Bay, Jamaica on 10 December 1982, but the standing objections of the industrialised maritime powers meant that the LOSC would not enter into force until twelve years later. The LOSC adopted a zonal approach to the ocean, dividing waters into maritime zones with specific dimensions. Some of these zones are (a) the territorial sea, 12 nautical miles from the low-water mark on the shore of the coastal state; (b)the contiguous zone, 24 nautical miles; and (c) the exclusive economic zone, 200 nautical miles. The LOSC also codified rules on innocent, transit, and archipelagic sea lanes passage, the latter two types of passage being the LOSC’s distinctive contribution to the language of international law.

Between the Convention’s adoption in 1982 and its entry into force in 1994, the US, Britain, France, Italy, the Netherlands, Belgium, West Germany, and Japan were in an arrangement called the Reciprocating States Regime (‘RSR’). The RSR refuted the universal application of the LOSC, particularly Part XI of the Convention that established the seabed beyond national jurisdiction as the common heritage of mankind. It was the adoption of the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (‘1994 Implementing Agreement’) which removed the objections of the RSR states. The salient feature of the 1994 Implementing Agreement is that it now allows multinational consortia controlled by the RSR states to apply for seabed exploration permits on the same terms applicable to LOSC pioneer investors from developing nations. The LOSC finally entered into force on 16 November 1994.

C. Maritime Zones
The LOSC is the omnibus treaty governing international law regulating ocean spaces. It has been ratified by 168 states (including Palestine in 2015, with Azerbaijan being the most recent in 2016), and is considered to be a codification of customary international law. Even world powers who have not ratified the LOSC, such as the US, consider it to be customary in nature with the exception of Part XI of the Convention (concerning The Area). For the most part, the LOSC sets out how states are entitled to use various parts of the ocean and jurisdictional regimes relating to different ocean regions. The LOSC was also responsible for a significant reduction in scope of the high seas (also known as international waters) around the world due to the expansion of the territorial sea and the creation of the exclusive economic zone and of archipelagic waters for certain island-and-water formations.

The different zones of jurisdiction that make up the core of the LOSC all start from the definition and premise of maritime baselines. Maritime baselines as a concept are simply the demarcation point between what is considered the landed territory of a state, and what is considered to be part of the ocean and thus governed by the LOSC. The starting point for determining baselines (and the rule that applies in most circumstances) is set out in Article 5, which states that “the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the Coastal State.” This rule was relatively uncontroversial as a standard of geographical demarcation for most states. However, additional rules were developed in Article 6, Article 7, and Article 10 to account for non-standard coastlines, such as fringing reefs, coastlines with deep indentations or fringing islands, or small entirely enclosed bays. Article 6 sets out that the baseline can be drawn from the low water line of the reef; Article 7 sets out the rules for drawing straight baselines to allow for ease of maritime zone measurement in situations where the coastline has deep indentations, or fringing islands; and Article 10 sets out the rules for baselines enclosing bays. Once the baselines of the state have been established in accordance with articles 7, 9, and 10, and the delimitation drawn in accordance with articles 12 and 15 the coastal state is required to publicly publish these charts and deposit a copy of them with the Secretary-General of the United Nations. It is worth noting that it is generally accepted that baselines move as the coastline changes; however, with climate change causing significant sea level rise and reduction of coast, particularly for small island states, there is a strong argument on ground of equity for fixing baselines. From these baselines the law of the sea divides maritime zones into three broad categories (each with specific subcategories): zones of sovereign control; zones with sovereign rights; and areas beyond national jurisdictions.

1. Internal Waters
After the baselines of the state have been established, Article 8(1) declares that all territory on the landward side of the baselines constitutes the internal waters of the coastal state (with particular exceptions set out in Part IV of the LOSC for archipelagic states). The coastal state exercises full territorial sovereignty over its internal waters, with the primary difference between internal waters and the territorial sea being that internal waters are not subject to the various rights vessels possess when in the territorial sea (with the exception of historical freedom of navigation rights over areas that were not considered internal waters prior to the LOSC). With the exception of some limits of jurisdiction over foreign flagged vessel set out in Article 27 and 28, the internal waters of a state operate legally in the same manner as the states landed territory.

2. Territorial Sea
The territorial sea is the first maritime zone that exists beyond the baselines of a state. Historically, the territorial sea had been set to a limit of three nautical miles, with this limit being updated in the drafting of the LOSC to a maximum of 12 nautical miles. Much like the internal waters of a state, the territorial sea constitutes the full sovereign territory of the coastal state. The primary distinction between the territorial sea and the internal waters is therefore the obligations that states owe to foreign flagged vessels within their territorial sea. The primary right that vessels of all states possess in the territorial sea is the right of innocent passage, guaranteed by Article 17. The details of what constitutes innocent passage is set out in Articles 18 to 26 of the LOSC. Innocent passage is the right to transit in a “continuous and expeditious” manner through the territorial sea in a way that is “not prejudicial to the peace, good order or security of the coastal State.” This includes requiring submarines to travel surfaced with their flag displayed, and for vessels operating under nuclear power to carry documentation making this known, and to follow any precautionary measures set out in international agreements.

The other restrictions on coastal state sovereignty within the territorial sea (with these also applying to the internal waters of the state) are limitations on criminal and civil jurisdictions being exercised over foreign flagged vessels. This is linked with LOSC Article 92, which grants exclusive jurisdiction to the flag state over vessels on the high seas. Because the LOSC treats vessels as an extension of the territorial jurisdiction of the flag state, limitations on coastal state jurisdiction regarding both criminal and civil law exist. These limitations are set out respectively in LOSC Articles 27 and 28.

3. Straits
Part III of the LOSC does not specifically define a strait, but the term usually refers to a waterway bordered by one or more coastal states, which ships use for international navigation. States bordering straits used for international navigation (strait states) retain sovereignty or jurisdiction over such waters and their airspace, seabed and subsoil, subject to the regime of transit passage and other rules of international law.

Transit passage is a regime of passage that is less restrictive than the traditional right of innocent passage in the territorial sea. This means that ships navigating through international straits are subject to lesser restrictions that they would normally be when passing through the territorial sea of a coastal state. Article 38(2) of the LOSC defines transit passage as the exercise of the freedom of navigation and overflight ‘solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone’. ‘Continuous and expeditious transit’, however, does not prevent ships from using the strait in order to enter, leave, or return from one of the states bordering the strait. A foreign ship using a strait for transit passage may not carry out marine scientific research, hydrographic surveys, or other research activities without prior authorisation from the states bordering the strait.

Strait states are allowed to designate sea lanes and traffic separation schemes for navigation in order to promote safe passage of ships. But before such designation, strait states are required to refer proposed sea lane designations and traffic separation schemes to a competent international organisation with a view to their adoption. That competent international organisation is now generally understood to be the International Maritime Organisation (IMO), and the adoption procedure under Article 41 is intended to strictly circumscribe the powers of both strait states and the IMO in relation to sea lanes designation and traffic separation schemes.

4. Archipelagic Waters
The term ‘archipelagic waters’ refers to a category of waters which form an element of the definition of an archipelago in Article 46(b) of the LOSC: ‘a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such’. Article 47 of the LOSC outlines the steps through which an archipelagic state might draw its archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago. The waters encompassed within these baselines are archipelagic waters, except those waters that the archipelagic state might delimit as internal waters in accordance with Articles 9, 10, and 11. Archipelagic waters are subject to the sovereignty of an archipelagic state, regardless of those waters’ depth or distance from the coast.

