IMPLEMENTATION OF INTERNATIONAL ENVIRONMENTAL LAW IN UNITED STATES NATIONAL LAW

IMPLEMENTATION OF INTERNATIONAL ENVIRONMENTAL LAW

IN UNITED STATES NATIONAL LAW

Introduction

Protection of the environment more clearly began in the 20th century, as seen by the

increasing number of bilateral and multilateral agreements on environmental protection

agreed by countries in the world. These agreements are generally spearheaded by While

developed countries have shifted their priorities to environmental protection, developing

countries are still following suit, albeit often half-heartedly. When developed countries have

shifted their priorities to environmental protection, developing countries still have to think

about efforts to accelerate their economic and industrial growth, which of course requires

"sacrifices" in other areas, including environmental concerns.

Given that the environment is an absolute necessity for the life of living things on earth, it

is necessary to protect the environment so that it is not damaged or polluted. Why the

environment should be protected is a fundamental question and not easy to answer. The

question of why the environment should be protected is a question of the purpose of human

civilization on earth.

In addition, environmental issues are complex issues so that their resolution must be

carried out with an interdisciplinary approach. Environmental issues must be resolved with

various disciplines.3 According to Alexandre Kiss and Dinah Shelton, international

environmental law is part of international law. Meanwhile, Brigitte L. Okley and Catherine

Redgwell state that international environmental law is a branch of international law. Because

international environmental law is a part or branch of international law.

International environmental law is a branch of public international law. International

environmental law regulates the rights and obligations of states to respect the natural

environment, including in particular the environment of other states and the environment

beyond national jurisdictional boundaries and thus the environment as a whole. Global

environmental law is a collection of legal principles developed by national, international and

transnational environmental regulatory systems to protect the environment and regulate

natural resources. As a collection of laws, global environmental law is formed on the basis of

A collection of substantive principles and procedural methods that specifically regulate the

environment around the world. These include first, public international environmental law,

usually used to refer to the set of treaties and customary international principles that govern

relations between states; second, national environmental law which outlines the principles

used by national governments to regulate the conduct of private individuals, organizations,

and bodies of national governments within the territory of the state in question; and third,

transnational law which outlines the set of legal principles used to regulate cross-border

relations between private individuals and organizations.

As part of the international community, United States has bound itself to various

international agreements in the field of environment. As a consequence of United States

membership, United States is legally obliged to implement various international agreements

in the field of environment in United States national law. This article aims to analyze, first,

what are the principles of international environmental law, second, how the implementation

of international environmental law in United States national law.

Discussion

International Environmental Legal Arrangements

As a legal tool, the science of international environmental law has laid down the main

principles of international environmental law in various sub-branches of environmental law.

The following researcher outlines several international treaties in the field of international

environmental law.

In the field of marine environmental protection

The marine environmental protection regime is separated into several conventions based

on the source of pollution, namely pollution originating from human activities in the sea

itself and human activities on land that cause marine pollution. Therefore, the description in

this section is divided into several subsections, namely; marine protection from ship

accidents, marine environmental protection from offshore oil mining activities, marine

pollution caused by dumping, marine pollution originating from human activities on land,

and marine environmental protection under UNCLOS 1982.

Protection of the Marine Environment from Oil Spills from Ships

Protection of the marine environment from oil spills from ships is governed by the

Convention on Civil Liability for Oil Pollution Damage Resulting From Exploration and

Exploitation of Seabed Mineral Resources which was established in London in 1976. This

Convention is the first international Convention that considers that The act of polluting the

marine environment is an unlawful act. Therefore, the Convention obliges any company that

pollutes offshore from either installations or vessels to bear financial responsibility for the

losses suffered by the victim or the victim's country.



Marine Environment Protection from Offshore Oil Mining



Protection of the Marine Environment from Dumping



Protection of the Marine Environment from Human Activities on Land

The protection of the marine environment from pollution originating from land-based

human activities is regulated by the 1974 Paris Convention for the Prevention of Marine

Pollution from Land-Based Sources. This convention consists of 29 articles and 2 Annexes

that obligate participating countries to individually or jointly prevent marine pollution from

land-based sources. The Paris Convention clearly regulates the types of pollutants that are

prohibited and the limits of what can be put into the sea. For this reason, the Annex mentions

4 classifications of chemicals that are prohibited and restricted and those that are allowed

only in certain quantities.

