Sep 1, 1997 - "International Law and the Avoidance, Containment and Resolution of ..... 92The U.N. General Assembly approved the ILC Draft Amcles 'upra note 90) by ..... M. 1448. Both Canada and Ukraine are parties to this treaty.
THE IMPLEMENTATION OF INTERNATIONAL OBLIGATIONS INTO DOMESTIC LAW: LESSONS FROM CANADA AND UKRAINE'S WATER PROTECTION LAWS
Stephania P. Luciuk
Submitted in p d d fulnllment of the requirements for the degree of Master of Law
Dalhousie University Halifax, Nova Scotia September, 1997
0 Copyright by Stephania P. Luciuk, 1997
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CHAPTER ONE:
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. . .
CHAPTER TWO: AN INTRODUCTION TO CANADA AND UKRAl[NE ................... 8 1) Comparative Methodology ........................................ 8 2) Geographic. Demographic. Political and Economic Data ................11 3) Water Resources Data ........................................... 18 CHAPTER THREE: INTERNATIONAL WATER PROTECTION REGIMES
............................................................... 22 1) International Law - Theory ....................................... 22 2) International Law - Sources ....................................... 26
3) International Water Law ......................................... 31 a) International Watercourses ................................ - 3 6 b) Marine Water Resources ................................... 42 c) Domestic Water Resources ................................ - 4 4
CHAPTER FOUR: CANADA AND UKRAINE'S DOMESTIC WATER PROTECTION LAWS
..........................................*.................... 1)CanadianLaws ................................................
52 53 a) Federal Legislation ....................................... 56 b) Provincial Legislation .....................................65 c) Interjurisdictional LegisIative Efforts ......................... 70 2) Ukrainian Laws ................................................ 72 a) The Ukrainian Legislative System ............................ 72 b) Introduction to Laws fkom the Legislative and Executive Branches of Govemment ......................................... 73 c) The Water Code ......................................... - 7 7 i) The Categorization and Protection of Riparian Areas ....... 77 ü) Pollution Control Provisions ......................... 80 iii) Economic Regdation of Water Resources ............... 85 iv) Priorities in Water Use .............................. 86 V) Administrative Provisions of the Water Code ............. 86 vi) Liability for Poilution ............................... 88 vii) International Obligations Incorporated into the Water Code
d) The Law on Environmental Protection of Ukraine .............. - 9 0 e) ûther Relevant Environmental Protection Legislation ........... -92 f) Ukraine's Participation in International Agreements on Water Pollution CHAPTER F M : COMPARATIVE ANALYSIS BETWEEN STATES AND IN RELATION TO mRNATIONALLAW ......................................... IO0 1) Domestic Water Resources ......................................101 2) Marine Water Resources ........................................ 108 3) International Watercourses ...................................... 111 4) Environmental Protection Provisions Generally ..................... 114 5) References to Intemational Obligations ............................ 116 CHAPTER SIX: REVELATIONS. INFERENCES AND CONCLUSIONS REGARDING IMPLEMENTATION ON THE BASIS OF THE COMPARATIVE STUDY
............................................................. 119 1)Limitatiofis ................................................... 119
2) Factors Affecting the Implementation Process in Canada and Ukraine
.... 121
a) The nature of the international obligations ....................124 b)Economics ............................................. 125 c) LegaiHistory .......................................... 131 d) Necessity .............................................. 135 e)Politics ................................................ 137 f) International Pressures .................................... 140 3) Conclusions regarding the process of implementation and international law generally ................................................. 144 a) The necessity and importance of fomal implementation ......... 146 b) The effects of international law on domestic legislation .......... 149
CHAPTER SEVEN: CONCLUSION BIBLIOGRAPHY
.................................................
157
ABSTRACT
This thesis explores the process of formal implementation of international standards into domestic law in an effort to better understand the relationship between international and domestic law and in order to assess the utility of international law in &ecting domestic legisiative behavior. Irnplementation is explored within the context of a nmow comparative study. The water protection laws of Canada and Ukraine are compared to each other and to the international laws that protect different types of water resources. The first part of this thesis in an introductory rnanner describes the essentiai characteristics of both Canada and Ukraine. Next, the international standards in question are sunreyed. In particular, the different international d e s applicable to international watercourses, marine waters and water located entirely on the sovereign temtory of one state are explored. Following this survey of relevant international laws, the domestic iaws of Canada and Ukraine regarding water pollution are identified and analysed. Following a cornparison of these domestic laws to one another and to international standards, the thesis concludes that both states comply substantially with international law. Furthemore, Ukraine's laws rival Canada's with respect to quantity and stringency. The final chapter of the thesis analyses the results of the comparative study and presents several conclusions. Though the methodological limitations of this thesis preclude comments regarding Canada and Ukraine's substantive cornpliance with international law, the comparative study clearly suggests that international law possesses a transfomative capacity in relation to domestic legai systems. The comparative study reveals that Ukmine developed water protection legislation despite the significant disincentives to doing so. Instead, Ukraine has explicitly and implicitly incorporated treaty obligations as well as less tangible international principles into its intemal legislation. In doing so, Ukraine appears to have avoided the "race to the bottom" regarding environmentai standards often alleged against countries undergoing economic development. Ultimately, the process of fornial implementation is revealed to be an important aspect of the interrelationship between international and domestic law for a variety of practical and theoretical reasons. Perhaps more significantly, the development of Ukrainian legislation in particular evidences the capacity of international law to affect domestic legislative behavior and its transfomative capacity more generally.
CHAPTER ONE:
INTRODUCTION Recent decades have seen a proliferation of international laws, particularly in the domain of environmental protection. Despite the voluminous increase ùi international d e s , the interaction between international laws and domestic Iegal systems remains an ambiguous process. Much is known and extensive study has k e n undertaken regarding international 1aw and domestic environmental protection regimes respectively. Our understanding of the circdar and symbiotic relationship between these separate disciplines, however, remains inchoate. In particular, questions persist regarding the extent to which and how exactly international d e s assist in the formulation of domestic standards. This thesis explores one aspect of the interaction between international and domestic legal systems, the formal Unplementation process, in an effort to assess the transfomative capacity of international Iaw. By exploring the implementation process,
this thesis also seeks to situate the role of intemational standards witbin the broader context of international law and relations. The implementation of international laws into domestic legal systems occurs frequently. For example, States routinely sign treaties, rati@ them and then incorporate them into their domestic laws. This limited example, however, fails to reveal the complexities of the implementation process. International law may occur in forms other than a formal treaty. When an international standard which exists beyond the scope of a treaty is incorporated into domestic law, its implementation may be much more subtle. Furthemore, while formal implementation may occur on paper, substantive implementation rnay not take place. Finally, the extent to which the development of the domestic law might be attributed to a state's international obligations is not necessarily Obvious.
The aforementioned comments are intended to illustrate the rndti-faceted and somewhat obscure nature of the interaction between international d e s and domestic laws. The utility of a greater understanding of this interaction cannot be underestimated.
In particular, a more thorough and detailed understanding of the manner in which international d e s influence domestic laws would serve to legitimate the fiequently rnaligned domain of international law. International law has frequently been criticized for its idealism and lack of pragniatism. Such criticisms can only be effectively refùted with an academically sound understanding of the particularities of how and why
international law influences domestic law. In short, for international law to be practical and relevant, its mies must possess some transfonnative capacity in relation to domestic legal behaviour. Consequently, the challenge that presents itself is the provision of evidence proving international law's transfonnative capacity. Exploring and evidencing international law's transfomative capacity rnay potentially entail an immense shidy of a variety of aspects of the interaction between international and domestic law. Within the constraints of this project, formal implementation has been isolated for shidy in order to explore this potential capacity. Implementation, for the purposes of this thesis, is one component of the interaction between international d e s and domestic legal systems. Basically, forma1 implementation is d e h e d as: the means by which states undertake to incorporate, either explicitly or implicitly, international d e s into their own legal systems.
Formal irnplementation differs fiom substantive implementation. Only ascertainable. explicit d e s are studied in this thesis. In contrast. a study of substantive implementation wouid include an examination of the actual practices that exist within a particular state in regards to a particular rule, the extent to which the fomal, domestic mles are enforced, and so on. Also, for the purposes of this thesis, foxmal implementation is not considered to be synonyrnous with compliance. Instead, fomal irnplementation can be viewed as a necessary component of a state's compliance with its international obligations. This thesis examines the process of forma1 implementation with the objective of ascertainhg the influence and utility of international standards in the development of domestic laws. To that end, this thesis undertakes a comparative shidy of the domestic water protection laws of Canada and Ukraine. Each state's laws will be compared to each other as well as to international standards regarding water pollution. The results of
these comparisons will be analysed to assess the extent to which international d e s were încorporated into each state7sdomestic legal h e w o r k as well as the utility of international standards in guiding the development of domestic environmental d e s . As noted, the international laws exarnined in this thesis pertain to water pollution.
In this thesis, the phrase "international water law" will occasionally be used to refer to the totality of international standards goveming water pollution. This phraseology, however, is not intended to imply that a single, cohesive body of rules goveming the pollution of al1 water resources exists. In fact, no single international water law regime exists. Different types of water resources are subject to different international legal d e s and varying levels of protection. For example, d e s regarding groundwater differ vastly from d e s goveming oceans. This thesis examines the d e s goveniuig three parùcuiar types of water resources: international watercourses (fkshwater); marine waters; and, to some degree, domestic water bodies. Very different international obligations apply to each of these types of water. For reasons of convenience and expediency, the surn of the d e s goveming each type of water resource will be referred to as "international water law." The thesis is divided into seven chapters. Following Chapter One, the
introduction, Canada and Ukraine will be introduced in some detail. Chapter Two aims to acquaint the reader with the likely damiliar state, Ukraine. It is assumed that the reader has a reasonably thorough degree of knowledge regarding Canada. As such, political, econornic, geographic, historical and social aspects of Ukraine wili be examined. Such details regarding Canada (which are likely farniliarto the reader) have been omitted in order to avoid repetition or redundancy. Simply, because this thesis focuses on the implementation of international law and in order lirnit the length of this project, the discussion of Ukraine and, in particular, Canada is limited to facts which are absolutely necessary and relevant. While on this vein, some explanation of why Canada and M
e were chosen for
study is merited. Canada and Ukraine are exceptionally disparate countries. The
significant disparity that exists between them, however, lends itself particularly well to comparative shidy. As noted by Sacco, "[c]omparison measures the extent of differences
be they srnall or large. It must not concern itself exclusively with the srnail differences or
the large ones.'" Canada and Ukraine are representative of different ends of the environmental protection spectrum. More specifïcally, Canada is perceived to be a protector of its environment Canada's reputation in the domain of environmental and international environmentai Iaw is well developed. Ukraine, in contrast, has an exceptionally poor reputation in regards to environmental protection. The extent of the perceived as weil as actual differences between Canada and Ukraine may ultimately highlight the relevant legislative discrepancies and similarities between these two states in the domain of water pollution. Similarities between Canadian and Ukrauiian legislation will be particularly notable given the extreme contrasts between their economic, political and social circumstances.
In particular, certain expectations may exist among some that Ukraine will have poor environmentai laws as compared to Canada For example, one prevalent concept in the domain of international development and law is the "race to the bottom" theory which
essentially predicts that states, especially poor ones, will lower environmental standards to speed economic development. These types of predictions or assumptions will be specifically analysed within the comparative study of Canada and Ukraine. Chapter Three subsequently departs fiom the examination of Canada and Ukraine and focuses exclusively on the state of international law in the domain of water pollution. This chapter attempts to identi@ international d e s which mandate the protection of water resources fiom pollution. Three types of water resources are examined in particuiar: international or transboundary watercourses, marine water resources and domestic fieshwater resources. Ultunately, Chapter Three suggests that some international water protection standards exist or are evolving with respect to each of the aforementioned types of water resources. Some of the standards are quite well developed (for example, with respect to
'Rodolfo Sacco, "Legal Fermants: A Dynamic Approach to Comparative Law" (199 1) 39 Am. J. of Comp. L. 1 at 7.
international watercourses). In regards to domestic water resources, the proposed international standards have not yet cxystaüized as fÏrm obligations. Nonetheless, some standards appear to be evolving. As such, the impact of both evolving and finn standards on Canada and Ukraine's legislative behavior will be examiued. Chapter Three does not provide an exhaustive sunrey of the international legal instruments and state practice which evidence the existence and substance of international standards regarding international, maMe and domestic water resounies.. Evidently, entire theses could be devoted the topic of international water law in each of these areas. This thesis' focus, however, is not on these standards per se. As such, Chapter Three briefly attempts to provide sutncient evidence to support this thesis' propositions regarding the existence of international water protection rules and to proceed to an examination of the irnplementation of these standards. Chapter Four is divided into two main parts and examines the domestic legal ~ e w o r k goveming s water protection in Canada and Ukrauie respectively. In the first part of üiis chapter, Canada's water protection scheme is examined (more summarily than
Ukraine's h e w o r k which is examined in the second part of the chapter). The justification for the concise treatrnent of Canada's laws is simple. Canada's water protection laws are presented more as a benchmark against which Ukraine's laws can be measured, than for their own sake and inherent interest. Because Ukraine has, in the last decade, developed water laws essentialiy de novo, Ukrainian laws are particdarly fruitful and interesting as a source of study of the impact of international d e s . For the purposes of this thesis, Canada principally provides a standards for cornparison, especially since Canada has been a longstanding participant and contributor to international water standards.
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In Chapter Five, Canada and Ukraine's laws are compared to one another. Their legislation's correlation to international standards is also examined. This chapter highlights the notable discrepancies and similarities in each state's water protection frameworks which will be discussed in the final chapter of the thesis. Chapter Six of the thesis undertakes an analysis of all of the data contained in the previous chapters. This final chapter is divided into three parts. The first part candidly
examines the limitations of the methodology of this thesis. Next, the second part of the chapter attempts to provide the context within which international law functions. In other words, intemational law is only one of many factors which may ifluence how States act and how they develop domestic legislation. Part Two of the final chapter attempts to situate international Iaw within the broader context of international and domestic Iaw interactions. Some of the discussion in this part digresses to sorne degree into other disciplines such as political science and economics. These digressions are intended to illustrate the multitude of factors that affect state behaviour and which cornplicate a study aimed specificallyat examining the transformative capacity of international law. The final part of Chapter Six ponders what the thesis' comparative study reveals about
implementation genedly. In this part, the thesis tentatively proposes that international law possesses transformative capacity and provides arguments derived from the comparative study in favour of this proposition. The preceding introduction to the basic structure of the thesis attempts to provide the reader with a "map" of this project. Though the use of comparative rnethodology will be justified later in this project, some discussion of the choice of methodology is usehi
before delving M e r into the substantive aspects of the thesis. In particular, at the outset of this thesis, it is helpfbl to note why comparative methodology is employed for the purposes of studying formal implementation processes.' Comparative methodology provides a means of situating specific data (in this case, regarding Canada and Ukraine) within a broader perspective and of analysing relevant information contextually.
Potentially, comparative methodology c m be used to challenge the tenets of other areas
'Some authors have criticized approaches to comparative law which use this area of law exclusively for its methodologies. Legrand suggests that the utilization of comparative law solely as a method of study (rather than a legal body of d e s ) consists of formalist legal studies and marginalizes comparative law to an adjunct of other spheres of Iaw, "no more than a handmaiden to contract, property or constitutional law..." His comments, though peripheral to the principal questions of this thesis and despite their cntical nature, highlight the usefulness of comparative methodology in the study of other areas of law. See: Pierre Legrand, "Comparative Legal Studies and Cornmitment to Theory" (1995) 58 Modem Law Review 262 at 264.
of law, such as international or environmental law? This thesis u n d e d e s a comparative
study for al1 of the aforementioned rasons: in order to situate legal information regarding Canada and Ukraine within a broader context, to analyse each state's laws in a .international context and to critically examine some of the fundamental fünctions of
international law:
'Though Legrand laments the marginalization of comparative Iaw, he acknowledges its potential utility in fùndamentally and cntically analysing other areas of law: Legrand, supra note 2 at 165. 41nregards to environmental law, comparative methodology has been noted as particularly effective in 'Vie study of how, why and to what effect different govemments puMe particular courses of action or inaction." See: Sheldon Kamieniecki and Eliz Sanasarian, "Conducting Comparative Research on Environmental Policy" (1990) 30 Nat. Res. J. 321 at 324.
CHAPTER TWO:
A N INTRODUCTION TO CANADA AND UKIUINE 1) Comparative Methodology
A fundamental aspect of the methodology in this thesis is the selection of
Canada and Ukraine for comparative study. In addition to the brief discussion of comparative methodology undertaken in the introductory chapter, the decision to limit research and analysis to Canada and Ukraine provokes several other questions. First, why use a comparative approach instead of focusing on one country? Secondly, why study Canada and Ukraine in pafzicular to assess the factors which affect the
implementation of international environmental standards? Finally, within what concepnial and analytical b e w o r k wiU Cmda and Ukraine be compared? Generally, with respect to the f i s t question, comparative methodologies offer opporniaities to explore issues beyond one's own environment. As noted by Dogan
and Pelassy, "We gain howledge through reference
... By enlarging the field of
observation, the comparativist searches for d e s and tries to bring to light the general causes of social phenornena?
In the legal context, an d y s i s of multiple legal
systems helps to identiQ which aspects of (or noms within) a legal system are accidental versus necessary and changeable versus permanent.6 Beyond its general benefits, comparative methodology is also used in this thesis in order to anain one particular goal, noted by Watson to be a virtue of comparâtive law. Watson notes: "We shall discern more clearly the conditions which favour legal development both in generai and in a particular direction, and the
'Mattei Dogan and Dominique Pelassy, How to Compare Nations Strategies in Comparative Politics, 2nd ed., New Jersey, Chatham House Publishers, 1990 at 3.
6 ~ e t eDe r Cruz, A Modern Approuch to Comparative Law, Deventer, Kluwer, 1993 at 8.
conditions which bamper development. "
In this thesis, in relation to international
law and its effects on domestic legal systems, precisely the factors (or conditions) which affect (or favour) the implementation of intemationai legal standards are
sought. Comparative methodology has d s o k e n espoused by some as the best
~ as with subaitute in the social sciences for the experimental m e t h ~ d .Evidently, experimental methodology, comparative studies increase in statistical signifïcance
when the number of situations studied increases. Within the Iimits of this thesis project, a thorough study of more than two states is not feasible. The binary study of Canada and Ulaaine, however, pennits a reasonably detailed comparison which, at a
minimum, will suggest factors which affect the implementation of international water standards. Having established the value of comparative analysis, the objects for comparison must be selected. At fmt glmce, a comparative study of Canada and Ukraine may remind one of the familiar apples and oranges analogy. In many domains, political, economic, historical, culniral and so on, Canada and Ukraine have IittIe in common. Given the numerous basic dissimilarkies between Canada and Ukraine, some might suggest that comparative analysis is futile. On the contrary, however, comparison between two highly dissimilar states may reveal the greatest number of insights into the implementation of international
law. International standards are meant to apply universaily to al1 states, among which
'Alan Watson, Legal Transplunts:An Approach to Comparative Law,2nd ed., Athens, The University of Georgia Press, 1993 at 16. 'Dogan and Pelassy note that John Stuart Mill, Auguste Compte and E d e Durkheim suggested this: Dogan, supra note 5 at 1S.
9Saccoprovides an interesting analogy for comparative legal studies. He suggests that abstract principles find concrete expression in a given legal language much as in biology, a genotype (or set of genes) is expressed in the phenotype (or outward fom) of an organism. While a dornestic legd academic generally studies legal phenotypes, comparativists seek to ident* and study the genotype: Sacco, supra note 1 at 16.
there is an infinite disparity. If one wishes to study the implementation of international standards and to i d e n w generic factors which might affect implementation, it will not &ce
to oniy saidy countries which f a into a certain
economic and political category. In other words, a study of affluent countries may reveal certain tendencies with respect to the implementation of international standards. This study, however, rem-
relevant only with respect to affluent states and camot
thereafter be generalized to states with other economic situations, The conclusions which might be drawn about the international standards generally will be limited. If, however, in a study comparing two highly dissimilar counmes, a factor is noted to produce the same effects in both states, the relevance of the factor at a higher level of
generalization will tend to be confirmed.1° Thus, the analytical value of examining Canada and Ukraine lies in the very fact of their disparïty.
Furthemore, while numerous differences between Canada and Ukraine may exist, this thesis' cornparisons are undertaken within the context of an analytical framework which examines concepts or abstractions which can be found in both states." The anaiytical path of this thesis wül be marked by conceptual 'buoys" selected in order to 'dissect and master better the prolific diversity of reality. "12 With respect to concepaial framework, this thesis attempts to divide the factors which may affect the implementation of international environmental standards in
Ukraine and Canada into analytical categories. In other words, the factors which might affect the implementation of international standards will be identified and
'O~ogan,supra note 5 at 130.
''~ a t s o notes n that comparative law entails a considerable element of selection in the objects of study and that this selection is prone to arbitrariness and subjectivity. This "peril" has been noted and the hmework for cornparison outlhed infia attempts to logically organize potentially relevant subjects for analysis. Watson, supra note 7 at 11.
lZ~ogan, supra note 5 at 24,33 also aptly notes: "The need to systematize grows in relation to the accwnulation of information, the problem being to master its anarchical spreading." Given that international laws as well as the domestic laws of two states are studied in this thesis, ngorous systematization is essential.
11
analysed within a rnatrix applied to both Canada and Ukraine. In particular, the information and data presented in this thesis will be examined within a matrix which contains specific categories (e.g. economics) into which relevant datat will be filtered. Using these different categories, the successes and reasons for the success of Canada and Ukraine in implementing international water laws will be explored. This thesis also adopts a theoretical framework regarding the relationship between international and dornestic law. It is accepted or presumed that international laws (e.g. customary d e s or treaty obligations) are superior to dornestic whims and that states must give effect to these laws.13 Within this theoreticai context, this thesis seeks to identim factors (studied in the aforementioned analytical groups) which encourage or discourage states to comply with their international law obligations (Le. the factors which affect implementation).
2) Geographic, Demographic, Political and Economic Data14 A descriptive introduction to Ukraine is essential in the context of this project
given that a high percentage of its readership is likely unfamiliar with this state. At this early stage in the thesis, no comprehensive description of Canada and Ukraine is
attempted. Rather, certain basic information about each country which acquaints the reader with the states is provided. More extensive data will be presented and discussed in Chapter Six in which the analysis of factors affecthg implementation of
I3~his is, to some degree, an adoption of the rnonist doctrine which asserts that international law o v e d e s domestic law. See text accompanying notes 53-55 for more discussion.
"The World Bank Stutistical Handbook, 1994, States of the Former USSR, Washington, The World Bank, 1994 at 10 [hereinafter cStatisticuZHandbook"]; Commission on Security and Cooperation in Europe, Focus on Serious Challenges Facing Ukraine,Washington, Commission on Security and Cooperation in Europe, 1994 at 1;OECD, Invesntient in Ubuine, Paris, OECD,1993 19-27; The World Bank, Ukraine: The Social Sectors During Transition, Washington, The World Bank, 1993 at 17-29 [hereinafter "Social Sectors "1 .
international water laws will be undertaken. The foliowing section presents basic descriptions of the geographic, demographic, political and economic situations in m e . Thereafter, water resowes in each country will be canvassed.
In regards to geographic location, Ukraine Lies on the southeastern edge of Europe and the southwestern extremities of the former Soviet Union. Ukraine has common fiontiers with Belarus, Romania, Russia, Poland, Slovakia, Hungary, Moldova and Turkey. Some of these borders are shared through the Black Sea. The Black Sea as weU as the Sea of Azov flank Ukraine to the south. The Danube Rivers
as welI as the Bosphorus and Dardanelles straits provide Ukraine with access to West European countries as weil a s to the Mediterranean region, Southern Europe and Northem Afnca respectively . Ukraine has a population of about 52 million (roughly the same size as France's pop~lation).'~The population of Ukraine is not ethnically, culturally or linguisticaily homogenous. Although aimost 73% of Ukraine's population is made up of ethoic Ukrainians, 22 percent of the population is Russiad6 The distribution of ethnic Russian and Ukrainians generally occurs on an east-west basis respectively, which also mirrors socio-political alignments. With respect to the level of human development within the Ukrainian population, the United Nations Development Program provides certain helpfui indicators. The UNDP groups the States of the world hto human development
"Since 1991, Ukraine has experienced a declining growth rate in the population due to both a decrease in the birth rate and an increase in the mortality rate in the country. Currently, Ukraine occupies 52nd place among countries of the world in regards to average life expectancy. Furthemore, death rates among children in the nrst year of life in Ukraine are between 1-5 and 1.7 times higher than in (other) developed countries. Numerous authoa have noted the adverse effects of environmental surroundings on the demographic processes (e.g. reproduction) among the population in Ukxaine: Economic Commission for Europe, An Assessrnent of the Situation in Belarus,Bulgaria,Hungary, Ukraine, New York, United Nations, 1994.
16~bout a dozen other ethnic groups live in Ukraine, including rnainly Belanissians, Jews and Moldavians.
aggregates based on its caldation of their human development index.''
In 1996, of
the available high, medium and low ratings, di the former Soviet republics feli into high or medium categories. Ukraine was classified with a high HDI.18
The politicai structure in Ukraine is an entire thesis topic in itself. For the introductory purposes of this chapter, however, only selected characteristics of the political system in Ukraine will be described. First of ail, it is important to note that
Ukraine, formerly a republic in the defunct Soviet Union has k e n an independent state since 1991.19 Ukraine's declaration of independence began a ongoing process of
"The UNDP's human development index (HDI) is a composite index of achievements in three basic human capabilities: length and quality of life, knowledge and standard of living. The HDI indicates how far a given country must go before attaining certain defïned goals (e.g. an average life span of 85, universal access to education, etc.). UNDP, Human Development Report 1996,New York, Oxford University Press, 1996 at 28.
hile these ratings rnight suggest a high level of human development in the first half of the 19901s,the UNDP notes that the data does not reveal the fact that in regards to many of the indicators measured, successor States are actually declining. For example, poverty has generally increased, life expectancy has decreased, social programs have continually detenorated since the dissolution of the Soviet Union. Ibid at 30. "In March of 1991, Mikhail Gorbachev held a referendum on the preservation of the Soviet Union, in an effort to quell growing rebeilion in its constituent republics, which posed the question: "Do you consider necessary the preservation of the Union of Soviet Socialist Republics as a renewed federation of equd sovereign republics, in which the rights and fkeedoms of an individual of any nationality will be fûlly gumteed?" in addition, Ukraine added a question to the ballot which basically asked if Ukraine should participate in this renewed U.S.S.R. on the basis of a declaration of state sovereignty for Ukraine. Every region in Ukraine but one gave a higher endorsement to Ukraine's sovereignty question than to Gorbachev's ail-Union question. National independence was declared by Ukraine's parliament on August 24,199 1 and confirmed by a referendum the following year: Taras Kuzio and Andrew Wilson, Ukraine: Perestroika to Independence, New York, St. Martin's Street Press, 1994 at 1;Commission on Security and Cooperation in Europe, Refrendum in the Soviet Union, Washington, Commission on Securïty and Cooperation in Europe, 1991 at 3,2 1-24. Notably, with respect to the causes or the timing of the declaration of independence in Ukrainian, among other factors (e.g. economic crises), authoa fkquently note that ecological degradation in Ukraine may have encouraged support for independence: KUZ~O, infia at 40; Commission on Security and Cooperation in Europe, F o m on Serious Challenges,
14
extrerne politicai conversion from communism to democracy. Currently, Ukraine's legislative system in unicamerai and c m be characterized
as semi-presidentid or as presidential-parliamentary- The VerMovna Rada is Ukraine's parliament, formerly the Supreme Soviet in the Ukrainian SSR. In addition to the deputies and the prime mlliister which serve in the Ukrainian parliament, the system incorporates a separately elected p r e ~ i d e n t . Ukraine ~~ is also divided into 25 'oblasts", which were formerly administrative uni& of the Ukrainian SSR. Political power and responsibilities are often delegated to these sub-mits by the national g~vernment.~'The oblasts also have their own local councils comprised of elected representatives. The division of responsibility and authority among political institutions in
Ukraine is not always unambiguous. While the constitution makes reference to some of these issues, a further panoply of laws obscures and fails to demarcate any clear division of power.* In regards to environmental issues, responsibility for environmental regdation and management was dispersed widely in Soviet Uhaine
among a variety of ministries and committees. Consolidation and re-organization is
s z p note 13 at 5; Bohdan Krawchenko, "Ukraine:
The Politics of Independence" in Ian
Bremmer and Ray Taras, Nalions and Politics in the Soviet Successor States, Cambridge, Cambridge University Press, 1993 at 85-87. 'OTimothy Colton, "Professional Engagement and Role Definition Among PostSoviet Legislators" in T. Remington (ed.), ParZiaments in Transition, Boulder, Westview Press, 1994 at 56-57; Kuzio, supra note 19 at 2 1.