Sovereignty over archipelagic waters, however, is subject to a few limitations. For example, an archipelagic state is under an obligation to respect existing agreements with other states and to recognise traditional fishing rights and other legitimate activities of immediately adjacent neighbouring states in archipelagic waters. Archipelagic states are also required to respect existing submarine cables laid by other states and passing through archipelagic waters without making a landfall and permit the maintenance and replacement of those cables.

Two regimes of passage apply to archipelagic waters. These are (1) innocent passage and (2) archipelagic sea lanes passage. Ships of all states enjoy the right of innocent passage in archipelagic waters as they would in the territorial sea of a coastal state, subject to the right of archipelagic sea lanes passage and without prejudice to the right of the archipelagic state to delimit internal waters within its archipelagic waters. An archipelagic state may temporarily suspend innocent passage in archipelagic waters without discrimination among foreign ships when essential for the protection of its security.

The right of archipelagic sea lanes passage evolved from the right of transit passage through international straits. Like strait states, archipelagic states may designate sea lanes and air routes for the ‘continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea’. But while Article 52(1) of the LOSC guarantees the right of innocent passage through archipelagic waters to ‘ships of all States’, Article 53(2) simply states that ‘All ships and aircraft enjoy the right of archipelagic sea lanes passage’ in such sea lanes and air routes as the archipelagic state may designate. Similar to the designation of sea lanes and traffic separation in international straits, an archipelagic state’s designation and substitution of sea lanes and traffic separation schemes in archipelagic waters also require approval from the IMO. An archipelagic state that chooses not to designate sea lanes and air routes is deemed to have consented to the enjoyment by all ships and aircraft of the right of archipelagic sea lanes passage in all routes within archipelagic waters that are normally used for international navigation.

1. Contiguous Zone
The contiguous zone is the first of three zones that constitute areas beyond national jurisdiction where coastal states retain some sovereign rights over the territory. Article 33 sets out the limits of those rights for the contiguous zone. It specifies that the contiguous zone can extend no more than 24 nautical miles from the state’s baselines (so 12 nautical miles from the edge of the territorial sea). Within the contiguous zone the state possesses the right to prevent infringement of “customs, for school, immigration or sanitary laws” within its territory. This right does not allow for an exercise of domestic law over these issues, rather, the state possesses the right to prevent entry to the territorial sea (by declaring passage by the vessel to not be innocent) where the vessel in question would be violating the law should it enter. Within the contiguous zone the coastal state may also exercise a domestic criminal jurisdiction where violations of the law have already been committed within its territory.

2. Exclusive Economic Zone
The Exclusive Economic Zone (EEZ), created in Part V of the LOSC, establishes exactly what is promised in the name – a zone within the oceans of exclusive economic rights for the coastal state. The EEZ regime allows coastal states to establish an area of no greater than 200 nautical miles from the baseline where they gain:"[S]overeign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or nonliving, of the waters super adjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from water currents and winds."In addition to this, the coastal state also gains the jurisdiction over the years regarding marine scientific research, the establishment and use of artificial islands and other structures within the zone, and the protection and preservation of the marine environment. Article 73 also grants the coastal state with rights of law enforcement related to these sovereign rights within the EEZ. Where the resourcing of the EEZ are situated in two or more EEZs and/or the high seas, the LOSC requires that these resources be managed through regional or subregional mechanisms (for example see the Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement and varied regional fisheries management organisations ('RFMOs')). Where the EEZ of coastal states would overlap, or neighbouring coastal states can’t agree on the delimitation line, Article 74 requires an equitable solution, with options for dispute settlement procedures provided in Part XV of UNCLOS if an agreement cannot be reached (numerous ICJ cases have addressed such disputes). Outside of these specific economic rights the EEZ functions in the same manner as the high seas.

3. Continental Shelf
Part VI of the LOSC sets out the rights of states over the continental shelf. The continental shelf is the area of the ocean floor seabed and subsoil. Under ordinary circumstances, the continental shelf of the state, much like the EEZ, is limited to a maximum of 200 nautical miles from the baselines of the state; however, Article 76 provides grounds under which states can claim an extended continental shelf. Annex II of the LOSC establishes the Commission on the Limits of the Continental Shelf ('CLCS') to assist with the application of the dense rules contained within Article 76. The continental shelf itself grants similar sovereign rights to the coastal state that the EEZ does, except over the resources contained within the seabed rather than within the ocean. The other primary difference between the continental shelf and the EEZ is that while the EEZ needs to be claimed, the continental shelf is considered an inherent right of the coastal state as an extension of the landed territorial.

1. The High Seas
The high seas covers all of the areas of the oceans beyond the zones detailed above (and the EEZ for noneconomic purposes), with it being clear that any claims of sovereignty will be considered invalid over this zone. Article 87 sets out the freedoms that are enjoyed by all states and vessels when on the high seas. These include: freedom of navigation and overflight; freedom to lay submarine cables and pipelines (subject to continental shelf restrictions); freedom to construct artificial islands and other installations (subject to international law in particular continental shelf restrictions); freedom of fishing (subject to due regard for the interests of other states, and regulations set out in the Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement or by regional fisheries management agencies); and freedom of scientific research (subject to continental shelf restrictions and Part XIII of UNCLOS). With these freedoms established at the beginning of Part VII of the LOSC, the rest of the sections addressing the high seas focus upon the jurisdiction of states over vessels within this maritime zone.

Article 92 of the LOSC sets out that the jurisdiction over a vessel shall belong exclusively to the state whose flag is being flown. Flag states have duties, including but not limited to: maintaining a register of ships flying its flying, ensuring the seaworthiness of vessels, ensuring that vessels have all the appropriate equipment for safety of navigation, assuming jurisdiction of its domestic law over the vessel, ensuring adequate crewing and labour standards on the vessel and that all crew have appropriate qualifications. This also includes the assumption of criminal jurisdiction over incidences of navigation caused by vessels flying their flag. The high seas section of the LOSC also sets out the various grounds of jurisdiction in which government or warships may engage in various activities such as the prevention of piracy, suppression of slave trafficking, and un-authorised radio broadcasting. It also contains the obligation of all vessels to render assistance to those in distress within their vicinity. Part VII of the LOSC also sets out that warships and government vessels on non-commercial service have immunity from the jurisdiction of any state other than the flag state.

2. The Area
The area is to the high seas as the continental shelf is to the EEZ. It is the subsoil and seabed in the areas beyond national jurisdiction, and is addressed in Part XI and a separate implementing agreement related to Part XI. Part XI sets up the area as part of the common heritage of all humankind, requiring that any exploitation of resources contained within the area to be used for the betterment and benefit of all peoples. With this in mind the LOSC also set up the International Seabed Authority (ISA) to govern the activities being undertaken within this zone. As noted above this approach was controversial and led to great power states declining to ratify the LOSC out of the objections that they wouldn’t be able to engage in disproportionate exploitation of any resources found within the zone. To date no commercial exploitation of resources contained within the Area has been deemed viable.

D. Contemprary Challenges
UNCLOS III concluded in the adoption of a Convention that was very much a product of the time of its making. Conference delegates sought to maintain a reasonable balance between the interests of coastal states and those of the international community. But almost as soon as the LOSC entered into force, the ‘territorial temptation’ of individual states for greater sovereignty over the ocean has threatened to undermine the common interest side of the balance. The urge to greater sovereignty over the ocean in various guises poses challenges to the application of the LOSC in four key areas: (1) environment and biodiversity; and (2) state sponsorship of activities in the deep seabed; (3) islands and sea level rise; and (4) maritime disputes.