Protection of the Marine Environment Under UNCLOS 1982

The 1982 Convention on the Law of the Sea does not specifically address environmental

pollution. However, the Convention, in its Chapter XII, provides for the prevention of

marine pollution in general. According to this convention, every country has the sovereign

right to extract natural resources in the sea or on the seabed. In addition, this convention also

requires participating countries to use environmentally conscious technology so that in

extracting these natural resources there is no damage and pollution to the environment. For

this reason, countries in the world are required to cooperate in making technology and

regulations to protect the marine environment.

Atmospheric Protection Field

To protect and prevent pollution that damages the atmosphere, the international

community has created two major international legal products, namely the 1985 Vienna

Convention and the 1992 Climate Change Convention.

Ozone Layer Depletion Protection

The protection of the ozone layer from depletion is regulated in the Vienna Convention

for the Protection of the Ozone Layer which was created in 1985. The preamble of this

Convention shows the international community's awareness of the emerging threats to the

world's atmosphere. This Convention is a hard law but contains soft regulation, meaning that

this Convention does not contain standards that must be met in order to limit ozone depleting

substances. Nevertheless, it can serve as a foundation for cooperation to protect the ozone

layer, which has been proven to be depleting.

The 1987 Montreal Protocol, 1990 London Amendment, 1992 Copenhagen Amendment,

1997 Montreal Amendment and 1999 Beijing Amendment are the follow-up to the 1985

Vienna Convention. In these three Protocols, numbers and standards as well as timelines

(hard rules) are mentioned that are currently achieved by member states to prevent further

damage to the ozone layer.

Climate Change Prevention Arrangements

This convention is designed to regulate the use of greenhouse gases such as CO2, CH4,

N2O, HFCs, PFCs and SF6 which are the cause of global warming and global climate

change. The ultimate goal of the convention is to stabilize greenhouse gas concentrations at a

level that prevents the damaging effects of greenhouse gases on the climate system.

This convention uses the same approach as the 1985 Vienna Convention on the

Protection of the Ozone Layer in which the Convention on Climate Change only contains

soft obligations (soft rules), namely rules that do not directly impact the reduction of

controlled substances.

Hard obligations to reduce greenhouse gases were only found in the Kyoto Protocol in

1997.Because the Kyoto Protocol follows the principle of Common but Differentiated

Responsibilities, its QELROs (Quantified Emissions Limitation and Reduction Objectives)

are set differently from country to country. For example, almost all European countries are

required to reduce their emissions 8% below 1990 levels while Iceland is allowed to emit

10% more than 1990 levels (see Annex B).

Nature Protection and Conservation Division

International law for the protection of biodiversity is contained in two international

conventions, namely CITES 1973 and the Convention on Biological Diversity. These are two

international laws that provide protection to all species in all habitats in the world.

Protection of Rare Animals and Fauna Due to International Trade The protection of rare

animals and fauna is regulated by an international convention, The Convention on

International Trade in Endangered Species (CITES) was created in 1973 and signed by 21

countries. This convention aims to protect biodiversity by banning international trade in

endangered species.

Species protection under CITES 1973 is divided into 3 categories contained in its 3

Appendices. Appendix I includes all species that are threatened with extinction due to the

impact of international trade. Except in certain limited circumstances, CITES prohibits trade

in all species listed in Appendix I. On that basis, trade in species is considered illegal if the

exporting and importing countries do not issue export and import permits for the species

being traded.

Appendix II includes species that, although not endangered, may become endangered if

not strictly regulated. Trade in these species is allowed as long as it is not detrimental to the

survival of the species. Trade in Appendix II species is also considered illegal if there is no

export permit or import permit.

Appendix III includes all species that the parties identify as being subject to

arrangements to prevent or limit their exploitation through international cooperation between

member states.

Convention on Biological Diversity

This convention regulates the protection of biodiversity both ex situ and in situ as well as

equal sharing between member countries. According to this Convention, the state has

sovereign rights over its biological resources but the state also has an obligation to protect

and preserve the biological resources contained in its territory.