"The oblast system might be analogized to the municipality system in Canada (but not the federal system of provinces). In Ukraine their are regions which comprise oblasts as well as certain large cities. The powers which these oblasts have are not constitutionally entrenched but are rather delegated by the state. See text accompanying note 2 19 for a more detailed discussion of not o d y the oblast system in Ukraine but also the main components of its political system.
22Kuzio,supra note 19 at 2 1. =OECD, supra note 14 at 22.
ongoing.24 With respect to political actors in Ukraine, limited electorate participation and
an underdeveloped multiparty system characterize Ulaainian politid affairs. A variety of indicators evidence this limited participation in Ukraine's political system by its population. Low mernbership in political parties, ill-defined public
constituencies, lack of party discipline within political parties and limited financial resources at the disposal of new parties are prevalent problems in Ukraine since
independence.25 The differences between political culture in Canada and Ukraine are notable, pdcularly with respect to the environmentai protection lobby in each state, and will be discussed Iater in the thesis?
The term ccpoliticalculturey'does not have a universally
accepted defhïtion. Van Loon and Whittington suggest that: "[m]ost would agree, however, that it is comprised of the political values, attitudes and beliefs of the citizens of a political system and that it is a determuiant of political action or beha~iour."~'One
value or attitude of particular importance that has charactenzed Ukraine's political
"Philip Pryde (ed.), Environmental Resources and Constraints in the Former Soviet Republics, Boulder, Westview Press, 1995 at 161. =Note, this comment upon the emerging political culture and public participation in Ukraine is not intended to be critical. Evidently, until 1991, Ukraine was exposed to a one party system and thus, experirnentation, development and improvements are to be expected. In some respects, the environment has proved to be one area where public participation has at times been significant. For example, one of the new political parties, the Green Party,was established under the auspices of an eco-socialism platform. Krawchenko, supra note 19 at 8 1;Paul Kubicek, "Delegative Democracy in Russia and Ukraine," (1994) 27:4 Communist and Post-Communist Studies 432-44 1 at 439; Dominique Arel, 'Voting Behaviour in the Ukrainian Parliament: The Language Factor" in T. Remington, Parliaments in Transition, Boulder, Westview Press, 1994 at 129. %ee Chapter Six, Part 2. 27
R Van Loon and M. Whittington, The Cunudian Political System, Toronto,
McGraw-Hill, 1987 at 107-8. Another germane definition of political culture refers to "mobiiîzation, participation, and interest articulation and aggregation": Kamieniecki, supra note 4 at 330.
culture is the importance of environmental pr~tection.~' EnWomental activism in Uktaine has been intense both prior to and since
Ukraine's independence. For example, political parties were formed in U h h e on the issue of environmental protection? Some scholars wouid go so far as to suggest that one of the factors that catalysed Ukraine's independence was an acute dissatisfaction with the state of the environment in Ukraine.30 Despite the existence of an environmental lobby, environmental activism is not as intense in Canada as it is in Ukraine. This contrast might be explained by a nurnber of reasons. Many of the following reasons relate to the necessity for environmental activism." First, Canada is a larger country than Ukraine with a larger base of natural resources upon which to draw. As noted earlier, Canada's water resources far exceed
those of Ukraine. Secondly, while Ukraine was under Soviet influence, environmental degradation was intense. Canada has not d e r e d any environmental disaster which has affected most of its temtory or population. In cornparison, the Chernobyl disaster in
Ukraine profoundly afEiected the population's sensitivities to environmental degradation in Ukraine. Thus, environmental issues do not affect political culture in the same way in
"Strong environmental awareness and mppoa for effective environmental action has been observed in Ukraine: Prydewpra note 24 at 159-60. A statistic fkom neighbouring Russia provides some indication of the importance of environmental protection in the populations of the former Soviet republics. In 1990,98 percent of Muscovites womed more about pollution than crime, AIDS, international conflict or consumer shortages:Murray Feshbach and AEed Friendly, Ecocide in the USSR,New York, Harper Collings, 1992 at 237. 2gTheGreen Party, which was created out of Green World (an environmental organization), has ranked among the top three political parties in public opinion polls since Ukraine's independence. The first Minister of Environmental Protection, Yuri Scherbak, was the leader of the Green Party and a founder of Green World in Lkaine. See: Pryde, supra note 24 at 159-60.
e g : Commission on Security and Co-operation in Europe, Focus on Serious Challenges, supra note 19 at 5; Kuzio, supra note 19 at 40; Krawchenko, supra note 19 at 85-87. 30 See,
31Theeffects of political culture will be discussed in Chapter Six, Part 2.
Canada as in Ukraine. By political science standards, the preceding discussion regadhg the political system in Ukraine by no means exhausts avenues of discussion and description.
Within the context of this thesis, however, it is unnecessary to fuily describe and categorize Ukraine's politicai tendencies. Rather, the preceding brief discussion of Ukraine's political characteristics aims to situate the reader with respect to Ukraine's political situation, especially as it compares to Canada's political context. The following comments regarding the economic situation in Ukraine wiii be equally
Data regarding the economic performance of any country may be assessed in a variety of ways (e.g. prosperity, inflation, equitable distribution of benefits, etc. ).
For the purposes of this study, to avoid complex economic analysis, statistics from two established comparative studies in the area of development have been selected. Data from the United Nations Development Programme's Human Development Report 19963' and the World Bank's World Development Report 1W633reveai basic economic discrepancies between Canada and Ukraine. While Canada and Ukraine are both considered to be "industnalized" nation^,^ vast differences exist between their economic well-being. For exarnple, Canada enjoys a
hi&-incorne economy, while Ukraine ranked oniy as having a lower-rniddie income
economies? An examination of specific factors such as the GDP for each state fûrther
"UNDP, supra note 17. "WORLD BANK, World Development Report 1996,New York, Oxford University Press 1996 [hereinafter "Developement Report"].
MTheUNDP divides the international community into three major aggregates: industrial, developing and least developed countrîes. See, UNDP, supra note 17 at 227. "The potential categories created by the World Bank in regards to the general classification of state economies were: low income, middle income (including lower middle and upper middle) and high income economies. Al1 of the former republics had either lower-middle or lower income econornies. World Bank,Development Report, supra note 33.
highlights the significant disparity between Canada and Ukraine. The pet capita GDP in Canada in 1994 was more than 10 times greater than the per capita GDP of Ukraine in the same year. Furthemore, between 1985 and 1994, Canada experienced a positive annual growth of its GDP, while Ukraine's average annual GDP growth was -8-0percent? Its
inflation has dso k e n aimost uncontrollable and among the highest in the world in the early 1990's."
3) Water Resources Data Canada and Ukraine, despite their signifiant difference in total area, both have authority and responsibiiity for water resomes whkh are fieshwater and marine as well as water resources which are domestic and transboundary in nature. In the next chapter, the intemational laws governing these different types of resources in relation to pollution will be elaborated. First, however, the water resources to be discussed will be surveyed. There are more than 22 thousand rivers in Ukraine totalhg over 170 thousand km in length. Among these rivers, the rnost significant is the Dnipro, which is fed by
rivers in Belanis and Russia and eventualiy empties into the Black Sea. The Dnipro River supplies water to two thirds of the population in Ukraine. The catchment area
of the Dnipro River (294 thousand sq. km) comprises alrnost half of the country's total territory. Other large rivers in Ulaaine include the Danube, Dnister, Pivdenny
Bug and Siversky Donets. In regards to the numerous other rivers in Ukraine, they belong to the catchment areas of the either the Black, Azov or Baltic Seas. While Ukraine does not actually abut the Baltic Sea, the Black and Azov Seas
are located on Ukraine's southern borders. The Sea of Azov is located between
Ukraine and Russia and is connected to the Black Sea. The Black Sea is bordered not
36WorldBank,Development Report, supra note 33 at 188-189.
"Ihor Stebelsky, "Ukraine" in Phillip Pryde, Environmental Resources and Constraints Ni the Former Soviet Republics, Boulder, Westview Press, 1995 at 155.
o d y by Ukmîne and Russia but also by Romania, Bulgaria, Turkey and Ge~rgia.'~
The pollution of water resources ranks among the most serious problems facing Ukraine.39 AU types of water resources (groundwater, marine, freshwater)
have been affected by poilution, as has the environment more generally in Ukraine.40 While Ulaaine was subject to laws which, on paper, protected water r e s o u r ~ e s , ~ ~ pollution has contaminated water in Ukraine to such an extent that its use has been and is impaired and sometimes dangerous. Sources of water degradation include: intensive consumption of water; discharge of pollutants from industries and
municipdities' sewerage; agriculturai poilution in the form of run-off fertilizen and 38~raig Zumbninnen, "Water Pollution in the Black and Azov Seas" in Fred Singleton (ed.), Environmental Miszise in the Soviet Union, New York, Praeger Pubtishers, 1976 at 34,43,50; Andrey Semichaevslq, Emtironnientul Information Systems in Ukraine; Panel on the State of the Soviet Environmeni ut the Start of lhe Nineties, UNEP, 1995. 39Seee.g.: Stebelsky, supra note 37 at 151; Zurnbnuinen, supra note 38 at 33; Philip Pryde, Environmenial Munagerneni in the Soviet Union, Cambridge, Cambridge University Press, 1991 at 75; Feshbach, supra note 28 at 113; Semichaevsky, szpra note 38 at 409. %evere environmental problems plague Ukraine and the former Soviet Union generally. Among scholarly literature, authors typically describe the ecological situation in the Soviet successor states using tems such as "dire", ggdevastated"and --severely degraded." Feshbach and Fnendly, supra note 28 at 1 write about the former Soviet Union: 'No other great industrial civilization so systernatically and so long poisoned its land, air, water and people. None so loudly proclaiming its efforts to ïmprove public health and protect nature so degraded both. And no advanced society faced such a bleak politicai and economic reckoning with so few resources to invest towards recovery." See also: Lisa Osoba, "The Destruction of the Environment in the Former Soviet Union" (1 996) 5 Dal. J. of Legal Sîudies 167; Pryde, Environmental Resources and Constraints, supra note 24. 4 1 ~ oexample, r Article 1 of the Princ@Zes of Wuter Law of the LI.S.SR and Union Republics ( 1 1 December 1970) states that: T h e goals of Soviet water law shall be the regdation of water relations in order to ensure the rational use of water for the needs of the population and the national economy, to protect water from pollution, obstruction, and depletion..." Principles of Water Law of the U S S X and Union Republics reprinted in Irving Fox, Wuter Resources L m and P o k y in the Soviet Union, Madison, University of Wisconsin Press, 197 1 at 221-239.
pesticides; potential contamination from the Chernobyl nuclear reactor explosion; and the negative influences of irrigation and wetiand drainage.
These varied forms of pollution and degradation have affected Ukraine's use
and enjoyment of its water resources substantialiy. For example, the fishing industry has significantly declined."
Potable water supplies in rivers have been contarninated
with pollutants such as cyanides, ammonia, PCB7sand heavy rnetals while
groundwater dnnking supplies are threatened by fertilizer, herbicide and pesticide pollution."
Recreational opporhiaities dong the Black Sea have been diminished
(e.g . beach closures) due to chernical contamination.45 Canada's water resources dBer in severai respects fkom those in Ulaaine. First, Canada o d y shares water resources with one country, the United States (apart
from joint responsibility over Arctic water resomes, which will not be significantly discussed in the thesis). Secondly, Canada enjoys significantly more freshwater resources than Ukraine. For example, about 7.6 percent of Canada is covered by fresh water, which accounts for the world's Iargest share of fresh ~ a t e r .ThirdIy, ~~ compared to Ukraine, Canada has had Iengthy experience dealing with both transbounda~~ and domestic water resource issues. Given its recent independence, Ukraine has not had much time to develop foreign and domestic water policy. As a
republic in the Soviet Union, Ukraine had no sovereignty with respect to water
42Stebelsky,supra note 37 at 15 1-1 53.
431n 1992, the total fish catch was 40 per cent less than the catch in 1989. The once abundant fishery in the Sea of Azov is almost totally devastated: Ibid at 153. See also: Science Council of Canada, Water 2020: Sustuinable Usefor Water in the 21st Century, Ottawa,Minister of Supply and Services, 1988 at 16. J4Thepollution of potable water supplies have been linked in certain regions to increased cholera, birth defects and cancer rates: Feshbach, supra note 28 at 124-5.
''Stebelslq, supra note 37 at 153. %cience Council of Canada, supra note 43 at 9; Michael Keating, To The Lust Drop, Toronto, Macmillan, 1986 at 242.
resources. Thus, Canada's legal experience with water resources is greater compared to Ukraine's. A number of comrnonaüties between Ukraine and Canada d
e these countries
suitable choices for a study of the implementation of international water laws. For example, Canada, like Ukraine, shares certain water resources with other countries.
The Black and Azov Seas can be analogized to some degree with the Great Lakes (despite the different sources of international Iaw which govem marine and fresh water resources) . Both countries pollute their water resources. 47 Both countries have at least some legislation which deals with water resources. While the preceding discussion has not been technical nor scientifk, the data noted wiU serve to illustrate two points. First, both Canada and Ukraine possesses a variety of water resources (fkeshwater and marine; transboundary and domestic) which
make them suitable choices to study in relation to international water law. Secondly, the varying degrees of degradation of each country's water resources compellingly justiQ a study of the pollution d e s which may apply to and be applied by M i n e and Canada.
"While Canada's pollution problems may not be as dire as Ukraine's, especially given the greater amount of water resources available to a smaller population, Canadian waters are polluted by industry, sewage, agrïcultural products, modification of water systems, etc. See, for e.g.: Science Council of Canada, supra note 43 at 9, 12-15,25; Keating, supra note 46 at 3 1-44; P.A.Larkin, Freshwater Pollution, Canadian Style, Montreal, McGill-Queen's University Press, 1974.
CHAPTERTEFUZE: INTERNATIONAL W A m R PROTECTION RECIMES
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1) International Law Theory
In order to effectively undeaake an andysis and critique of the implementation of any international standards, assumptions and theones regarding the fiuictioning and creation of international law must be explored. The analysis of the international environmental standards and their implementation in this thesis is done within a particular theoretical hmework. As such, before beghning M e r substantive discussion regarding the thesis topic, certain preliminary theoretical and jurispmdential issues and assumptions will be explored
F d ,this thesis assumes that international law (as a positive and identifiable set of d e s ) exists and M e r , that international law can affect states' behaviour. International environmental law is normative or legislative because it entails the prescription of specific d e s ?
A discursive or administrative function is also M l l e d
by international environmental law because the processes of international environmental law-making require cooperation and dialogue, regardless of whether noms are actually created.Jg Finally, international environmental law serves a promotive function by enunciating parameters which may not be concrete d e s or noms, but which guide state behaviour to some degree." Among those scholars who accept the existence of international environmental
law, the role and hctioning of international law often remains a matter of signifïcant dispute. Assumptions regarding the role of international law significantly affect any
"'Elli Louka, "Cutting the Gordian b o t : Why International Environmental Law 1sNot O d y About the Protection of the Environment" (1996) 10 Temp. Int & Comp. LJ. 79 at 106,
491bidat 109; Philippe Sands, Principles of lntematbnal Emironmentd LW, Vol. 1, Manchester, Manchester University Press, 1995 at 14- 15. MLouka,supra note 48 at 115-116.
analysis of international law. Evidently, w i t h the limits of this project, no comprehensive theoretical discussion of the role of international environmental law can be undertaken. The major theoreticai assumptions upon which this thesis is premised,
however, will be identined and justified. The relationship between international and domestic law is evidentiy of particuiar theoretical importance in this thesis. Three basic theories explain the role of international law and its relationship with domestic law: the nationalist, the dualist and the monistic doctrines." The nationalist doctrine postdates that national law "stems fiom, and is limited by, domestic law." A state is only obliged to act in a manner consistent with international law in so far as international law is consistent with domestic rules.''
This
doctrine is consistent with the reaiist perspective on international law, which M e r postdates that states will only comply with international law in so far as it is consistent
with their own inter est^.'^ While the nationalist doctrine offers certain insights into international law, this perspective fails to explain why states do on occasion act contrary to their own interests. Furthemore, absolute sovereignty, the fundamental concept upon which this theory is prernised, has been progressively and significantly eroded. While state self-interest and
5'PaulR Williams, "Cm International Legal Pnnciples Play A Positive Role in Resolving Central and East European Transboundary Environmental Disputes" (1995) 7 Geo. Int. Env. L.R- 42 1 at 423. ''~ntonio Cassese, International Law in A DNided World, Oxford,Clarendon Press, 1986 at 19. S 3 ~ o Henkh, ~is How Nations Behave: Law and Foreign Policy, New York, Columbia Universiîy, 1979 (2nd ed) at 46. noted in the International Court of Justice in the Corjù Channel case: "We can no longer regard sovereignty as an absolute and individuai right of every State, as used to be done under the old law founded on the individualist regirne, according to which States were only bound by the d e s which they had accepted. Today, owing to social interdependence and to the predominance of the general interest, the States are bound by many d e s which have not been ordered by their will." See: Co& Channel (Merits), (G.B. v. Albania), [1949] I.C.J. Rep. at 43 (Judge Alvarez). In relation to (continued...)
sovereignty may be two factors which affect the relationship between international and domestic law, this thesis seeks to provide a broader and more probing explanation of the domestic implementation of international standards.
The monistic doctrine provides an extreme alternative to the nationalist doctrine by "asserting the primacy of international law." In other words, where there is a conflict between international and domestic law, the domestic d e is invalid according to this doctrine. The major inadequacy of this doctrine lies in its inconsistency with reality. This thesis does not view international law h m a monistic perspective given its limited potential as a theoretical starting point.
The doctrine which provides the theoretical b a i s for this thesis is the dualist doctrine. According to this theory, bbdomesticand international law CO-existas separate yet linked bodies of law." The systems are separate because both domestic and international laws may be vaiid even if they are inconsistent with one another. International law is linked to dornestic law, however, because only dornestic implementation will actualize or reaiize an international law. This understanding of the role of international law provides the theoretical foundation for this thesis. The thesis proceeds from this theoretical starting point and attempts to provide a more detailed understanding of the relationship of international and domestic law in relation to the implementation of international environmental standards."
In regards to jurisprudential views of international law, the basic understanding of
"( ...continued) environmental standards, Almond states: "We are witnessing a continuing shift fiom perspectives that are locked into notions of sovereignty to perspectives that wodd reduce this grip and introduce jurisdiction and control under perspectives of cooperation." See: Hamy Almond, Jr., "Strategies for Protectiag the Environment, The Process of Coercion" (1992) 23 U. Toledo L.R. 295 at 3 19.
"Sec generally: Richard Falk, The Stutus of Law in International Society, Princeton, Princeton University Press, 1970; Henkin, supra note 53; K. Deutsch and S. H o f i a m (eds), me Relevance of Intemationaal Law, Cambridge, Schenkman, 1968; G. Tunkin, Theory of lnernational Law, Cambridge, Harvard University Press, 1974; H. Bull, The Anarchical Society, New York, Columbia University, 1977.
international law which underlies this thesis is that it includes not only a determinate system of d e s but aiso a dynamic and continuous process of decision making. In other words, this thesis does not rely exclusively on a positivist notion that the international legal order is merely a body of authoritative d e s which determine the behaviour of individual states. In addition to this perspective, this thesis presumes that international legal standards are also dynamic and subject to a variety of idluences? Although the preceding discussion has focused almost exclusively on international Legal theory, it is important to note that the perspectives of other disciplines also affect this thesis. International law is not an isolated phenomenon, existing within some sort of vacuum. Politicai, economic and numerous other influences affect and shape international law. International relations and international law, in particular, interact in an almost indivisible manner to produce events in international society. Despite this symbiotic relationship, Henkui, in 1968, noted: Open any volume, scholarly or lay, on foreign policy or international relations: the probabilities are high that the index will contain no reference to international law ... Books on international law, in their tuni,usually say little about the international society in which law operates, about the nations and the relations between nations which that law orders, about the national interests and policies which
56LynneJurdielewicz, Global Environmental Change and International Law, Prospect for Progress in the Legal Order, Lanham, University Press of America, 1996 at 24-5,27-8. Higgins suggests: "...Intemational law is most usefully conceived, not as a pre-existing body of niles, but as a comprehensive process of authoritative decision in which d e s are continuously made and remade; the function of the d e s of international law is to communicate the perspectives (demands, identifications, and expectations) of the peoples of the world about this comprehensive process of decision; and that the rational application of these d e s in partïcular instances requires their ïnterpretation, Iike that of any other communication, in ternis of who is using them, with respect to whom, for what purposes (major and minor), and in what context" See: Rosalyn Higgins, "International Law and the Avoidance, Containment and Resolution of Disputes" Recueil des Cours, Vol. 230, 1991 -V,Dordrecht, Martinus Nijhoff Publishers, 1993, reprinted in Jurdielewicz, inpa note 55 at 32-33; G.J.H. van Hoof, Rethinking the Sources of Intemational Law, Deventer, Kluwer, 1983 at 32.
that law fùrthers?' While this dichotomy between international relations and international law has diminished slightly since 1968, these disciplines ofien remain isolated Eom one another? This thesis, however, attempts to identQ not only legal factors which affect the implementation of international law but also a broader range of non-legal and multidisciplinary influences. A two stage process is used in this thesis to isolate factors which discourage or encourage the effective implementation of international standards into domestic law and practice. This chapter, provides a strïctly legal identification of the d e s govemuig water resources. Later, the thesis attempts to incorporate other perspectives in its critical analysis of the implementation of these international standards. While it is important to consider extra-legai influences, the focus of the thesis remains law, given the limitations of this relatively short project. Furthemore, this thesis is primarily intended to provide a legal perspective on the implementation of
international environmental standards. As Schachter notes: "Law is not wholly autonomous; ..A has causes and consequences; ...it involves power and values; ...it is an aspect of a larger social and political process...but] law is not the sarne as politics, sociology or philo~ophy."~~ Thus, references to issues arising from other disciplines may not be exhaustive and may be limited within the context of a legal analysis.
-
2 ) International Law Sources
"Henkin, supra note 53 at vii. '%ote, this isolation is highlighted by Classical Realists in international relations who view international d e s as marguially important compared to the power relations between States. Kenneth Abbott, "Modem International Relations Theory: A Prospectus for Lawyers" (1989) 14 Yale LJ. 335 at 338. S90scarSchachter, Internutional Law in Theory and Practice, Dordrecht, Martinus Nijhoff Publishers, 1991 at 4.
Any search for the international standards governing water resources might
produce varying results dependhg on the sources one uses to locate the international d e s . Furthermore, dependhg on the sources w d to identify the international law, the validity of the so-cailed international law may be questioned. As such, the identification
of international water standards in this thesis is preceded by a discussion and justification of the sources used to evidence the standards. Traditionally, international laws have been determined in accordance with Article ,~ detirnits the sources of 38(1) of the Statute of the International Court of J u s t i ~ ewhich international law as: treaties, international custom, general principles of law and subsidiary sources (generally, the decisions of courts and writings of jurists). Recentiy, however, international environmental law has proliferated not only through these traditional sources but also through other instruments often referred to as "sofi law.'"' Little consensus now exists with respect what constitutes or conmbutes to international environmental law and what does not.
This project does not confine itself smctly to norms created by the sources listed in the Statute of the ICJ. Evidently, the statute provides a fundamentai starting point for
the identification of international law. This thesis, however, identifies standards goveming water resources by examining not only traditional, formal sources but also a
@'Reprintedin: Hugh Kindred et al, Ihtermtional Law Chiefly as lnterpreted and Applied in Canada, Donrmentary Supplemenf to the F$h Edilion, Toronto, Emond Montgomery, 1993 at 40. 6 1 ~ u p udescnbes y soft law as "a new process of normative creation ... which overflows the classical and familiar legal categories by which scholars usually describe and explain b o t .the creation and the legal authority of international norms." Generally, soft law is characterized by aspirations rather than binding obligations. See Pierre Dupuy, "Soft Law and the International Law of the Environment" (199 1) 12 Mich. J. of Int. L. 420 at 424,428. Chinkin suggests that soft law may be denved fiom: "...fiom treaties, but which include only sofi obligations ('legal soft law'), to non-binding or voluntary resolutions and codes of conduct formulated and accepted by international and regional organizations ('non-legal soft law'), to statements prepared by individuals in a non-govemmental capacity, but which purport to lay down international principles. See CM. Chinkin, "The Challenge of Soft Law: Development and Change in International Law" (1989) 38 Int. Comp. L.Q. 851.
broad range of more recent sources of international law, such as declarations, draft treaties, and human rights pruiciples.
This reliance on a broad range of sources can be characterized or justified in two ways. First, use of a broad range of sources may imply a rejection of the traditional sources of international law as the sole obligation creating rnechanisms. Alternativefy, examining a broad range of sources c m also be a way to evidence state practice and opiniojuris when attempting to establish the existence of a customary international law.
In relation to the first jusfification, the use of a broad range of sources in order to i d e n t . international water law standards is acceptable because in international law generally, a trend away from the sources of treaty and haditional customary law is evident for several rea~ons.~'Reliance on only the LCJ. Statute's sources of international law is no longer practicable and is increasingly cumbersome. For example, the negotiation of an increasing number of international formal agreements due to an increased Pace of global environmental crises strains the resuurces of both developed and developing nations and the traditional international legal systemP3 Furthemore, in a world containhg an ever-increasing number of nations, the likelihood of consensus or even highly consistent state practice are unlikely, thus limiting the development of new
"The list of sources provided in the ICJ statute no longer fully reflects the sources of obligation in the field of international environmental law, The following criticism provides a reflection of the dissatisfaction with the traditional hierarchy of sources of legal obligation: "Perhaps it is time to face squarely the fact that he oahodox tests of custom - practice and opinion juris - are often not oniy inadequate but even irrelevant to the identification of much new law today. And the reason is not far to seek: much of this new law is not custom at dl, and does not even resemble custom. It is recent, its is innovatory, it involves topical policy decision, and it is ofien the focus of contention." Robert Jennings, "What 1s International Law and How Do We Tell It When We See It" (198 1) 37 Annuaire Suisse de Droit International at 67. See also: Andre Nollkaemper, The Legal Regime for Transboundary Pollution: Between Discretion and Constraint, Dordrecht, Martinus Nijhoff, 1993 at 202. 63~dith Brown Weiss, "Issues Relating to the 1992 Brazil Conference on the Environment" (1992) 86 Am Soc'y Int. L. Proc. 422.
customary law? Furthermore, an examination of current practices reveds a diminishing reliance by States on f o d instruments to create standards.6' 'LNearly ail regimes involve some use of international treaties and organizations (and thus international law), but have other
critical elements which are not legaLY* Additionally, B i d e and Boyle note, "Much of the more important work of developing precise d e s has fallen in practice to the
institutions and intergovermnentai bodies which these environmental treaties have created...'*' These general comments regarding the failings of the traditionai sources of international law hold particdarly true in relation to water resources. International water law is a relatively dynarnic area of international law. While states have been negotiating agreements regarding shared water resources for ages, modem intemationai water standards reflect relatively recent concepts and continue to evolve. Many of the early water doctrines have been rejected in recent times.
Furthermore, recently, the issues regarduig water resources have increased in complexity." The proposed modification of watercourses have increased in their size,
MHenkin,supra note 53 at 119; Van Hoof, supra note 56 at 113. %emard Oxman, "The Duty to Respect Generally Accepted International Standardsy7(1991) N.Y.U.J. of ht. L. and Pol. 109 at 12 1.
66Ri~hard Williamson, "Building the International Environmental Regime: A Status Report" (1990) 21 Inter-Am. L.R. 739. See also, A. Kiss and D. Shelton
(International Environmental Law, London, Transnational Publishers, 1991 at 108) where they assert that resolutions of organization are either a new source of international Iaw not foreseen by the International Court of Justice or a new technique for creating intemationaijuridical noms. 67PatriciaBimie and Alan Boyle, Public InternationaZ L m and the Environment, Odord, Clarendon Press, 1993 at 134-5. "For example, LazeMitz suggests that water is fast replacing oil as the world7s most valuable resources. To highlight this point, he notes that the United States Department of State estimated that war could erupt in at least ten places in the world over (continued...)
technological complexity and impact. Water resources generally have become subject to signincant amounts of poilution previously unknown. In the future, water is likely to become a valuable resource, increasingly scarce in many regions of the world.
