HISTORY OF LAW ON TRANSBOUNDARY NATURAL RESOURCES
A. Introduction
International environmental law has developed rapidly in the last forty years. Environmental
degradation has become more rampant therefore compromising right to life health, food and
water.1In the 1970’s, there were a few international convention and majority of the countries
did not have policy and legislative framework that provided for environmental rights. In the
21st century countries have since adopted the international agreements and have further on a
national level enacted laws aimed at protecting the environment many of which have
enshrined the right in their constitution.
Evaluating the evolution of international environmental law helps us understand the
possibilities and the limitations of law in addressing environmental problems, whether
globally, regionally, or locally. The evolution of international environmental law can be
separated into three distinct periods: from 1900-1972, from 1972-1992; and from 1992-2012.
These correspond roughly to the period of early glimmers of international environmental law;
basic framework development; and maturation and linkage with other areas of international
law. The periods are demarcated by two international conferences: the 1972 United Nations
Stockholm Conference on the Human Environment (Stockholm Conference) and the 1992
Rio de Janeiro Conference on Environment and Development (Rio Conference). Both the
prior Stockholm and Rio Conferences were path breaking. Their work products and the
events surrounding them laid the basis for significant leaps forward in developing and
implementing international environmental law.
I. From 1900-1972: Early Glimmers
Before 1900 few international agreements were concerned with international environmental
issues. The prevailing rule of international law was that of national sovereignty over natural
resources within a country's territory or jurisdiction. 2 During the 1930s and 1940s, countries
concluded several agreements aimed at protecting fauna and flora in specific regions, namely
1
IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Contribution of the Working Group II to
the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press
2014).
2
Dorothée Cambou & Stefaan Smis, Permanent Sovereignty Over Natural Resources From A Human Rights
Perspective: Natural Resources Exploitation And Indigenous Peoples.
,the Western Hemisphere and Africa.3 They also negotiated agreements concerned with
marine fisheries and concluded the landmark International Convention for the Regulation of
Whaling.4 In the period between 1950 and 1970, States focused on two environmental
problems, marine pollution from oil and damage from civilian use of nuclear energy, and
negotiated several agreements.5 By the late 1960s, environmental concerns had broadened.
States concluded an African Convention on the Conservation of Nature and Natural
Resources in 1968 and the Ramsar Convention on Wetlands in 1971. 6
During these early years in international environmental law, there was little development of
international environmental rules or principles. Two famous arbitrations took place,
i. The Trail Smelter Arbitration' between Canada and the United States 7, the Trail
Smelter located in British Columbia since 1906, was owned and operated by a
Canadian corporation. The resultant effect of from the sulfur dioxide from Trail
Smelter resulted in the damage of the state of Washington between 1925 and
1937. This led to the United States (P) suit against the Canada (D) with an
injunction against further air pollution by Trail Smelter.
The issue being it is the responsibility of the State to protect to protect other states
against harmful acts by individuals from within its jurisdiction at all times. The
arbitration held that It is the responsibility of the State to protect other states
against harmful act by individuals from within its jurisdiction at all times. No state
has the right to use or permit the use of the territory in a manner as to cause injury
3
Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, October
12, 1940, United Nations Treaty Series, Vol. 161, p. 193 (No. 485). London Convention relative to the
Preservation of Fauna and Flora in their Natural State, November 8, 1933, League of Nations Treaty Series, Vol.
172, p. 241.
4
Washington International Convention for the Regulation of Whaling, December 2, 1946, United Nations
Treaty Series, Vol. 161, p. 72 (No. 2124); Washington International Convention for the North-West Atlantic
Fisheries, February 8, 1949, United Nations Treaty Series, Vol. 157, p. 157 (No. 2053); Tokyo International
Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952, United Nations Treaty Series,
Vol. 205, p. 65 (No. 2770).
5
International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954, United Nations
Treaty Series, Vol. 327, p. 3, (No. 4714);
6
African Convention on the Conservation of Nature and Natural Resources, September 15, 1968, United
Nations Treaty Series, Vol. 1001, p. 3 (No. 14689).
