Environmental Protection Norms

Commodity activities can have major impacts on the natural environment. For instance, the conversion of primary forests into plantations may have problematic effects for soil fertility, biodiversity, water quality and availability as well as the existence of organic carbon stocks.⁹⁴Timber logging may have similar effects and,

87Cf. Spohr (2016), pp. 117–130.

88Bürgi Bonanomi et al. (2015), pp. 27–28; Spohr (2016), p. 125.

89Cf. Bürgi Bonanomi et al. (2015), p. 28.

90Cf. Spohr (2016), pp. 130–133. In extreme cases, even a violation of Articles 2, 3 UN Genocide Convention may become relevant.

91Shelton (2006), para. 2; the former includes the duty to provide access to relevant information concerning violations and reparation mechanisms, UN GA (2005) Basic Principles and Guidelines on the Right to a Remedy, Resolution 60/147, 16 December 2005, para. 11; cf. Spohr (2016), p. 57.

92On the historical underpinnings of the right to development and its relationship to the NIEO, Marong (2010), paras. 4–5.

93Cf. Marks (2004), p. 141.

94Bürgi Bonanomi et al. (2015), p. 33.

by reducing carbon stocks, may accelerate climate change.⁹⁵The mining of com-modities frequently causes water pollution or contamination, for instance from mine tailings, which result from copper, iron, coal, or gold production.⁹⁶ Moreover, surface contaminants may be spread by water and wind, which can lead to increased concentration of metal sediments that can damage aquifers and other water ecosys-tems.⁹⁷A particular environmental problem, which occurs in connection with gold extraction, is the contamination of soils and waters with mercury.⁹⁸Surface mining of commodities such as copper, iron, coal and gold particularly causes air pollution, with coal extraction exhibiting detrimental effects on biodiversity regeneration.⁹⁹As Bürgi Bonanomi and others point out, particularly on the African continent, mining appears to elicit extensive deforestation of rainforests.¹⁰⁰

These environmental effects need to be taken into account whenever a govern-ment considers extracting commodities. They are being addressed by today’s inter-national environmental protection regime, which began to emerge in the 1970s.

Notably the 1972 Stockholm Declaration represents thefirst document addressing environmental protection, which witnessed quasi-universal support from the inter-national community.¹⁰¹ From the beginning, safeguarding natural resources for present and future generations constituted one of the central objectives of the environmental protection regime.¹⁰²

However, international environmental law as an established branch of interna-tional law, including its somewhat coherent doctrine and substance,¹⁰³only in some incidents reflects a conscious consideration of the particularities of commodity activity. It is characterised by a set ofcentral rules and principles,¹⁰⁴which have been concretised in the context of specific protection regimes provided for in various international legal instruments,¹⁰⁵ which are undeniably again quite close to

95Cf. Bürgi Bonanomi et al. (2015), p. 34; on the negative impacts of cocoa and coffee intensifi -cation on biodiversity likewise Bürgi Bonanomi et al. (2015), pp. 33–34 with further evidence.

96Bürgi Bonanomi et al. (2015), p. 36.

97Bürgi Bonanomi et al. (2015), p. 36.

98Cf. Espa and Oehl (2018). On the guidance provided by the Minamata Convention in this respect, cf. Sect.5.2.1.2.3.1below.

99Bürgi Bonanomi et al. (2015), pp. 36–37.

100Bürgi Bonanomi et al. (2015), p. 37.

101Beyerlin and Grote Stoutenberg (2013), para. 9. Prior to Stockholm, environmental protection efforts were mainly led by FAO, UNESCO and ECOSOC, yet the UN’s competence to do so had still been disputed, cf. Beyerlin and Grote Stoutenberg (2013), para. 7.

102Cf. Principles 2, 3 and 5 Stockholm Declaration.

103Cf. Beyerlin and Grote Stoutenberg (2013), para. 3.

104Most of these central principles have been elaborated in legal language in either the Stockholm or Rio Declaration; cf. Barral (2012), p. 379.

105Cf. e.g. Sands and Peel (2018), pp. 101–106 on the emergence of international environmental agreements.

4.2 The Contribution of TCL to a‘Balanced’Commodity Sector 87

commodity activities, such as the ones regulating the protection of the atmo-sphere,¹⁰⁶ air,¹⁰⁷ freshwater,¹⁰⁸ wetlands,¹⁰⁹ oceans, seas and marine living resources,¹¹⁰ flora and fauna,¹¹¹ forests and soils,¹¹² biological diversity,¹¹³ and the Polar regions.¹¹⁴Further regimes address climate change¹¹⁵as well as wastes and hazardous substances.¹¹⁶Yet, most rules and principles do not reflect a con-scious consideration of commodity policy trade-offs.

106Especially 1985 Vienna Convention for the Protection of the Ozone Layer; Montreal Protocol on Substances that Deplete the Ozone Layer; cf. Beyerlin and Grote Stoutenberg (2013), para. 33.

107Especially Convention on Long-Range Transboundary Air Pollution; as well as the ASEAN Agreement on Transboundary Haze Pollution; cf. Beyerlin and Grote Stoutenberg (2013), para. 32.