Article5 requires member states to cooperate in the conservation and sustainable use of

fauna and flora, with respect to areas beyond national jurisdiction and other matters of

common interest. To that end, member states should develop national strategies, plans and

programs to implement the conservation and sustainable use of biodiversity.

Transportation of Hazardous Toxic Substances Basle Convention 1989

This convention was made to regulate the prohibition of trade and transfer of hazardous

waste from one member state to another. The Convention only allows the trade and transfer

of hazardous waste only for recycling purposes or for the purposes of certain industrial raw

materials with a condition that the country of origin is willing to receive back the remaining

hazardous waste if from its use it still leaves hazardous waste.

Implementation of international environmental agreements

In its implementation in United States, international treaties that have been ratified and

enacted require more operational regulations in accordance with the articles of the

international treaty. An example is the implementation of article 9 of the Convention on

International Trade on Endangered Species (CITES) of 1973 regarding the need to establish

a national level body/authority authorized to implement this convention. The United States

government then issued a regulation appointing the authorized body or authority through the

Minister of Forestry Decree No. 104/Kpts-II/2003 on the Appointment of the Director

General of Forest Protection and Nature Conservation as the Executing Authority of CITES.

Management Authority of the Convention on International Trade in Endangered Species

(CITES) in United States.

At the international level, international agreements that have been adopted (adoption) and

then ratified (ratification) by the parties so that they enter into force, the international and

national legal mechanisms begin to be implemented so that this action can be said to be the

implementation of international agreements at the international and national

levels.According to UNEP (2007) institutional arrangements and mechanisms are needed to

support the implementation of international agreements at both the international and national

levels.Institutions for implementation must be established, so the first Conference of the

Parties (COP) is the first institutional decision in implementing the international agreement.

Furthermore, the Conference of the Parties (COP) can establish and appoint other

institutions such as the secretariat (secretariat of the convention), subsidiary bodies, special

institutions such as certain bureaus (bureaus) or other institutions in accordance with the

articles in the international agreement. In order for implementation to run well, international

agreements also arrange implementation mechanisms which are usually formed in 3

important mechanisms, namely:12



Report Mechanism.

In order to assess the progress of an international agreement, a reporting mechanism is

established which must be routinely carried out, especially reported on implementation at the

national level. Usually in the form of a system and documents that must be reported

according to the regulated mechanism. The form of documents that constitute the reporting

mechanism system known so far such as the National Report, Country Report, National

Communication, National Implementation, and National Implementation.



Verification Mechanism

Provisions regarding verification mechanisms need to be established to answer new

issues that develop in relation to the implementation of international agreements, especially

those related to their articles or annexes. To conduct verification, a special team is usually

formed to review or even assess certain proposed issues agreed upon by the COP / MOP

decision.



Compliance Mechanism

This mechanism is established in order to monitor the compliance of treaty parties in

implementing international agreements. Usually a special body such as a compliance

committee is formed. The functions of this body include publishing structuring reports,

encouraging its members to comply with the articles of international agreements, assisting

capacity building efforts to comply with the implementation of international agreements and

other support to the parties to international agreements.

It has been explained previously that in the ratification process, especially the relationship

between international law and United States national law, the 1945 Constitution of the 4th

amendment, especially the Preamble, is the legal basis in addition to Pancasila as the source

of all sources of law. Fair and Civilized Humanity as stated in Pancasila, is the source of all

sources of law for the United States nation related to international treaties. Furthermore, the

Preamble of the 1945 Constitution Amendment 4, especially the fourth paragraph, makes the

most important source of law which is then derived in Article 11 of this Constitution. As a

follow-up to this article through a more operational legal form, various legal products were

made through laws including Law Number 37 of 1999 concerning Foreign Relations, Law

Number 24 of 2000 concerning International Agreements and Law Number 12 of 2011

concerning the Formation of Legislation. With the existence of this law, it is expected that

there will be clarity on the status of the process of planning, making, signing, ratifying and

implementing international agreements in United States.

At the national level, the most important thing is that international agreements that have

been ratified must be implemented through provisions that follow up on these international

agreements. In United States, there have been several laws and regulations regarding the

follow-up of international agreements that have been issued by the United States

government. This follow-up is very important to show that international agreements have

indeed been implemented or implemented in United States.