7
Trail Smelter Case (United States v. Canada), Ad Hoc International Arbitral Tribunal, March 11, 1941, United
Nations Reports of International Arbitral Awards, Vol. 3 (1949), p. 1938
, by fumes in or to the territory of another or the properties or persons therein as
stipulated under the United States (P) laws and the principles of international law.8
ii. The Lac Lanoux Arbitration between France and Spain, it concerned the use of the
waters of Lake Lanoux, in the Pyrenees. The French Government proposed to
carry out certain works for the utilization of the waters of the lake and the Spanish
Government feared that these works would adversely affect Spanish rights and
interests, contrary to the Treaty of Bayonne of May 26, 1866, between France and
Spain and the Additional Act of the same date. In any event, it was claimed that,
under the Treaty, such works could not be undertaken without the previous
agreement of both parties. The Tribunal decided that in carrying out, without prior
agreement between the two Governments, works for the utilization of the waters
of Lake Lanoux in the conditions mentioned in the Scheme for the Utilization of
the Waters of Lake Lanoux, the French Government was not committing a breach
of the provisions of the Treaty of Bayonne of May 26, 1866, and the Additional
Act of the same date.9
II. From 1972-1992: Development of Basic Framework
This period begins with the 1972 United Nations Conference on the Human Environment and
includes the many developments that took place up until the 1992 United Nations Conference
on Environment and Development.
1. 1972: The United Nations Stockholm Conference on the Human Environment
The year 1972 was historic, because for the first time countries across the world came
together to identify and address environmental problems. The United Nations Conference on
the Human Environment, held in Stockholm in 1972, was the first international
intergovernmental conference to focus on environmental problems. 10The preparations for the
Conference, the Conference, and the period immediately following the Conference had
lasting consequences for the course of international environmental law. Perhaps the most
8
ibid
9
Lake Lanoux Case (France -v. Spain), Ad Hoc International Arbitral Tribunal, November 16, 1957, United
Nations Reports of International Arbitral Awards, Vol. 12 (1963), p. 281.
10
Stockholm Declaration of the United Nations Conference on the Human Environment, Report of the United
Nations Conference on the Human Environment, U.N. Doc. A/ CONF.48/14/Rev.1 (1973), p. 3; U.N. Doc.
A/CONF.48/14 (1972), pp. 2-65
A. Introduction
International environmental law has developed rapidly in the last forty years. Environmental
degradation has become more rampant therefore compromising right to life health, food and
water.1In the 1970’s, there were a few international convention and majority of the countries
did not have policy and legislative framework that provided for environmental rights. In the
21st century countries have since adopted the international agreements and have further on a
national level enacted laws aimed at protecting the environment many of which have
enshrined the right in their constitution.
Evaluating the evolution of international environmental law helps us understand the
possibilities and the limitations of law in addressing environmental problems, whether
globally, regionally, or locally. The evolution of international environmental law can be
separated into three distinct periods: from 1900-1972, from 1972-1992; and from 1992-2012.
These correspond roughly to the period of early glimmers of international environmental law;
basic framework development; and maturation and linkage with other areas of international
law. The periods are demarcated by two international conferences: the 1972 United Nations
Stockholm Conference on the Human Environment (Stockholm Conference) and the 1992
Rio de Janeiro Conference on Environment and Development (Rio Conference). Both the
prior Stockholm and Rio Conferences were path breaking. Their work products and the
events surrounding them laid the basis for significant leaps forward in developing and
implementing international environmental law.
I. From 1900-1972: Early Glimmers
Before 1900 few international agreements were concerned with international environmental
issues. The prevailing rule of international law was that of national sovereignty over natural
resources within a country's territory or jurisdiction. 2 During the 1930s and 1940s, countries
concluded several agreements aimed at protecting fauna and flora in specific regions, namely
1
IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Contribution of the Working Group II to
the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press
2014).
2
Dorothée Cambou & Stefaan Smis, Permanent Sovereignty Over Natural Resources From A Human Rights
Perspective: Natural Resources Exploitation And Indigenous Peoples.
,the Western Hemisphere and Africa.3 They also negotiated agreements concerned with
marine fisheries and concluded the landmark International Convention for the Regulation of
Whaling.4 In the period between 1950 and 1970, States focused on two environmental
problems, marine pollution from oil and damage from civilian use of nuclear energy, and
negotiated several agreements.5 By the late 1960s, environmental concerns had broadened.