I. Environment and biodiversity
Part XII of the LOSC deals with the protection of the marine environment. Specifically, Article 237 maintains the ability of states to enter into further agreements relating to the protection and preservation of the marine environment, provided that these agreements are ‘concluded in furtherance of the general principles and objectives of this Convention’. This provision enables states to address marine environmental concerns at a regional level. Regional agreements under Article 237 have been described as a ‘significant source of further development of the law of the sea’.

The proliferation of regional agreements may undermine the near-universal consensus achieved in the LOSC. Boyle argues that ‘fragmentation is an inherent risk in any system of law built on the consent of States’. Yet he also writes that there has been no real basis to suggest that regional cooperation has critically weakened the LOSC; the opposite is actually true. In the context of the South China Sea, for example, the lack of a specific regional seas convention (‘RSC’) has meant that the implementation of LOSC Part XII relies heavily on the benevolence or goodwill of South China Sea littoral states. This non-committal and evasive arrangement among the littoral states exposes the South China Sea to the risk of serious and long-term marine environmental damage.

In 2017, the UN General Assembly passed Resolution 72/249 in order to elaborate the text of another international legally binding instrument under the LOSC on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (‘BBNJ’). The BBNJ agenda includes marine genetic resources, marine protected areas, environmental impact assessment, and capacity building and transfer of technology. Work towards this agenda is currently being done through an Intergovernmental Conference, whose proceedings have been stalled by the COVID-19 pandemic. It has been predicted that the work of the Intergovernmental Conference will have to contend with conceptual difficulty in the relationship between a new legally binding instrument that existing law of the sea agreements, including the LOSC, will ‘fundamentally restrict the scope of application’ of a future BBNJ instrument.

II. State sponsorship of activities in the deep seabed
Article 153 of the LOSC provides that one of the ways in which activities for the exploration and exploitation of the deep seabed beyond national jurisdiction (which the LOSC refers to as the ‘Area’) may be carried out is when such activities are ‘sponsored’ by states-parties to the LOSC in accordance with the rules, regulations, and procedures of the International Seabed Authority (‘ISA’). ‘Sponsorship’ refers to the framework created by the LOSC through which a State Party exercises ‘control’ over contractors with respect to activities in the Area ‘by requiring [contractors] to comply with the provisions of [the Convention].’

III. Islands and sea level rise
Article 121(1) of the LOSC defines an island as 'a naturally formed area of land, surrounded by water, which is above water at high tide'. Under Article 121(2), islands generate an entitlement to the full suite of maritime zones in the LOSC ie, the territorial sea, the contiguous zone, the EEZ, and the continental shelf. As the worsening effects of the ongoing climate crisis melt polar ice caps, islands are expected to bear significant impacts from rising sea levels. While large areas of continental landmasses and islands could potentially submerge underwater as a result of sea level rise, small islands and their populations are particularly vulnerable. One possible legal scenario is that the submergence of land areas could lead to an interpretation that an island would also lose entitlement to maritime zones. LOSC Article 121(3) seems to lend support to such an interpretation in favour of loss of maritime entitlement. That provision states that islands which are 'rocks' that 'cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf'.

In August 2021, the member-states of the Pacific Islands Forum published the Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea Level Rise ('Declaration on Sea Level Rise'). In it, the PIF declared that the LOSC 'imposes no affirmative obligation to keep baselines and outer limits of maritime zones under review nor to update charts or lists of geographical coordinates once deposited with the Secretary-General of the United Nations'. The Declaration also records the official PIF position that 'maintaining maritime zones established in accordance with the Convention, and rights and entitlements that flow from them, notwithstanding climate change-related sea level rise, is supported by both the Convention and the legal principles underpinning it'. But whether maritime entitlements should be preserved or contract as a consequence of sea level rise remains 'very much an open issue'.

IV. Maritime Disputes
The LOSC continues to play an important role in informing the ways in which states assert their claims to the ocean. For example, in relation to the South China Sea, maritime policymakers look to the LOSC as an important source of arguments for clarifying their claims over disputed waters. And yet, as Laksamana notes, where policymakers are not confident about their maritime claims based on their reading of the LOSC, states have had to seek what he describes as 'tension management pathways' that may serve as a precursor to 'good faith' negotiations on maritime delimitation in the future. But whether and the extent to which these tension management pathways should be consistent with the LOSC remains to be seen.

Further Readings

 * Source I
 * Source II

Conclusion

 * Summary I
 * Summary II

title: Public International Law/Law of the Sea


text:
Public International Law/International Environmental Law

Author: Abbas Poorhashemi Required knowledge: Public International Law

Learning objectives: This chapter book aims to discuss and present the essential elements of the foundation and emergence of international environmental law as a new branch of international public law. Furthermore, it tries to provide some knowledge of the sources and principles of international environmental law. Environmental challenges such as climate change, desertification, air pollution and sea pollution are amongst the most urgent that require an immediate and collective response from the international community. Understanding the opportunities and challenges facing the international community is crucial for the future development of international environmental law. In this perspective, the learning objectives of this chapter include understanding the basics and emergence of international environmental law as a new branch of general international law, exploring the essential elements and fundamental principles of international environmental law, identifying and reviewing its sources, developing knowledge about ecological challenges facing the international community, understand the relationship between environment, sustainable development and preservation of the global climate and finally, understand the importance of international cooperation and collaboration to address environmental challenges.

Introduction
The relationship between humans and the environment has been discussed and investigated from different points of view. Many jurists disagree about whether this relationship can be examined from a legal point of view, and some even go so far as to refer to international environmental law as global ethics. But looking at the formation and development of international environmental law in the last decades, it becomes clear that this field, as one of the branches of public international law, has been able to include principles and rules. Important for managing, protecting and protecting the environment led to the creation of binding regulations, such as concluding more than a thousand bilateral and multilateral treaties, compiling international custom, international judicial procedures, etc., as well as developing non-binding instruments, such as statements, resolutions, recommendations, etc.

By applying an interdisciplinary or multidisciplinary approach, international environmental law has developed at national, regional and global levels. Since the environment has no boundaries and all humanity is on a single ship called the Earth, any damage to this ship will cause the destruction and decay of the entire human society. This emerging field in international law has taken the non-binding rules that did not have a place in classical international law in the service of its development and expansion and shown how these non-binding tools could be turned into codified and enforceable legal principles. In the shadow of the development and expansion of this legal field, the right to a healthy environment, the common heritage of humanity, the rights of future generations, and the right to development were crystallized as examples of environmental human rights. Therefore, this chapter is primarily compiled for researchers, students and international environmental law scholars, giving an overview of this field.

A. Emergence of International Environmental Law
Some sources define “environment” as the air, water, and land in or around which people, animals, and plants live. The environment is a balanced set of biotic and abiotic elements that surround a body and can interact with it. The concept of “environment” includes (but is not limited to) spaces, resources, natural land and marine environments, sites, day and night landscapes, air quality, living beings and biodiversity, biological processes, soils and geodiversity. There are various definitions of "international environmental law". According to the definition given by Alexander Kiss and Dina Shelton, international environmental law is one of the newest branches of public international law, which aims to protect the environment. Some also define international environmental law as a set of rules of international law which the purpose is to prevent environmental pollution and to protect the environment. While the above definitions are acceptable, they are not comprehensive. It may seem that international environmental law is a body of international law concerned with protecting the global environment by applying legal norms and regulations that address transboundary, regional, or global environmental issues.