In other words, while water law bas a long history, its recent development has occurred in response to heretofore unknown codicts and challenges. As such, a settied and comprehensive fiamework of treaty and customary legal d e s does not exist fiom which international water standards can be derived. A relatively well-developed body of
d e s goveming water resources can, however, be derived fiom a broader range of international law sources, which includes sources other than treaty or custom?
If one disagrees with the aforementioned propositions regarding the need to recognize a broader range of sources of international law, the use of varied sources to identify international standards can be justified altematively. Reference to a variety of
traditionai and non-traditional sources of international law remains a legitimate manner to prove custom. Without engaging in significant debate regarding the creation of customary law, eminent jurists have included a variety of legal and non-legal instnunents as evidence of state practice: diplornatic correspondence, policy statements, press
releases, the opinions of official legal advisers, official manuals on legal questions, comments by govemments on drafts produced by the International Law Commission and
68(...continued) dwindling water resources. See: David LazeMritz, "The Flow of International Water Law: The International Law Commission's Law of the Non-navigational Uses of International Watercourses" (1993) 1 Ind. J. Global Legal Stud. 247 at 247. examining a broad range of potentially obligation creating instnunents, certain standards or general d e s may be denved. While these may not necessarily take the f o m of treaty provisions or of undisputed customary legal d e s , general standards may nonetheless be created. Oxman suggests that a duty to conform to generally accepted international standards exists. He provides an example fiom the UNCLOS of an instrument which acknowledges and legîthates international standards as binding obligation fiom article lO(2) which provides that States m u t "conform to generally accepted international standards and take any steps which may be necessary to ensure their observance." According to Oxman, generally accepted international standards are binding and should inforni the precise content of national law and regulations. See: Oxman, supra note 65 at 129,140; Sands, supra note 49 at 346.
resolutions relating to legal questions in the United Nations General As~ernbly.~Soft law instruments can also be indicative of opinio juris emerging among States and may define standards of acceptable behaviour."
In other words, reliance upon a broad range of sources to establish international law is increasingly an acceptable practice given that the traditionai sources of international Iaw no longer consistently and adequately reflect the normative d e s which affect international affairs. Prudently, Brownlie suggests "caution may be needed to avoid giving normative effect to rules which merely reflect local or temporary factors."" The following examination of international water standards attempts to validate its assertions not only with a variety of sources of law but also a preponderance of consistent evidence in support of the alleged standards. In sum, this thesis legitimately relies and examines a broad range of sources of international law for either or both of the aforementioned reasons? 3) International Water Law
The control of water has been a challenge to human society throughout history.
"Ian Brownlie, Principles of Pubic International Law,Oxford, Clarendon Press, 1990 4th ed.) at 5; Mark Allan Gray, 'The International Crime of Ecocide" (1 996) 26 Calif. W . ht. L.J. 215 at 246.
711nstnimentssuch as recommendations, for example, would thus be at the very least raw material for the determination of new d e s of law. See: Jennings, supra note 62 at 70; Jurdielewicz, supra note 56 at 46-7; Pierre Dupuy, "Safi Law and the International Law of the Environment," (199 1) 12 Mich. J. Int. L.420 at 433; C.M. Chinkin, 'The Challenge of Sofk Law: Development and Change in International Law" (1989) 38 Int. Comp. L.Q. 851. nBrownlie, supra note 69 at 259. "Caponera notes, "[tlhe past history of water control and management should point out to present and fiture generations that an adequate management of water resources is a prerequisite for civilized progress and human survival." See: Dante Caponera, Principles of Water Law and Administration, Rotterdam, A.A. Bakema, 1992 at 1 1,25. For a more detailed discussion regarding the sources of modem international law and their evolution, see: van Hoof, supra note 56 at 44-53.
Indeed, the exploitation of rivers and water resources was h d a m e n t a l to the development of ancient societies, such as those in Assyria, Mesopotamia, China, Pem
and Egypt. Human migration,the development of communities, transportation and the securïty of civilizations are among the many elements of human development intimately
linked with the availability and reliability of water ~upply?~ EarIy water law was preoccupied with navigation and allocation?' Specific provisions to deal with pollution of water resources did appear until late in the 19th century? Even then, eariy treaties typically only addressed pollution in relation to other commercial interests such as fishenes. From the early 20th century onward, interest in pollution control increased until the International Law Association adopted pollution control measures in its Helsinki RuIes in 1967? Modem international water law has developed significantly in regards to both marine and fieshwater resources for diverse purposes including: navigation, boundary
"For example, allocation doctrines (such as the pnor appropriation doctrine, the Harmon Doctrine, the doctrine of reasonable and equitable utilization, etc.) have dominated international water law for a lengthy period of time. Eyal Benvenisti, '%ollective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law" (1996) Am. J. Int. L. 384 at 385. "Some examples of early general or codificatory treaties regardhg water resource management for purposes other than pollution control include: the Convention of Barcelona, 2 1 Apnl 1921 , 7 L.N.T.S. 36 (regarding fkedorn of navigation on navigable waterways of international concern) and the Geneva Convention, 19 December 1923,36 L.N.T.S. 76 (regarding hydraulic power affecthg more than one state). See also: Caponera, supra note 73 at 184.
7 6 L ~ d ~Teclaff, ig Water Law in Hisforical Perspective, Buffalo, William S. Hein Company, 1985 at 459-61. "~rticles9 defines pollution. Article 10 mandates that pollution which could cause substantial injury to another state should be prevented. Article 11 requires compensation and negotiation where pollution and subsequent injury occurs. See: Helsinki Rules on the Uses of the Waters of International Rivers, reprinted in Intemational Law Association, The Work of the International Law Associutiun on the Law of lhternational Water Resources, Helsinki, Vammala, 1988 at 19-30 [hereinafter "Helsinki Rules"].
demarcation, pollution control, hydropower production and so on. Given the constraints of this project, the remainder of this thesis focuses on intemational water standards conceming the protection of water resources fiom pollution. Pollution contml will be considered not only in regards to fkshwater resources, but also in regards to marine resources, in particular, because many of Ukraine's water systems are linked to the Black and Aral Seas
In considering the protection and conservation of water resources fiom an international perspective, a general principle or d e may be derived fiom an examination of international law. The following proposition is somewhat sweepin& but will be more rigorously evidenced during the remainder of this chapter. The proposition is: states have an obligation not to cause harm to other states, common resources or the environment
generally by their usage of a watercourses. This proposition entails an obligation to avoid pollution in three different respects: in relation to other watercourse states, in relation to the common resource of the sea and in relation to the environment generally, uicluding the environment within their sovereign temtory." Notably, the obligations that exist in relation to each type of water resource differ with respect to their level of development. In particular, the standards regarding
resources wholly on the temtory of one state might best be characterized as emerging. Nonetheless. given the sometime nebulous statu of international d e s . the study of an emerging d e possesses some ment. In particular, during the subsequent comparative analysis, the dBering nature of the rules regarding the different types of water resources
''Within this paragraph, one will note that the terms "harm" and "pollutiony' have been w d somewhat interchangeably. Issues regarding the definitions of hami and pollution may provide suflicient discussion for entire essays. In the context of this thesis, it is noted that h m and pollution are not necessarily synonymous terms. A detailed discussion of the distinction between the two terms and, perhaps more importantly, the threshold of acceptable pollution or harrn is not necessary. It is sufficient to note that the pollution control standards discussed in this thesis are not absolute. In other words, some harm or pollution is acceptable. The exact degree of acceptable h m , however, need not be elaborated in this project. The purpose of this project is to identie the existence of standards at an internationai and domestic level and the basic correlation between the d e s found at each level.
will provide another point of cornparison and discussion.
Generally, few specific and detailed universai d e s regarding water pollution exist, but some general d e s or standards are identifiable. The standards which will be subsequently examined, despite their limited precision, remain usehl for several reasons. First, the following pollution standards are a minimum indication of the pemiissibility of pollution in a given water situation. Secondly, these standards are capable of inspiring and directing specific domestic d e s . Finally, the more general d e s and p ~ c i p l e sat , the very Ieast, f o m a background for interpretation when more specific d e s are created." Before proceeding to a systematic examination of the standards governing transboundary, marine and intemal water resources, it is usefid to understand the ongins of the proposition that states must not harm water resources shared with other states.
This d e , which constrains the amount of h m which a state may hfiict on other states, has its origins in the customary law maxim of sic ufere fuo it alienum non Zaedas which means "one should use his own property in such a manner as not to injure others."" The sic utere principle essentially requires respect for mutual interests and has also been
articulated as the abuse of nghts doctrine and the principle of good neighbourliness.
This general principle applicable to all shared natural resources was first articulated in the international environmental legal forum in an overt manner in the Trail Smelter Arbitration Care.8r In this case, the arbitral tribunal stated that "der
p~ciples
of international law ...no State has the right to use or permit the use of its temtory in
such a manner as to cause injury ...in or to the temtory of another or the properties or
'gNollkaemper, supra note 62 at 21. s°Caponera, supra note 73 at 191. For a more detailed analysis of when harm is permissible, see Nollkaemper, supra note 62 at 44-58. While the no harm principle is not highly determinate, Nollkaemper suggests that the constitutive elements of the no h m principle which assist in its interpretation are: the capabilities of the state, the risk of h m , whether the potentially h a d pollution is new or existing and the nature of the interests affected by the hamiful pollution. " T r d Smelter Case (US.v. Cmada) (193 1-1941), 3 R.I.A.A. 1905 at 1965.
persons therein..." While this dispute arose out of damage done fiom sulphur dioxide emissions, this much-cited passage has been used in relation to environmental protection of a variety of resources more genedy. Numerous non-binding international instruments have incorporated this g e n e d principle, including: the 1972 Stockholm ~eclaration,"the 1982 World Charter for Nature83and the 1992 Rio Declaration." Bindïng agreements regarding a varieîy of naturai resources have incorporated this principle? The sic utere principle has been relied upon repeatedly in adjudicative proceedings and decisions subsequent to Trail Srnelter?
This obligation to refkah fiom hamllng other States has undeniably attained
"~rinciple2 1 states: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign rights to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurîsdiction do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction... See: Stockholm Declaration of the United Nations Conterence on the Human Environment, 1 1 I.L.M. 1416.
M~rinciple 2, Rio Dedaration on Environment and DeveIopment, June 14, 1992, 3 1 I.L.M. 874%ee, for e.g.: Convention on Biologicol Diversity, 5 June 1992,31 I.L.M. 822, art. 3; Convention on the Prevention of Marine Pollution by Dumping of Wastes und Other Mutter, 29 December 197 1 , l O46 U.N.T.S.120. 86Cor@Channel (UK v. Albania), [1949] LCJ. Rep. 4; Lac Lanola Arbitr~tion (France v. Spain), [1957124 LL.R 101;Gabcikovo-Nagymuros (Hungary/Slovakia), Application of the Republic of Hungary reprinted in Philippe Sands, Documents in International Emtironmental Law, Vol. ID, Manchester, Manchester University Press, 1995 at 693. In the Luc Lanola Arbitration, the court acknowledged a "duty not to injure the interests of a neighbouring State" despite the sovereignty that each State possessed in relation to its own resource development.
the status of a general principle of international law?
This accepted and estabiished no harm principle focuses on damage inflicted beyond Statejurisdiction. A more general and contentious duty, however, not to harm the environment exists or is developing. For example, States must refrain fiom hanning areas outside of their jurisdiction which do not form part of another State's territory. Furthemore, the environment, even as it exists within sovereign boundaries, is now increasingly protected by international legal d e s ? This intemal application of international law to protect the enviromnent withh States will be developed and justified more fdly when discussing the protection of domestic water resources." The following section will outline the duv to prevent pollution in shared watercourses, to the marine environment and to water within the territory of a sovereign state. While a common obligation exists to limit pollution in relation to transboundary, marine and domestic waters, the sources of this obligation d s e r for each type of water resource.
a) International Watercourses
Prior to beguuiing any discussion of international watercourse d e s , it is necessary to clarifi what is meant by the phrase, "international watercourses." A variety of definitions are used in different international instruments and documents discussing
international water law. For the purposes of this thesis, an international watercourse is one which geographically and economically affects the territory and interests of two or more states."
A watercourse may be a river, a lake or some other foxm of water. Also,
"Sands, supra note 49 at 123, 197. ''Bimie, supra note 67 at 81;Jurdielewicz, supra note 56 at 56.
"Sec text accompanying notes 112-132. WBrownlie,supra note 69 at 271. Other international legal instruments formaiize and describe this concept more precisely, but the definition provided in the text (continued...)
for the purposes of this thesis, in this part, international watercourses are assumed to mean fkeshwater bodies. International watercourses have been regulated by treaties, as mentioned earlier, since the late 19th century to control pollution. While numerous regional treaties exist which address transboundary water pollution, m e n t documents have attempted to cod* the d e s which govem this area. The three main universal codificatory efforts include:
the Helsinki Rules on the Uses of the Waters of International Rivers:'
the Convention on
the Non-nuvgational Uses of lntemutionaZ Watercourse? and the Helsinki Convention on the Protection and Use of Trambuundos, Watercozcrsesand International Lakes.
"
Y...continued) sufficiently paraphrases the typicai definition offered in these other documents. See, for e.g.1 the Helsinki Rules on the Uses of Waters of lniernational Rivers (supra note 77) which d e h e an international drainage basin as "a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus"; the International Law Commission's Dra8 Articles on the Non-navigational Uses of International Watercourses (EC, Report of the Infernational Law Commission on the Work of its Forty-Third Session, U N GAOR, 46th Sess., Supp. No. 10, UN Doc. A/46/10 (199 1) at 161) which define an international watercourse as a watercourse (being "a system of surface and underground waters constituting by virtue of their physical relationship a unitary whole and flowing into a common terminus") which has parts of itself situated in different States; the United Nations Comention on the Protection and Use of Transboundq Watercoursesand International Lakes (17 March 1992,31 LL-M. 1312, article 1) which defines transboundary waters as "any d a c e or ground waters which mark, cross or are located on boundaries between two or more States...". Note, phrases such as "rivers declared international" and Waterway of international concem" have aiso been used to describe similar shared water systems: Caponera, supra note 73 at 185. 9'~elsinkiRules, supra note 77 at 19-30.
92TheU.N. General Assembly approved the ILC Draft Amcles 'upra note 90) by Resolution A/RES/S l/229 on May 2 1,1997. By August 13, only two countries had signed (neither of which was Canada or Ukraine), but the convention remains open for signature until May 2 1,2002. 93HelsinkiConvention, supra note 90. This convention entered in force in 1996. Note, Canada and Ukraine are not signatories. The Convention was open for signature until 18 September 1992.
The d e s governing the protection of shared watercourses in the Convention on the Non-navigational Uses of Intemutional Watercourses were first articulated by the ~ Dr@ Articles on the Non-navigationail Uses of International Law C ~ m m i s s i o nin~its International Wutercourses (hereinafter "Draft Amcies"). This convention is
particdarly helpful in ident-g
international water standards for a number of rea~ons?~
First, the International Law Commission drafted the preliminary Dr& Articles with a codificatory mandate for the United Nations. Secondly, the Draft Articles were based on significant treaty and state practice which evidences their status as codified customary Iaw." Wherever possible and in so far as it is necessary, these supporting documents and events will be mentioned to M e r support the following identification of international water law."
Thirdly, the Draft Articles were developed through a process which
solicited United Nations members' comments and ultimately obtained United Nations Generai Assembly approval. WTheUnited Nations undertook a codificatory effort in regards to international rivers due to the absence of binding legal authority in this domain. In 1970, the United Nations General Assembly recommended that the International Law Commission (a permanent UN. subsidiary organ) study the Iaw of non-navigational uses of international watercourses and attempt its codification. The final report which contained the Dru# Articles on the Law of the Non-Nmigational Uses of international Watercourses was presented to the United Nations in 1991. See: ILC, supra note 90.
96Bimie,supra note 67 at 249.
for e.g.: 1992 Dublin Statement, reprinted in (1992) 22 Env. L. and Pol'y 97~ee, 54; Europeun Water Charter, reprinted in Food and Agriculture Organization, Law of International Water Resources at 2 12 .See also, J.G. Lammers (Pollution of International Watercourses, Boston, M d n u s Nijhoff Publishers, 1984 at 124-147) whose text contains a study listing 88 conventions protecting Uiland water from pollution. The nurnber and variety of organization which have produced documents pertaining to international water law reflects the vast amount of international materials which might be w d to evidence the international water standards discussed in this thesis (e.g.: the Institute of International Law,the International Law Association, the Inter-American Bar Association, the Asian Afiican Legal Consultative Cornmittee, the Pan Amencm Union, the Council of Europe, the International Association for Water Law). See also: Caponera, supra note 73 at 195-97.
If the various articles of the Corwention on the Non-navigaional Uses of International Watercourseswhich perîain directly or indirectly to the protection and conservation of water resources are read together, they may be considered to form two generai d e s of conduct. First, states must refrain f?om polluting international watercourses in a manner which hamis other States. More generally, States should prevent, control and reduce pollution of international watercomes? Article 7 states: "Watercourse States shalI utilize an international watercourse in such a way as not to cause appreciable harm to other watercourse States." This article essentially redculates the well-established n o - h m and good neighbour principles
discussed earlier. Aaicle 2.2@) of the Helsinki Convention states the sarne nile as well.
Part N, entitled "Protection and preservation" contains two paiticularly relevant articles. Aaicle 20 states that: "Watercourse States shall, individually or jointly, protect and preserve the ecosystems of international watercourses." The Helsinki Convention incorporates a d e protecting ecosystems in art. 2.2.(d). This rule is indicative and part of a larger trend which uses an ecosystem approach to environmental protection, including pollution controi. Article 2 1 elaborates that: "Watercourse States shall, individually or jointly, prevent, reduce and control pollution of an international watercourse that may cause appreciable harm to other watercourse States or to their environment, including h m to
human health or safety, to the use of the waters for any beneficial purpose or to the living
'*AS aforementioned, other international iegal instruments previously incorporated these rules. Regional waties which refer to an obligation to regulate a . control fiontier pollution in so far as this is technically feasible and consistent with the economic development of the country include: Treaty Conceniing the Regdation of Water Management Questions ReZating tu Frontier Waters, 7 December 1967, AustriaCzechoslovakia, 728 UNTS 356, art. 3 and 4; Agreement Concerning Frontier Wutercourses,24 April 1964, Finland-USSR, 537 UNTS 254, art. 4.1 ;Agreement Relating to Water Quality in the Great Lakes, 15 April 1972, Canada-United States, 837 UNTS 220, art. 4; Pnnciple VW2, European Water Charter,reprinted in FAO, Law of International Water Resources at 2 12.
resources of the watercourse..1* In the Hel&
Convention, article 2.3 refen to
transboundary pollution prevention, control and reduction in a generai manner. Article 3 then elaborates how poilution should be prevented, controiled and reduced in relation to transboundary impacts in a more detailed mariner.'"" Corollary to these substantive articles are a number of procedural obligations aiso dculated in the Draft Articles. Article 9 requires a regular exchange of data and information among watercourses States regarding hydrological, ecological or other rnatters. Furthemore, planned rneasures must be carried out only subsequent to
consultation with the other watercourse States. In other word, articles 11 to 19 explain the procedures to be followed 6 t h respect to notification pnor to undertaking planned measures on the watercourse. A recent international watercourse dispute illustrates the use of these niles in
international legal relations. The application made by Hungary to the international Court of Justice against the Czech and Slovak Federal Republic regarding a diversion of the Danube River relied upon a number of the aforementioned
The legal arguments
made by Hungary asserted a duty upon states to maintain ecosystems essential for aspects
of human suMval and for sustainable development in the region where the transboundary
'%ee also: ECE Dedaration of Poiicy on Prevention and Control o j Warer PolIufion lncluding Transboundary Poliution, April26 1980, U.N.Doc. E/1980/28,E/ECE 1008.
I W I n particular, low and non-waste technology is required (3.1 .a), national licensing for waste water discharge fiom point sources (3.1 .b), use of best avaible technology (3.1.c), stricter requirements and possibly prohibition of pollution when the quality of the receiving ecosystem requires (3.1 .d), treatment of municipal waste water (3.1 .e), use of best available technology to reduce nutrient outputs from industrial and municipal sources (3.1 .f), use of best environmental practices for the reduction of inputs of nutrients and hazardous substances fiom diaise sources, especially in relation to agriculture (3.1 .g), environmental impact assessments (3.1 .h) and the development of water quality objectives and criteria (3.2). 'O1~pplication of the Republic of Hungaiy v. The Czech and Slovak Federal Republic on the Diversion of the Danube River, reprinted in Sands, supra note 86 at 6945.
resources in dispute are found.'" The discussion thus f a has discussed pollution prohibitions and controls in somewhat vague terrns. Notably, the term 'bpollution'7does not possess any determinate
Furthemore, the universal documents referred to do not or unanimous definiti~n.'~~ provide specific obligations with respect to emissions, percentage reductions of pollutants and water quality minimums to which states must adhere. Such specific standards, if they do exist, can only be found in specinc bilateral or regional treaties.IM For the purposes of studying the implementation process, however, specific requirements
are not a necessary component of international standards. Arguably, this thesis' study of international standards is rendered more interesting because the standards studied are somewhat ambiguous and capable of a variety of forms of implemenration. Furthemore, as noted earlier, these general standards rernain valuable because they set minimum thresholds. These thresholds are M e r defined even in the Helsinki Convention and other instruments of universal application by references to best available technology and best environmental practices, which are slightly more objectively '02Hungarysupported this proposition by noting documents which contained this intention (in its application): the 1992 World Charter for Nature?supra note 83, Principles 1-3.; the Legal Principles for Environmental Protection and Sustainable Development Adopted by the World Commission on Environment and Development Experts Group on Environmental Law (Principle 3); and the lUCN Drafk Covenant on Environmental Conservation and Sustainable Use of Natural Resources (article 5). ' 0 3 ~noted s earlier, the precise threshold of pollution pennitted by international standards is not an issue which is critical in this thesis. On an general note, Caponera suggests that the best definition is found in article 9 of the Helsinki Rules (supra note 77) which defines water pollution as "any detrimental change resulting f?om human conduct in the natural composition, content or quality of the waters of an international drainage basin." This definition, however, does not incorporate any thteshold after which pollution becomes unacceptable or prohibited (e.g. whether the pollution must be relevant or substantial or significant). Caponera, supra note 73 at 2 19. Io4See,for e.g.: Convention on Fishing in the Danube 29, January 1958, U.S.S.R., Bulgaria, Hungary, Romania and Yugoslavia, 339 U.N.T.S. 23, art. 7 ;Agreement berween Botswana, Mozambique, Tamniu, h b i a and Zimbabwe on the Environmentallj Sound Management of the Common Zamberi River Systern, 28 May 1987,27 I.L.M.1 109.
definable standards.'05 Furthemore, these generai standards inform the development of domestic d e s as well as bi- or multi-national agreements with respect to water. Specific transboundary water agreements and domestic Iaws to which Canada and Ukraine have agreed will be discussed in the next chapter.
b) Marine Water Resources The pollution of marine resources is an important issue in Ukraine because of its geographic situation to the north of the Black and Aral Seas. While the field of marine environmental protection entails a plethora of legal d e s and instruments, the examination in this thesis is limited to d e s regulating land based sources of marine pollution. Land-based sources of pollution include the pollution of fieshwater inland resources which empty into marine bodies. Multiple legal documents provide d e s prohibithg or limiting pollution of the marine environment from land based sources. The Convention on the Non-navigationai Uses of lnemationai Wutercourses refers to protection of the marine environment. Article 23 states that: "Watercourse States shail, individually or jointly, take dl measures with respect to an international watercourse that are necessary to protect and preserve the
marine environment, including eshianes, taking into account generally accepted international mles and ~tandards."'~~ The generally accepted d e s to which Article 23 refers include some of the rules contained in the 1982 United Nations Convention on the Law of the Sea.Io7 Much of this
'OSSee, for e-g., articles 3(l)(c), 3(l)(g) and Annex 1, para. 1 of the Helsinki Comention, mpra note 90. Io6Note,the Helsinki Convention (ibid) lirnits its application to inland waters by its definition of 'kmsboundary watercourses" in article 1 which states that '%vherever transboundary waters flow directly into the sea, these msboundary waters end at a straight line across their respective mouths between points on the low-water line of their banks." '"1 0 December l982,2 1 I.L.M. 1261 (entry into force, 16 Novernber 1994).
convention is considered to be declaratory of customary international la^.'^^ Article 192 provides: "States have the obligation to protect and preserve the marine environment." Article 194(3)(a) generally provides that states should limit, as much as possible, "the
release of toxic, harmfbl or noxious substances, especially those which are persistent, fiom land-based sources, fiom or through the atmosphere or by dumping." The ZTNCLOS more specificaliy addresses the issue of pollution control in the marine environment. Article 207 states: States shall adopt Iaws and regdations to prevent, reduce and control pollution of the marine environment fiom land based sources, including nven, estuaries, pipelines and outfall structures... 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution [...] 4. States ...shall endeavour to establish global and regional d e s , standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. 1.
Article 207 is M e r developed by the 1985 Montreal Guidelines on the Protection of the Environment Against Pollution fiom Land-based Sources. This document elaborates the responsibility not to pollute by recommending the development of environmental quality objectives and management programmes, potential strategies for preventing pollution, procedural suggestions, etc!"
These guidelines provide an
example of the elaboration of d e s regarding marine waters pursuant to the h e w o r k provided by the UNCLOS.
While UNCLOS is the only global treaty which addresses the issue of land-based marine pollution, other regional agreements have been developed with rules regarding land-based pollution which are more detailed than UNCLOS. These include, for
'''Sand, supra note 86 at 352. '09Sands,supra note 49 at 329-30.
example, the 1972 and 1992 Paris Conventions which apply to the North-East ~tlantic."'
This document contains iists of substances to be controlled. The requirements in this document are more particular and onerous than the general substantive assertions in
UNCLOS."' The combination of the d e s contained in the UNCLOS and in regional agreements provides a basic standard of protection for marine water which mandates the prevention of pollution. c) Domestic Water Resources
As mentioned earlier, a generd duty to protect the enviromnent appears to be
developing. As a corollary to this, a duty to protect water resources located entirely on one state's sovereign temtory is also necessarily emerging. The proposition that states have an obligation to prevent pollution in their own sovereign waters is not yet evidenced by consistent state practice, opiniojuris nor nurnerous legai ktruments containing the proposition. Other more generai legal instruments and concepts (e-g. the nght to a healthy environment), however, reflect the development of standards applicable to domestic water resources.
Two main trends in international law support the proposition that domestic water resources may soon be subject to protection from pollution. First, international environmental law continues to evolve in the direction of a general duty not to ham the environrnent, regardless of the sovereignty of states over their intemal affairs. Secondly,
human rights principles may create a minimum of protection for water resources. This second proposition denves fiom the principle that human health is fiindamentaily related to environmental quality. First, in relation to a general duty to protect the environrnent, while certain
"Conventionfor the Prevent ion of Marine Pollutionfiom Land-Bared Sources, 4 June 1974,13 I.L.M. 352; Comentionfor the Protection of the Marine Environment of the North East Atlantic, 22 September l992,32I.L.M. 106% 'See Kiss and Shelton, supra note 66 at 190-94 for a more detailed discussion of the content of regional agreements regarding the regulation of land-based sources of marine pollution.
influential international instruments such as the Stockholm Declaration have asserted the sovereignty of States over their own natural resources, these resolutions should not be exaggerated. These assertions regarding state sovereignty over natural resources were primarily directed at asserting the nght to nationalize or control foreign owned resources and industries (as opposed to older d e s which protected foreign investments and control
over re~ources)."~Even withùi the Stockholm declaration, contradictory principles are asserted (such as Principle 6). These pronouncements regardhg state sovereignty over resources have not constrained the development of customary and treaty law requiring conservation and environmental protection. Conversely, the goals of conservation and environmental protection have progressively Limited state sovereignty over natural resources. Rules regarding common spaces and resources which are not part of particular States' jwisdictions have proliferated, especially with respect to the law of the ~ e a . "Also, ~ the statements included in the Stockholm Declaration and other documents have not prevented the development of treaties which explicitly a h to regulate resources within the domestic jurisdiction of one State which may be deemed to be important to the international comm~nity."~Thus, to some degree, a general obligation of conservation exists or is developing. The World Charter for Nature, the Afiican Convention on the Conservation of Naure and Naruru1 Resources, and the UIVESCO Conventionfor the Protection of WorId Culrural Heritage and NafuralHeritage al1 provide examples of this
emerging standard (that al1 areas of the eaah should be, but are not yet necessarily, subject to principles of conservation)."' Munro and Lammers note:
"Bimie, supra note 67 at 114. '13~nother example of an emerging d e which further increases the intemal focus of international environmental law is the precautionary principle. See:Nollkaemper, supra note 62 at 7.
