International Environmental Treaties

The case of Australia

D. Anton, J. Kohout and N. Pain, in “Nationalizing Environmental Protection in Australia: The International Dimensions” (1993), wrote:

“A national approach to environmental protection is the most effective way for Australia to protect its own environment and to contribute to the common cause of global environmental protection.[1] (…)

With the emergence of worldwide environmental consciousness in the early 1970s, Australia began to assume numerous international obligations regarding the environment. The federal government began to explore ways to meet these international obligations under national law and to exercise some influence over environmental matters and land use generally.[2]

Initially, the implementation of environmental treaties[3] was complicated by the fact the Australian Constitution does not repose any specific environmental protection powers in either the federal or state governments.[4] Authority for federal oversight of international treaties can be found in Section 51(xxix) of the Constitution, which gives the federal government power to legislate on matters relating to “external affairs,” including environmental matters.[5] This power enables the implementation of treaty provisions through appropriate legislation.[6] The scope of this authority, however, has been a matter of dispute between state and federal governments.[7]

A detailed analysis of Section 51(xxix) is beyond the ambit of this article.[8] It should be noted, however, that the High Court of Australia has recognized that environmental treaties ratified by Australia may impose international duties at a national level.[9] A federal Environmental Protection Authority with appropriate regulatory powers should be established to ensure that Australia maintains compliance with its international environmental obligations.

There are now more than one thousand treaties that serve as sources for international environmental obligations.[10] Although Australia is not party to all of them, it has sizeable international commitments through treaties it has signed or implemented.[11] Further, this decade is likely to see a proliferation of international environmental law encouraged in large part by the United Nations Conference on Environment & Development (UNCED),[12] and increased governmental awareness of the seriousness of global environmental problems.

While many environmental agreements are primarily worldwide in scope, it is important to note that Australia is becoming increasingly involved in environmental agreements and programs specifically tailored to the needs of the Pacific region.[13] While Australia has ratified all of these regional agreements, none of them have been implemented by Commonwealth legislation to date.[14] As important as these conventions are, the Action Plan For Managing the Environment of the South Pacific Region, adopted in 1986 and revised in 1991,[15] also provides significant measures for environmental protection in the region. The Plan is particularly important in the region as it provides for a variety of measures to promote environmental protection outside any legal framework. This is important to international environmental protection because many South Pacific countries lack the resources and hence the inclination to enter into legally binding obligations.

With a greater role likely to be played by the South Pacific Regional Environmental Programme in the foreseeable future, due in large part to a considerable increase in funding from the World Bank in 1991, greater emphasis on regional environmental protection is likely. Australia’s international obligations to implement environmental protection measures nationally under these treaties will need consideration. Australia already faces and will face greater obligations under international environmental law at the global and South Pacific regional level. How to effectively implement these obligations on a national basis must be considered.

Domestic Implementation of International Environmental Treaties

As the scope and coverage of international environmental law progressively widens, the coordinated operation of treaty rights and obligations will be crucial in establishing an effective international legal order for the protection of the environment. Without an integrated application of effective national regulations, international environmental law is likely to become superfluous.

The World Conservation Strategy, which has been adopted by Australia.[16] indicates the suitability of Federal EPA oversight of international agreements on the environment. Principle 7 of the Strategy provides that:

[e]ach country should review and consolidate its legislation concerning living resources to ensure that it provides sufficiently for conservation. Each country should also review–and if necessary strengthen–its capacity to implement its conservation legislation, both existing and required. Ideally, a commitment to conserve the country’s living resources should be incorporated in the constitution or other appropriate legal instrument.[17]
It is plain that the focus of Principle 7 is on an integrated national implementation of the Strategy. Indeed, Principle 7 exhorts nations to embody their commitment to conservation in their constituent documents.

At the domestic level, the implications of an effective structure of international environmental law are considerable. This is especially so in the context of Australia’s unique brand of “cooperative federalism.”[18] The Australian Constitution splits legislative authority between the Commonwealth and State governments. Under constitutional tradition, the Commonwealth government has been accorded the power to enter into treaties[19] and regulate foreign affairs. Even so, depending on the specific subject area covered and the constitutional division of powers, the states may still retain legislative jurisdiction over the subject area of a particular treaty.[20] This has important implications in the area of international environmental treaties. Foremost, it has the potential to limit the ability of a federal EPA to engage in effective domestic regulation.