International environmental law as a branch of public international law emerged in the 1970s. In fact, the 1960s, known as the decade of student movements (women's, green, and postmodernism), interrogate the destructive process of modernity, among others, the environment. After that, environmental experts and scientists announced that the world would be destroyed if industrial progress and economic growth continued in this direction. As a result, until the end of this decade and the beginning of the seventies, they forced the respective governments to hold the Stockholm Conference. The Stockholm Conference of 1972 was a turning point in drafting and developing international environmental law by recognizing the right to a healthy environment as one of the fundamental human rights and the close relationship between development and the environment. Since then, environmental protection has become a significant concern and preoccupation of the international community. Climate change, air pollution, lack of safe drinking water, hazardous wastes, soil erosion, loss of biodiversity as well as noise and light pollution are the global challenges of humanity. To respond to these environmental challenges, the international community has recognized the need for holistic and expansive environmental protection. Moreover, the international community has become aware that local issues are interconnected with national, regional, and global conditions.

At the United Nations Conference on the Environment in Stockholm in 1972, environmental protection was the subject of several treaties and declarations which illustrate the willingness of the international community to protect the environment, encourage sustainable development and attenuate the imbalance between the North and the South. These conventions accepted and ratified by States could be considered global responses to contemporary environmental problems. Moreover, international environmental treaties unite developed and developing countries by ensuring that developed countries “assume their historical responsibility” for global environmental degradation.

Some of the leading environmental conventions are:

 * Climate change: Vienna Convention for the Protection of the Ozone Layer (1985), Montreal Protocol (1987), United Nations Framework Convention on Climate Change (UNFCCC) (1992), Kyoto Protocol (1997) and 2015 Paris Agreement on climate change.
 * Environmental Accidents and Civil Protection: Helsinki Convention on Industrial Accidents (1992), Barcelona Convention (1976), Helsinki Convention on the Baltic Sea (1992), OSPAR Convention (1992), Bonn Agreement (1983), Lisbon Agreement (1990), Convention on the Protection of the Black Sea Against Pollution, Bucharest, (1992), Helsinki Convention on Industrial Accidents (1992).
 * Biotechnology and Chemicals: Cartagena Biosafety Protocol (2000), Stockholm Convention on Persistent Organic Pollutants (2001), Rio Convention on Biological Diversity (1992) and its Supplementary Protocol on Liability and Redress (2010), Rotterdam Convention on Prior Informed Consent (1998), Minamata Convention on Mercury (2013).
 * Human rights and environment: Aarhus Convention on access to information, public participation in decision making and access to justice in environmental matters(1998),Protocol on Pollutant Release and Transfer Registers (2009), and the Espoo Convention on Environmental Impact Assessment (1991).
 * Biodiversity: Convention on Wetlands of International Importance, Ramsar, (1971), Convention on International Trade in Endangered Species of Wild Fauna and Flora, (known as CITES Convention) (1973), Bonn Convention on the Conservation of Migratory Species CMS (1979), Convention for the protection of vertebrate animals used for experimental and other scientific purposes (1986),Bern Convention on European Wildlife and Habitats (1979), Convention on Biological Diversity CBD (1992), International Tropical Timber Agreement (ITTA) (1994), Agreement on the conservation of African-Eurasian Migratory Waterbirds (AEWA-CMS) (1995), Alpine Convention (1991), Cartagena Protocol on Biosafety (2003), Convention for the Conservation of Antarctic Marine Living Resources (1980), Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits arising from their Utilization, Nagoya (2010) and Agreement on the Protection and Sustainable Development of the Prespa Park Area (2010).
 * Water protection: Barcelona Convention (1976) and its protocols, Bonn Agreement (1983), Danube river basin convention (1987), Helsinki Convention on Watercourses and International Lakes (1992), OSPAR Convention (1992), Convention on the Protection of the Black Sea Against Pollution, Bucharest (1992), Helsinki Convention on the Baltic Sea (1992), Rhine river basin convention (1999).
 * Some of the non-binding international instruments to protect the global environment are the United Nations Conference on the Human Environment, 5-16 June 1972, Stockholm, the World Charter for Nature of 1982, Rio Declaration on Environment and Development (1992), Agenda 21 UNCED, 1992,  United Nations Millennium Development Goals (2000), Johannesburg Declaration (2002), Rio+20 Declaration (2012), the 2030 Agenda for Sustainable Development (2015) and the 17 Sustainable Development Goals (SDGs).

Although these conventions have been signed, accepted and ratified by the majority of the States, the commitments made by the States seem minimalist and insufficient concerning the gravity of problems and challenges facing the development of international environmental law.

B. Generations of International Environmental Law
International environmental law is developing as one of the branches of public international law. Although the conservation of some species of animals and plants dates back to the pre-1970s, the basis for the formation of international environmental law, in its modern concept, is the Stockholm Declaration of the United Nations Conference on the Human Environment in 1972. In general, international environmental law is historically divided into three periods.

I. First generation: before the formation of international environmental law until the 1972 Stockholm Conference
The first generation began mainly in the 18th century with the signing of especially bilateral agreements in the field of fisheries and marine life resources. The most important feature of this historical period is regionalism and the creation of contractual obligations between governments to protect a specific region or species. For instance, the Treaty concerning the Regulation of Salmon Fishery in the Rhine River Basin on June 30, 1885, the Paris Convention for the Protection of Birds Useful to Agriculture on March 19, 1902 , the Treaty relating to the Boundary Waters and Questions arising along the Boundary between Canada and the United States done at Washington on January 11, 1909 , for the protection of the Great Lakes and the Convention for the Protection of Migratory Birds in Canada and the United States on August 16, 1916 , and Convention relative to the Preservation of Fauna and Flora in their Natural State on November 08, 1933 , are some examples of this period. Its expansion to other fields, including wildlife, rare and endangered plants and animal species, continued into the early twentieth century. The most important feature of this historical period is its regionality and the creation of contractual obligations between states to protect a particular region or species. The 1960s, generally known as the decade of student movements (the women's movement, the environmental movement, and the postmodern movement), marked a turning point in the destructive process of modernity and addressed many fundamental issues, including environmental matters. Subsequently, environmental activists and scientists declared that if industrial progress continued the same way, the world would be destroyed. As a result, by the end of the decade and the beginning of the 1970s, states were forced to hold the Stockholm Conference of 1972. The Stockholm Conference of 1972 recognizes the right of development to be closely linked to the environment by identifying the right to a healthy environment as a fundamental human right. Furthermore, by considering the establishment of international institutions, it integrated the process of global cooperation in the field of the environment. It provided the direction for the further development and evolution of the relevant international rules to protect the global environment.

II. Second generation: from the Stockholm Conference 1972 until the Rio Conference 1992
According to the recommendation of the United Nations General Assembly, the International Conference on the Protection of the Environment was held from 5 to 16 June 1972 in Stockholm. The Stockholm Conference was a significant international conference in which more than 6,000 people represented 113 countries, and about the same number of representatives of international organizations and 700 observers. Delegations from 400 international non-governmental organizations participated. The purpose of this conference was to pay attention to the world's environmental issues and their relationship with human rights, as well as to warn of the harmful effects of human activities on the environment.