108Especially UN Convention on the Law of the Non-Navigational Uses of International Water-courses; cf. Beyerlin and Grote Stoutenberg (2013), paras. 64–65.

109Especially Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention); Revised African Convention on the Conservation of Nature and Natural Resources (Maputo Convention), cf. also Sect. 5.2.1.2.3.3 below; cf. Beyerlin and Grote Stoutenberg (2013), paras. 42–3.

110Especially 1995 Fish Stocks Agreement (global scope), as well as severalfisheries agreements with a regional scope; UNCLOS; International Convention for the Prevention of Pollution from Ships; International Convention on Oil Pollution Preparedness, Response and Cooperation; 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. For an account of further regional marine environmental protection conventions, cf. Baker and Share (2013). On all of the above, cf. Beyerlin and Grote Stoutenberg (2013), paras. 52–62.

111Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Convention on the Conservation of Migratory Species of Wild Animals (CMS).

112As Beyerlin and Grote Stoutenberg (2013), para. 49 contend,‘[a] comprehensive system of forest protection is still missing in [IEL].’On the International Tropical Timber Agreement—and other ICAs—cf. especially Sect.5.2.1.2below. In the climate change context, Beyerlin and Grote Stoutenberg (2013), para. 50 are pointing to REDD+, cf. UNFCCC (2019), REDD+, web platform, https://redd.unfccc.int/(last accessed 14 May 2021). With regard to soil protection, note the 1998 Protocol on the Implementation of the Alpine Convention of 1991 in the Field of Soil Conservation, as well as the UN Desertification Convention; cf. Beyerlin and Grote Stoutenberg (2013), para. 51.

113Convention on Biological Diversity; Bonn Guidelines; Nagoya Protocol; cf. in more detail Sect.

5.2.1.2.3.3below. Moreover, cf. also the Aichi Biodiversity Targets; the Cartagena Protocol; as well as the FAO International Treaty on Plant Genetic Resources for Food and Agriculture;

cf. Beyerlin and Grote Stoutenberg (2013), paras. 45–48.

114On CRAMRA, cf. Sect.5.2.1.2.3.2below.

115Cf. especially the UNFCCC; Kyoto Protocol; as well as the Paris Agreement; cf. Beyerlin and Grote Stoutenberg (2013), paras. 35–40.

116Especially 1989 Basel Convention; 1991 Bamako Convention; the 2001 Stockholm Convention on Persistent Organic Pollutants, which i.a. regulates several pesticides that have been used in the production of agricultural commodities, such as Chlordane, Dieldrin, DDT, or Endosulfans, cf. UNEP (2019) All POPs listed in the Stockholm convention, http://www.pops.int/

TheConvention/ThePOPs/AllPOPs/tabid/2509/Default.aspx(last accessed 14 May 2021); as well as the Minamata Convention, which applies to mercury-containing waste, cf. its Article 5(1).

Cf. also the overview of relevant instruments on international waste managements provided by Sands and Peel (2018), pp. 619–626; as well as Beyerlin and Grote Stoutenberg (2013), paras.

69–77.

Theobligation not to cause transboundary harm, in short‘no harm’rule, hadfirst been pronounced by the arbitral tribunal in theTrail Smeltercase in 1941. It features in Principle 21 of the Stockholm Declaration and has been recognised as a rule of customary international law by the ICJ in its advisory opinion on theLegality of the Threat or Use of Nuclear Weapons.¹¹⁷In the commodity context, the no harm rule can be particularly significant with regard to dispersion of contaminants resulting from commodity activities via air or water to areas under the sovereignty of another nation state or constituting the common concern of humankind.¹¹⁸

According to Principle 15 Rio Declaration, states shall apply theprecautionary approachin order to protect the environment.¹¹⁹In scenarios, in which the precau-tionary principle applies, states are obliged to take adequate measures to prevent the respective potential harm; however, the choice ofwhat kindof measures exactly they are taking, remains their own.¹²⁰ The precautionary approach also applies to the sustainable utilisation of natural resources.¹²¹It is said to belong to the category of emerging customary international law, with some authors arguing that this status has already been consolidated.¹²²

Theduty to carry out Environmental Impact Assessments (EIAs), contained in Principle 17 Rio Declaration, relates to the concept of precaution.¹²³It is further specified by the Convention on Environmental Impact Assessment in a Transboundary Context (‘Espoo Convention’), particularly its Article 2(3). The provision is somewhat directly applicable to commodity activities given that appendix I, which it refers to, lists several commodity scenarios, such as crude oil

117ICJ (1996)Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para. 29;

Beyerlin and Grote Stoutenberg (2013), para. 23.

118Despite its categorisation, here, as‘indirect’TCL, the‘no harm’rule has also been put in context with the sustainable use principle, see ILA (2002), para. 1.1.

119Cf. also ILA (2002), principle #4.

120Beyerlin and Grote Stoutenberg (2013), para. 25 with reference to ITLOS (2011) Advisory opinion, 1 February 2011, paras. 131–132; cf. also Chen (2016).

121ILA (2002), para. 4.2.