The Australia Constitution contains scant reference to environmental concerns[21] and does not expressly confer jurisdiction of environmental issues on the federal government.[22] Therefore, in theory, environmental regulation should be subject to exclusive state control, because powers not specifically set forth in the Constitution are reserved to the states.[23] This has, however, not been proven to be true.

A trilogy of cases decided by the High Court of Australia during the 1980s,[24] approving the use of the foreign affairs power to implement international environmental agreements, appears to have conclusively resolved the issue regarding the general power to legislate on such agreements in favor of the Commonwealth. Commonwealth v. Tasmanian Dam[25] held that the Commonwealth has the power under Section 51(xxix) to enact legislation implementing international environmental obligations binding on Australia. Richardson v. Forestry Commission[26] established that the federal government can take reasonably necessary interim action while determining the extent of a treaty obligation. Queensland v Commonwealth[27] held, in the context of the UNESCO Convention for the Protection and Preservation of the World Cultural and Natural Heritage 1972, that the federal government has the power to evaluate and submit property it believes to be world heritage for inclusion in the World Heritage List, and that the status of a property so listed is not reviewable by a court as a question of fact.[28] One commentator has rightly concluded that “the broad view of the treaty power is now beyond challenge: the real issue now is to determine the implications, and the parameters, of the broad view.”[29]

The power to enact laws implementing a treaty is meaningless in the absence of a means of enforcement and a method of intra- and inter-government coordination. The most efficient method of enforcement and coordination is through a dedicated centralized authority. A single centralized authority can avoid duplicative or inconsistent standards, jurisdictional rivalry, and economic competition which may be a problem with multiple regional authorities. Accordingly, a federal EPA, dedicated to enforcing and coordinating Australia’s international environmental obligations, is not only crucial to the implementation of environmental treaties, but is also the most efficient mechanism for ensuring that treaty obligations are observed.”

Notes

1. While the authors believe that effective environmental regulation on a planetary basis is necessary to combat environmental problems having global impact (i.e. global warming, ozone depletion, transboundary pollution, etc.), it is well to keep in mind Wendell Berry’s admonition about the futility of global thinking. Berry keeps the proper focus on seemingly global environmental problems by emphasizing that “[t]he question that must be addressed…is not how to care for the planet but how to care for each of the planet’s millions of human and natural neighborhoods, each of its millions of small pieces and parcels of land, each one of which is in some precious way different from all the others. Our understandable wish to preserve the planet must somehow be reduced to the scale of our competence – that is, to the wish to preserve all of its humble households and neighborhoods.” Wendell Berry, The Futility of Global Thinking, 279 HARPER’S, Sept. 1989 at 16, 18 (emphasis in original).

2. See generally ROBERT BOARDMAN GLOBAL REGIMES AND NATION-STATES ENVIRONMENTAL ISSUES IN AUSTRALIAN POLITICS 97 (1990). Boardman documents the early interplay between the Commonwealth and state governments in national and international environmental policy-making.

3. Ratification of a treaty is not enough to make it effective in Australian municipal law, and no distinction is made between self-executing and non-self-executing treaties. Rather, no treaty to which Australia is a state party will have internal effect until it is incorporated into domestic law by legislative enactment. Polities v. Commonwealth, 70 C.L.R. 60 (1945 Austl.); Chow Hung Ching v. R., 77 C.L.R. 449 (1948 Austl.); Bradley v. Commonwealth, 128 C.L.R. 557 (1973 Austl.). See IAN BROWNLIE. PRINCIPLES OF PUBLIC INTERNATlONAL LAW 43-48 (4th ed. 1990).

4. See infra notes 7 and 8 and accompanying text.

5. See infra note 37 for a list of other constitutional powers the Commonwealth has relied on in implementing international environmental agreements.

6. See COLIN HOWARD AUSTRALIAN FEDERAL CONSTITUTIONAL LAW 490-92 (3d ed. 1985); P.H. LANE, AN INTRODUCTION TO THE AUSTRALIAN CONSTITUTION 99-103 (2d ed. 1977).