The Stockholm Declaration of 1972 contained 26 principles. According to the declaration, environmental issues should be at the forefront of international concerns and marked the start of a dialogue between developed and developing countries on the link between economic growth, the pollution of the air, water, and oceans and the well-being of people around the world. In addition, the Action Plan contained three main categories: a) Global Environmental Assessment Programme (watch plan); b) Environmental management activities, and (c) International measures to support assessment and management activities carried out at the national and international levels. In addition, these categories were broken down into 109 recommendations. Another important outcome of the conference was the establishment of an international body called the United Nations Environment Program (UNEP). UNEP is a United Nations-affiliated environmental protection program that has been one of the most important pillars of environmental protection. One of the important tasks of UNEP is the Global Environmental Assessment, which publishes a collection annually that describes the state of the world's environment. UNEP is also coordinating and managing the world's environmental protection in cooperation with the states worldwide. According to this mandate, UNEP does not have the right to directly interfere in the environmental issues of States, but all UNEP actions are carried out with the cooperation and participation of governments at the regional and global levels. This means that the United Nations allocates funds and credits to protect the environment of countries so that these countries can take the necessary measures to protect their environment. The Stockholm Declaration has strongly influenced the further development of international environmental law.

In addition, in this generation, several international treaties, bilateral and multilateral, were signed, adopted and ratified by the States. This generation's normative and structural evolution has strongly influenced the further development of International Environmental Law.

III. Third generation: from the Rio Conference 1992 until the present
The third generation of international environmental law begins with the 1992 Rio Conference on Environment and Development. The UN General Assembly approved holding an international conference on the environment and development. Accordingly, the Conference's preparatory committee was formed with the active participation of representatives of all member states and representatives of international organizations, both governmental and non-governmental. Subsequently, the United Nations Conference on Environment and Development was held on June 3, 1992, in Rio de Janeiro, Brazil, with the participation of more than 30,000 people from 176 countries, including 116 heads of state and representatives of 1,400 international non-governmental organizations working in the field of environment. In addition, the 1992 United Nations Framework Convention on Climate Change (UNFCC) and the Convention on Biological Diversity (CBD), drafted before the Conference, were opened in Rio for signature. In discussing the issue of the environment as a global problem, the Rio Conference stressed the need to coordinate the development process of countries with the protection of the environment and introduced environmental protection as an essential international issue for the next century. The proposal to establish international environmental regulations to achieve sustainable development marked a new turning point in the process of developing international environmental law. In addition, the Conference strengthened existing institutions and created new ones to coordinate further the international community's efforts to protect the environment within the framework of international institutions. Finally, the Rio 1992 Conference concluded with the adoption of three non-binding instruments, including the Conference Final Statement as a Rio Declaration (one introduction and twenty-seven principles), Agenda 21 (Charter for the Future) and the Principles of Forest Conservation.

The Rio 1992 Declaration affirms that States should always be concerned with the environmental preoccupations in economic development and industrial growth. They should consider sustainable development as an approach in their national development plans. The States should consider the "principle of sustainable development" in the formulation of programmatic and ordinary laws, as well as in the drafting of bilateral or multilateral binding instruments. They should recognize the role of social groups and non-governmental organizations in protecting the national, regional, and global environment.

Another development of international environmental law in this period is the organization of the World Summit on Sustainable Development taking place from 26 August to 4 September 2002 in Johannesburg. The Conference announced the eight Millennium Development Goals for development, including eradicating poverty and hunger, achieving universal primary education, promoting gender equality, women's empowerment, reducing child mortality, improving mothers' status, Fighting against AIDS, malaria, and other diseases. The eight Millennium Development Goals for development are:

 * 1) to eliminate extreme poverty and hunger;
 * 2) to achieve global primary education;
 * 3) to empower women and promote gender equality;
 * 4) to reduce child mortality;
 * 5) to promote maternal health;
 * 6) to fight malaria, HIV/AIDS, and other diseases;
 * 7) to promote environmental sustainability; and
 * 8) to develop a universal partnership for development.

Twenty years after the Earth Summit on Development and the Environment in Rio in 1992, and ten years after the Sustainable Development Conference in Johannesburg, the Rio + 20 Conference in Brazil is an essential step towards consolidating sustainability and environmental protection. It is the background of economic, social and environmental development. Therefore, the international community met again on June 20-22, 2012, in Rio de Janeiro to review the 20-year achievements of the Rio Conference in the direction of sustainable development and the prospects of the agreed programs. The Rio + 20 Conference, while emphasizing the commitments made at the Rio Conference of 1992, known as Agenda 21, seeks to introduce a new type of engagement in which business, governments and civil society are vital leaders for the protection of the global environment.

The Rio + 20 conference was a new opportunity for the international community address through deliberations existing barriers to the development of international environmental law. For example, one of the most significant steps toward achieve sustainable development in the last decade (from Johannesburg 2002 to Rio 2012) was identifying the causes of recession and economic crisis in the previous decade and combining economic issues with environmental criteria.

Another remarkable event in this period is the 2030 Agenda for Sustainable Development. The purpose of this Agenda is a plan of action for sustainable development strengthening universal peace, eradicating poverty. The 17 Sustainable Development Goals and 169 targets demonstrate the scale and ambition of this new universal Agenda. It seeks to build on the Millennium Development Goals and complete what these did not achieve. It aims to realize the human rights of all and achieve gender equality and the empowerment of all women and girls. The Agenda create a balance between the three dimensions of sustainable development: the economic, social and environmental.

The 2015 Paris Agreement on climate change is another significant collective initiative by the international community to address climate change. The agreement aims to limit global warming to less than 2°C above pre-industrial levels and strives to limit temperature increase to 1.5°C. The agreement also promotes advanced climate action, including regular reporting and updating of national contributions to reducing greenhouse gas emissions, and a framework for financial and technological support for developing countries in climate mitigation and adaptation efforts.

The United Nations Human Rights Council, on October 8, 2021, adopted a resolution recognizing the human right to a clean, healthy and sustainable environment as an essential human right. While this right is already recognized in more than 150 national jurisdictions, its international recognition paves the way for its effective incorporation into international law and strengthened implementation at the national and international levels.

Therefore, the third period of the process of development of international environmental law could be called the period of realism, universalism, reforms. During this period, international environmental rules and regulations have evolved within the concept of sustainable development and, if necessary, have been amended to be in line with global realities and to be enforceable in practice, as well as to form new rules and regulations.

C. Principles of International Environmental Law
Principles of international environmental law are the basic ideas for the development of this field of law. They are general in nature, applicable to all relevant actors, and environmental protection around the world. Some of them are enshrined in the multilateral environmental agreements, and in this case, they obtain clear meaning for the specific international environmental regime. However, even if a treaty does not explicitly recognize a principle in its text, the principle still can play a role in the interpretation and development of the treaty. General environmental principles also can supplement specific rules and express gap-filling functions.

I. Principle of sovereignty over natural resources and responsibility not to cause transboundary environmental damage
The sovereignty of states in international environmental law has two bases; one is to recognize the sovereignty of states in the use of their natural resources, and the other is not to cause harm to other territories under the control of other states or areas that are not under the control of states, such as the high seas. The turning point in the principle of sovereignty is in Article 21 of the 1972 Stockholm Declaration, which, with a slight modification, was contained in the second principle of the Rio 1992 Declaration, which states: " States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."

In this regard, the principle of sovereignty is one of the basic principles of international environmental law. In public international law, the principle of sovereignty is based on customary law. In the Trail smelter case (United States v. Canada) of 16 April 1938 and 11 March 1941, the Tribunal found that "under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence, and the injury is established by clear and convincing evidence."

This principle is also affirmed in Principle  21 of the 1972 Stockholm Declaration, according to which "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction" The evolution of the concept of "sovereignty" in international environmental law demonstrates that States have the freedom to use their territory. Still, at the same time, they have obligations under which their activities should not harm other countries or regions beyond the limits of their sovereignty. The principle of sovereignty obligates all States to preserve and protect the environment in its entirety, both for States on their territory and areas outside any national jurisdiction, such as the high seas, Antarctica or outer space.