International Environmental Law Mechanisms for the Protection and Recognition of

Local Laws

The UN Convention on Biodiversity (UNCBD) is the first international legal instrument to

explicitly recognize the link between indigenous peoples' and local communities' local

knowledge and biodiversity conservation. Articles 8(j) and 10(c) of the convention obligate

its 193 member states to protect the local knowledge of communities by ensuring cultural

integrity, encouraging the sustainable use of traditional biological resources and respecting

the policy-making structures within these communities.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing

of Benefits from Their Utilization is an implementing regulation of the UNCBD that

strengthens recognition of the biocultural rights of communities as custodians of genetic

resources and related traditional knowledge. This protocol not only recognizes

indigenous/local communities as preservationists who must be asked for prior consent when

accessing genetic resources, but they are also recognized as trustees who are entitled to a

share of the benefits from the use of these resources.

Conservation policy in United States is beginning to experience a paradigm shift, from

conservation for conservation's sake to conservation that has socio-economic functions that

benefit local communities. Conservation does not separate humans from the surrounding

nature.15 Law No. 5 of 1990 on the Conservation of Living Natural Resources and

Ecosystems does very little to recognize the biocultural rights of communities in

conservation efforts. Article 37 of Law No. 5 of 1990 regulates community participation, but

this article limits community participation to be directed and driven by the government, and

it is also unclear how this participation will be carried out. It was only a dozen years later

that the implementing regulations of Law No. 5 of 1990 began to explicitly accommodate

community participation such as the Minister of Forestry Regulation No. P.19 of 2004

concerning Collaborative Management of Nature Reserve Areas and Nature Conservation

Areas, followed by the Minister of Forestry Regulation No. P.56 of 2006 concerning

National Park Zoning Guidelines which provides space for the role of the community in

determining the zone of the National Park area. Various collaborative programs (co-

management) of national park management began to be carried out, other forms of

partnership such as Community Conservation Agreements (KKM) are also expected to be a

mechanism for community participation in conservation while still paying attention to their

biocultural rights.

Other laws related to the conservation of biological resources such as Law No. 32 of 2009

on Environmental Protection and Management, Law No. 41 of 1999 on Forestry, Law No. 31

of 2004 on Fisheries and Law No. 27 of 2007 on the Management of Coastal Areas and

Small Island Areas have all normatively alluded to the role of communities and local wisdom

in conservation activities, although they have not concretely regulated how to embody this

local wisdom in conservation practices.

In United States, there is actually a lot of local wisdom that can be integrated into

conservation plans. Restricting access to certain areas for conservation purposes has long

been recognized by the community. Such as the practice of lubuak larangan and hutan

larangan in Sumatra, or the practice of sasi in Papua18 and on the island of Lombok there is

the practice of kemalik. Kemalik is a prohibition on entering the Kiyangan mountain

customary forest carelessly, which if violated will cause disaster or disturbance in the future.

If the forest is destroyed and the timber cut down, then the destroyer is required to pay

customary fines that must be fulfilled such as one buffalo, one quintal of rice (100 kg), 244

bolong money (kepeng susuk), brown sugar, one rombong (basin) of rice. A more severe

sanction, if the above sanctions are not fulfilled.

For violators, they are not given penghulu (customary administrators), customary clerics

in the implementation of thanksgiving or selamatan, for example at house celebrations and

others, as well as being ostracized or exiled and not recognized as indigenous peoples.19 If

these practices can be aligned with conservation programs, community support will

undoubtedly be strong. Even when it is found that the traditional practices of the community

are not environmentally friendly, the right solution is to increase their capacity to switch to

more environmentally friendly practices, not to eliminate their rights because they are

considered unable to protect the environment. It is important to remember that culture is not

static, as the Minang proverb nature takambang jadi guru (nature unfolds as a teacher).

Nature is dynamic, adapting to environmental changes. So is culture, given that it is actually

the result of human interaction with the environment.

Ethics in the Environment

The perspective of ethics in the environment cannot be ruled out because it is very

influential in solving environmental problems aimed at sustainable development. The picture

of environmental problems that will occur if there is no ethical element will result in

imbalances in the implementation of environmental conservation that is aspired to.