' 14Birnie,supra note 67 at 114. '
l5
WorId Charterfor Nature, supra note 83. Other international instruments (continued...)
To the extent that this basic obligation [to conserve natural resources and the environment] concerns international or transboundary naturai resources or environmental interferences, it already may in many respects be deemed to find substantial support in existing generd international I~w."~ In addition, approximately forty States have constitutional and legislative texts which refer to some right to a certain quality of environment and several international documents also incorporate this right with varying degrees of d g e n c y with respect to the level of environmental protection required.'17 Agenda 21 is an international instrument which provides one example of this evolving right to a healthy environment,
'*(...continued) which require a certain level of environmental protection in the use of natural resources within a State's temtory include: art. 2, 1968Afican Convention on the Conservation of Nature and Natural Resources, which provides "The Contracting States shdl undertake to adopt the measures to ensure conservation, utilization and development of soil, water, flora and faunal resources in accordance with scientific principles and with due regard to the best interests of the people"; WESCO Conventionfor the Protection of the Wodd CuZtural and Nalural Heritage, 17 December 1975,11 I.L.M. 1358. See also: Stockholm Dedarution, supra note 82, Principle 6.
16Supranote 67 at 123. "'~issand Shelton, supra note 66 at 22-23. A compilation of constitutional provisions refemng to the environment can be found in E. Brown Weiss, In Fairness to Future Generaïions, Tokyo, United Nations University Press, 1989 at Appendk B. See also, for e.g.: art. 45(1), the Spanish Constitution of December 29, 1978, reprinted in 14 Constitutions of the Countries of the WorZd 145; art. 123, the Political Constitution of Peru, July 12, 1979,12 Comtitutions of the Countries of the WorZd 12-17 ; International instruments which refer to a right to environment include: Principle 1, Stockholm Declaration (supra note 82) which states that "Man has the fundamental right to ... adequate conditions of Life, in an environment of a quaiity that permits a life of dignity and welt-being ..."; art. 5, the Draft Principles on Human Rights and the Environment (in U.N. Committee on Hurnan Rights, Subcommittee on Discrimination and Protection of Minorities, Human Rights and the Emironment, Final Report of the Special Rapporteur, UN Doc WCN.4/Sub.2/1994/9 [6 July 19941at 74) which states "Al1 persons have the nghts to fieedom fiom poilution, environmental degradation and activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within, across or outside national boundaries. [author's emphasis]".
specifically with respect to water by mandathg the satisfaction of basic human needs and the safeguarding of ecosystems as the prîrnary factors in water resource management.
''
The earlier lirnited application of international environmental law solely to the resolution of disputes conceming transboundary resources was premised upon a strict concept of state sovereignty. Handl notes, "Any student of transnational environmental issues will readily acknowledge that the nature and scope of state sovereignty or autonomy is undergoing dramatic ~hange.""~Restrictions on state autonomy are implicit in concepts such as sustainable development, intergenerational equity and the common heritage or common concern of mankind. International environmentai Iaw increasingly focuses not only on global responsibilities but also regional obligations, which neceskly entails an erosion of s~vereignty."~ Sovereignty is relative, in the words of the PCU, because "it depends upon the development of international relation^."'^^ In other words, sovereignty is a malleable concept. The domain of international environmental law evidences a shift in the focus of international law away fiom the individual interests and sovereign rights of the members of international society towards collective concems and corresponding state functions.'" The persuasiveness of expansive claims to state sovereignty as a means to avoid "'~rticle 18.2 provides: "The generd objective is to make certain that adequate supplies of water of good quality are maintained for the entire population of this planet. while preserving the hydrologica17biologicd and chernical functions of ecosystems..." Article 18.3 M e r elaborates: "Rational water utilization schemes for the development of surface and underground water-supply sources and other potential sources have to be supported by concurrent water conservation and wastage minimization measures..." "9~untherHandl, "Environmental Security and Global Change: The Challenge to International Law" in W. Lang, H. Neuhold, K. Zemanek, Environmental Protection and International Law, London, Graham and Trotman Ltd, 1991,59087 at 85. ''*Harald Hohmann, Precautionaty Legal Duties and Principles of Modern International Environmental Law,London, Graham and Trotman Ltd., 1994 at 340-1.
"'Tunis - Morocco Nationaliîy Decrees, [1923] P.C.I.J. Ser. B. No. 4 at 24 (Advisory Opinion). '"Kiss and Shelton, supra note 66 at 19.
environmental protection obligations is diminishing. As early as 1949, the International Court of Justice suggested:
We can no longer regard sovereignty as an abçolute and individual right of every State, as used to be done under the old law founded on the individualist regime, according to which States were o d y bound by the d e s which they had accepted. Today, owing to social interdependence and to the predominance of the general interest, the States are bound by many d e s which have not been ordered by their will.'" More recently, scholarly inquky has superseded the presumption that state sovereignty is the paramount determinant of international law. Now, subjects such as the potential elevation of international environmental principles to a legal status sirnilar to that of
humau rights law and the potential use of coercion in the realm of international environmental law are exp10red.I~~ Again, these comments do not directly establish an obligation to protect domestic water resources, but they are indicative of a trend which may M e r crystallize state obligations regarding their domestic resources. Notably, the work of the ILC points to an emergence of a general duty to prevent pollution of watercourses, regardless of the effects outside a state's jurisdiction. The ILC's report to the United Nations @riorto the acceptance of the Draft Articles by the United Nations General Assembly as a convention) noted that "al1 speakers expressed support for the inclusion of a generd obligation on the protection of the environment of international watercourses and of the marine environment fiom pollution. This general
duty was said to be well grounded in state practice as was evidenced by various
"CorjÜ Channel, supra note 86 at 43 (Judge Alvarez). 124"We are witnessing a continuing shifi fiom perspectives that are locked into notions of sovereignty to perspectives that wouid reduce this grip, and introduce jurisdiction and control under perspectives of cooperation": Almond, supra note 54 at 3 19. See also: David Scheffer, "Toward a Modem Doctrine of Humanitarian Intervention" (1992) 23 U. Toledo L.R.253 at 271;D.B.Macgraw "International Pollution, Economic Development and Human Rights" in D. Macgraw (ed.), Lav and Pol[ution, Philadelphia, University of Pennsylvania Press, 1991 at 50.
international agreements.'"~ The Helsinki Convention also refers to a general need to
use transboundary water resources in an ecologically sound manner which conserves the resource and ensures environmentai protection.126This approach by the ILC and the Helsinki Convention goes beyond the basic sic utere principle because this obligation exists regardless of the impacts of one State's actions on another State.'"
In the recent application by Hungary to the International Court of Justice, the internai application of international environmental protection standards was highlighted. The application states: "States are under a duty to ensure the survival and promote the
conservation in their natural habitat of fauna and fIora, in particular those which are rare, endemic or endangered.""'
The application subrnitted that widespread acceptance for
this d e exi~ts."~
The second principal basis for imposing international standards on wholly domestic water resources derives fiom hurnan rights obligations. A human right to water may be derived fiom the indisputable proposition that human health is affected by environmental quaiity. McCafney notes that a nght to water might be corollary to a nght to food or sustenance, the nght to health or the right to life.I3O Evidencing this lUSee: ILC, Report of the ILC ro the General Assernbly, UN Doc A/43/10(1988) at 70 (para. 171), 55-7,69-72. See also: ILC, Report of the ILC to the GA, UN Doc A1491 0 (1 990) at 147,169; Birnie, supra note 67 at 233.
12%ote, manimous support for the proposition that watercourses generally should be protected fiom pollution does not exist For example, Bimie and Boyle note that currently, most polluting or environmentally h a r r & luses of rivers are only wrongful if they infringe the rights of other states. Even these authors, however, note that watercourse pollution control is moving away fiom a focus on the rights of riparians and appears to signal a greater acknowledgement of the broader importance of watercourse environments: BiMe, supra note 67 at 226. "*Supranote 86 at 695.
'%ee note 102. "Ostephen C. McCafEey, "A Human Right to Water: Domestic and International (continued. ..)
proposition is the fact that the World Health Organhtion has adopted recommendations with respect to water quality ~tandards.'~' Furthemore, certain human rights conventions
link basic human nghts with the availability of water of a certain quaiity. For example, article 24(2)(c) of the Comentim on the Righrs of the CMd provides that "States Parties shdl pursue full implementation of this nght [to the enjoyment of the highest attainable standard of health] and, in particular, shall take appropriate rneasures ... through the
provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution..."'32 The parameters of a right to water of a certain quality w i t b domestic borders, however, remain indeterminate. At a minimum, a right to a sufncient supply of d e
drinking water to sustain life seems logical. While this nght and correspondhg obligation remains somewhat ambiguous, its utility lies in the fact that if such a right exists, it allows international law to bind states in their domestic affairs pertaining to the
environment.
In sum, international law imposes certain obligations on states to use their water resources in an environmentally sound manner. On the basis of existing human rights obligations and an emerging obligation to protect the environment generally, states may soon be obliged to limit their pollution of intemal water resources. Thus, although this intemal obligation may be the most ambiguous of the three areas of water resources standards examined in this thesis, this emerging obligation with respect to domestic water resources suggests that States will Likely have to provide some protection to water resources within states in the near friture (ifsuch an obligation is, in fact, not aiready extant). I3O(.
..continued)
Implications" (1992) 5 George. Int. Env. L.R. 1 at 1,8. McCafEey also suggests that a right to water is implicitiy contained in instnunents such as the Universal DecZurution of Human Rights, 10 December 1948,15 1 B.F.S.P.604 and the Covenant on Civil and Polirical Rights, l967,28 I.L.M. 1448. supra note 62 at 2 1O- 11. 131Nollkaemper, 13*28LL.M. 1448. Both Canada and Ukraine are parties to this treaty.
Though this obligation regarding domestic water resources is uncrystallized, it remains usehi as a point of cornparison. Cornparison between domestic laws and emerging international standards regarding this type of water resource is possible because
the emerging d e s is not indeterminate. In other words, in so far as the d e is emerging,
it aiready possesses some substance capable ofanalysis and cornparison.
CHAPTER FOUR: CANADA AND UKRAINE'S DOMESTIC W A m R PROTECTION LAWS
In the preceding chapter, the international noms applicable to international water pollution were explored. Two basic d e s were identified in relation to water resources (both transnational and domestic, marine and fkshwater). First, states should not pollute watercourses in a manner which harms other states. Secondly, states shouid generally prevent, control and reduce pollution of watercourses. These customary international legal principles apply equally to Canada and Ukraine. The d e s themselves, however, do not indicate exactly how each state ought to implement the standards in domestic legal practice. Pollution of water c m be regulated and prohibited in a variety of manners. This chapter examines how and the extent to which Canada and Ukraine have each implemented these international pollution prohibition or control d e s . Both Canada and Ukraine have legislation that regdates water pollution. Differences and similarities can be identined in each state's legislative strategy regarding water pollution. Evidently, the customary legal d e s identified in the preceding chapter
are quite broad and permit a range of implementation options. The following survey of domestic legai h e w o r k s seeks to provide sufncient information regarding each state's water pollution regdatory systems to be able to assess how and the extent to which Canada and Wkraine prevent, control and reduce water pollution. This chapter is divided into M O main parts. First, Canadian law will be examined. Secondly, Ukraine's Iaws will be surveyed. Primarily, the domestic legislation of each state will be surveyed to ascertain how water resources are regulated
in relation to pollution. Each state's participation in water-related environmentai treaties will only be examined bnefly. Because the focus of this thesis is primarily the implementation of the customary standards governing different types of water resources, this chapter does not include an extensive discussion of Canadian and Ukrainian treaty obligations. Instead, Canadian
and Ukrainian treaty participation in regional as well as several significant mdtilateral
treaties will be examined summarily. On this vein, it should be noted that treaty participation is not only relevant to the topic of implementation because treaties create
binding obligations upon states but also because treaty participation is one means of protecting certain water resources. In particular, any shared water resources cm only be effectively protected CO-operatively. Thus, the basic existence of formal agreements with pollution prevention provisions between riparian neighbours evidences some effort
on the part of those states to protect their shared water resources. Also, before proceeding to examine each state's water protection laws, the process by which each state implements treaty obligations merits an examination. Bnefly, in Ukraine,treaties are aimost automatically incorporated into domestic law. Article 9 of the Constitution of Ularaine provides that intemiiûonal treaks, iiagreed to be binding by the Verkhovna Rada, are part of the national legislation of Ukraine.'33
Canada's constitution does not recognize a treaty as part of the domestic law of Canada. As such, amendments or additions to the intemal law of Canada are requked to
implement treaty obligations.'" 1) Canadian Laws
Before attempting any survey of its domestic Iegal fhmework regarding the pollution of water resources, Canada's feded system must be e~amined.'~'As a consequence of the Canadian federal system, responsibility for and authority over water
' 3 3 C ~ ~ t i t u t iofo nUkraine, 28 June 1996. 134PeterHogg, Constitutional Law of Canada, Toronto, Carswell, 1992 (3rd ed., supplemented) at 11.4(a). the federal system in Canada poses certain unique challenges for the 135Notey implementation of international standards regarding water in Canada. Lf the federal political system in Canada poses problems for the implementation of an international obligation, however, at international law, Canada cannot use its domestic political system as a defence to a breach of its international obligations. In other words, the issue of federalism's implications for water law in Canada is explored in order to better understand Canada's water legislation fnunework, not in order to justify why Canada is incapable of fûlfilling certain international obligations.
resources in Canada does not rest exclusively with either the federal or provincial levels of government. The division of power over water resources r e d t s in a complex legislative system for protecting water fkom pollution. The bais for the division of authority over water resources originates in the constitution of Canada (the Constitution Act, 1867'36).Water is not directly addressed in the ConstitutionAct. Instead, several
sections in the Constitution Act which pertain to a variety of topics disperse authority for water resources. The provinces derive their authority over water resources fiom two main sections of the Constitution Act. Section 109 states that: "Al1 Lands,Mines, Minerais, and Royalties [including water] belonging to the Several Provinces of Canada.. shall belong to the Severai Provinces in which the same are situate or arise..."'37
In addition, section
92 enurnerates the specific powen granted to the provinces. Under section 92, the
provinces may denve authority over water resources fiom their jurisdiction to legislate in regards to several domains: the management and sale of public lands belonging to the
provinces (ss. 5); property and civil rights in the province (ss. 13); matters of a local or private nature in the province (ss. 16); local works and undertakings (ss. 10); municipal
institutions in the provinces (ss. 8); and the generation and production of electrîcal energy (under S. 92A). Finally, the federal-provincial shared jurisdiction over agriculture in S. 95 may also provide the provinces with some authority over water resources (for
example, in regards to irrigation).
The federal government, meanwhile, retains significant authority over water resources as well. First, water located on federal Crown land such as national parks, Indian reserves'" and interests obtained through section 108 of the Constitution Act (public works and property) fa11 under the jurisdiction of the feded government.
'36Co~titution Act, 1867,30-3 1 Vict., c.3 [U.K.] [hereinafter Constitution Act].
in 1930 (the Comtitution Act, I93O,21 Geo. V., c.26 W.K.1) and '37~mendments 1938 (the Naturaz Resources Transfer (Amendmeno Act, 1938, S.C. 1938, c.36) further confixmed provincial water rights. '38ConstitutionAct, supra note 136 at S. 91(24).
Secondly, section 91 of the Constitution Act M e r allows the federal government to legislate in a variety of areas. The navigation and shipping as well as the sea Coast and
inland fishenes heads of power (ss. 10 and 12, respectively) provide two significant sources of authority for the federal government. Other enumerated heads of power, such as criminal law (ss. 27),'39interprovincial works and undeaakings (ss. 29 and 10) and
taxation (ss. 3)14 provide corollary sources of authority over water resources. Finally, the peace, order and good government passage in section 9 1 dso provides some authority
for federal legislation over water reso~rces.'~'
In the context of this thesis, a comprehensive analysis of the jurisdictionaf issues surrounding water resources legislation in Canada is not imperative. The preceding discussion regarding the constitutional fiamework goveming water resources reveals the basic issues in Canadian water resources management. Basically, legislation addressing pollution control is not the exclusive domain of either the federal or provincial govemments. Ail of the provinces and the federal govemment possess some authority over water resources in Canada. While disputes may arise regarding the precise interpretation of the division of power over water resources,'" a basic framework exists.
I3%e criminal law power rnight be used, for example, when water pollution endangers public heaith. While this head of power is limited in its regdatory or administrative capacity in relation to water, the possibility of using this head of power in order to legislate standards for water quality remains (e.g. prohibitions and penalties for activities dangerous to human health). See: Steven Kemett, Mamging ln~e'urisdictional Waters in Canada:A Constitutional Analysis, Calgary, Canadian Institute of Natural Resources, 199 1 at 26-7. '40This power might be used, for example, to create economic incentives for the acquisition of pollution control equipment by corporations. I4'TheInterprovincial Co-operatives v. The Queen case ([1W6]1 S.C.R.477) provides that federaljurisdiction exists in situations where pollution in one province will be carried into another province or state. The national concem branch of the POGG power probably provides jurisdiction for the Canada WaterAct, RS.C. 1985, c. C- 11 [hereinafter WaterAct or "Act"]. "
"
'"A discussion of the interpretive disputes exceeds the parameters of this thesis. (continued...)
The federal govemment will generally be able to legislate for pollution prevention in watercourses where fish are to be protected; the provinces will generally be responsible for most uses of water resources found entirely within their borders; and so on. The Canadian federd system of government complicate this thesis' analysis somewhat. Given the constrahts of the project, provincial legislation will not be surveyed or analysed in detail. For the purposes of this thesis, however, the Canadian federal system does not h p e d e a comparative study. Rather, it should simply be noted that some deficiencies in Canadian national legislation are a direct product of the
constitutional division of powers. a) Federal Legislatioo Tuming first to the federal legislative regime goveming water pollution, no single, totally comprehensive piece of federal legislation regulates water pollution in Canada. Three principal statutes, however, deal specifically with the issues of water pollution and environmental protection. The Canada Water Act, IJ3 the Canadian
.('41
.xontinued)
It should be briefly noted, however, that a significant amount of jurisprudence regarding
water resources, their use and their management exists in Canada. See, for e.g. : Fowler v. R, [1980] 2 S.C.R.213 and Northwest FaffingContractors v. R,[1980] 2 S.C.R 292 which discuss the permissible scope of authority for limiting pollution by the federal Fisheries Act, R.S.C. 1970, c.F-14; R v. Lake Ontario Cernent Ltd. et ni. (1973), 35 D.L.R (3d) 109 (Ont. H.C.) which discusses the peace, order and good government power [hereinafter "POGG" power] ;Re Canadian National Railwqy Co. et al. and Director under the Emtironmental Protection Act et ai. (1991), 80 D.L.R. (4th) 269 (Ont. Div. Ct) which discussed the ability of the provinces to water related activities on federal land; Interprovinciai Co-operutives Ltd et al. v. The Queen (1975),53 D.L.R (3d) 321 (S.C.C.) and R v. Nitrochem Inc. & Transport Provost Inc., [l992] 8 C.E.L.R (N.S.)283 (O.C.J. Prov. Div.) which discuss the jurisdictional implications of pollution which occurs on a tram-provincial or tram-national watercourse; and R v. Crown Zellerbach, Ltd,. et al., [1988] 1 S.C.R 40 1 which discusses the ability of the federal govemment to regulate the pollution of provincial waters which does not have a pollutant effect extraprovincially, the POGG power and the implementation of international obligations.
'" ~ a t eAct, r supra note 141.
Environmental Protection ~ct'"and the Oceans ~ c t ' "provide the basic starting points for an examination of federal water poilution legislation. The WaterAct is divided into a preamble and four parts. The preamble and the
nrst part do not deal with water pollution in any significant manner. The preamble of the WuterAct notes that "pollution of the water resources of Canada is a significant and rapidly increasing threat to the hedth, weU-being and ptospenty of Canada and to the quality of the Canadian environment..." Part 1generally introduces the concept of comprehensive water resource management. This segment does not refer specifically to water pollution issues. Ratber, Part I outlines the administrative manner in which the act proposes to manage water resources. Part II, entitled "Water Quaiity Management," addresses the issue of water
pollution more directly. In this part, the legislation describes when waters are subject to regdation by the Act. Only %vater quaiity management areas" are regulated. Water resources may be designated a 'îvater quality management area" if they are federal waters'" or waters of any juridiction which have become a matter of urgent national ~oncern.'~'
In regards to water pollution, section 9 in this Part elaborates the Act's prohibition of waste disposai. "Waste"is defined in S. 2(1) of the Act as "(a) any substance that ...would degrade or alter ...the quality of that water to an extent that is detrimental to their use by man or by any animal, fish or plant that is usefûl to man" and "@) a substance in such a quantity or concentration ...that it would ...degrade or alter ...
the quality of that water to the extent described in paragraph (a)..." Section 2(2) allows certain substances to be deemed as waste if they are listed in the regdations accompanying the WaterAct. The Act prescribes that "waste" may not be disposed of (in
'"R.S.C. 1985,4th Supp., c. 16 [hereinafter CEPA]. '"S.C. 1996, c. 3 1. '46
WaterAct, supra note 14 1 at S. 1 1(1)(a)
I4'lbid.,
S.
11(l)(b)
water q d i t y management areas) except in specined quantities and under prescribed conditions. Thus, the d e limiting poilution in the Canadian federal Water Act is quaiified two ways. Pollution is prohibited o d y in designated areas and only in excess of prescribed arnounts. The remainder of Part II addresses the administrative aspects of water quality management under the Water Act. Water quality management areas are to be "managed" by water quality management agencies (basically, any corporation appointed by the
govern~nent).'~'These agencies are empowered to make and cany out programs aimed at restoring, preserving and enhancing the water quality level in the water quality management area for which the agency is appoi~ted.'~~ The agencies, however, are not exceptionally autonomous. Prior to undertaking any action, an agency may recommend, foIlowing public h e a ~ g sa, water quality management plan to the government. lfthe plan is approved by the govemment, then the agency may, among other thuigs, construct waste treatment facilities, collect fees for waste treatment and effluent discharge and rnonitor water quality Ievels.'"
Part II also empowers the Governor in Council to make regulations regarding a variety of issues. For example, regulations can be passed in order to identify wastes,'" to Limit quantities and concentrations of wastes discharged into water resources,'" to prescribe treatment for wastes discharged in to water,'" to eiaborate critena for the
determination of fees charged for pollution,'" etc. Regdations may also be enacted in
I4'Water Act. supra note 141 at S. 11(2)(c) and S. 13(1). 1491bid.S. 15(1). '*Ofiid.,S. 15(4). 1511bid,S. 18(l)(a)(i).
'52fiid, S. 18(l)(a)(ii). 153fiid. S. 18(1)(a)(iii). '"fiid,S. 18(l)(d).
relation to each specinc water quality management areal"
Part III of the Wuter Act was repealed by the CEPA.Is6 This part of the Wuter Act dealt with bbnutrients"(e-g., cleaning agents) and their discharge into waters. CEPA basically incorporates the principal provisions found previously in the Wuter Act. The fiai section of the Water Act, Part TV incorporates a number of generai issues. This part of the Act includes provisions which allow M e r implementation of its water quaiity programs. Notably, Part IV specifies the qualifications and powers of inspectors and analysts for the purposes of this AC^.'^' As well, offences and punishment are outlined in Part N. For example, contravention of section 9, which prohibits certain foms of pollution in water quality management areas, is an offence punïshable by a fine up to five thousand dollars.'58
The Water Act appears to create a potentially effective fhneworkfor water pollution prevention in Canada. While the federal and provincial govermnents have negotiated under Part II of the Act, notably, no remdationshave been passed under this Iegislation. As such, the Water Act has never been elaborated fully and remains marginally important with respect to water protection in Canada.
The Wuter Act is supplemented by the Canadion Environmental Prolecfion to a signîficant degree. On a general level, the Act includes water in its definition of 6benWomnent."*60 This Act also makes particular reference to the need to 'lfulfil international obligations in respect of the environment..."16' ISS
The Act also specifically
Wuter ~ c tsupra . note 141 at S. l8(2).
IS6CEP~, supra note 144 at S. 141. 15'
Water Act, supra note 141 at S. 25,26,27 and 28.
1581bid.,S. 30(1). ls9CEPA,supra note 144.
'@'fiid,S. 3(1). ' 6 ' C E P ~supra , note 144 at Preamble. Note that S. 6 1 of CEPA makes specific (continued...)
incorporates former portions of the Water A c t regarding nutrients as well.
Two parts in the CEPA are particularly relevant to the prevention of pollution of water resources in Canada. As mentioned, Part IIt of the CEPA regulates nutrients such
as cleaning agents and water conditioners. Section 50 prohibits the manufacture and sale
in Canada of cleaning agents and water conditioners that contain nutrients'" in excess of concentrations prescribed by reg~lati0n.l~~ The Governor in Council may make regdations which identify nutrients and prescribe their permissible concentrations.'"
Part VI, which deals with ocean dumping, is also obviously pertinent to canada's implementation of international obligations regarding water resources. The definition of "ses" in this part of the CEPA is fairly broad and includes Canada's territorial sea, any
exclusive economic zone created by Canada, any intemal marine bodies of water, Arctic waters and any area of the sea, other than the intemal waters of a foreign state.16-'
Essentially, section 67 of CEPA prohibits almost d l dumping of wastes into the sea fiom anthropogenic structures d e s s permission to do so has be granted by a Notabty, this section makes specific reference to obligations arising fiom the Convention
..('61 .continued) reference to international obligations regarding air pollution and provides that regdations may be enacted if there is a need to control any air pollution which might be in breach of international obligations. Part VI regarding ocean dumping aiso makes very specific references to and incorporates intemational obligations.
I6%ection 49 of CEPA, ibid defines "nutrients" as any substances which, when released into watercourses, may stimulate the growth of aquatic vegetation to an extent which degrades "the quality of those waters to an extent that is detrimental to their use by human beings or by any animal, fish or plant that is useful to human beings..." '63fiid,S. 50 (1) and (2). '%id,
S.
50(2)(a) and (b).
'66Bid, S. 67(1) and (2).
on the Prevention of Manne Pollution by Dumping of Wastes and 0 t h mat te^-'^^.'^^
Two other parts of the CEPA also potentially affect water quality in Canada, though they are not directed specificdly at water resources. Part I of the Act provides for the development and implementation of environmental quality objectives, guidelines and
codes of practice for the fedeml govemment. With respect to federal government programs which affect water directly or indirectly, these objectives, guidelines and codes rnay be relevant.
Part II deals with toxic substances. In this section, the Minister is empowered to
identify toxic substances and to regdate their release into the environment. Regulations rnay be enacted regarding the quantities and concentrations of toxic substances that rnay be released, locations where the substances rnay be released, and so on.IW Again, this portion of the legislation is not limited to water resources, but evidently, the provisions
rnay be applicable to water resources.
The Oceans Act provides the federal government with a framework within which to protect marine water resources. Part II of the Act is entitled "Oceans Management Strategy." The Act provides that the national strategy is to be based on principles of sustainable development and the precautionary approach Ccerringon the side of caution").'7o In addition, this part of the Act provides that marine protected areas rnay be designated for the purposes of conservation and that special regdations rnay be enacted in order to protect these areas."'
The Oceans Act, however, does not contain any
generalized pollution prohibitions in this part. '67Supranote 85.
'"For example, Ocean Dumping Regdations (SORl89-500, s.5; SORI93-433, S. 3; SOR/94-590, S. 1) have been enacted which regulate the quantities and concentrations of substances that rnay be released, such as: mercury, cadmium, plastics, oii, etc.