II. Principle of cooperation
The principle of cooperation is a customary international obligation and one of the inseparable principles of the Charter of the United Nations. It is one of the features of contemporary international law. The principle of cooperation is binding in accordance with the Charter of the United Nations. Chapter IX of the Charter (Articles 55-60) affirms international economic and social cooperation. According to Article 55: “ With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a- higher standards of living, full employment, and conditions of economic and social progress and development; b- solutions of international economic, social, health, and related problems; and c- international cultural and educational cooperation; and universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Given its transnational nature, this principle is more necessary in international environmental law because the environment has no border.

Protection of the global environment is beyond the capacity of one or more States. It requires the international community's cooperation to prevent, reduce, and eliminate the harmful effects of environmental degradation and pollution. According to the principle of cooperation, States have a duty to work together in all circumstances and in good faith to protect the environment. The obligation of cooperating in environmental issues arises from the very existence of general public international law. More than a thousand international treaties recognize the need to collaborate with other states at different levels: bilateral, regional or global. In this context, the creation of numerous international organizations also corresponds to the need for institutional cooperation in environmental protection. International conventions or treaties constitute the most effective instrument for international cooperation, mainly because their content is mandatory under the principle of Pacta sunt servanda recalled in Article 26 of the Convention of Vienna of 1969 on the law of treaties. International cooperation could be considered in various fields such as information exchange, technology transfer, financial resources, participation in international conferences, and even emergency assistance through bilateral or multilateral agreements. Although each sovereign state is free to conduct its external relations according to what it considers to be its best interests, modern international law has developed a general obligation to cooperate with others to resolve problems that concern the international community as a whole.

In addition to the general obligation of United Nations member states to cooperate in good faith with the organization and among themselves, the particular need to cooperate to preserve the environment is expressed in several legal instruments, including soft law. Moreover, cooperation in international environmental law most often emerges in the context of international organizations, whether they already exist or are created for a particular environmental issue or sector. Finally, due to the transboundary nature of the environment, states are obliged to cooperate in all circumstances in good faith to protect the environment.

III. Principle of Sustainable development
Since the late 1980s, the term sustainable development has dominated environmental law and policy. In 1987, the World Commission on Environment and Development (WCED) published the «Our common future» report. The Brundtland Report stated that critical global environmental problems were primarily the result of the enormous poverty of the South and the non-sustainable patterns of consumption and production in the North. It called for a strategy that united development and the environment – described by the now common and widespread term «sustainable development.» Sustainable development is defined as follows: «Sustainable development is a development that meets the needs of the present without compromising the ability of future generations to meet their own needs.» In 1989, the UN General Assembly debated the Report, which decided to organize a UN Conference on Environment and Development. The sustainable development principle presupposes that development policies should aim to eradicate poverty, improve economic, social and cultural conditions, preserve biological diversity, essential ecological processes, and life-sustaining systems. In addition, environmental conservation should be considered an integral part of the planning and carrying out of activities at all stages.

According to the principle, States should review national policies and plans for environment and development to enact effective laws and regulations that use economic instruments where appropriate and establish and strengthen institutional structures and procedures to integrate environmental and development issues into all decision-making spheres fully. In addition, the integration of environmental, social and economic policies also requires transparency and broad public participation in decision-making by the authorities.

The principle of sustainable development is confirmed in many international legal instruments, including the Rio Declaration of 1992. The concept of sustainable development is an evolutionary process that meets the current generation's needs without diminishing the ability of the next generation to meet their needs, in other words, to provide an opportunity for everyone to live forever on the planet. Today, sustainable development is one of the most fundamental issues of international environmental law. Without a doubt, it can be named the primary goal of the development of international environmental law.

However, the implementation of sustainable development confronted some challenges in its forms and contents. In terms of content, it lacks a comprehensive approach for including indigenous people, local cultures, good governance, consuming resources, producing goods and services, freedom of expression, employment, identifying the roots of poverty and gender discrimination.

The principle of sustainable development is a framework for economic, social, and environmental progress that seeks to meet the needs of the present without compromising the ability of future generations to meet their own needs. This principle recognizes that the long-term health and prosperity of society depend on balancing economic, social, and environmental factors, and it emphasizes the importance of responsible resource management, conservation, and equity. In this regard, Sustainable development is based on the fact any development should meet the needs of the present without compromising the ability of future generations to meet their own needs.

The three-pillar conception of sustainability (social, economic and environmental), usually represented by three intersecting circles with overall sustainability at the center, has become ubiquitous. However, some research finds that there is no single point of origin for this three-pillar conception but rather a gradual emergence of various critiques in the early academic literature of the economic status quo from the point of view. Moreover, conceptualizing the three pillars of Sustainable development is complicated in international environmental law. Nevertheless, there is a  theoretically rigorous description of the three pillars of sustainable development.

Sustainable development is based on principles such as “environmental protection” to protect ecosystems and natural resources for future generations. Secondly is based on the “precautionary approach,” which is crucial to anticipate and avoid potential environmental, economic, and social risks before they become a problem. Thirdly, it relies on “economic growth” to encourage equitable and sustainable economic development. It is crucial that economic activities not compromise the ability of future generations to meet their economic needs. Fourthly, Sustainable development depends on “social equity,” which could promote a fair and just society where all individuals have access to basic human needs such as food, water, shelter, education, and health care. Finally, it counts on “participatory decision-making”. This will assist in involving all stakeholders in the decision-making process to ensure their perspectives and concerns are considered. Finally, the principle of sustainable development emphasizes the importance of balancing economic, social, and environmental factors in all decision-making to ensure we can create a prosperous and sustainable future for ourselves and future generations.

IV. Principle of prevention
The prevention of environmental degradation and pollution is regarded as the "golden rule" in international environmental law based on economic and ecological reasons. For instance, extinction of plant or animal species, soil erosion, loss of human life and leakage of pollutants into the sea create irreparable damage in a way that, even when the damage can be compensated, restoring them to their previous state is not possible. The Prevention Principle in International Environmental Law is to prevent national and transboundary harm due to the activities of the state. Often recognized as a part of the precautionary approach or sustainable development, the prevention principle deserves more attention and investigation to clarify states’ duty and to ensure definitional clarity to other entwined norms in environmental law.

This principle forms the basis of many international environmental agreements and conventions, such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989). The principle aims to minimize hazardous waste generation and combat illegal dumping. Many environmental laws are designed to respond to disasters, but preventing damage to the environment is cheaper and easier than replying to damage that has already occurred, and the environmental impact is less. The principle is the rationale behind international and national regulations governing the climate change, transport, treatment, storage and disposal of hazardous wastes.

V. Precautionary Principle
The precautionary principle imposes a duty on states to prevent environmental damage. Under this rule, a state may be obligated to take precautionary measures to prevent damage within its jurisdiction. The number of international environmental treaties confirms this duty of stats. In this perspective, Article 3 of the United Nations Framework Convention on Climate Change (UNFCC) states that: “''The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost''”.

The precautionary principle applies when there is uncertainty about the risk of environmental harm. This principle allows or requires protective measures to be taken without waiting until the harm materializes. So, it deals with potential environmental damage and serves as a tool to bridge uncertain scientific information and political responsibility. The principle has been applied globally to guide policy on issues such as chemicals and food safety, air quality or climate change. According to the EU law, it tends towards strict precaution and follows the “better safe than sorry” approach. In this regard, the EU’s environmental policies are based on a strict application of the precautionary principle, making them the most restrictive ones globally.