States concluded an African Convention on the Conservation of Nature and Natural
Resources in 1968 and the Ramsar Convention on Wetlands in 1971. 6
During these early years in international environmental law, there was little development of
international environmental rules or principles. Two famous arbitrations took place,
i. The Trail Smelter Arbitration' between Canada and the United States 7, the Trail
Smelter located in British Columbia since 1906, was owned and operated by a
Canadian corporation. The resultant effect of from the sulfur dioxide from Trail
Smelter resulted in the damage of the state of Washington between 1925 and
1937. This led to the United States (P) suit against the Canada (D) with an
injunction against further air pollution by Trail Smelter.
The issue being it is the responsibility of the State to protect to protect other states
against harmful acts by individuals from within its jurisdiction at all times. The
arbitration held that It is the responsibility of the State to protect other states
against harmful act by individuals from within its jurisdiction at all times. No state
has the right to use or permit the use of the territory in a manner as to cause injury
3
Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, October
12, 1940, United Nations Treaty Series, Vol. 161, p. 193 (No. 485). London Convention relative to the
Preservation of Fauna and Flora in their Natural State, November 8, 1933, League of Nations Treaty Series, Vol.
172, p. 241.
4
Washington International Convention for the Regulation of Whaling, December 2, 1946, United Nations
Treaty Series, Vol. 161, p. 72 (No. 2124); Washington International Convention for the North-West Atlantic
Fisheries, February 8, 1949, United Nations Treaty Series, Vol. 157, p. 157 (No. 2053); Tokyo International
Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952, United Nations Treaty Series,
Vol. 205, p. 65 (No. 2770).
5
International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954, United Nations
Treaty Series, Vol. 327, p. 3, (No. 4714);
6
African Convention on the Conservation of Nature and Natural Resources, September 15, 1968, United
Nations Treaty Series, Vol. 1001, p. 3 (No. 14689).
7
Trail Smelter Case (United States v. Canada), Ad Hoc International Arbitral Tribunal, March 11, 1941, United
Nations Reports of International Arbitral Awards, Vol. 3 (1949), p. 1938
, by fumes in or to the territory of another or the properties or persons therein as
stipulated under the United States (P) laws and the principles of international law.8
ii. The Lac Lanoux Arbitration between France and Spain, it concerned the use of the
waters of Lake Lanoux, in the Pyrenees. The French Government proposed to
carry out certain works for the utilization of the waters of the lake and the Spanish
Government feared that these works would adversely affect Spanish rights and
interests, contrary to the Treaty of Bayonne of May 26, 1866, between France and
Spain and the Additional Act of the same date. In any event, it was claimed that,
under the Treaty, such works could not be undertaken without the previous
agreement of both parties. The Tribunal decided that in carrying out, without prior
agreement between the two Governments, works for the utilization of the waters
of Lake Lanoux in the conditions mentioned in the Scheme for the Utilization of
the Waters of Lake Lanoux, the French Government was not committing a breach
of the provisions of the Treaty of Bayonne of May 26, 1866, and the Additional
Act of the same date.9
II. From 1972-1992: Development of Basic Framework
This period begins with the 1972 United Nations Conference on the Human Environment and
includes the many developments that took place up until the 1992 United Nations Conference
on Environment and Development.
1. 1972: The United Nations Stockholm Conference on the Human Environment
The year 1972 was historic, because for the first time countries across the world came
together to identify and address environmental problems. The United Nations Conference on
the Human Environment, held in Stockholm in 1972, was the first international
intergovernmental conference to focus on environmental problems. 10The preparations for the
Conference, the Conference, and the period immediately following the Conference had
lasting consequences for the course of international environmental law. Perhaps the most
8
ibid
9
Lake Lanoux Case (France -v. Spain), Ad Hoc International Arbitral Tribunal, November 16, 1957, United
Nations Reports of International Arbitral Awards, Vol. 12 (1963), p. 281.
10
Stockholm Declaration of the United Nations Conference on the Human Environment, Report of the United
Nations Conference on the Human Environment, U.N. Doc. A/ CONF.48/14/Rev.1 (1973), p. 3; U.N. Doc.
A/CONF.48/14 (1972), pp. 2-65