' 6 9 C E supra ~ ~ , note 144 at S. 34 (1). See, e.g.: Priority Substances List, No. SV94-127; New Substances Notifcation Regulations, SOW94-260. '700ceansAct, supra note 145 at S. 30 (a) and (c).
'711bid.,S. 35(1) and (3).
While the Wuter Act, the CEPA and the Oceam Act are the most obvious and principal sources of federal legislation regarding water pollution, several other federal acts are used to regulate water quality in Canada In particuiar, the Fisheries ~ c t ' * has been used by the federal government as a means of expanding its constitutional reach over watercourses. Though the Fisheries Act deais with water resources in an indirect
manner (compared to the Water Act), this Act arguably supersedes the previously discussed legislation with respect to its impact on water quality in Canada This act maximizes the federal govemment's constitutional power over inland fisheries by allowing the federal government to regulate water quality in any Water fiequented by fish."In Essentidy, no "deleterious substance174"may be deposited into waters firequented by fish unless authorized by regdation.'" Furthemore, the Act provides in section 35 that: 'ho person shall cany on any work or undertaking that results in the harmfùl alteration, dimption or destruction of fish habitat.'"'76 The regulations passed pursuant to the Fisheries Act are indicative of its pollution control potential. Regdations have been passed regarding various types of effluents and activities which are harmful to fish.
'731bid. Section 34 in the Fisheries Act provides that Canadian fisheries waters
are "water fiequented by fish."
'"The definition of "deletenous substance" is provided in S. 34 of the Fisheries Act, ibid. and includes anything which degrades fisheries waters to the extent that the water is rendered to fish, to fish habitat or to the use by people of the fish. 17'See, e.g.: Fish Healfh Protection ReguZations, C.RC., c. 8 12. "%lote, jurisprudence regarding the scope of the federal govemment's power over water pollution under the fisheriesjurisdiction exists. As long as the federal govemment can show that its legislation can somehow fa11 under the fishenesjurisdiction by linking pollution prohibition to fishenes protection, the federal govemment can validly prohibit or limit water pollution: Norrhwest Falling Contractor v. R, supra note 142. The federal power is not uniirnited, however. The S.C.C. has struck down blanket pollution prohibitions that did not have a sunicient connection to fish protection: Fowler, supra note 142.
These regdations provide a detailed structure for controlhg and prohibiting certain types of deletenous substances.'" Severai other examples of federai legislation pertain to water quality standards directly. The nrst is the Arctic WatersPollution ~ c t . " ~A dennition of "waste" similar to the one provided in the Water Act is given in the Arctic waters legislation.'" The pollution prohibition is also similar to those provided in other acts regulating water pollution: "Except as authorïzed by regdations made under this section,'" no person or ship shall deposit or permit the deposit of waste of any type in the arctic waters...""' Potentially, the Arctic WatersPollution Act and other aforementioned legislation
could interfere with the hctioning of the Canada WaterAct and its water quaiity management area programs. Most legislation pertaining to water pollution other than the
WaterAct, however, include exceptions which preclude their application to waters already managed by the WaterAct. Section 4(2) of the Arctic WatersPolhtion Act provides an exampte of such an exception to the pollution prohibitions created by its regdations. The other federal acts which are primariiy concemed with water resources are the
'"~ee. e.g.: Pulp and Paper Enluent Regulations, SOR/92-269, which provide for the pennissible quantities of effluent (S. 6), conditions on disposa1 (S. 7), monitoring requirements (S. 8), etc. See also:Potato Processing Plant L iquid Efluent Regulations, C.R.C.c. 829; Petroleum Refnery Liquid EfjIuent Regzdutiom, C-RC. c. 828; Meat and Poultv Liquid Efjluenr Reguiatiom, C.RC. c. 8 18; Metal Mining Liquid E m n t Regulations, C.RC. c. 8 19.
'%id, S. 2: crWaSte"is again defined as any substance or any water that contains a substance that would degrade or alter the water d c i e n t l y to render its use detrimental to people or to other plants or organisrns usefbl to man. See also: Canada WaterAct, supra note 141 at S. Z(2). '"See e.g.: Arctic Waters Poilution Prevention Regulationr, C.R.C.,c. 354.
18'~rcric WatersPollution Prevention Act. supra note 178 at S. 4(1).
Yukon Waters~ c r ' ~and ' the North West Territories WatersAct. '" The provisions contained in these acts are very similar to those found in the Arctic Waters Pollution Act. For example, no waste may be deposited except in accordance with the conditions of a licence or in accordance with regulation~.'~ The definition of waste in these acts might be described as more progressive as it is l e s anthropocentnc than the definition of waste
provided in the aforementioned legislation: "any substance that, if added to water, would degrade or alter or form part of a process of degradation or altemation of the quality of that water to an extent that is detrimental to its use by people or by any animai, fish or The temtoriai water acts complement the Arctic Waters PoZIution Act as they
apply to any inland water in the North West Temtories and Yukon, in Iiquid or fiozen fom, on or below the surface.la6 Regulations have been enacted under these acts which prescribe fee and licensing systems for water use.lm
In addition to the aforementioned acts which deai specifically with environmental protection and the regulation of water resources, a number of other federal acts also include provisions pertaining to the regulation of water resources. Several acts dealing with topics other than water resources include incidental provisions regarding water
pollution. The following pieces of legislation provide examples of incidental references to water resources. The National P a r k AC^"^ authonzes cabinet to make regdations for
'"s.C. 1992, c. 40. '"S.C. 1992, c. 39. 184
Both acts contain a similar pollution control provision in S. 9(1).
Iss~ection 2 in both acts contains this provision. '86Supra note 185.
'"See, e.g.: Yukm Waters Regulatiions, SOR/93-303.
'"R.s.c.
1985, C. N-14.
the preservation control and management of parks,'" including the protection o f waters.'" In the "Regulation of Operations" part of the Canada Oil and Gas Operations
Act, cabinet is empowered to make regdations prescribing the measures necessary to prevent the pollution of water as a result of exploration for and development of oil and gas resour~es.'~'In regards to the shipping iizdustry, the Canada Shipping Act devotes an
entire part to pollution prevention and respoose affecting water resources.
Thus, at a federal level, legislation both specific and incidental to the prevention of water pollution exists. No single, comprehensive act attempts to incorporate international water standards into domestic law. Different types of water resources are regulated by different legislation. Specific water resource legislation is m e r supplemented by acts dealing with other issues and subjects which may include provisions which incidentally address water pollution. This patchwork is primarily a result of obstacles arising fiom constitutional divisions of power and also fkom the common law system in Canada which does not require the comprehensive codification of legal d e s (like civil systems such as in Ukraine).
b) Provincial Legislation As noted in the discussion regarding constitutionaljurisdiction over water
resources, the provinces enjoy significant authonty over water resources on their temtory. As such, a discussion of Canadian domestic Iegislation regarding water pollution would not be complete without an overview of provincial legislation as well. While the federal govemment retains treaty making power and hence, primary
*89NationaZPa& Act, supra note 188 at S. 7(l)(a). '*lbid, S. 7(1)@). See also, S. 7(1)(d) which refen to the protection of fish, including the prevention of pollution of watenvays.
responsibility for the creation of international obligations,'= the effects of the constitution are such that the participation of the provinces in the impiementation of international water obligations is necessitated to some degree. Al1 of the provinces regulate water resources, but not consistently. Some provinces focus mody on the allocation of water rights; others have signifïcant legislation regardiag water quality. In other words, across Canada, in each province, different levels of water pollution are acceptable. A selected survey of the prohibitions against pollution in provincial legislation reveals the diversity among pollution prohibition efforts in the provinces. Most provinces sirnply deal with water pollution within their respect environmental protection acts. Ontano, New Brunswick, and Newfoundland, however,
have specific water legislation. Ontario's legislation contains provisions similar to those ' ~respect ~ to pollution prohibition. Ontario's Water found in the Canada Water ~ c twith Resources Act, 19J in section 30(1), provides: "Every person that discharges or causes or permits the discharge of materials of any kind into or in any waters or on any shore or bank thereof or into or in anyplace that may impair the quaiity of the water of any waters is guilty of an offence." The Ontano minister is ais0 empowered to prescribe standards
of quality for water r e s o u r ~ e s ' ~ ' . ~ ~ ~
Ig2HughKindred, International Law, Chiefly as Interpreted and AppZied in Canada, Toronto, Emond Montgomery, 1993 (5th ed) at 161. IP3Supranote 141.
'951bidS. 75(1)(i). See,e.g.: R.R.O. 1980, Reg. 309.
'%TheOntario legislation, in particular, has been judicially considered quite frequently. See, for e.g.: Liverance (1986), 1 C.EL.R (N.S.) 97; R. v. BZuckbird Holdings (1WO), 6 C.E.L.R (N.S.)134 and 138 which considers both the Water Act and the Ontario Environmental Protection Act; and Mdachewan Consolidated Mines (1994), 13 C.E.L.R. (N.S.) 156. While fiequentjudicial consideration does not reveal how effective Ontario's legislation is, these cases provide some indication that the Water Acr (continued...)
New Brunswick passed its C h n Water Act in 1989.'" Again, the pollution control provision is almost identical to the C a d a Water Act. The New Brunswick legislation provides: 'Wo person shall discharge, emit, leave, deposit or throw any contaminant ...unless ...in cornpliance with authorization given under an Act of the Legi~lature."'~~ The Waters Protection Act in Newfoundland focuses mainly on maintaining a quality of water which is suitable for drinking and domestic purposes and not injurious to
While the Minster of Environment and Lands is granted responsibility public l~ealth.'~~ for the care of al1 inland waters, the Minister's mandate is limited to keeping the water
'%vherepossible, fit for drinking and domestic purposes and fiee fiom a condition which is or might be injurious to the public health.'7z00
Several provinces do not have specific legislation aimed solely at the protection of water resources on their temtory. Alberta, Saskatchewan, Quebec, Nova Scotia and Prince Edward Island regulate water quality in their respective environmental protection acts. The location of the water quality legislative provisions does not necessarily reveal
each provinces respective cornmitments to preventing poll~tion.'~'These provinces '96(...continued) is being enforced and implemented actively.
'%id, ss. 3,5,6(1).
"'For example, the dennitions of c'waste'7,c'contaminant'Tand "pollution" provided in S. 2 of the Saskatchewan Environmental Management and Protection Act, C.S.S., c. E- 10.2, are much less anthropocentric than the definitions of similar terms provided in federal legislation. In the Saskatchewan legislation, for exarnple, "waste" is defined as any substance that "may be injurious to the health or safety of persons or injurious or damaging to property or to plant or animal life." Federal legislation, such as S. 2 of the Arctic Waters Pollution Prevention Act, supra note 178, typically qualifies its definition of waste as any substance that is detrimental to any water 90an extent that (continued.. .)
merely share a legislative strategy with respect to the regulation of water pollution.202 Alberta's Environmental Protection and Enhancement AC?'^ generally regulates the release of substances into the enWonrnent,'?04including water, in Part IV of the Act. Section 97 prohibits (knowingly or unknowingly) the release of substances into the environment in a qua~titythat exceeds amounts prescribed by regulation or by an approval. In addition to substances identined in regulations, this Act also provides in S. 98 that substances shall not knowingly or unknowingly be released into the environment in a quantity that may cause a significant adverse effectFo5
In Saskatchewan, the Emtironmental Management and Protection Act, which contains this province's basic legislation regarding water pollution.206The Saskatchewan legislation provides that without a valid permit, "... no person shall cause or allow any contaminant to be discharged...where there is a reasonable possibility that its discharge...
"'(. ..continued)
their use by man or by any animal, fish or plant that is usem to man [author's emphasis]" 'The regulation of water pollution in environmental protection acts is referred to as a legislative strategy because provinces may accomplish similar results with specific water acts and more general environmental protection acts. For example, both Alberta, Nova Scotia and Saskatchewan formerly had specific water legislation. The former CZean WaterAct in Alberta was repealed by its Environmentai Proteefionand Enhancernent Act, C.S.A., c. E-13.3. The former legislation included more numerous provisions. The former and current Alberta legislation, however, both prohibit the deposit of pollutant substances in excess of amounts prescnbed by regulation, hence achieving similar legislative redts.
'OS"Adverseeffect" is d e h e d as "impairment of or damage to the environment, human health or safety or property..." in S. 1(b). '"Instead of having separate water legislation, under this Act, al1 supervision, control and regulation of matters concerning water quality and pollution vests in the Minister of the Environment in Saskatchewan. See:Environmental Protection and Management Act, supra note 20 1.
may change the quaïity of any water or cause pollution*." Quebec, aithough it has a Wutercourses AC^,^^^ deals with water pollution control in its Em>ironmentdQuaIity Act, much like Saskatchewan. Section 20 provides a general prohibition on the discharge of contaminants into the environment (which includes water) in greater quantities or concentrations than dlowed by the act's regulations. In Quebec, the Environmental QuaIity Act also has a section entitled "Quality of Water and Management of Waste WateZ7which empowers the cabinet to
make regdations specifically setting water quality standards and emission limits Like Quebec, Prince Edward Island (concentrations and quantities) for watercourse~?~ has some legislation directed specifically at water reso~rces,"~ but it uses its Environmental Protection ACP to prohibit the discharge of contaminants into the environment, including water. The Nova Scotia legislation also protects water by regulating the discharge of substances into the environment generally. The Nova Scotia EMonment Act essentially prohibits the release of substances which cause "significant adverse effect" unless according to regulations or authorized by approvals. The Nova Scotia legislation's use of the phrase "significant adverse effecty7provides a m e r example of the variety of ways in which pollution c m be measured and regulated. British Columbia has an Environment and Land Use Act which does not contain significant provisions regarding water reso~rces.~'~ In Manitoba, two acts indirectly regdate or affect water quality. The Emtironment Act requires a review process for and
'07Supra note 201 S. 17(a).
'%id, ''O
S.
46(a)(b)(c).
Water and Sewerage Act, R.S.P.E.I. 1988, c. W-2.
"*RS.P.E.I.1988, c. E-9.
the licencing of any development which causes or is likely to cause pollutionz13and the Fishennan 's Assistance and Polluters 's Lirrbility Act makes persons who contaminate fish resources liable for their pollution?" Again, given this thesis' focus on implementation, a comprehensive survey of
Canadian water law at both feded and provincial levels is not feasible. As such, neither the regulations of the provinces nor common law sources of water standards (such as
riparian rights) are surveyed. It sufnces to say that the provinces have ail adopted some legislative scheme to protect water resources directly or indirectly. c) Interjurisdictional Legislative Efforts
While this chapter primarily discusses the domestic Iegal h e w o r k s goveniuig water pollution, Canada's and Ukraine's efforts with other states to control water pollution in multi-jurisdictiond waters should also be noted. Transboundary or shared watercourses c m only be effectively protected fiom pollution through the efforts of al1 potentiai polluter states. As such, a comprehensive survey of domestic water pollution control eBorts must include an examination of how states regulate interjurisdictional watercourses. Canada's interjurisdictionalwatercourses are principaily shared with the United States. As such, Canadian-Amencan wster agreements reveal Canada's efforts to protect transboundary waters like the Great Lakes and intejurisdictional river systems. Canada and the United States have a long history of collaboration in regards to transboundary
waters. While these agreements are indicative of Canadian water pollution control efforts, this exploration of international treaty participation also becomes methodologically rnwlcy. In one way, collaboration regardhg interjurisdicational water pollution control evidences domestic efforts in this domain. Altematively, these international agreements also contribute to the formation of the international customary
"'S.M. 1878-88, c. 26 (C.C.S.M., c. E125) ss. 1(2), 10. 2 ' 4 R . S . ~1987, . C. F100, S. 3.
laws examined in this thesis, especiaiIy the older CanadianAnerican agreements.
To avoid any confusion or circula andysis, the devance of examining international efforts at water pollution should be clearly identified. Because States should prevent pollution domestically and interjurisdicionaily, a given state's efforts in regards to transboundary watercourses should be examineci, at least bnefly, to fully survey that State's efforts at pollution regulation. In other words, although this thesis is not primarily concemed with Canada and Ukraine's respective treaty obligations (because broader customary standards are focus of the study), a bnef survey of treaty participation reveds each state's efforts in regards to the protection of transboundary water resources.
Canada and the United States have signed numerous agreements regarding shared water resources. One of the earliest and most important is the B o u n d q Waters Trea$lS which provideç in article 4 that boundary waters "shall not be polluted on either side to the injury of health or property on the other." In addition to early (and somewhat limited) pollution control efforts, Canada and the United States have enacted over thirty boundary water agreements still in force. In regards to water pollution, several agreements have been reached regarding water quality in the Great ~ a k e s . " ~As well, agreements regarding other smaller transboundary waters have also been reached."' In addition to the d e s contained in these agreements, the Boundary Waters
Treaty and more recent agreements also create an institutional structure for the regulation of transbounckq water resources. The International Joint Commission was created by the Boundury Waters Treaty (with its purpose denved f?om articles 4,7,8,9, 10 and 12).
'"Treaiy reiating to the boundaty waters and questions arising along the boundav between the United States and Canada, 11 January l909,19 10 U.K.T.S. 23. "6Canada-LI.S.Great Lakes Water Qua& Agreement, 1972, Can. T.S. No. 12; Great Lakes Water Quality Agreement, 1978'30 U.S.T. 1383, C.T.S.20 (as amended by the Protocol signed 18 November 1987 in [1987] C.T.S.32). 2'7See,for e.g.: Agreement relating to the establishment of a Canada-United States cornmittee on water quality in the St. John River and its tributary rivers and streams which cross the C d a - U n i t e d States boundary, 21 September 1972,23 U.S.T. 2813.
The 1972 and 1978 Great Lakes agreements have supplemented the role of the I.J.C. Pursuant to the 1978 agreement, the I.J.C. has been directed to involve itself in making
recommendations, monitorin& dissemination of data, etc. in regards to the water quality of the Great Lakes?
2 ) Ukrainian Laws
Before examining Ukraine's implementation of pollution control standards in relation to international watercourses, marine waters and domestic fieshwater bodies, some understanding of the Ukrainian legal system is essential. a) The Ukrainien LegislatÏve Systema9
The Ukrainian political (law-making) system is divided into legislative and executive branches. The legislative branch of Ukrainian government consists of a unicaneral Parliament cdled the Verkhovna Rada ("Supreme Council") made up of regional representatives elected every four years by a popuiar vote. The executive branch is made up of several separate organs with law-making powers. The President, the Cabinet of Miniders, national ministries and state committees f o m the executive branch of government. The executive branch is headed by the president, elected by a popular vote for a period of five years. The president appoints the Cabinet of Ministem (with the approval of the legislative branch). The appointed ministers are then responsible for their respective ministries. Various aspects of national administration (e.g. agiculturai reform and transportation) are further coordinated by state committees.
" ' ~ u ~ rnote a 2 16 at article 7(1), (4) and (5). "9See generally: Jurii V. Maniichuk, "A Brief O v e ~ e w of the Ukrainian Legal
System" in Smit, Hans and Vratislav Pechota, Privatization in Ukraine: Legal, Econornic and Social Aspect, New York, Transnational Juris Publications hc., 1994, p. 170-174 at 171-2; Volodomyr Bandera, "Independent Ukraine on the Map of Europe" in Lencyk Pawlicko, Ann (ed.), Ukraine and Ukrainians throughout the World, Toronto, University of Toronto Press, 1994, p. 87-1 1 1 at 94-96.
While Ukraine is not a federal state like Canada, Ukraine is divided into twentyfive regional oblasts (basically administrative units divided by region). The oblasts are best analogized to municipalities in the Canadian legislative system. Like Canadian municipalities, oblasts receive authority from supenor levels of govemment. In order to W l the responsibilities allotted to them by the national govemment, oblast level governance exists. Regional councils are elected in the oblasts and president's representatives are appointed to each o b l a ~ t . ~ ~ Oblasts do, to some degree, administer water resources in their region. They cannot, however, claim any exclusive authority over the govemance of water resources beyond what has been delegated at the discretion of higher levels of govemment. Thus, Ukraine regdates its water resources nationally. This thesis therefore f o c w s
exclusively on national legislation in Ukraine that affects water pollution. Two other differences between the Canadian and Ukrainian legislative systems are notable. First, Ukraine technically functions as a civil law system. Secondly, Ulcraine produces many different forms of federal legislation with a variety of titles
(unlike Canada which generally ody passes acts and regdations at a federai level). In Ukraine, the Verkhovna Rada generally issues laws and decrees. The executive bodies of
power issue decrees, edicts, orders, instructions and decisions. Executive legislation in Ukraine is technically subordinate to the Iaws produced by the legisiative branch, the Verkhovna Rada. ui practice, however, the executive legislation ofien implements and applies Iaws fiom the Verkhovna Rada, thus giving substantive force to laws. In addition, the balance of power between the legislative and executive branches of power, despite a new Constitution, continues to establish itself so legislative hierarchy remains murky in practice. b) Introduction to Laws from the Legislative and Executive Branches
?t should also be noted that Crimea is an autonomous republic within Ukraine. Although this republic f'unctions in a politically subordinate manner to the national govemment of Ukraine, Crimea possesses more political authority than the oblasts.
of Governmenpl
The Waîer Code of L/krainF and the Law on Emironmental Protection of
"'~efore beginning a survey of Ukrainian water pollution legislation, an explanation of the sources used to locate this legislation is necessary. Evidently, in Canada, comprehensive Canadian Iegal research is a reasonably straightforward and well understood process. Conducting UIaainian legal research as a foreigner, however, is not a s simple. National legislation in Ulaaine is not compiled in a single legislative reporter series. Several serials publish W a n legislation. For example, "Zibranya Postanov Ukraijiny" publishes mainly decrees from the Cabinet of Ministers. The "Vidomosti Verkhomoji Rady" publishes laws emanating fkom the Legislative branch. While these reporters only publish legislation, neither provides a comprehensive source for d l laws and decrees passed by Ukraine's government. Furthemore, neither series contains a comprehensive index. In addition to these legislative reporters, some laws are also published in journals devoted to political and legislative issues. For example, "Holos Ykraijiny" sometimes publishes laws passed by the Verkhovna Rada dong with other articles. The legislation referred to in this chapter has been amassed from al1 of the aforementioned sources as well as fiom a Ukrainian computer legislative database entitled "PRAVO". PRAVO was created and is published by the Verkhovna Rada of Ukraine. This database is updated continually and is supposed to contain al1 of Ukraine's legislation (up to the most recent update of the database). The legislation discussed in this chapter was located during research doue at the Library of Congress, which possesses the aforementioned hardcopy serials and computer database. A search for water and environmental protection legislation was done on the computer database. Subsequently, hardcopy reporters and journals were searched in order to find published, full-text hardcopy versions of relevant legislation. Because the collection at the Libmy of Congress does not possess copies of the aforementioned reporters and journals prior to about late 1992 or after early 1996 (depending on the particular serial), some of the earliest and most recent legislation was unavailable in hardcopy formate and was down loaded fiom the PRAVO database instead. In addition to the research carried out at the Library of Congress, a request was sent to the Parliamentary Library of Ukraine for legislation regarding water pollution. The results of the request to the Parliamentary Library in Ukraine and of my own research on water legislation were almost identical. As such, the legislation discussed in this chapter likely represents a reasonably comprehensive survey of national water legislation in Ukraine up to the end of 1996. Legislative sources in this chapter will be attributed to either hardcopy sources or the computer database. If no reference is made to either of these sources, then the legislative materials were received fiom the Library of Parliament in Ukraine. " ~ o d n y i~ o d e [herehafter b "Water Code" or "Code"] 133 Holos Ukrajiny (20 July 1995) No. 213. The version of the Water Code used in this thesis is curent only to (continued...)
Ukrainp provide the legal h e w o r k for water pollution and environmental protection
in UkraineP4 B o t . of these laws were passed by the Verkhovna Rada and thus emanate fiom the legislative branch of government The essential provisions of these two laws in relation to water pollution wil1 be examined Since, the Water Code and the LEP are dso implemented and complemented by executive btanch l e g i ~ l a t i o nrelevant, ,~
executive decrees and orders will be m e y e d . Finally, international legal agreements to which Ukraine is a party will be examined.
m(...continued) the date of its publication. The law, however, remains in force in Ukraine at the time of wnting of this thesis.
"Zakon Ukrajirry Pro Ochoronu Nwkolyshn ' o h Pryrodnoho Seredovyshcha [hereinafker "LEP'or "Law on Environmental Protectiony'or "Environmental Protection Act"], 4 1 Vidomosti Verkhovnoji Rady, 1991, No. 41, Item 546. The text used for the purposes of this thesis was obtained h m the cornputer database "PRAVO published by the Verkhovna Rada of Ukraine. The version of the LEP obtained from the database included amendrnents added in 1993 and 1996 and can be considered updated approximately to the beginning of 1997.
"4hparticular, the Water Code specifies that the Code and the LEP are the principal pieces of legislation which regulate water bodies and water resources. See: LEP, ibid., art. 2.
'% the Water Code, supra note 222, an example of the Verkhovna Rada's delegation of authority is found in article 87: "Regdations regarding the designation of the dimensions and boundaries of water protection zones and the regime for resource management activities within these zones will be created by the Cabinet of Ministers." The Cabinet of Ministem c m also subsequently delegate M e r implementation responsibilities. In relation to article 87 of the Water Code, the Cabinet of Ministers has created implementing legislation regarding the creation of water protection zones in which it stated that: "The State Committee for Water Management, the Ministry of Environmental Protection and Security, the Ministry of Agriculture and Food, the Ministty of Forestry Management and the State Committee for Land Resources should provide, within a three month penod, respective documents required by this decree" ("Pro Zatverdjenya Poryadku veznachenya rozmiriw i mej vodookhoronekh zon ta rejemu vedenya hospodarskojii diyalnosti v nukh", 10 Zibranya Postanov UryaduUkraijiny, 1996, No. 486 pegarding the implementation of the Order designating the dimensions and boundaries of water protection zones and the regimes for conduct for resource management activities within these zones]).
As a prelirninary matter, the issue of ownership of water and water bodies in Ula;iine requires clarification. GeneraUy, natural resources in Ukraine are the property of
UIcrainian society unless property rights have been explicitly transferred to private or
collective owners. The Law on Environmental Pr~tection,"~the Water Codez7 and the Land Code of Ukraine Pereinafter "Land Code"IE8 ail re-iterate this fundamental principle. T'us, ownership of and authority over water resources are vested solely in the
Ukrainian national g ~ v e m m e n t Furthemore, -~~ the Land Code specifies that the land on which water bodies are located c m o t generaiiy be transferred to private or collective owne~s.~O
"6LEP, supra note 223 at S. 4. The LEP also repeats the constitutional entrenched nature of property rights in regards to naturai resources. Preamble of the Water Code, supra note 222, provides "[AlIl water (water bodies) on Ukraine's temtory are national property of the state of Ukraine..." Section 6 of the Water Code specifically vests property rights in water and water bodies in the Verkhoma Rada, the legislature of the Autonomous Republic of Crimea and in the legislative bodies of the cities of Ukraine. While the Ukrainian government is vested with property rights in water and water bodies, the Water Code also ailots riparian rights to potential users of water resources in Ukraine. Chapter Nine of the Code outlines the rights and duties of water utilizers. ?3ee: 'Zemelnay Kodeks" 1OVidomosti Verkhovnoji Rady, 1991, No. 98 transIated in: Land Code of Ukraine, FBIS-USR-92-08 1, June 30, 1992. Water Code, supra note 222, reflects this centralization of power in the state government repeatedly. For example, the Water Code contains an entire part (Part iI)devoted to issues regarding the delegation of responsibilities and authority for water utilization and protection. As a further example of national authority over water resources, article 8 of the Code grants certain authority to the Autonomous Republic of Crimea and the municipal legislative councils of Kiev and Sevastopol but explicitiy provides that these govemmental branches must "ensure the realization of state policies in the domain of water utilization and water protection...[emphasis mine]" =('The Land Code of Ukraine, supra note 228, divides up Ukraine's temtory into
categories of land, one of which is the land of water resources. In article 78, the "land of water resources" is defined as 'me land occupied by rivers, lakes, reservoirs, marshes, and hydrotechnical or other water management facilities, as well as the abatement dong the shores of bodies of water? [translation by FBIS] Article 4 of the Land Code also (continued...)
c) The Water Code
The Ukrainian Water Code is divided into six parts, respectively: general provisions; state administration and control in the domain of water utilization and protection as weli as the renewal of water resources; water utilization; water protection; confiicts fiom questions regarding the utilization and protection as well as the accessibility of water resources and the responsibility for the development of water legislation; and international relations. The essential passages of the Water Code for the purposes of this thesis are mostly found in Part III of the Code, entitled "Water Protection" but several sections in other parts are also relevant and will be discussed. Before proceeding to the substantive provisions of the Code, it is usefbl to note the relevant objectives and purposes of the Code. The goals of the legislation are set out
in article 2 of the Code. Notably, the protection of water fiom pollution is explicitly
identified as one of the goals of water legislation in Ukraine. i) The Categorizatioo and Protection of Riparian Areas
The Water Code protects water resources not only by regulating specific types of pollution but also by legislatively creating categories of water covered or surrounding territory that are each subject to their own particular and relevant types of protection fiom pollution. In Chapter 18, the first chapter in the Water Protection part of the Water Code. the regdation of the different types of water temtories is outlined. Categories of riparian
(...continued) specifies what kinds of property rights can exist Ukraine. Land can be owned by the state, privately or collectively. The Land Code States, however, that the lands of water resources cannot be collectively or pnvately owned. Only small bodies of water and marshes (under three hectares) can be transferred fiom state owneahip. While the Land Code does not provide significant details regarding poilution prevention, in article 78, the Code provides that protective zones shall also be established around bodies of water for the maintenance and irnprovement of water resources. Finaily, article 79 of the Code indicates that the procedure for using the land of water resources wiIl be defined in other Ukrainian legislation (Le.the Water Code and the LEP). 230
land include: the land of water resources;"' water protection zones;=' protected shore zones;33 sanitary protection zone? category?
and water designated in the remedial medical
In relation to each category of water area, prohibited activities are
enumerated by the Water Code.x6
More detailed legislation regarding these different types of land areas and their regdation has been passed by executive organs of government. In regards to article 85 which discusses the lands of water resources, the Cabinet of Ministers legisiated the process by which the lands of water resources could be utilized and de~eloped.~'The mùiisteriai order provides that the lands of water resources can be utilized only if state documents evidencing the right to utilize these lands have been registered with relevant local governments and if formal agreements between interested parties and the
='AS noted earlier, according to the Land Code, the land of water resources is "the land occupied by nvers, lakes, reservoirs, marshes, an hydrotechnical or other water management facilities, as well as the abatement dong the shores of bodies of water." See: supra note 228 at art. 78.