122Beyerlin and Grote Stoutenberg (2013), para. 25; Sands and Peel (2018), p. 240 see‘reluctance to embrace a clear view’regarding the principle’s customary status, which‘is no doubt informed by doubts and differences as to what the practical consequences of the precautionary principle or approach will be in a particularfield or in a specific case.’

123Cf. ILA (2002), para. 4.2.c. The EIA obligation has been confirmed as customary international law by the ICJ (2010a)Pulp Mills on the River Uruguay, Judgment of 20 April 2010, paras.

204–205. Accordingly, it‘may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource’; however, general international law does not specify how exactly an EIA needs to be carried out:‘it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment[]’; cf. also ITLOS (2011), para. 145; on both cf. Beyerlin and Grote Stoutenberg (2013), para. 24.

4.2 The Contribution of TCL to a‘Balanced’Commodity Sector 89

refineries, major installations for the initial smelting of cast iron and steel and for the production of nonferrous metals, installations for the extraction of asbestos, large-diameter pipelines for the transport of oil, gas or chemicals, major quarries, mining, on-site extraction and processing of metal ores or coal or deforestation of large areas.

This provision thus displays the particular significance in the context of commodity activities of the obligation to carry out an EIA.¹²⁴

Further guidance on how to conduct environmental—but also cultural and social—impact assessments is provided by the Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment, which have been adopted by the Conference of the Parties of the CBD in May 2000.

Moreover, the principle of preventive action constitutes a key element of inter-national environmental law (IEL). While it is frequently referred to in the context of precaution, the principle of prevention needs to be differentiated from the former.¹²⁵ While the precautionary approach is relevant, whenever the risks of environmental damage are uncertain, the prevention principle applies for risks, which are cer-tain.¹²⁶Given that many commodity activities entail risks, which are certain, the principle of prevention needs to be observed during the planning and implementa-tion of such activities whenever a transboundary context is concerned. The arbitral tribunal in the proceedings between the Philippines and China regarding the South China Sea held China’s obligation to prevent damage to the marine environment, as rooted in Articles 192 and 194 UNCLOS, to be breached given that it had not prevented i.a., the harvesting of endangered sea turtles.¹²⁷

Furthermore, thepolluter pays principle(PPP) as enshrined in Principle 16 Rio Declaration numbers among the central elements of IEL. The same holds true for the principle of common but differentiated responsibility(CBDR), which may at times conflict with the PPP. The CBDR principle is closely linked to the concepts of SD as

124Note, however, that the Espoo Convention has been ratified in the framework of UNECE by 45 countries, thus mainly European states as well as the US and Canada, cf. UN treaty collection (2019) Espoo convention,https://treaties.un.org/Pages/ViewDetails.aspx?src¼TREATY&mtdsg_

no¼XXVII-4&chapter¼27&clang¼_en(last accessed 14 May 2021). Yet,‘like the Water Con-vention, the Espoo and Aarhus Conventions both envision the broadening of their geographical scope by enabling the accession of States not members of the UNECE. While this is already possible under the Aarhus Convention ([Article] 19 (3)), the respective amendment to the Espoo Convention of 2001 has yet to enter into force[]’, Beyerlin and Grote Stoutenberg (2013), para. 84.

125Cançado Trindade (2015), pp. 422–423, who points to the fact that given the‘overlap’of both principles they are frequently used interchangeably; cf. however on ongoing debates regarding the exact scope and status of principles of international environmental law even within the ICJ the separate opinions by judges Owada, Donoghue, Dugard, and Cançado Trindade to the ICJ (2015) Certain Activities Carried out by Nicaraguacase as succinctly summarised by Yotova (2016), pp. 445–448. Dugard, in his Separate Opinion, speaks of‘[t]he duty of due diligence [being] the standard of conduct required to implement the principle of prevention[]’, ICJ (2015b), para. 7.

126Cançado Trindade (2015), p. 422; cf. ICJ (2010b)Pulp Mills on the River Uruguay, Separate Opinion Judge Cançado Trindade, para. 62; cf. moreover Viñuales (2012).

127PCA (2016)The South China Sea Arbitration, Award of 12 July 2016, para. 964.

well as intra-generational equity.¹²⁸In a commodity context, CBDR can play a role particularly when it comes to the protection of shared resources.¹²⁹

The CBDR principle also relates to the last principle of IEL, which shall be touched upon here:the duty to cooperate.¹³⁰As already stated above, it is likewise expressly contained in Principle 7 Rio Declaration.¹³¹It moreover features in a series of international environmental agreements, including the UNFCCC as well as Articles 11.3 and 12 of the Paris Agreement.¹³² Regarding commodity activities, the duty to cooperate is again of particular relevance when it comes to administering shared resources or also remedying transboundary harm. Apart from the duty to cooperate with one another, IEL also calls forpublic participation.¹³³Besides the participation of a broad range of actors based on multi-stakeholder approaches on the global level, principle 10 of the Rio Declaration explicitly emphasises the obligation for states to provide appropriate access to environmental information also on the national level.¹³⁴ In addition, effective access to justice shall be provided. With regard to Europe, these obligations are further spelled out in the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’).