VI. Principle of notification
This principle is one of the basic principles that can be traced back to the International Court of Justice from the 1949 Corfu Strait case and other international sources such as environmental treaties and agreements. According to this principle, States have an obligation to notify other states in case of transboundary damages. There are also some other principles and concepts, such as the common heritage of humanity in international law and the rights of future generations. This obligation is primarily related to international cooperation based on a system of information and prior consultation and notification to achieve optimum use of natural resources without causing damage to the legitimate interests of other states. According to this principle, prior notice obligates acting States to provide timely notification and relevant information to every state that may be adversely affected by its environmental activities. states shall immediately notify other States of any natural disasters or other emergencies likely to produce transboundary effects. In addition, notification is fundamental when there is a nuclear accident and transboundary pollution.

VII. Polluter-pays Principle
The Polluter-pays Principle (PPP) is set out in many national and international regulations. According to this principle, polluters must bear the costs resulting from measures to prevent, reduce and fight pollution. This principle was adopted by the Organization for Economic Co-operation and Development (OECD) in 1972 as an economic principle for allocating the costs associated with pollution control. This is one of the essential principles underlying environmental policies in developed and developing countries. The Declaration of the United Nations Conference on Environment and Development in 1992 recognized this principle as one of the twenty-seven guiding principles for future sustainable development. According to principle 16 of the declaration, "National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment”.

The objective of the polluter pays principle is to reduce and control the impact of human activity on the environment by promoting non-polluting activities. It means that polluters must bear the expenses relating to preventing this pollution. The international community recognized the principle in many recommendations and international treaties. The PPP is an internationally recognized environmental principle that influences the development and environmental policy at national and international levels. This principle is developed from political slogans to legal rules. In fact, the principle’s scope has expanded in recent years. Initially, it only concerned the costs of preventing and combating pollution. Then, the principle is extended to the costs of measures taken by the authorities due to pollutant emissions. Finally, it rose to environmental liability.

VIII. Principle of common but differentiated responsibilities (CBDR)
The Principle of common but differentiated responsibilities (CBDR) is one of the crucial principles of international environmental law. According to this principle, all States are responsible for protecting the environment but with different types of responsibilities. Developed countries have a more significant burden due to their historical contributions to environmental degradation. As a result, they should assist developing countries with transferring new technologies and supporting them financially. According to Principle 7 of the 1992 Rio Declaration, States should cooperate in a spirit of partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. Given the diversity of roles played in global environmental degradation, States have common but differentiated responsibilities. Developed countries recognize their responsibility in the international effort to promote sustainable development, given their societies' pressures on the global environment and the technologies and financial resources at their disposal.

One of the first legal instrument (Hard Law) which elaborate this principle is the 1992 United Nations Framework Convention on Climate Change (UNFCCC). According to this document, the Principle of Common but differentiated responsibilities is as a pathway to balance the shared responsibility of all States to address climate change. Based on this convention,  developed countries are historically responsible for greenhouse gas emissions. The principle recognizes that developed countries have benefited from exploiting natural resources and using fossil fuels, resulting in a disproportionate share of greenhouse gas emissions in the atmosphere.

This principle explains the differentiation between States by their unequal contribution to environmental degradation, on the one hand, and by the recognition that accounts must be taken of their respective economic situation, on the other. In this perspective, the principle was later included in the 1997 Kyoto Protocol, which sets binding emission reduction targets for developed countries. Based on the Kyoto Protocol, developed countries are responsible for reducing their greenhouse gas emissions by an average of 5% below 1990 levels over the period 2008-2012. In contrast, developing countries were not subject to binding emissions reduction targets but were expected to take voluntary actions to address climate change. Finally, this principle provides a pathway to balance the shared responsibility of all nations for addressing environmental issues with the recognition of historical commitment and capacity.

D. Sources of International Environmental Law
International environmental law borrows traditional sources from public international law. Thus, Article 38 of the Statute of the International Court of Justice indicates the different possible sources of public international law applicable to international environmental law. However, these sources are not limited to traditional sources of public international law. Therefore, to better understand the sources of international environmental law, it could be discussed at two different types of non-binding (soft) and binding (hard) sources:

I. Hard Law
Hard law is a binding law that imposes obligatory rules and regulations on governments to take international responsibility in environmental issues. Therefore, it is essential to consider that the sources of international environmental law go beyond public international law. International Environmental Treaties, including Multilateral Environmental Agreements (MEAs) and Bilateral Environmental Agreements (BEAs), are crucial for international environmental law's current and future development. This source of hard law aims to provide a binding legal instrument to protect the environment. Therefore, international environmental law treaties have unique characteristics compared to public international law. First, many environmental treaties aim to create a permanent structure to expand cooperation between the member states by building institutional organizations or referring to an existing international organization. Secondly, environmental treaties include executive mechanisms to implement and monitor the execution of the agreements. In addition, international environmental law treaties generally possess dispositive regarding amendment and revision. The convention-framework system is one of the unique features of international environmental treaties. This mechanism is usually about the general treaties that the States want to compile their principles and general obligations in a legal text under the convention's name and subsequently sign and approve other legal documents or texts in line with the convention's goals. This type of text is called a protocol. Convention framework exists in international environmental law more than public international law. The contracting parties reach an agreement, but the agreement details depend on future contracts negotiated and accepted under the protocol.

In addition, another source of international environmental law is international customary law. Even with the multiplication of international treaties, customary law remains crucial in this branch of law. In this context, the obligation to prevent transboundary harm and the “duty to prevent” can be considered examples of customary law. In international environmental law, customary law establishes fundamental principles and concepts. For instance, the principle of “sustainable development” reflects common development practices and the shared conviction of States to create an enabling environment for development. It also contributes to the development of international environmental law by recognizing customary principles such as common duties to prevent transboundary harm, the principle of prevention, and the principle of common but differentiated responsibilities (CBDR). These principles have been sought over time through States’ acceptance and show their customary nature. However, the customary legal status of fundamental environmental principles remains unclear, which contributes to the complexity and lack of clarity in the implementation of international environmental law.

II. Soft Law
It is essential to mention that even though soft law is not binding, it has a crucial impacts on the development of international environmental law. The most significant examples of these sources are the 1972 Stockholm Declaration, the 1982 Universal Charter of Nature, the 1992 Rio Declaration and Agenda 2030 for sustainable development. In addition, the soft law core idea is to affirm or declare general principles and define a guideline for states to protect their environment in a flexible manner.

The variations of the sources in hard law and soft law will assist the evolution of international environmental law, such as the global climate change regime. For instance, the Paris Agreement combines harder procedural commitments with softer substantive provisions, potentially encouraging flexible responses to changing conditions within a stable, long-term architecture. However, the Agreement’s softer, transparency-based compliance framework provides limited assurance that countries will make and fulfill ambitious commitments.

Nevertheless, international environmental law based on “soft law” is not only available to international judges or arbitrators. They can also be helpful for inter-State diplomacy. They may also effectively be taken into account by municipal judges in evaluating the legality, concerning international law, of any internal administrative action having had or can have some damaging impact on the environment beyond national boundaries. Furthermore, municipal judges may consider these international standards to give a correct interpretation of supremely generally formulated international obligations. Finally, the drafting and implementation of these sources of law allow governmental and non-governmental actors to cooperate together.

E. Global Environmental Problems and Challenges
Despite all global efforts, to develop binding and non-binding legal instruments, environmental concerns and threats such as global warming, climate change, desertification, and deforestation are not only remaining but also increasing.Today's world's environmental concerns and threats go beyond the predictions of the experts and scientists present at Stockholm's first environmental Conference in 1972.