"'~rticle 87 of the Water Code, supra note 222, provides that water bodies rnay be designated as water protection zones for the pwpose of receiving particular protection fiom pollution and degradation. 33Protected shore zones are also created, not only for the purposes of protecting water bodies fiom pollution but also in order to protect the hydrology (flow characteristics) of water bodies. Protected shore zones automatically include specified areas of land surrounding water bodies. See: art. 88, Water Code, ibid -USanitaryprotection zones can be created for medical and health reasons in order to protect water bodies used by the population. See: ibid. art. 93. "S~rticle1O6 provides that certain water bodies may designated in conjunction with the protection of the health of the population as belonging to a remediai category.
z6For example, in water protection zones, untreated sewage cannot be disposed. See: art. 87. Also, no retum water can be disposed of in water bodies in this remedial category: art. 106. U7"ProZatYerdjenya Poryadku korestuvanya zedyarny vodnoho fondu," PRAVO, 1996,No. 502 pecree on the Order regarding the Utilization of the Lands of Water Resources] .
responsible local govemment have been reached?
The rninisterial decree and order also
provides greater detail regarding prohibited activities on the lands of water resources. For example, utilization of land dong rivers, around water bodies and on islands cannot negatively impact on this land's status or diminish the land's significance by activities such as ploughing of the land, grazing by animals, application of pesticide^.^^ Pursuant to delegation by the Cabinet of Ministem, the State Cornmittee of Ukraine for Water Management has issued hplementing legislation (comparable to regdations in Canada) regarding the lands of water resources al~o.'~' For example, this Comminee, pursuant to a decree issued by the Cabinet of Ministers, created a permitAicencing system for construction, dredging and explosive works, excavation of sand and gravel, placement of cables d communication lines on the lands of water
resource~.~~~ Water Code provisions regarding water protection zones (areas designated for pdcular protection against pollution, degradation and over-e~ploitation'~')have also
been implemented by executive legislation. In particular, the Cabinet of Ministers passed a decree and order regarding the ascertainment of dimensions and boundaries of water
protection zones and their regdation."
While the Water Code provides the basic
"'Supra note 237 at art. 5.
'391bid, art. 8. 24%ecall,the lands of water resources include d l land upon which water bodies are located and abatements, thus legislation and pollution d e s regarding these areas affect essentially ail water bodies and provide basic standards for water bodies generally.
"'"~akazpro zatverkjenya Polojhenya pro poryadok vedachi dozvolu na budivelni, dnopohlyblyouvalni i vybukhovi roboty, vydobuvanya pis& hraviyou, prokladannyou kabeliw, truboprovodiw ta inshykh komunikatsi na zemlyakh vodnoho fondu," 29 February 1996, No. 165/1190. "water Code, supra note 222 at art. 85. 243See:Decree regarding the implementation of the Order designating the dimensions and boundaries of water protection zones and the regimes for conduct for (continued.. .)
objectives ofwater protection zones, this decree and order provide an example of how the Code's aspirations are practically implemented by executive legislation (similady to the function of regdations in Canada). Chapter 19 of the Water Code deals exclusively with water resources designated a s nature reserve areas. Such designated waters are to be regulated by the Law on
Nature-Reserve Areas of Ukraine. The Water Code simply prohibits activities in water bodies granted to nature reserves which would compromise their designated significance?
u) Poliution Control Provisions Chapter 20 of the Water Code includes the provisions most relevant to this thesis and is entitled "Protection of Water nom Pollution, Degradation and Depletion." Evidently, the dennition of pollution is critical to the interpretation of this and other parts of the Water Code. Relevant terminology is dehed in article 2 of the Code. "Water pollution" is defined as: 'Wavourable changes in the composition and nature of water in water bodies which results in addition of pollutant substances to them." Article 2 also defmes 'pollutant substances" as: "substances which cause the deterioration of water quality." These definitions are evidently vague as they fail to identify a specific, tolerable threshold of harm.'j5
"( ...continued) resource management activities within these zones, supra note 225. For exarnple, article 11 of the Order provides that water protection zones in sedmarine zones and their bays and estuaries shall not extend any less than 2 km fiom the water's edge. In regards to the regulation of activities in these water protection zones, a~thontyfor regulation is vested in local legislative councils, designated state cornmittees and organs of the Ministry for Environmental Protection (according to article 1 9 , but also certain activities are totally prohibited (e-g., utilization of active and persistent pesticides, according to article 12).
' e c ~ a t eCode, r supra note 222 at art. 94. 24sRecall,many dennitions of pollution in the Canadian legislation referred to pollution as substances that might harm or diminish the quality of resources useful to humans. See, e.g.: text following note 147.
The nrst section in Chapter 20, however, provides the basic (and more detailed) aspiration of Ukrainian water legislation in regards to pollution:
AU waters (water bodies) are subject to protection h m pollution, degradation and depletion and other activities which may worsen conditions of water food supplies, harm the health of the population, cause a diminishment in fish stocks and other water industries, worsen the condition of living for wildlife, reduce the fertility of soi1 and other unfavouxable phenornena as a result of physical and chernical changes in the nature of the water, lowering of its capacity for n a d regeneration, hydrological flow and the hydrogeological water r e g h ~ e . ~ ~ ~ This section seerningly supplements the definition of pollution provided in the
tenninology part of the Water Code. One of the nrst specific pollution control provisions in the Water Code concems technologies used in water resource development. Article 96 provides that technologies which ensure the protection of water fioom pollution, degradation and depletion must be used during the planning, construction, reconstruction and introduction into being of enterprises and other structures which potentiaily affect the status of water resources.
The Code does not appear to mandate the use of the "best available" technologies in regards to pollution prevention. Rather, simply any technological processes which avoid poilution appear to be acceptable. No further detail is provided in article 78 regarding the specific standard or onus that applies to water users.
Next, article 97 provides that conditions on the utilization of water resources which may impact upon the state of fisheries, riparian flora and riparian fauna will be elaborated. No specific prohibitions are enumerated in this article. This section is another exarnple of the fiequently aspirational nature of the Water Code which requires M e r irnplementation to attain any practical efXect. Notwithstanding this tendency to be aspirational, in regard to certain aspects of water protection, the Code does list specific activities which are forbidden. For example, - -- ..
246WaterCode, supra note 222 at art. 95.
article 98 provides a list of development activities which potentially affect water quality that are prohibited. These types of activities include, for example, irrigation and water conveyance systems that cause erosïon and water Iogging as well as water removal that does not cornply with fish conservation conditions.
In regards to types of polluting substances, article 99 provides that: "The disposal of industrial, sewage, radioactive and other types of effluent and garbage into water bodies is prohibited." Subsequent sections provide further specific protection against different types of poilutants. Article 101 protects water fkom oil pollution. Article 1O3 provides for the regulation of pesticides and fertilizers in order to avoid water pollution resulting fiom their utilkation, transportation, and conser~ation.'~~ The Code also
provides for the regulation of drilling and construction in water bodies. In addition to regulating pollutant substances and activities, the Water Code affords particular protection to types of water, includuig: ground water, intemal marine waters and temtonal seas, as well as water catchment systems (i.e. ice cover, springs, etc.). In other words, the Water Code accords specinc protection to both marine and fieshwater resources in their various forms. The section of the Code dealing with intemal marine and territorial sea waters is illustrative. Several sections of the Water Code protect intemal marine waters and temtorial seas. In article 102. the Water Code specifically provides that boats and other floating objects cannot dispose of chemical, radioactive and other haxmfûl substances. Article 102 M e r provides that basicdly any other substances that can cause pollution cannot
be dumped in these waters. While this section does not address the issue of marine pollution from land based sources, article 100 provides that enterprises, institutions, organizations and individuais are prohibited fiom polluting and degrading seas as well as gulfs and estuaries with industrial and sewage deposits, garbage, oil, as weil as chemical
'47Like in Canada, some legislation on other topics also provides for water protection. For example, the effects of pesticides and agricultural chemicals on water are also regulated in legislation devoted entirely to these substances. See: Article 20, "Zakon Ukraijiny pro pestytsydy i ahrokhimikaty" 14 Vidomosti Verkhovnoyi Rady Ukraijiny (4 April 1995), No. 86/95 [Law regarding pesticides and agricultural chemicals].
and other types of pollutant substances. Thus, this section effects marine environment protection fiom pollution control h m land based sources. Executive legislation has also been passed in regards to the protection of intemal
marine waters and Ukraine's territorial seas. In particular, the Cabinet of Muiisters passed a decree and order providing more detailed obligations regards water protection,
as envisioned by article 102 of the Water
First the Regdation elaborates a
definition or standard of '>ollution" which is similar to the protection provided in the Water Code. Article 3 provides: International sea waters and territorial seas are subject to protection fiom pollution and degradation which may worsen the conditions of water supplies, harm the health of the population, contribute to the diminution of fish stocks and other objects of water trade/iidustries, worsen the conditions of life for wildlife and bring about other unfavourable phenomena as a result of changes in the physical and chernical qualities of the water, diminishment in its capacity for natural renewal, alteration of hydrological and hydrogeologicai regime. This definition is more detailed and provides more stringent standards for pollution control than the definition provided in the Water Code.
This regulation also provides more detailed pollution prevention rules. With respect to retum waters, the regulation requires that water containing substances that are not specifically regulated @y maximum permissible concentration and emission standards) must still not pollute (according to the definition of pollution provided in the decree). Furthemore, return water may not exceed the temperature of the water body into which the retum water is disposed by more than 3 degrees Celsi~s."~The Black and
248"Postanovapro zatverdjenya Pravyl okhorony vnutrishnikh morskykh vod i terytorialnoho morya vid zabrudnenya ta zasmichenya" [Decree regarding the ratification of the regulation on the protection of intemal marine waters and temtoriai seas fÎom pollution and degradation18 Zibranya Postanov Uryadu Ukraijiny (29 February1996) No. 269 [hereinafter "Decree regarding marine waters"]. 249Supranote 248 at art. 4.
Azov Seas are also af5orded padcular poilution protection by this regdation, which provides that the disposal of substances, even according to maximum permissible emission standards, in these seas may be iimited or prohibited by the Inspectorate of the BIack and Azov Sea in the Ministry of Environmental P r o t e c t i ~ n ~ ~ . ~ '
This regdation on the protection of marine waters also creates administrative requirements for water users which assist in the monitoring of water pollution in marine
areas. For example, the regdation requires that all operations deding with oil, pollutant substances and return water carried out on ships and other marine and port structures must be registered?
Furthemore, the administrators of marine ports, ocean pladonns,
ship repair facilities, etc. are obligated to participate in marine water protection by undertaking analyses of the status of the marine environment in the areas in which they function, by the reporthg of pollution incidents, etc?) The final chapter in the Water Protection Part of the Water Code concems injurious activities and disasters on water bodies. Article 1O7 lists six types of activities injurious to water resources: flooding and immersion of land and populated areas; the
'MPursuant to the LEP, supra note 223, an Inspectorate for the Black and Azov Seas was created. The Black and Azov Inspectorate is one of several inspectorates in Ukraine that is represented on a State Environmental Inspectorate responsible for organizing and conductïng state contml in the domain of environmental protection. The creation of a branch devoted to the Black and Azov Sea areas reflects the environmental significance of this area. See: ''Postanova pro zatverkjenya Polozhenya pro Denhamu ekolohichnu inspektsiyou Ministerstva okhorony navkolyshnoho pryrodnogo serodovyshcha Ukraijiny" pecree implementing the regulations on the State Environmental Inspectorate of the Ministry of Environmental Protection of Ukraine] 4 Zibranya Postanov Uryadu Ykraijiny (12 November 1993) No. 925; "Postanova pro stvorenya Denhavnoji ekolohichniji inspektsiji Ministerstva okhorony havkolyshnoho pryrodnoho seredovyshcha Ukraijiny" Pecree regarding the creation of the State Environmental Inspectorate of the Ministry of Environmental Protection of Ukraine] PRAVO (1 3 August 1993) No. 641. B ' ~ e c r e regarding e marine waters, supra note 248 at art. 6. =2hid.,art. 11.
E3~ecree regarding marine waters, supra note 248 at art. 22.
destruction of bankdshores and dams; the water logging7flooding and salinisation of land; excessive drainage of land as well as depletion of ground water reserves; pollution (salinisation) of land w d for excavation; soi1 erosion and the creation of gulleys, landslides, etc.
" üi) Economic Regulatioo of Water Resources
Thus far, the provisions discussed have been prohibitions of certain polluting activities or aspirational objectives which articulate water quality objectives. Chapter 7 of the Code, entitied "Economic Regulation of the Rational Utilization and Protection of Water as well as the Renewal of Water Resources7', however, focuses more on the practical fînancial and administrative aspects of regdating water resource. In this chapter, article 30 provides that payments are required for water resource utilization, both for the withdrawd of water as well as the disposal of substances into water. Standards regarding the utilization and payment for utilization are to be elaborated by M e r
implementing l e g i s l a t i ~ n .For ~ ~example, maximum permissible concentrations of emissions into water bodies are to be specified pursuant to this Code. Article 38 reiterates that the norms set out in implementing decrees are to be determined in accordance with the objective of increasing water quality.
""The section proceeds to legislate how these particular dangers must be avoided during the development of water resources. ='Water Code, supra note 222 at art. 36. Implementing legislation passed by the Cabinet of Ministers for the purposes of setting fees for water utilization include die "Postanova pro vporyadkuvanya platy m spetsialne vykorystanya prisnykh vodnykh resursiv" [Decree regarding the arrangement for payment for special utilization of fieshwater resources] PRAVO (16 May 1996) No. 520 and the "Postanova pro pidvyshchenya normatyviv platy za cpetsialne vykorystanya prisnykh vodnykh resursiv I vnesenya zmin i dopovnen do postanovy Kabinetu Ministriv Ulûaijiny vid 8 lyoutoho 1994 r. No. 75" pecree Raising the Normative Fees for Special Utilization of Freshwater Resources and Amenciments to and Implementation of the Decree of the Cabinet of Ministers dated the 8 Febrwry 1994, No. 751 5 Zibranya Postanov Uryadu Uktaijiny (15 January 1996) No. 67. These decrees contain provisions that are contùiually amended and regulate the setting of fees for water resources use.
iv) Pnorities in Water Use Water use pnorities are discussed in Part III of the Water Code. While this section does not pertain specifically to water quality standards, some water use priorities affect water polluters. For example, chapter 11 deals with the population's drinking and domestic needs. If water used by the population for drinking and domestic needs does not meet legislated water quality standards (ecological safety standards and sanitary noms), other development and uses of the same water resource can be halted and prohibited? This sort of prionty of water use to some degree mandates a minimum water quality and as such, is indirectly a pollution control provision.
v) Administrative Provisions of the Water Code A number of provisions in other parts of the Water Code create an administrative
framework for water pollution protection in Ukraine. The Water Code addresses administrative issues mainly in Part II, "State Administration and Control in the Domain
of Utilkation and Protection of Water as well as Renewal of Water Resources." This part specifically outlines the respective authority and powers of various state branches and organs in the implementation of the Water Code and water policy in Ukraine?'
[n the
Water Code, the Verkhovna Ra& delegates certain responsibilities for the administration
and implementation of water protection programs to: the executive branch of goveniment (e.g-,the Cabinet of Ministers);regional governments (including the Autonomous Republic of Crimea and municipal go~ernments);~~ the Ministry for Environmental Protection; and Permanent State Committees (such as for water management). Another aspect of water administration involves the monitoring of water resources (e-g. their quality). Part II of the Water Code mandates the development of a
2.'6~ater Code, supra note 222 at art. 58. '1710id., art. 14-17.
2-'81bid,m. 13.
national water evaluation and survey. Chapter 6 in Part II provides for the compilation of data regarding the quantity and quality of water resources ( d a c e and ground ~ a t e r ) ~ ~ and regarding the utilization of water resources in L k a h e (e.g. water treatment centres,
disposal of polluted substances in water bodies, etc.)?
Data regarding water resources
in Ukraine is to be compiled for several purposes, including: the apportionment of water resources among potential users; the prediction of changes in water status; and
formulation of scientinc and rational recommendations regarding water administration in ~
~
-1
2
6
The Cabinet of Ministers has passed several decrees related to the compilation of
data regarding water resources in Ukraine. In 1996, the Cabinet of Ministers created an interdisciplinary commission for the purposes of compiling a national water s~rvey.'~'
The commission was to compile a m e y and systematize Uiformation regarding three ~~ major topics: d a c e water bodies, ground water and the utilization of ~ a t e r . ' This decree specifies, among other things, the purposes of the water s ~ r v e y , 'its ~ content?' and the sources of its funding.'66
In addition to the national water survey, the Cabinet of Ministers has also
WW
Code, supra note 222 at art 26,27.
2611bid,.art. 21 and 24. 262"~ostanova pro zatverdzhenya vedenya derzhavnoho vodnoho kadastru" [Decree regarding the realization of an order regarding the creation of a national water survey] PRAVO (8 April l996), No. 4 13. Z631bid,art. 3. '''Supra note 262 at art. 11. For example, the survey is to be used to better settle conflicts between water users. '651bid, art. 2. This provision specifies that data regarding water bodies, their quality, structures which develop water resources (e.g. for water transportation), etc.
"%5id.,art. 12. This section provides that the financing of the national water survey project is to be borne directly by the Ukrainian state budget.
implemented related provisions of the Water Code, such as article 2 1 which mandates state water rn~nitoring.'~' State water monitoring is to be carrïed out as part of the larger
environmental monitoring system in Ukraine.268 State water monitoring focuses on the quaiity and quantity of water resources in Ukraine.
vi) Liability for Pollution In Part V of the Code, liability for breaches of the Water Code's provisions is discussed. Article 110 provides that: "Breaches of water legislation entail disciplinary, administrative, civil or criminal liability according to the iegislation of Ukraine." This section also lists particular types of Ulfringements which entail liability. These breaches specifically include pollution and degradation of ~ a t e and ? ~ breaches ~ of legislation that protects intemal marine waters and temtorial seas fiom pollution and degradati~n."~The Water Code relies on criminal code and administrative law procedures for the implementation and enforcement of these liability provisions. vii) International Obligations Incorporated into the Water Code
The last part of the Water Code is entitled "International Relations." Oniy one section is contained in this part. Entitled cbIntemationalAgreements," article 1 12 provides: "If the d e s stipulated in an international treaty to which Ukraine is a party differ fkom the d e s in Ukrainian water legislation, then the mles of the international treaty shall apply." Earlier provisions in the Water Code reinforce the importance of international treaty obligations. In Chapter 17, entitled "Transboundary Water. Water
'67"Postanova pro zatverdzhemya Poryadku zdisnenya derzhavnoho monitorynhu vod" [Decree on the Order Regarding the Realization of State Water Monitoring] PRAVO (20 July 1996) No.8 15. 268LEP,supra note 223 at Part V, ccInvestigation,Analysis, Evaluation and Reporting on Environmentai Protection." '69Water Code, supra note 222 at art. 110, ss. 2. Z701bid, art. 11O, ss. 14.
Bodies AfEected by Radioactive Pollution," the Water Code provides that: "[The] utilization of transboundary waters shall be undertaken according to d e s set out in
Ukrainian legislation as well as international agreements." No specific treaties are noted
in the Water Code. Seemingly, any treaty to which Ukraine is a party that provides contradictory d e s to those found in Ukraine's Water Code would appear to ovemde the Code. Notably, this provision indicating the supremacy of treaty provisions over domestic rules appears in other fhmework laws regarding enviromentai protection created by the VerkhoMa Radaz7' While the aforementioned clause is replicated exactly
in other laws, other articulations of Ukraine's cornmitment to international treaty obligations also exist. For example, the L w on Wildlife provides: "Ukraine is involved in international participation with respect to issues of protection and rational utilization of ~ildlife.'"~On a similar vein, the Law on EnvironmentalAssessment States that international or transboundary environmental assessments are to be regdated by international treaties? Executive branch legislation also contains very similar provisions re-iterating the supremacy of international agreements over dornestic legislation in Ukraine. For example, in the regulation on the protection of interna1 marine waters and temtorial seas fiorn pollution and degradation discussed earlier in this chapter, the Cabinet of Ministes
makes repeated references to international agreements on marine environmentai prote~tion"~Article 5 of the regulation provides that owners and usea of ships,
"'See also, LEP, supra note 223, article 71; Land Code, supra note 228, art. 118; "Zakon Ukraijiny pro ekolohichny ekspertyzu" [Law on Environmental Assessment] 8 Vidomosti Verkhovnoji Rady (9 February 1995)No. 45, art. 5 1 ;"Zakon Ukraijiny pro tvarynay svit7' on Wildife], 63(563) Holos Ukrajiny (3 March 1993), No. 304l/l2, art. 59.
'RSupra,note 27 1. 'nSupru, note 271. '74Decree regarding marine waters, supra note 248.
platfonns and other marine structure should follow not only foilow domestic d e s for the avoidance of poilution and degradation of the marine environment but also international agreements regarding pollution fiom ships to which Ukraine is party. Article 12 similady requires that construction of ships be undertaken in accordance with the conditions set out in international agreements to which Ukraine is a party. Again, no reference is made in the regulation to any specific treaties or agreements.
d) The Law on Environmental Protection of Ukraine As noted earlier in this chapter, according to the Water Code of Ukraine, water
resources in Ulaaine are principdly to be regulated by the Water Code and by the Law on Environmental Protection. The LEP does not provide greater protection to water resources than the provisions of the Water Code. In fact, many provisions in the LEP overlap, duplicate or reinforce protection or prohibitions found in the Water Code. For
example, the LEP includes provisions regarding: a state inventory of natural r e s o ~ r c e s , ~ ~ ~ broad requirements for environmental assess~nents,'~~ the economic regulation of natural resource use,"" environmental noms and standard^,"^ a re-iteration of state control over
'The LEP,supra note 223, mandates that state of the environment reports be provided to the Verkhovna Rada annually: art. 25. In addition, the LEP also provided for the creation of a national inventory of the quaiity and quantity of natural resources and their utiiization (similar to the water inventory required by the Water Code): see art. 23.
276PartVI of the LEP (ibid) is devoted to the topic of environmental assessments. Article 26 requires environmental assessments to be carried out in relation to almost any significant activity that may impact the environment (e.g. legislative processes, investment, etc.). X of the LEP (ibid) discusses economic mechanisms that ensure environmentaï protection. While the LEP includes requirements for payment for the use of nahval resources, this law goes beyond the Water Code in elaborating a system of economic incentives for environmental protection. Not only is payment for polluting activities discussed (art. 44 and 4 9 , but also the fïmmcing of environmental protection initiatives is addressed. For example, article 41(e) provides for financial and tax credits to be given to industries, enterprises and individuals for the use of environrnentally sound technologies. The creation and hancing of environmental protection h d s are also (continued...)
water r e s o u r ~ e sacknowledgement ,~~ of the importance of water resources,?" as well as liability for breaches of environmental protection legislation.'" Beyond the Water Code, the LEP does create a general environmental protection agenda for Ukraine by specifying a number of general environmental goals and
aspirations. While the general hmework provided in the LEP may not significantly or practically affect pollution protection in Ukraine, the Iaw reflects the fomal goals of
Ukrainian environmental legislation. For example, the fundamental phciples of environmental protection upon which d l related legislation is based are enumerated.'"
The environmental rights and obligations of Ukrainian citizens are ~utlined.'~~ ?"( ...continued) discussed: see art. 46 and 47.
"For example, article 33 of LEP (ibid), like the Water Code, provides that a system of ecologicai nomis shall be created by setting limits for maximum permissible concentrations and maximum pemiissible emissions of substances into the environment. '7PArtkle 35 of the LEP (ibid) re-iterates that the state controls and is responsible for the utilization and protection of surface and ground waters, the marine environment, the resources of Ukraine's temtorial sea, the continental shelf and exclusive marine economic zones. 39 in the LEP (ibid.) lists naturai resources of state and regional @ ' ~ ' rticle significance. Marine and fieshwater resources are listed as being nahiral resources of particular state significance.
28'Similarlyto the Water Code, the LEP (ibid) provides for disciplinary, administrative, civil and criminal liability for breaches of pollution and other provisions. Article 68 specifically creates liability for the release of pollutants into the natural environment beyond pemiissible level and against procedure. Enterprises, institutions, organizations and individuais are bound by environmental protection obligations. '"See: LEP, supra note 223 at art. 3. Fundamental principles include: a guarantee of environmental security for the health and well-being of the population (ss. b); the pnontization of ecology conservation in other domains (ss. a); scientific bases for use of the environment (ss. 1) ;payment for pollution and degradation of the natural environment (ss. k); etc. Z83PartII of the LEP (ibid) includes enurnerations of citizens' rights and (continued...)
e) Other Relevant Environmental Protection Legislation
Evidently, other Ukrainian environmental and resource laws deal with water resources in a peripheral manner. For example, legislation regarding the development of minllig and metaliurgical complexes notes that the problem of polluted water used in
mùiing process must be addressed?
The quality and protection of drinking water is
discussed in the Law on the Sanitav und Epidemic Security of the Popu[ation2" The
Law on Pesticides and Agricultml Chemicals creates liabiliîy for polluting water with Other laws create and define processes by which environmental protection can be undertaken and enforced. For example, in 1995, the Law on Environmental Assessment was adopted. This law outlines when environmental assessrnents must be c k e d out and defines the manner in which environrnental assessments are to be done (objectives, procedures, etc.)."
The environrnental assessrnent law complements the Water Code as
the Code requires that environmentai assessments be carried out in conjunction with the placement, planning and construction of enterprises, structures and other objects related
'83(.. .continued) obligations such as the rights to a healthy environment and community association and participation in the reah of environmental protection (art. 9, ss. a and e, respectively). Guarantees and protection of the environmental rights of citizens (art. 10 and I 1. respectively) are also explained in this part. Again, this part of the LEP is likely of little practical or direct importance to water pollution policies in Ukraine, especiaily since this portion of the LEP may be inherently aspirational d e r than practical.