7. The Australian Environmental Council and the Council of Nature Conservation Ministers were established early on to smooth out federal and state environmental relations. In general, both bodies sought to coordinate Australia-wide environmental policy making by including federal and state officials in the decision process. This framework was vital in the area of the of implementation of international environmental agreements. BOARDMAN, supra note 2, at 107. The Commonwealth government of Australia recently entered into an environmental intergovernmental agreement with the states. See Intergovernmental Agreement on the Environment, May 1992 (available from the Australian Department of Arts, Sport, the Environment and Territories). Schedule 4 of the Agreement purports to create a National Environment Protection Authority (National EPA) composed of federal and state Ministers with the power to promulgate national environment protection standards. While many of the powers and duties of the National EPA appear to coincide with what the authors advocate, it is too early to tell how this political body will operate.

8. For extended discussions on the Commonwealth’s external affairs power in the context of environmental treaties see, P.H. Lane, The Federal Parliament’s External Affairs Power: The Tasmanian Dam Case, 57 AUSTL. L.J. 554 (1983); Andrew C. Byrnes, The Implementation of Treaties in Australia after the Tasmanian Dams Case: The External Affairs Power and the Influence of Federalism, 8 B.C. INT’L & COMP. L. REV. 275, 282-302 (1985).

9. Commonwealth v. Tasmania, 158 C.L.R. 1 (1983) (Austl.). See generally B. Martin Tsamenyi, Implementing International Environmental Law in Australia: Queensland v. The Commonwealth, 2 J. ENVTL. L. 108 (1990).

10. Many of these treaties, however, contain only a few provisions concerning the environment. ALEXANDER KISS AND DINAH SHELTON INTERNATIONAL ENVIRONMENTAL LAW 96 (1991).

11. See Department of Foreign Affairs and Trade, Treaties Relating to the Environment and Conservation to Which Australia is a Party, (July 8, 1992) (unpublished document available from Department of Foreign Affairs and Trade, Canberra) (listing 85 multilateral and bilateral agreements, dating from 1924 to present). See also Australian National Report to the United Nations Conference on Environment and Development 173-74 (July 30, 1991) (unpublished public discussion draft on file with the authors).

12. The United Nations General Assembly holds a major conference on the environment every ten years. This commenced in 1972 with the Stockholm Conference at which the seminal Stockholm Declaration was produced. The 1992 conference in Rio de Janeiro was estimated to be the largest high level diplomatic conference ever held and culminated in several important conventions and documents, including the Biodiversity Convention, the Global Warming Conventions, non-binding Principles on the Forests, and Agenda 21. See generally 2 AGENDA 21 AND UNCED PROCEEDINGS (Nicholas A. Robinson, ed.) (1992).

13. The major regional treaties on the environment include:

-The Convention for the Protection of the Natural Resources and Environment of the South Pacific, Nov. 24, 1986, entered into force Aug. 22, 1990, Austl. T. S. No. 31 (1990) SPREP Convention. The SPREP Convention is a comprehensive umbrella agreement for the protection, management and development of the marine and coastal environment of the South Pacific region. The Convention contains provisions relating to the regulation of land-based sources, pollution from sea-bed activities and airborne pollution and the storage of toxic and hazardous chemicals.

-Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region, Nov. 25, 1986, entered into force Aug. 22, 1990, Austl. T. S. No. 32 (1990), and the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, reprinted in 26 I.L.M. 38 (1987) (both protocol under the SPREP Convention).

-Convention on the Conservation of Nature in the South Pacific, June 12, 1976, entered into force June 6, 1990 (Apia Convention) Austl. T.S. No. 4 (1990). The Apia Convention is probably less significant as a regional convention. It has only been signed by five countries, its terminology relating to the preservation of natural areas is inappropriate for many customary land ownership systems which exist in countries the Pacific region, rendering its implementation difficult. It is also likely to be superseded by the global Biodiversity Convention. Convention on Biological Diversity, U.N. Doc. UNEP/Bio.Div/CONF L.2 (22 May 1992), The Biodiversity Convention is one of two conventions that was signed at the U.N. Conference on Environment & Development (UNCED) in June 1992.

Additionally, Australia is a party to the ASEAN Agreement on the Conservation of Nature and Natural Resources, July 9, 1985, reprinted in, 15 Envtl. Pol’y & L. 64 (1985). The ASEAN Agreement sets up a framework by which the stated parties undertake to adopt national measures for the conservation of species, ecosystems and ecological processes. The contracting states parties agree to take necessary measures to ensure the integration of natural resources conservation into the land use planning process and to establish ecologically significant protected areas.

14. On Australian implementation of treaties, see supra note 3.

15. 1991-1995 Revised Action Plan for Managing the Environment of the South Pacific Region, SPREP/Intergovernmental Meeting 4/WP.1, July 8, 1991.