I. State sovereignty
Regardless of the concept of the sovereignty of states in international law, one of the main obstacles for the development of international environmental law, is the non-acceptance of governments, to delegate or limit their sovereignty, in favour of environmental organizations. Another conflict also exists between developed and developing countries in enforcing regulations. For instance, according to the principle of Common but Differentiated Responsibilities, developed countries should take additional actions such as transferring technologies or contributing finance to developing countries, but this principle is not respected properly. This principle clearly set out in many international environmental treaties, such as United Nations Framework Convention on Climate Change (UNFCC). According to this convention, developed countries should provide financial resources to assist developing countries in implementing the objectives for protecting climate change.

II. Diversity of sources
Another substantive challenge to developing international law is the diversity of binding and non-binding sources, which is caused confusion and vagueness in the implementation of international law. The variety of binding and non-binding sources creates a significant challenge for developing and implementing international law. This diversity often leads to confusion and ambiguity in implementing international legal principles. The absence of a globally applicable environmental treaty, the limited decisions of international Courts, and the unclear customary law status of critical environmental regulations exacerbate these challenges. This problem arises because of the absence of a global environmental treaty that can serve as a binding framework for all States. In addition, the limited number of judgments from international Courts creates gaps in legal interpretation and guidance.

International environmental law has fallen between the development of general environmental principles, mainly enunciated in non-binding international instruments (such as the 1992 Rio Declaration on Environmental and Development) and binding international environmental treaties which are nevertheless sector-specific in their orientation, or even when comprehensive in their approach to (several) environmental threats, are regional in their geographical scope of application. This developmental ‘gap’ between general environmental principles and specific treaty rules points towards a substantive failing within international environmental law as a viable subdiscipline of public international law generally. The lack of general application of even cornerstone principles of and incasing new sources of international environmental law could be a normative gap in this field of law.

III. Insufficient guarantee of implementation
Many international rules and regulations, including multilateral treaties, are confronted with a deficiency of compliance mechanisms to protect the environment. The failure to provide financial mechanisms in international environmental treaties is one of the principal points of concern of the international community to implement environmental obligations, especially in developing countries. Principle 9 of the Rio Declaration stated, “States should cooperate to strengthen endogenous capacity-building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new ones and innovative technologies.”

IV. Institutional challenge
Global environmental protection since the 1970s has prompted international governmental organizations to participate in environmental conservation efforts actively. As subjects of international law, these organizations have an important responsibility in this field. The 1972 Stockholm Conference reflected the growing recognition of the need for global environmental governance. It led to the establishment of the United Nations Environment Program (UNEP) as the principal body and executive for international environmental protection. However, despite its establishment, UNEP has faced limitations and challenges in effectively protecting the global environment. As environmental challenges continue to intensify and evolve, there is a growing need to assess the feasibility of creating a new organization specifically dedicated to environmental protection, such as the Organization World Environment (WEO).

Creating a WEO could fill the gaps in the existing framework by providing a dedicated institution solely focused on global environmental issues. This organization can be given resources, authority and a clear mission to address serious environmental challenges in different sectors and regions. It can also foster stronger coordination and cooperation between States, international organizations and public participation. It is essential to mention that establishing a new global organization to protect the global environment requires careful assessment and consideration of various factors, including global governance structures, international funding mechanisms, decision-making processes, and linkages to existing international organizations.

V. Emergence of environmental challenges in the world
From the early 90s, environmental threats became alarming: the destruction of the stratospheric ozone layer, climate change, sea level rise, ecosystem acidification, sheer loss of biological diversity, overexploitation of marine resources, increased technological risks, etc. The emergence of increasingly unpredictable risks enticed the authorities to base their policy on an anticipatory model. This model can be linked to understanding scientific expertise's limitations. While prevention is based on a particular risk, the new model is distinguished by the intrusion of uncertainty.

The world is confronted with several environmental problems and challenges, such as climate change, global warming, air, water, soil and light pollution, resource depletion, massive disappearance of plant and animal species, the depletion of biodiversity and other environmental degradations. These challenges could have significant implications for human health, social stability and economic development.

Climate change is one of the major challenges of the current world. According to the report released by the Intergovernmental Panel on Climate Change (IPCC) for 2022 : "Human-induced climate change is causing dangerous and widespread disruption in nature and affecting the lives of billions of people around the world, despite efforts to reduce the risks. People and ecosystems least able to cope are being hardest hit, said scientists in the latest Intergovernmental Panel on Climate Change (IPCC) report. This report is a dire warning about the consequences of inaction... It shows that climate change is a grave and mounting threat to our well-being and a healthy planet. Our actions today will shape how people adapt, and nature responds to increasing climate risks". The world faces unavoidable multiple climate hazards over the next two decades with global warming of 1.5°C (2.7°F). Even temporarily exceeding this warming level will result in additional severe impacts, some of which will be irreversible. Risks for society will increase, including to infrastructure and low-lying coastal settlements. The Summary for Policymakers of the IPCC Working Group II report, Climate Change 2022: Impacts, Adaptation and Vulnerability was approved on Sunday, February 27 2022, by 195 member governments of the IPCC.

Conclusion
Global challenges need global solutions: in this perspective, international cooperation between states plays a vital role. Economic growth and increasing technological advances in the contemporary period have caused real damage to the environment. States should be willing to participate actively in drafting, signing, ratifying and implementing new treaties on environmental issues such as water pollution and climate change in a sustainable way.

It is also crucial to recognize the right of public participation in the environmental decision-making process and implementation. The right to “environment” and right to “economic development” as a “human right” should be considered in the concept of sustainable development as a common concern of humanity. Now is the time for the international community to impose absolute responsibility or strict liability to states for any damage and harm to the environment at the national and international levels.

It is essential to note that the role of non-governmental organizations (NGOs) is crucial in the future development of international environmental law. Although the classic approach of international law recognizes mainly the role of States and governmental organizations, international environmental law recognizes that NGOs could have different roles in setting priorities and assisting in creating and enforcing national and international norms and regulations.

In the future, international environmental law will continue to develop significantly. From the 1972 Stockholm Conference, a shift occurred in the various States’ policies at the national and international levels. In this perspective, normative evaluation such as the International conventions on ozone protection (1985), the conservation of Antarctic marine fauna and flora (1980), the control of transboundary movements of hazardous wastes (1989), the Paris Agreement on climate change (2015) and many others are negotiated and ratified and enter into force within more than five decades. Regarding the structural evolution of international environmental law, the United Nations and UNEP reform are crucial for the future development of international law. Finally, international peace and security are necessary to ensure sustainable development for humanity, regardless in developed or developing countries.

Further Readings

 * Alexandre Kiss, Dinah Shelton, Guide to International Environmental Law, (Martinus Nijhoff Publishers, 2007)
 * UNEP, Training Manual on International Environmental Law, (Publication of the United Nations Environment Programme)
 * Abbas Poorhashemi, Emergence of International Environmental Law: as a new branch of International Public Law, (CIFILE Journal of International Law, Canada, V. 1, Issue 2, 2020, P. 33-39)
 * Laurence Boisson De Chazournes, La protection de l'environnement global et les visages de l'action normative internationale, (In: Mélanges en l'honneur de Michel Prieur. Paris : Dalloz, 2007. p. 41-57)
 * Philippe Sands, Jacqueline Peel, Adriana Fabra, Ruth MacKenzie, Principles of international environmental law, (Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2018)
 * Duvic-Paoli, L. (2018). The Prevention Principle in International Environmental Law. In The Prevention Principle in International Environmental Law (Cambridge Studies on Environment, Energy and Natural Resources Governance, p. Iii). Cambridge: Cambridge University Press.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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