2M"~ostanova pro konseptsiyou zosvytku hirnychno-metalluhinoho kompleksu Ukraijiny do 20 10 roku" [Decree regarding the Concept of Development of a Ukrainian Mining and Metallurgical Cornplex until20 1O] 36 Vidornosti Verhkovnoji Rady vkraijiny (17 October 1995) No. 385/95. ""Zakon Ukraijiny pro zabezpechenya sanitarnoho ta epidemichnoho blahopoluchya nacelenya" 27 Vidomosti Verkhovnoji Rady Ukraijiny (24 February 1994) No. 4004/W, art. 18. 2~CZakon Ukraijiny pro pestytsydy i ahrokhimikaty" 14 Vidomosti Verkhovnoji Radu Ukraijiny (2 March 1995) No. 86/95, art. 20. 2 8 7 ~ aon w Environmental Assessment, supra note 271.
to the utilization of water r e s o u r ~ e s . ~ ~ ~
nie Cabinet of Ministers has issued a decree implementing the Environmental Assessrnent Act which highlights the importance of environmentai assessrnents in water resource development. The "Decree regarding a list of activities and things which constitute increased environmental danger'"" explicitly refers to a variety of water development activities which are particularly environrnentally dangerous and which are subject to environmental assessments, including: the building of hydroelecmcal structures; construction of ports on seas and on rivers; the creation of sewer systems and
treatment/purifying structures; and the construction of surface and ground water reservoirs for centralized water provision to population centres, water protection and ameliorative systems as well as other related industries. While thus far this chapter has not discussed any Iegislation emanaîing fkom the
president of Ukraine directly, one particular edict is worth noting. In 1992, President Leonid Kravchuk issued an edict creating the Special Commission for the Problems conceming the Environmentai Status of the Dnipro River and the Quality of Drinkllig Water?
The Commission was empowered to make propositions and preparations for:
improvement and stabilization in the environmental statues of the Dnipro River as well as the quality of drinking water, the restoration of water resources in the river basin; and so
on."'
The recommendations of the Commission were to be used by the Ukrainian
" ' ~ a t e r Code, supra note 222 at art. 22.
ostano ta nova pro perelik vydiv diyalnosti ta obyektiv shcho stanovlyat pidvyshchenu ekolohichnu nebezpeku" 10 Zibranya Postanov Uryadu Ukrajiny (27 July 1995) No. 554. " " ~ k a z pro utvorenya Nadzvychaynoji komisiyi z problem ekolohichnoho stanu nky Dnipro ta yakosti pytnoyi vody" [Edict of the President of Ukraine Regarding the Creation of the Speciai Commission on the Problems of the Environmental Status of the Dnipro River and Quality of Drinking Water] (14 April 1992)No. 248.
"'fiid.,art. 1.
govemment in its decisions regarding the river?
f) Ukraine's Participation in International Agreements on Water foiiution
In addition to enacting domestic legislation regarding water pollution, Ukraine is also a party to a number of bi- and multilateral international agreements regarding water
resource protection. Upon the dissolution of the Soviet Union, Ukraine stated that it would honour its international obligations but offered conflicting indications whether it wodd autornatically succede to d l of the former Soviet Union's treaties or whether it would forrnally accede anew to international treaties of its ~hoice.?'~ In practice, Ukraine has generally formally acceded to a variety of treaties instead of simply undertaking the Soviet Union's obligations.
Since 1991, Ukraine has become a party to a significant number of water related treaties. Some of the treaties to which Ukraine has acceded are longstanding multilateral agreements. For example, Ukraine has acceded to the RAMSAR t r e a v regarding protection of wetlands of international significance for waterfowl, Convention relat»rg to
"'MY research on legislation did not reveal any subsequent legislation from either the legislative or executive branches of Ukraine that explicitly referred to or incorporated recommendations fiom this Commission. The Water Code and dl of its implementing legislation, however, were passed subsequent to the creation of this commission. In regards to the particdar impacts of this commission on subsequent water legislation, however, 1do not have specific data.
'93For example, in the Mhsk Declaration (8 December 199 1-31 I.L.M. 142) completed on December 8, 1991 by Belarus, Russia and Ukraine, Ukraine agreed to abide by previous international obligations, with no qualification. By December 2 1, 1991, Ulcraine had modified this original assertion in the Alma Ata Declaration (2 1 December 1991,3 1 LL.M. 148) by agreeing only to abide by international obligations in so far as would be consistent with its constitutional procedures. 'g4Conventionon Wetlands of Intemational Importance, 3 September 197 1,11 I.L.M. 963.
Intervention on the High Seas in Cares of Oil Pollution Cas~aIties'~* as well as UNESCO
and World Meterologicd Organhtion hydrological programs.'%
One international water convention is particularly relevant to Ukraine. The Comention on the Protection of the Black Seo agaimt Pollution and three protocols was
signed in 1992 and attempts to address the significant pollution problems of the Black Sea area?'
Although the b d k of the negotiations for this convention took place pnor to
Ukraine's independence, the final documents were negotiated and approved by Ukraine as a sovereign tat te."^ The Convention's pollution control provisions begin with a general prohibition on pollution: "Each Contracthg Party shall prevent pollution of the marine environment of the Black Sea fiom any source by substances or matter specified in the Annex to this
C o n v e n t i ~ n . 'Subsequently, ~~~ the Convention mandates that parties must specificaily prevent, reduce and control pollution fiom land-based sources,3* fiom ves~els,3~' by
'9SInternationalConvention reIating to Intervention on the High Seas in Cases of Oil PolZution CasuaZties, 1968,9 I.L.M. 25.
'%On a broader note, it should be noted that both Canada and Ukraine are signatories to the United Nations Convention on the Law of the Sea (though neither state had ratified the convention as of December 3 1,1995): supra note 107. Neither Canada nor Ukraine is a party to the Helsinki Convention on the Protection and Use of Transboundary Watercoursesand International Lakes, supra note 90. Ig7See:Documents of the Diplornatic Conference on the Protection of the Black Seafiom Pollution, (21 A p d 1992) 32 1-L.M. 110 1 [hereinafter "Black Sea Convention"]. The Convention entered into force in 1993. Ig8Theconvention was prepared and negotiated over the course of ten years prior to its signing. See: "Black Sea Nations Sign Convention on Pollutiony'(27 April 1992) FBIS-SOV-92-08 1, p. 6. 299BluckSea Convention, supra note 297 at art. 6. 3%id., art. 7.
'O'lbid., art. 8.
dumping~"as a result of activities on the continental shelfo3and fiom the atmosphere? '%Ilution of the marine environment" is defined in art. 2(1) of the Convention as: [the] introduction by man,directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deletenous effects as hami to Living resources and marine Me, hazard to human heaith, hindrance to marine activities, ùicluding fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenitie~..?~~
The first of three protocols to the Convention provides greater detail regarding the prevention of pollution fiom land based sources?
Article 1 of this protocol affects the
pollution of fkshwater resources on the territories of Contracting Parties, as it requires that parties: take al1 necessary measures to prevent ...pollution ...of the Black Sea caused by discharges tiom land-based sources on their territories such as rivers, canals, coastal establishments, other artificial structures, outfalls or runoff, or emanating fiom any other land-based source, including through the atmosphere. The protocol lists substances that must be reduced and, if possible, eliminated.307 A second protocol to the Convention addresses the issue of oil pollution and the
30'BlackSea Convention,supra note 297 at art. 1O.
'05Because the Water Code and other environmental protection legislation incorporate treaty obligations, this definition could potentially affect the standards for pollution defined in the Water Code.
306~rotocol on the Protection of the Black Sea agaimt Pollurionfiom Land Based Sources, supra note 297 at 1122. 307B[oCkSeaConvention, supra note 297 at Annexes 1and II. Note, article 6 also requires that any sewage discharge be released in a marner that reduces pollution of the Black Sea.
release of other harmfu substances in emergency situations?" The third and final protocol provides standards for the dumping of substances into the Black Sea "Dumping" is defïned in the Convention as "any deliberate disposal of wastes or other
matter fiom vesseIs or air~rafk..."~~~ In addition to provisions which mandate the prevention and reduction of pollution
in the Black Sea, the Convention also creates a Commission on the Protection of the Black Sea against Poll~tion?~ The Commission is fargely responsible for overseeing the implementation of the Convention and for making additional recommendations that may be required to achieve the aims of the Convention. While the Commission provides a
certain administrative m e w o r k to enmre the implementation of the Convention, two characteristics of the Commission limit its authority. The Commission's recommendations must be agreed upon unanimously by the Black Sea States?' ' Secondly, the Commission may consider questions raised by the Contracting Parties but the Convention does not explicitly gant any enforcement or dispute settlement authority to the Commi~sion?~
In addition to the aforementioned multilaterai agreements, Ukraine has dso entered into bilateral agreements with other states in regards to environmental and water
protection. With Turkey, Ukraine signed a declaration stating the principles and
308
Protocol on Cooperution in Combatting Pollution of the Bhck Sea Marine Environment by Oil and Other Hannfl Substances in Emergency Situations, supra note 297 at 1127. '%id.,
art. 3(a)(i).
"Olbid., art. 18. 3"lbid., art. 17, ss. 5. 31'lbid, art. 18, ss. 7. Note, that ss. 8 provides that by unanimous consent of the Contracting Parties, the Commission can be empowered to carry out any fiinctions subsequently assigned to it (such as dispute settlement). Also, article 25 discusses the settlement of disputes between Contracting Parties. This section, however, simply provides that the disputing parties shdl seek a settlement through peaceful rneans of their own choice.
objectives of relations between the two countries (when on the verge of hill Ukrainian independence)?I3 This declaration included environmental protection provisions and particularly emphasized the importance of Black Sea protection. Bilateral environmental agreements have been signed with nurnerous countries. With respect to proximate neighbours, in 1994, Poland and Ukraine signed agreements regarding environmental cooperation generally and regarding the handling of dangerous waste.)" Countries M e r away (e.g. the Netherlands) have also signed agreements with Ukraine?
Other bilateral agreements have focused exclusively on water issues. Hungary and Ukrainian signed a fiontier water accord in 1993 that focused on water management
issues related to border rivers basins?
Ukraine has also entered into an agreement with
Slovakia on issues related to water management in transboundary waters."'
In additional to international agreements with other states, Ukraine has also negotiated agreements with international organizations such as the World Bank in regards to the fïnancing of environmental protection measures. Both the World Bank and
313"DecIaration on Turkish-Ukrainian Relations" (2 Apnl 1991) FBIS-SOV-063-S p. 12-13. '4f'EnvironmentalTreaty Signed with Poland" (4 Feb 1994) FBIS-SOV-94-024 p. 5 1;"Environment Protection Accord Signed With Ukraine" (25 Jan 1994) FBIS-EAU94-0 16. 315?heNetherlands and Ukraine signed an agreement in which they agreed to cooperate in the domains of ecological management of air, water and wildlife. See: "Environment Ministry to Cooperate with US, Holland" (28 March 1994) FBIS-SOV-94059, p. 35. 'I6"Frontier Water Accord Signed with Ukraine" (28 July 93) FBIS-EAU-93- 145, p. 25.
"'"Decree on the ratification of the treaty between Ukraine and the government of the Slovakian Republic regarding issues of water management in transboundary waters", (16 Feb 19%) No. 121.
other countnes have funded environmental protection projects in Ukraine.31g
Thus far, the discussion has focused on Ukraine's formai participation in international water agreements. A m e y of ukrainian water legislation reveals that domestic legislation has specincally implemented some of Ukraine's international obligations (in addition to the general statements of international treaty provision supremacy noted eariier). Aspects of the Black Sea Convention have been implemented
in Ukrainian domestic laws. For example, a 1995 Cabinet of Ministers decree created a system for the assessment and estimation of injurious consequences of pollution fiom
ships and other floating structures in the Black Sea within Ukraine's territorial and intemal marine waters in Mfilment of Black Sea Convention obligation^."^ Purniant to RAMSAR provisions, the Cabinet of Ministers has formally identified areas designated for protection because of their international significance.
318Forexample, the United States and the World Bank have funded water quality initiatives in Ukraine. See, e.g.: "Environment Ministry to Cooperate with US, Holland", supra note 3 15. 319"Postanovapro zatverdzhenya taks diya obchyslenya rozmiru bidshkoduvanya zbytkiv, zapodiyaaykh vnaslidok zabrudnenya iz suden, korabliv ta inshykh plavuchukh zasobiv terytorizlnykh i vnutnshnikh morskykh vod Ukraijiny" pecree regarding the ratification of an assessment for the estimation of the darnage fiom misdemeanours, injurious consequences of pollution fiom ships and other floating structures in Ukraine's temtonal and intemal marine waters] (3 July 1995) No. 484.
CHAPTER FIVE: COMPARATfVE ANALYSlS B E m E N STATES AND IN RELATION TO INTERNATIONAL LAW
Up to this chapter, this thesis has focused on identifjhg and descnbuig both the international and domestic laws govemhg water pollution. The remainder of this thesis explores the con-
and similarities between Canada and Ukraine's irnplementation of
the international water pollution standards identified in Chapter Three. The inferences and conclusions that may be drawn fiom this comparison will be presented in the next
chapter. This chapter cornparatively examines the data presented in the preceding chapters. First, the correlation between international niles and domestic legislation as regards water pollution prevention in Canada and Ukraine will be examined. Secondly,
legislation in each country will be compared for the purposes of ascertainhg which country, if any, better or more successfully implements the international standards. Finally, this chapter will examine how Canada and Ukraine legislate regarding environmental protection and their international obligations in a general manner. As mentioned, in the second step of the comparison, each country's legislation
will be compared for the purposes of identifjhg which one most successfully implements international obligations. Before proceeding with this comparison, it is necessary to explain what is meant by "successful implementation." Because this thesis studies the formai implementation of intemationai standards into domestic legislation,
"success" is measured not by the levels of pollution that exist in either Canada or Ukraine but rather the legal friimework by which water may be protected against pollution. In other words, the actual enforcement or application of the legislation is not probed significantly. Rather, the scope of the formai niles and their potentiai for pollution prevention are assessed. Mien comparing the calibre of each country's water laws, it must also be noted that international water protection standards do not mandate any single or particular formula for water protection. Most of the international standards identified in Chapter Three were customary d e s derived fiom state practice (evidenced, in part, by
international water agreements). These customary rules created general principles aimed at the protection of water fiom pollution. No particular means for doing so, however, forms part of the customary d e s against water pollution. Customary international water laws fkquentiy do not enumerate specific actions which states must carry out in order to implement their obligations. Thus, Canada and Ukraine can hplement water protection legislation with different procedures for protecting water and still comply with international standards? 1) Domestic Water Resources
This chapter's comparative analysis begins with domestic water resources. The emerging international obligation to protect domestic water bodies fiom pollution as noted in Chapter Three remain more contentious than the obligations regarding marine and transboundary water resources. This type of water resource is discussed fim, however, because both Canada and Ulcraine have a significant amount of legislation pertaining mainly to domestic water resources. Domestic water resources were defined earlier in this thesis as water bodies situated wholly within the temtory of Canada or Ukrauie and as such, not subject to the customary sic utere principle. The first step, in this thesis' examination, is to identify what legislation protects domestic water resources in Canada and Ukraine. Not surprisingly, both countries have some legislation aimed at the protection of domestic water bodies.
In Canada, no piece of federal legislation prohibits the pollution of domestic water resources or even creates a broad obligation to prevent pollution. The obstacles of federaiism (i.e. the constitutional division of power) and the Canadian cornmon law system, however, explain the Canadian piecemeal regime. In other words, the lack of a single cornprehensive act governing wate resources in Canada is not necessarily 3ZoWhere relevant treaty obligations exist, evidently Canada and Ukraine are bound to implement those specifically. Neither Canada nor Ukraine, however, are parties to international conventions creating obligations with respect to al1 of the types of water resources discussed in this thesis. Thus, some discretion exists for both countiles.
reflective of a lack of water protection.
Turning to the legislation canvassed in Chapter Four, the Canada Water Act only quality management areas?" As prohibits pollution (Le., waste d i s p ~ s a l ~in~water ') such, the Water Act's pollution prohibition is not generally applicable to domestic water bodies. Quite specifically, section 9, the most stringent pollution protection provision in the Water Act, only applies to water quality management areas that have been specifically affiorded this protection by a proclamation. Similady, no provision in the Canadian Environmental Protection Act generally prohibits water pollution or mandates its prevention, reduction and control. Severai provisions of the CEPA, however, protect water indirectly. First, section 34 of the
CEPA empowers the Govemor in Council to make regdations regarding the release of substances into the environment (includhg wate$=). Thus, at the discretion of the govemment, the disposal of substances into water bodies may be regulated (the location of the release)
quantities and concentration^;"^ etc.)?
Secondly, as noted previousty,
Part III of the CEPA deals exclusively with the regdation of cleaning agents and nutrients, substances that particularly degrade and alter water resources. The CEPA mandates that these substances shall not be manufactured or imported unless they
3"Basically, '%aste" is a substance regulated pursuant to this Act, processed or treated r e m water or any other substance which would alter the quality of water to an extent that is detrimental to its use by man: see S. 2(1) and 2(2). For a more detailed discussion of the definition of 'kmte"in the Canada Water Act, supra note 141, see the text following note 147. 32'Recall, '%vaterquaiity management areas" means an area designated for the purposes of restoring, maintain or improving the quality of its water. As noted earlier, however, no regulations have been enacted pursuant to the Canada Water Act (ibid ). 3 U ~ ~supra P ~note , 144. As per the dehition in S. 3(1), water is a component of the environment.
326See,e.g.: regulations enacted under the CEPA, supra note 168-9.
conform to the regulations stipulating their nutrient concentration. Thirdly, S. 2(a) in the
CEPA provides a general staternent ùidicating that pouution prevention is mandated: "In the administration of this Act, the Govemment of Canada shall, havuig regard to the Constitution and Iaws of Canada, (a) take both preventative and remedial measwes in protecting the environment; ... (I endeavour ) to protect the environment fiom the release of toxic substances..." [emphasis added] While the CEPA and the Water Act appear to be the two principal and most obvious pieces of legislation devoted to domestic environmental and water protection in Canada, the Fisheries A c t is also highly relevant. The Fisheries ~ct,"' as noted in Chapter Four, provides the govemment with a signincant opportunity to regdate pollution in not only federal but also in provincial waters (which it has exercised). The Fisheries Act actually provides a more stringent prohibition on the pollution of water
than either the Water Act or the CEPA. Section 36(1) sirnply provides that no deleterious substances may be deposited in areas fkquented by fish, except in accordance with regulations and S. 35 protects fish habitat. The definition of deleterious substance in this Act creates a higher standards of protection fiom pollution than the Water Act because a substance may be deleterious even if it does not cause any detriment to man. Furthermore, the definition in the Fisheries Act provides that a substance may be deletenous if it is even likely to degrade fish resources. in con-
the Water Act
defines "waste" as a substance that "would degrade or aiter ...the quaiity of that water... to an extent that is detrimentai to their use by man or by any animal, fish or plant that is usefil to man...'"' [emphasis added]
The Northwest Territories Waters Act and the Yukon Waters Act apply to al1
rivers, streams, lakes and other bodies of inland water in the Northwest Territories and the Yukon.)29 The pollution prohibition in these acts provides that no waste shall be
327~upra note 1 78.
328CanadaWaterAct, supra note 14 1 at S. 2(1). 3'g~upra notes 182-1 83.
deposited into waters unless in accordance with regdations. The dennition of waste provided in the Canada Water Act is basically incorporated by reference in the Northern waters legis1ation. Notably, both the Fisheries Act and the temtonal water acts contah poliution control provisions that are somewhat stronger than those contained in the Canada Water Act and the CEPA. The CEPA and Water Act purport to apply to natural resources and
water in Canada, but the actual application of the CEPA and Water Act is constitutionaily Iimited. The Fisheries Act and the temtoriai water acts apply only to waters Eequented by fish and northern waters respectively @othclearly withui the jurisdiction of the
federal govemment). Thus, while the federal nature of the Canadian legislative system does not exempt the federal governrnent from its obligations, the division of power between the federal and provincial governments may explain the somewhat tentative content and limited application of the CEPA and the Water Act. These are the principal acts that attempt to deal exclusively with issues of ' will be discussed environmental or water protection (apart from the Oceans A C ~ ~which
in the context of marine resources). In addition, other incidental legislation adds some
protection to water resources in Canada.33' Canada's implementation of international water standards in regards to domestic freshwater resources, however, is contained principally in the above noted pieces of legislation and their regdations. As noted in Chapter Four, most of the provinces have enacted some sort of water protection legislation (either in general environmentai protection acts or in water legislation). The level of provincial protection af5orded to water resources, however, will not be discussed because the survey of provincial laws in Chapter Four was not sufficiently comprehensive to legitimately offer critical insights. Rather, it should simply be noted that the provinces dl, to some degree, provide water d e s beyond the federal acts and regdation presented in this thesis.
330~upra note 145.
33'See,for e.g.: National Parh Act, supra note 188.
Thus, Canada evidentiy does protect its domestic water resources to some degree.
The definition of pollution typicdy found in water protection legislation is fairly anthropocentric. Furthermore, the Canadian legislation does not fkquently articulate
express intentions to prevent pollution. Nonetheless, a s w e y of the major federal pieces of legislation reveals f d y consistent pollution control provisions which regulate the discharge of ceriain h
d substances and which protect riparian environments more
generally (through the use of the federal fishenes power).
In Ukraine,the identification of relevant legislation is much less complicated. According to the Water Code of Ukrauie, the Code and the Law on Environmental Protection ("LEP") are the two main laws govemhg water resources in Ukraine. The Water Code contains provisions regarding the protection of al1 water bodies in Ukraine (and therefore, domestic water bodies).
The Ukrainian Water Code provides a vague definition of "pollution" in the temiinology part of the Code. In the terminology section, "water pollution7' is defined as 'Mavourable changes in the composition and nature of water
"Pollutant
substances" are defined as substances which cause the deterioration of water qua lit^.'^^
While the definition provided in the terniinology section of the Water Code is vague, the basic pollution control provision of the Code (art. 95) elaborates M e r on the protection afforded to water resources. Article 95 States that al1 water in Ukraine is subject to protection ~ o pollution m and any activities which may harm riparian flora and fauna, the population, the natural hydrology of water bodies and the environment around water bodies (e.g. soil).
In addition to the general declaratory provision contained in art. 95, the Water Code also contains specific provisions divided into categories similar to those used by
this thesis. For example, several provisions apply specifically to interna1 marine waters and temtorial seas and one provision applies specifically to transboundary waters. The
3 3 2 ~ a tCode, e r supra note 222 at art. 2. 33316id
Water Code does not specifïcdly contain provisions directed solely at domestic fieshwater resources (aithough ground water resources are considered specifically). Apart fiom the marine and transboundary provisions, however, the rest of the water
protection provisions tend to apply to domestic kshwater resources. Domestic fieshwater resources are protected by the regdation of a variety of activities and substances. The Water Code includes provisions regardïng: sewage and garbage disposal; pesticides and fertilizers; oil pollution; exploitative drilling; construction which might affect water and fisheries status; and water catchment systerns.
Thus, instead of sirnply providing that waste may not be deposited into water bodies unless the waste disposal conforms to regulations (Iike Canada), the M a n legislation aEords different kinds of protection for different kinds of water resources and for various kinds of pollutant activities and substances.
In con-
to Canada, a few of the Ukrainian pollution control provisions are
quite stringent. For example, article 99 states that the disposal of construction, domestic, radioactive and other types of effluent and garbage is prohibited. There is no reference in this section to the term "pollution" or to maximum emissions or concentrations of pollutants. The discharge of the aforementioned types of substances is simply prohibited. Many of the other provisions protecting domestic fkeshwater resources, however, are more declaratory and aspirational in nature. For example, the provision that deals with oil pollution simply mandates that those responsible for transportation and other
containment structures for oil substances must protect water fkom pollution by these substances.33"In regards to catchment systerns (ice cover, springs, etc.), the Code simply states that individual are not to pollute or degrade these water r e s o ~ r c e s .In ~ other ~~
words, individuals are encumbered with the arnbiguous obligation of not causing "unfavourable changes" to these water resources. While some of these provisions have been implemented by executive decrees, orders and regulations, not al1 have.
'"Water Code, supra note 222 at art. 101. 33%id., art. 100.
The Ukrainian Water Code aspires to afEord domestic water resources a high level of protection. If one reads the definitions provided in the terminology section of the Water Code dong with subsequent declaratory provisions regarding pollution prevention, water in Wuaine is supposed to be protected not ody for the benefit of the population but
also for flora and fauna as well as for abiotic purposes such as the natural hydrology of water systerns. In other words, the definition is not particularly anthropocentric. A cornparison of Canadian and Ukrainian legislation yields interesting r e d t s .
Superficially, Canada has a definition of pollution which is highly anthropocentric. Furthemore, the pollution protection provisions in Canadian legislation are minimalist (basically, waste cannot be discharged unless in accordance with regulations).
In con-
Ukraine's legislation appears quite stringent with a more onerous
definition of pollution and with a greater quantity of detailed d e s . A close reading of
the Code, however, suggests that the voluminous Ukrainian legislation does not necessarily &ord much greater protection than the minimal provisions contained in Canadian legislation. For example, while the Canadian definition of pollution might be criticized for being anthropocentric, the Canadian definition may be more practicable
than Ukraine's. For example, article 95 of the Water Code of Ukraine provides that Ukrainian water bodies are subject to protection from not only pollution hamiful to man but also pollution hamiful to living and non-living naturai characteristics of water bodies.
The practical impact of such a provision is questionable. The provision does not actually impose obligations upon any individuals or groups nor are any concrete mechanisms for pollution prevention created.
Thus, while it is superficially possible to conclude that Ukraine has "better" water protection laws (for domestic water resources), a more detailed examination reveals that the difference between the two countrïes are not exceptional. Canadian legislation is less comprehensive and detailed because of Canada's constitutional division of power and because of its common law system. The Ukrainian civil law system and centralized system of power facilitates and encourages the creation of singular, comprehensive legislation regarding water resources. Though Ukraine's legislation does not necessarily surpass Canadian legislation (with respect to quality or calibre), it remains highly notable
nonetheless that Ulcraine has created a legd k e w o r k that rivals Canadian legislation at all. One point peaaining to the mamer in which each state incorporates treaty obligations is sigdicant. Ukraine's omnibus incorporation of treaty obligations into the Water Code336may augment the standard of protection that the legislation afXords to water resources. For example, if any treaty to which Ukraine is a party provides a definition of pollution which conflicts with the Code's definition, Ukraine's domestic definition could be supplemented by the treaty's definition. This type of automatic augmentation or improvement to Canadian standards could not occur without the express refomulation of treaty obligations into domestic law. 2) Marine Water Resources
In Canada, the CEPA and the Oceans Act are the two main few pieces of legislation airned wholly or in part at the protection of marine water resources. Part VI of the CEPA deals exclusively with ocean dumping. The CEPA prohibits almost al1 dumping of substances into the sea fiom anthropogenic structures unless permission to do so has been granted by a permit 337 Dumping is defïned as the disposal at sea338of any substance from anthropogenic structures.'3g On the one hand, the pollution prohibition in the CEPA is broad because the
disposal of al1 substances in almost al1 marine waters is prohibited (without a permit). Because it deals only with ocean dumping, however, the CEPA only affects pollution fiom the sea and does not regulate pollution h m land-based sources. This part of the CEPA is not intended to provide broad protection to the marine environment, howeveq
336Recallthat the Water Code and other Iaws often state that if treaty provisions and domestic d e s conflict, then treaty provisions shall apply. 3
3
7
~
supra ~ ~ note ~ , 144 at S. 67.
338Thedefinition of "sea" is broad and includes any area of the sea other than intemal waters of a foreign state. Intemal marine waters in Canada are included. supra note 144 at S. 66(1). 339CEP~,
it is essentially devoted to the implementation of Canada's obligations under the
Convention on the Prevention of Marine Pollution by Dumping of Wastesand other ~ a t t e rEU] .
The Oceans Act dm provides some protection to marine waters. Though specific pollution prohibitions are not contained in this Act, the use of precautionary and sustainable development p ~ c i p l e in s oceans management is mandated. This principles
will necessarily involve pollution control. Protection from pollution of marine waters f?om land based sources remains
minimai in Canada The general provisions prohibiting the dumping of wastes into the environment except in accordance with regdations in the CEPA wodd indirectly provide some protecti~n.~'In addition, the Arctic Waters Pollution Act provides that no peson or ship shall deposit wasteW'into arctic waters, except as authorized by reg~lations.~~
The Fisheries Act can also be invoked to protect marine water as well as fieshwater. Any waters fkequented by fish are protected. Marine waters fkequented by fish are consequently protected fiom pollution which may harm them or their environment. The protection of the Fisheries Act would extend to land based sources of pollution.