There is an interesting opinion that has been conveyed by Hans Jonas related to

sustainable development by saying that: The new situation of mankind, that is, the situation

in which man, by his own handiwork, can destroy the world in which he lives, demands an

entirely new principle of moral responsibility as well: namely, the absolute demand to ensure

that in all futures there remain human beings and, therefore, there remains a humanly

habitable world. The problem with an ethic of responsibility for the future of humanity is that

we have no experience of the future consequences of our present actions. Yet it is that

experience that helps us to comply with the demands of ethics. For this we need a "heuristic

of fear": fear of the future should help us to develop a willingness to act according to the

ethics of the future. So it is not by pointing to the evils we already know from our present

experiential environment that we will be moved to act responsibly, but by using fantasy to

imagine what will happen if we continue to destroy the environment as we do now. The first

duty of future ethics, then, is to try to imagine in fantasy as vividly as possible the

destruction of that future environment.

Environmental issues are essentially the responsibility of everyone. Thus, it is very

necessary to foster insight and environmental awareness among the community. The

occurrence of environmental damage by the community is caused by several reasons: 1.

Ignorance of the consequences of their actions. For example: the habit of villagers using

rivers as latrines. 2. The pressure of life's needs so that activities that actually damage the

environment continue. for example: The use of wood as a basic material for the production

of limestone, roof tiles, bricks. 3. Lack of knowledge about the balance of components in the

ecosystem. for example: fishing with fish poison. 4.Low environmental awareness. for

example: industries that dispose of waste carelessly. 5. The provisions of laws and

government regulations on the environment have not been socialized.

Various environmental cases that occur today, both on a global and national scope, are

largely the result of human behavior. Environmental problems are moral problems, problems

of human behavior. Therefore, ethics and morality are needed to address them.

Environmental ethics is the moral wisdom of humans in dealing with their environment.

Environmental ethics are needed so that every activity concerning the environment is

carefully considered so that the environmental balance is maintained. The things that must be

considered in connection with the application of environmental ethics are as follows24 :



Humans are an integral part of the environment and need to care for all life and the

environment in addition to themselves;



Humans, as part of the environment, should always strive to maintain the preservation,

balance and beauty of nature;



Discretionary use of limited natural resources including energy materials;



The environment is not just for humans, but also for other living things.

In addition, Environmental ethics does not only talk about human behavior towards

nature, but also about the relationship between all life in the universe, namely between

humans and humans who have an impact on nature and between humans and other living

things or with nature as a whole. In this case, environmental issues must be studied from

various perspectives, one of which is a legal policy perspective and an environmental moral

perspective.

The concept of Deep ecology demands a new ethic that is not human-centered, but

centered on all living things with efforts to overcome environmental issues. This new ethics

does not change the relationship between humans and humans at all. That is, humans and

their interests are no longer the center of the moral world. Deep ecology instead focuses on

all species, including non-human species. In short, the entire biosphere. Similarly, deep

ecology is not only concerned with short-term interests, but long-term ones. Thus, the moral

principles developed by deep ecology concern the interests of the entire ecological

community.

The answer to the current environmental problems is to change the way humans view

their environment. Being more ethical in managing the environment and being able to

imagine the impact that occurs if humans are unethical will have a huge effect in overcoming

the environmental crisis. In the perspective of legal policy, steps can be taken to implement

environmentally sound legislation (green constitution), with reference to the principle of

sustainable development and the principle of deep ecology.

Conclusions

There are two conclusions in this study, first, the international environmental law system

has regulated various aspects in the environmental field, namely aspects of marine

environmental protection, atmospheric protection, marine transportation protection, and in

the field of hazardous toxic material transportation. These fields have laid down the basic

principles of national environmental law that are applied in the national laws of each member

state. Second, the implementation of international environmental law into United States

national law is carried out by regulating it in United States national law, among others, in

biological resource conservation laws such as Law No. 32 of 2009 concerning

Environmental Protection and Management, Law No. 41 of 1999 concerning Forestry, Law

No. 31 of 2004 concerning Fisheries and Law No. 27 of 2007 concerning Management of

Coastal Areas and Small Island Islands. These laws have adopted various principles of

international environmental law that exist in various international treaties.

International Environmental Legal Arrangements

As a legal tool, the science of international environmental law has laid down the main

principles of international environmental law in various sub-branches of environmental law.

The following researcher outlines several international treaties in the field of international