16. See G M. BATES, ENVIRONMENTAL LAW IN AUSTRALIA 17-18 (2d ed. 1987).

17. See id. (quoting World Conservation Strategy, Part 11). While Principle 7 refers only to “living resources,” a conservation strategy must be maintained on an ecosystem wide basis, and must include all resources, not only living resources. See, Ben Boer, Social Ecology and Environmental Law, 1 ENVTL. & PLAN. L.J. 233, 247-49 (1984).

18. See generally J. Crawford, The Constitution and the Environment 13 SYDNEY L. REV. 11 (1991); Thomas H. Edmonds, The Queensland Rainforest and Wetlands Conflict: Australia’s External Affairs Power–Domestic Control and International Conservation, 20 ENVTL. L. 387 (1990); R. Cullen, The Encounter Between Natural Resources and Federalism in Canada and Australia, 24 U BRIT. COLUM. L. REV. 275 (1990); B. Davis, Federal-State Tensions in Australian Environmental Management: The World Heritage Issue, 6 ENVTL. & PLAN. L.J. 66 (1989); B.W. Boer & D. Craig, Federalism and Environmental Law in Australia, in Federalism in Canada and Australia: Historical Perspectives 301-16, (Bruce W. Hodgins et al., eds.) (1988).

19. See supra notes 2 and 3 and accompanying text. See also P.H. LANE. LANE’S COMMENTARY ON THE AUSTRALIAN CONSTITUTION section 22(3)-(4) (1986) [hereinafter Lane].

20. See LANE, supra note 19, section 22(7).

21. The Australia Constitution does address the “use of the waters of rivers for conservation.” This provision, however, appears to be the only instance an environmental matter is mentioned in the Australia Constitution. AUSTL. CONST. ch. IV, section 100. Section 100 forbids the use of the trade and commerce power to abridge a state’s reasonable use of a river for conservation or irrigation. In R. v. Burgess ex parte Henry, 55 C.L.R. 608 (1936) (Austl.). Justices Evatt and McTiernann accepted that the foreign affairs power contained in section 51 (xxix) is subject to overriding provisions, citing section 100, among others, as an overriding provision. Id. at 687.

22. The Constitutional Commission Committee issued a report recommending against any amendment that would enlarge federal power over the environment. See 2 Final Report of the Constitutional Commission 757-67 (1988). On the other hand, the Committee did not recommend limiting existing federal power.

23. The Constitution provides that states retain “[e]very power of the Parliament of a Colony which has become or becomes a State…unless it is…exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State….” AUSTL. CONST. ch. V, section 107.

24. Commonwealth v. Tasmania, 158 C.L.R. 1 (1983 Austl.); Richardson v. Forestry Commission 164 C.L.R. 261 (1988 Austl.); Queensland v. Commonwealth 167 C.L.R. 232 (1989 Austl.). All three cases involved the application and interpretation of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage and the Commonwealth’s implementing legislation and regulations. See the regulations adopted under section 69 of the National Parks and Wildlife Conservation Act, 1975 and the World Heritage Properties Conservation Act 1983, Acts of the Parliament, Commonwealth of Australia 11 (1983).

25. Tasmania 158 C.L.R. at 1.

26. Richardson, 164 C.L.R. at 261.

27. Queensland, 167 C.L.R. at 232.

28. The broader implication of Queensland concerns the degree of control the foreign affairs power confers on the federal government over administrative decision making related to the implementation of environmental treaty provisions. For example, in administering a framework convention-protocol system of environmental regulation, the federal government may have the power to promulgate concrete regulations touching on the general obligations set forth in the framework convention before the specific protocols have come into effect.

29. Crawford, supra note 18, at 23. In discussing these implications and the bounds of the treaty power, Crawford explains:

Where the basis for particular legislation is the implementation of a treaty…then it is a requirement that the legislation be in reasonable conformity with the treaty. That the Commonwealth is a party to an international treaty does not mean that it acquires general or plenary power over the subject matter dealt with or referred to in the treaty. The power is to implement the treaty so far as it is necessary, and to enact other provisions reasonably incidental to the implementation to the treaty…. The test of conformity for this purpose is whether the legislation is “conductive to the performance of the obligation imposed by the Convention.” There must be “reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it.”
Id. at 23-24 (emphasis added).