If one examines al1 provisions pertauiing directly and indirectly to marine water, marine pollution is controlled by various pieces of Canadian legislation to some degree.
in other words, a basic correlation exists between Canadian law and the international rule that marine pollution shall be prevented. While ocean dumping is explicitly prohibited and while arctic waters are protected, no comprehensive system for preventing pollution of marine resources fiom al1 sources exists, except as a consequence of general
UoSupranote 85. "'For example, the toxic substances provisions apply to land based sources of marine pollution. Furthexmore, the Canada WaterAct provisions can be applied to marine as well as fieshwater resources. "2"Waste'7 is defined as it is defined in S. 2 of the Water Act, supra note 141.
M 3 ~ r Waters ~ t i ~Pollution Act. supra note 1 78 at S. 4(1).
provisions aimed at the control of toxic and polluting substances (e-g. nutrients and detergents)?
In c o n t a marine water protection ranks among the most detailed areas of Ukrahïan water protection legislation. The Water Code contains several provisions which discuss Ukraine's intemal marine waters and its temtorial seas. The Code protects these marine waters h m both water and land-based sources of pollution. In regards to pollution emanating h m anthropogenic structures in marine waters, ships and other objects cannot dump chemical, radioactive or any other substances that can cause pollution into intemal marine waters and territorial seas."'
Furthemore, individuals are
prohibited fiom polluting seas as well as their gulfs and e~tuaries.'~~
In addition to the general pollution provisions contained in the Water Code, executive legislation in Ukraine provides a more detailed marine environment protection scheme. Legislation implementhg marine water protection provisions of the Water Code provides a more precise definition of unacceptable pollution in marine waters, detailed standards about what may be discharged into marine waters and how and provisions which allow for discretionary increases in pollution protection if water agencies deem such a necessity."'
In addition to particular substances that are regulated by legislation,
Ukraine's Water Code dso contains a number of provisions which fully prohibit the disposal of certain kinds of pollutants into marine water and mandate that other
substances not explicitly prohibited or regulated must not be released if they pollute the marine environment. in regards to intemal marine waters and territorial seas, Ukraine has created a
UJNote,the protection of marine resources is less problematic for Canada given that fewer constitutional obstacles exist for the federal governrnent in this area. " 5 ~ a t e rCode, supra note 222 at art. 102. 3%rt. 100 (ibid.)not only prohibits the release of polluting substances generally into these areas but also enurnerates certain types of pollutants explicitly, such as sewage, garbage, oil and industrial deposits.
347~ee: Decree regardng marine waters, supra note 248.
legislative scheme for the purposes of regdahg marine pollution. Not only does
Ukraine have some form of legislation which correlates to international obligations, but also Ukraine's legislation mandates a relatively stringent level of marine environmental protection.
As with the protection afforded to domestic waters, Canada and Ukraine both protect marine resources to some degree. Ukraine has developed significant legislation at
an executive and legislative level regarding marine resources. Though Ukrauie has only been independent since 1991, its marine water legislation (on a formal level) is at least as good as Canada's. Despite Ukraine's detailed fixunework for marine water protection, the Ukrainian
legislation focuses mainly on interna1 marine waters and territorial seas. With respect to the dumping of pollutants at sea, Ukraine's provisions do not apply beyond its territorial
waters. Canada's ocean dumping provisions, in contrast, apply broadly (almost everywhere except foreign waters). 3) International Watercourses
International watercourses will typically be regdated by the pollution prohibition provisions already discussed. For example, in Canada, the Great Lakes are an international or transboundary watercourse. Nonetheless, the provisions in the CEPA are still applicable. A separate analysis of the legal instruments that apply particularly to international
watercourses is relevant for two reasons. First, while a well established obligation exists not to h m other states and thus, necessarily to protect transboundary resources, one might argue that a lesser incentive exists to protect transboundary water resources because the effects of polluting those water resources are dispersed (Le. the effects of pollution are not necessarily felt within the polluting state)."'
Thus, it is interesting to
examine how states use transboundary water resources in paaicular, as opposed to water
"8Water resources which constitute a "commons" may s a e r fiom the so-called 'bgedy of the comrnons."
resources which are exclusively their own. Secondly and perhaps more importantly7the successful protection of intemational watercourses typically requires the cooperation of
al1 States who share that watercourse. As such, a m e y of relevant legal instruments must go beyond domestic legislation and included a survey of bi- or muitilateral agreements which protect transboundq water resources. Because of these idiosyncratic characteristics of the protection of transboundary water resources, this thesis uses a separate analfical category for international watercourses. Because the relevant domestic legislation applicable not only to domestic fkshwater and marine resources but also to transboundary water resources has already been canvassed, the remainder of this section focuses on international agreements that Canada and Ukraine have signed in order to protect international watercourses. Two international water bodies are examined in particular. Apart fiom the Arctic, Canada only shares water bodies with the United States. Ukraine shares some river systems with its neighbours, but its major shared water body is the Black/Azov Sea system. In regards to international watercourses, Canada and Ukraine have made comparable efforts to co-operate with neighbours with respect to shared water resource protection. For example, over the course of most of this century, Canada has cooperated with the United States with respect to shared watercourses such as rivers and the Great
Lakes. The International Joint Commission, the Boundary Waters Treaty and other related agreements evidence this cooperation (especially the 1972 and 1978 Great Lakes agreements).
While Ukraine has been independent for oniy six years, Ukraine has negotiated agreements with several neighbours in regards to shared water resources. By far, the most significant international agreement signed by Ukraine is the Black Sea Convention.
Like the Boundary Waters Treaty, the Black Sea Convention also creates a cooperative, administrative body. A cornparison of the two transboundary administrative bodies is revealing. The Black Sea Commission does not wield significant authority. For example, each date which is a party to the convention is represented on the Commission which is essentidly responsible for making recommendations (which must be unanimous) to elaborate and
prornote the convention's goals (pursuant to articles 17 and 18). The Black Sea Commission is not a dispute settlement body. The International Joint Commission is, in contrat, a more autonomous organization with greater powers than the Black Sea Commission. This discrepancy between the arnount of power granted to the two commissions does not necessarily reflect a greater or lesser cornmitment to pollution prevention. In regards to the Black Sea, however, Ukraine has retained a greater degree of autonomy and sovereignty than Canada has (in relation to waters shared with the United States).
This retention of power may evidence a difference in the degree of cooperation exercised by each country in relation to transboundary watercourses. On paper, the Black Sea Convention may seem more environmentally stringent
because it is, in its entirety, devoted to the protection of the Black Sea marine environment The Boundary Waters Treaty, in contrast, is not exclusively intended for the purposes of water protection and does not priorize the protection of water resources from pollution. The Boundary Waters Treai-y, however, is evidently relatively old and thus, the lack of emphasis on environmentai protection is not suprising. Furthemore, the Great Lakes agreements of 1972 and 1978 have supplemented the environmental protection mandate of the I.J.C. and the Boundav Waters Treaty. A survey of disputes presented to the ICJ evidences the use of the treaty and this institution in relation to environmental protection matters. Thus, both Canada and Ukraine have created instruments which protect transboundary water resources from pollution. Though the preceding discussion focused mainly on the institutional legd mechanisms created by Canada and Ukraine's treaties, both states are parties to a variety of other agreements regarding transboundary water. Both have cooperated with other States in the protection of transboundary waters and have signed forrnal international legal instruments which, to v w n g degrees, attempt to prevent water pollution. In addition, both states S o r d international waters protection by virtue of their domestic legislation. Therefore, if one compares the legislative eEorts of Canada and Ukraine in regards to transboundary water protection, Canada and Ukraine both reveal a comrnitment to the protection of transboundary water resources in a
cooperative manner with riparian neighbours. 4) Environmenhl Protection Provisions Generaily
This thesis does not explore environmental laws generally in Canada and Ulûaine and therefore does not contain a detailed survey of general environmental protection legislation in each state. Nooetheiess the examination of water pollution laws in the previous chapter discussed some legislation that created a broader environmental protection framework in Canada and Ukraine. Water pollution laws cannot fûnction in a vacuum. Pollution in other areas of the environment inevitably affects water. Therefore, a bnef discussion about environmental protection laws in Canada and Ukraine that develop a broader administrative and pollution prevention framework is useful. Both Canada and Ukraine have environmental protection laws. Both provide at l e s t general protection to water resources as part of the environment. Both states' laws contain statements of purpose which, though aspirationai, provide some indication of the formal objectives of environmental protection legislation in each Ukraine's Law on Environmental Protection, however, is more comprehensive in regards to the subjects that it addresses. While Ukraine's LEP may be somewhat vague,
much like the Water Code:so the LEP deals with a host of subjects not included in the CEPA. Notably, the LEP enurnerates citizens' rights and obligations in regards to the environment which include a right to a healthy environment?' Environmental rights are
"grneprearnbles of aimost any on the environmental protection legislation surveyed in this project would provide a relevant example of this. 3S"Thelegislation may be somewhat vague, but this law is also intended as a framework for environmental protection and not a detailed plan for achieving that end. Criticism of the law on environmental protection should be considered in Iight of the fact that regdations and decrees are intended to design specinc d e s , obligations, standards, etc. pursuant to the objects of the LEP.
3S1~ithout undertaking any significant analysis of the LEP,citizens' rights and obligations are enurnerated in Part II of this law. The obvious cnticisrn of this part would be that environmental rights are useless unless they are enforceable. This part of the law, (continued.. .)
not part of the CEPA?" Ukraine's LEP also includes an entire section devoted to economic issues, while Canada's EPA remah d e n t on the links between economics and the environment and economic policies in regards to the environment The Ukrainian legislation incorporates many topical issues not unfamiliar to scholars in environmental and international environmental law. The aforementioned topics of envuonmental rights and the links between economics and ecology are among two of the most prevalent and 'Tashionable" issues debated in recent years. A second type of environmental legislation related to water pollution but not
discussed at Iength because of its peripheral importance is environmental assessment legislation. Leaving aside the actual application and enforcement of environmental assessrnent requirernents in each country, if one browses through environmental assessment legislation in Ulcraine and Canada, detailed requirements for such procedures are outlined in both countries. Both countrïes have fairly broad requirements for environmental assessments?" Both countries have created processes which mandate public participation in the environmental assessment process. One can conclude, without delving into the legislation in too much detail, that both Ukraine and Canada have created environmental assessment legislation that would encourage or assist in the protection of water resources fkom pollution.
35'(...continued) however, also enurnerates guarantees of these rights. While the probable utility of these "guarantees" remains questionable given the ongoing restructuring of the court system in Ukraine and the ability of citizens to access the court systems as a means enforcing their rights, some attempt has been made in the LEP to concretize citizens' rights. "'AS an aside, Canada also does not address environmental issues in its
constitution. Ukraine, in contrast, provides environmentai rights within its constitution. The absence of environmental references in Canada's constitution likely reflects the historical context in which the document was drafted more than a fack of cornmitment to environmentai protection in Canada Ukraine's inclusion of such rights in its constitution cvidences prioritization of environmental protection in legislative endeavours. 3531n fact, Ukraine's requiren~entsare t ~environmental r assessments are so broad
that seemingly almost any activity involving nahual resources is subject to environmental assessment.
5) References to International Obligations
Apart h m assessing the content of Canadian and Ukrainian legislation in regards to water protection provisions, when comparing Canadian and Ukrainian water pollution legislation, one also notes that Ukraine's water IegisIation contains more references to international obligations than Canada's. Evidently, mere references to international obligations does not prove a commitment to them. The type of references in each country's legislation ,however, suggests the extent to which each country wishes to bind itself formally. Ukraine's environmental and water protection legislation creates at least the appeamnce of significant cornmitment to international law. Quantitatively, Ukraine fiequently concludes major laws by stating that if Ukraine is a party to a treaty that contains provisions contradictory to those contained in the law, the treaty provisions shdl be applicable?" With regards to substance, in regards to certain issues, Ukraine simply provides in its legislation that individuals must comply with the obligations of thainian treatie~.~*' While this approach to treaty obligations is, to a certain degree, sirnply a means of implementing international obligations by formally incorporating treaty obligations into domestic Iaw without any specific reformulation of the obligations, two factors suggest that Ukraine has a particularly strong formal cornmitment to international obligations. First, Ukraine not only incorporates international treaty obligations by reference but also legislates the supremacy of international treaty obligations over domestic laws (Le. international d e s trump domestic law). Secondly, Ukraine's incorporation of treaties into its Water Code does not specifjr any particular treaties, but rather includes al1 relevant treaties.
~ e text e accompanying notes 27 1-274.
or
example, Ulaaine has stated, in regards to transboundary environmental assessments, individuais are bound by the obligations and d e s contained in treaties on that topic that are signed by Ukraine: Law on Environmental Assessment, supra note 271. See also, regulations regarding ship construction standards contained in the Decree on Marine Waters, supra note 248.
In cornparison, noue of the Canadian legislation pertaining to environmental protection or water resources surveyed in this thesis contaùied any provisions sirnilar to those noted in the Ukrainian legislation. Although Canada tends to implement international obligations by reformdatùig them into domestic legislation drafted in Canada, no provisions provided that international treaty obligations would ovemde domestic legislation. In fact, generally, explicit references to international obligations in Canadian environmental protection legislation are quite limited. For example, in the CEPA, the part on ocean dumping refea to and reformuiates the obligations of the Convention on the Prevention of Marine Poliution by Dumping of Wizstesand Other
M~tte$'~ .357 Though Canada does not generally provide formai acknowledgement of international obligations in its national legisiation, this absence of references does not suggest in and of itself that Canada avoids treaty obligations. Canada's constitution simple does not permit the automatic incorporation of treaty obligations into domestic law. Thus, the reformulation of treaty d e s in domestic laws is undertaken. Thus, on paper, Ukraine rnay appear to be much more zealous in regards to its treaty obligations than Canada, but that observation must be tempered with Canada's constitutional requirements. This entire discussion regarding cornmitment to international obligations has focused exclusively on treaty obligations. Neither Ukraine nor Canada acknowledge customary law obligations in their legislation. In that regard, Ukraùie and Canada are equally silent. This silence regarding custom likely reflects more on the status and relevance of different sources of international law than on either Canada or Ukraine
356Supranote 85. 357~nother exception to the proposition that Canadian environmental protection legislation rehins fiom significant formal acknowledgements of international obligations is found in Part Five of the CEPA international on air pollution. In that part, pollution is deemed to included anything listed in that part as well as anything else that would constitute pollution according to international obligations. CEPA, supra note 144 at S. 6 1(1 )(b).
specifically. The implications oftreaty versus customary law are discussed in more detail in Chapter Six
CHAPTER SIX: REVELATIONS, INFERENCES AND CONCLUSIONS REGARDING IMPLElMENTATiON ON THE:BGSIS OF THE COMPARATIVE STUDY Severai observations emerge fkom the preceding comparative study. First, some correlation exists between international water standards and the domestic laws of both Canada and Ukraine. Secondly, while no dramatic discrepancy exists between Canada
and Ukraine's domestic fhmeworks for water pollution prevention, Ukraine has passed legislation which is nonetheless more comprehensive and explicit than Canada has. If one examines the relevant formal international and domestic laws regarding water pollution presented in the preceding chapter, these observations are relatively uncontroversial.
The pressing and more controversial question that follows probes what, if anything, these observations might reved about the process or concept of "implementation" of international standards into domestic systems. This chapter discusses what the data contained in the comparative study reveals about this question.
First, the limitations arising fiom and inherent in the this thesis' methodology will be examuied. Next, the manner in which implementation of international obligations occurred in Canada and Ukraine will be explored. In particular, the legislation presented
in the previous chapter will be coupled with basic information about each state in an effort to identify what factors motivateci and affiected the implementation process in each country. Finally, this chapter explores the implications of the comparative study for international law. Specincally, the tramformative capacity of international law will be assessed.
1) Limitations
Evexy study has its limitations, regardless of it potential methodological soundness and structural strengths. A thorough understanding of the conclusions that may reliably be drawn on the basis of the data contained in any study allows one to distinguish between propositions that are sound, arguable or merely speculative. Thus,
before proceeding, some of the potential sources of contention in regards to this thesis' methodology and eventual conclusions will be acknowledged and rationdized-
First, this bilateral comparative study simply does not provide a large enough sample of states to study in order to make definitive assertions about the implementation process but it provides ample opportunity to suggest conclusions and ùiferences. A comparative study of a broader magnitude on this topic is not feasible within the consfraints of this project. The comparative study in this thesis offes a feasible oppominity to incrementally augment o u .understanding of the interrelationship between international and domestic lawTo avoid tuming this thesis into a comprehensive comparative study of Ukraine
and Canada's environmental protection firameworks, a single aspect of each country's water policies was singled out. Only the texts of national legislation regardhg the protection of water resources fÎom pollution were studied. Much has been written about the multi-faceted nature of law and the need to study law in its broadest c o n t e ~ t . ~In '~
discussing the numerous components of "lad', Friedman noted: "A living body of law is not a collection of doctrines, d e s , terms and phrases. It is not a dictionary, but a culture, and it has to be approached as s ~ c h . . . "While ~ ~ ~ a more comprehensive study of the entirev of each state's legal system pertaining to water pollution would have been very interesting. fomal legislation is sficient for a study which limits itself to an examination of the technical implementation of international obligations into domestic legal systems. A study focusing only on written legislation also offers certain advantages. The
moa obvious advantange is that written laws are typicaily the most obvious and readily accessible component of any legai system. Secondly, al1 other aspects of legal systems generdly stem from or stand in con-
to legislation and other formal d e s . Finally, the
3S8~acco, supra note 1 at 22,27. 3'gFriedman,"Some Thoughts on Comparative Legal Culture" in Clark (ed.), Comparative and Privute International Law: Essays in Honozrr of John Henry Merryman on His Seventjeth Birthday, Berlin, Dimcker and Humblot, 1990 at 52.
necessary starting point for a study which examines substantive implementation would necessarily require an examination of the legislation which technically implemented the international obligations uito domestic legislation. In other words, this thesis simply focuses on what would generally be the first step in any analysis of the implementation process.
a
Regardless of the justification for this methodological approach, one must concede that certain conclusions cannot be made on the basis of this study. Mainly, by focusing oniy on legislative texts, this thesis remains silent on the functional application of the Iegislation in each state and Canada and Ukraine's substantive cornpliance with international law. 2) Factors Anecting the Irnplementation Process in Canada and Ukraine
This thesis isolates the variable of domestic legislation as an indicator of the extent to which Canada and Ukraine have implemented theù international obligations regarding water pollution prevention. The legislation presented in the previous chapter evidences that both Canada and Ukraine have articulated some water pollution standards in their own domestic legal systems. Of the two countries, Ukraine, possesses relatively more comprehensive legislation that explicitly mandates pollution prevention. Before examining specific factors which afTected each state's implementation of international obligations, a general observation arises with respect to the level of difficulty involved in the implementation of international standards. Essentially, the
comparative study suggests that international environmental standards are not exceptionaily difficult to implement formally. Given that Ukraine passed its Water Code less than four years after achieving independence and its environmentai protection law the same year that it declared independence, the creation of environmental legislation that conforms to international standards does not appear to be an exceptionally onerous task.
In other words, the level of difficulty inherent in the draftùig and passage of forma1
legislation that upholds international environmental standards is not excessive.360 Even if the implementation of international standards is not exceptionaily onerous
in texms of what is required to formaiiy achieve this end, the process is not entirely neutd and straightforward. For example, while Canada and Ukraine both have water pollution tegislation, both states have legislated on this topic in very different ways. This thesis' comparative study offers some Uisights into the factors which explain the
which Canada and Ukraine implemented thek international water
The comparative study suggests that certain factors which might be presumed to affect the incorporation of international standards into domestic legislation, in fact, seem to have little predictive value after dl. This revelation that certain seemingly obvious factors (e.g. economics) are not so critical reflects the "'serendipity effect of crossnational comparison.'""
This bilateral comparison between Canada and Ukraine may
'%e results might also indicate that Ukraine has made significant efforts to create detailed and strict legislation. The creation of water protection laws which are coherent and relatively comprehensive requires some effort. Ukraine's Water Code is not merely an assemblage of aspirations and declaratory statements consistent with international standards. Rather, in addition to numemus aspirational and declaratory statements, the Code creates an administrative framework which potentially could adrninister the Code's provisions. Furthemore, the Code has already been supplemented with some implementing legislation such as executive decrees and regulations. Thus, while the implementation of international standards is relatively simple, Ukraine has also created a framework which is detailed and which seemingly could fiuiction if applied and enforced within the country. "Mannef' includes the quantity of relevant Legislation in each state, stringency of the rules, detail and comprehensiveness, etc. 36'
"'The issues of why states comply with international law is connected with the implementation of international law, but not one and the same. A state c m decide if it wants to comply with an international obligation. The manner in which the state does so cannot necessarily be explained by the sarne reasons that explain the state's cornpliance in the first instance. 363See:Peter Knoepfel and Helmut Weidner, "Implementing Air Quality Control (continued.. .)
suggest that some diniculty exists in the isolation of any predictable factoa that impact
on states' implementation of international obligations. Numerous domestic and international factoa rnay impact upon a state's legislative processes in a given context. Predicting the importance and effect of these factors is therefore dinicult. The analysis of factors relevant to the implementation process is undertaken on the basis of the comparative study coupted with basic information about Canada and
Ukraine. This cumulative amount of data provides insights regardhg six potential factors in paaicdar. These include: the international obligation itself; economics; legal history; necessity; politics; and international pressures. As noted earlier in this thesis, international law and international relations overlap at times. This portion of the thesis explores the relationship between international law and a variety of private, domestic ~tnictures,3~ The following discussion examines whether the comparative study evidenced each factor's capacity to encourage or discourage the implementation of international obligations (or whether the factor simply seemed neutral). The analysis reveals that some
363(...continued) Programs in Europe: Some Results of a Comparative Study" in Paul Downing and Kenneth Hanf (eds), International Cornparison in Implementing Pollution Laws,Boston, Kluwer Nijhoff Publishers, 1983 at 192. These authors suggests that comparative methodology tends to reveal insights which might not otherwise be perceived and may also dispel assumptions, even if this is not intended at the outset. 3 6 4noted ~ s earlier, politics and law are separate disciplines but in the international domain, they cannot be studies wholly independently of one another without acknowledging their mutual influences. An excessive dependence on politicai analysis may diminish the theoretical and jurisprudential strength of the discipline of international law. To remain relevant, credible international legal analysis cannot ignore the practical realities of politics. Furthemore, the innuence of politics rnay be especially important in the realm of customary international law, given its more ambiguous status in domestic legal systems. In other words, which treaties often have some acknowledged status in domestic legal systems, customary international rules have a weaker status and are more depended on the support of the political branch. For m e r discussion on this topic, see: Philip Trimble, "International Law, World Order and Critical Legal Studies" (1990) 42 Stanford LR 81 1 at 822-3,838; Nigel PuMs, "Criticai Legal Studies in Public International Law"(199 1) Harv. Int. LJ. 81 at 118.
but not al1 factors appear to have affiected Canada and Ukraine in this study. More generally, the analysis indicates that social, political and economic forces do have the potential to undermine the universal aspirations of international law. a) The nature of the international obligations Not only do different sources of international law exist, but also the content of international d e s does not follow any consistent pattern. Thus, both the type and particula.content of a d e might potentially affect its implementation. A specific d e
that States perceive to be legitimate is Likely to be implemented predictably, while a very general d e may be implemented in more than one way. The international obligations regarding water pollution examined in this thesis mostly emanated fkom customary international law. Customary d e s do not typically contain a blue-print for implementation. As such, the manner in which Canada and Ukraine created legislative h e w o r k s for water pollution prevention were entirely of their own choosing (apart fiom each state's treaty obligations)?
The delegation of
responsibilities, the standards of acceptable harm from pollution and so on are a manifestation of each country's unique manner of incorporating the general intemational standard. The effect of the content of the international standard, therefore, on the manner of implementation is insignificant. The content of the international obligation affects the implementation process by provîding a general d e to be observed. Also, the international obligation's generaiity likely encouraged divergent forms of implementation in different states?
'"This thesis does not assess the quality of the international standards governing water pollution. In other words, the content or nature of the international standards are not cntiqued to any significant degree in the thesis. As such, this ambiguity of the d e s noted in the text in not discussed in an attempt to discredit the utility of the international d e s . For M e r discussion on this topic, see: Trirnble, supra note 364 at 830 (who suggests that indetenninacy is a positive element in the international legal system). 366
Evidentiy, this ambiguity in the international standards may be responsible for a significant degree of divergence in domestic fiameworks for pollution prevention. The (continued...)
The source of the international water obligations may also have affected the implementation process to some degree, but any conclusions in this regard are highly speculative on the basis of this comparative study alone. The one observation may evidence an unequal perception of customary versus treaty d e s by Canada and Ukraine. While treaties are referred to by both states in their legislation, neither state mentions customary obligations. Arguably, this discrepancy is not exceptionally relevant given that both states' legislation correlates at least minimally with international obligations. b) Economics
It is a commonly accepted principle that a country must generally have certain financial stability and abilities to be able to protect its environment fiom degradatiod6' Concepts such as sustainable development are premised upon such a link between economics and the environment. These general propositions ought logicdly to assist in the prediction of the extent to which water resources rnight be protected in Canada and
Ukraine. Given that the link between economics and the environment has been repeatedly established, one might logicdly assume that economics affects the implementation of international standards. The following analysiq however, suggests that forma1 implementation is not necessarily significantly af5ected.
The first step in this analysis is the identification of each state's economic status. Canada and Ukraine's economic situations are radically different. A variety of standard economic indicators noted in Chapter Two consistently reveal Canada's prosperous economic reality and prospects and h i n e ' s curent econornic crises and continuing 3M(. ..continued) manner in which the general international standards is implemented, however, is not Iinked to the international d e .
367~ven Ministry of Environmental Protection officiais in Ukraine have publicly noted: "The former socio-economic system [Soviet] in the long run culrninated in an acute environmental and economic crisis. Overcorning that &is is unthinkable without a new environmental policy": Econornic Commission for Europe, supra note 15 at 50. For other acknowledgements of this interrelationship, see: Zumbnuuien, supra note 38 at 53; Pryde, supra note 24 at 5.
financial stniggles. Evidently, the selected statistics regarding highiy disparate per capita GDP and so on listed in Chapter Two do not represent any comprehensive economic cornparison of Canada and Ukraine, but they do undeniably highlight Ukraine's economic stmggles (compared to Canada's anluence). On the basis of the economic data presented in this thesis and the aforementioned relationship between economics and the environment, a number of predictions seem feasible. Given that poor countries have difficulty priorizing environmental protection and given that Ukraine is, despite its status as an industrialized nation, poor, one would predict that Ukraine would likely have diniculty protecting its natural resources. In attempting to better its economic status, one rnight M e r predict that Ukraine would degrade its natural resources for profit. In other words, for Ukraine
to subsist economicaiiy, it is entirely likely that it would permit or even encourage profitable development on its temtory even at the expense of its environment (e.g. encourage investment with low environmental standards).'" Ukraine's environment is undeniably degraded?'
The entry into force of the
Water Code came at a t h e when water pollution was a significant and, in areas,
dangerous p r ~ b l e r n ?The ~ ~ pollution generally resulted fiom old and inefficient technologies used by industry and municipalities. For example, in 1995, about 15 percent of d l sewage was discharged into Ukrainian water systems with any purification?71A national classification of rivers in Ukraine revealed that first class
368Theso-called "race to the bottom" premise suggests that States in economic difficulty will tend to cornpete for foreign economic investments by using relaxed environmental regulations as "baity' for investors. See, e-g.: Pryde, supra note 24 at 7. 36%ote, arguably environmental degradation in Ukraine can be attributed not only to recent econornic crises, but also the Soviet era abuse of natural resources. 370See:Stebelsky, supra note 37 at 151- 153 (for a general discussion of Ukrainian water pollution problems). "'~krainian Institute of Scientific, Technical and Econornic Information, Anthropogenic Effect on the Resources and Quality of Suface Waters in Ukraine, Kiev, (continued...)
nvers, basically clean rivers, were "practically nonexistent.'""
Almost no underground
aquifers usable for drinking water have not been af5ected by pesticides. Two river basins
are among the most poliuted regions in Europe, the Donets and Dnipro?
Actuat
discharges of pollutants of all varieties fkquently exceed maximum allowable concentrations?
From region to region in Ukraine, the most consistent polluters of
water resources are municipal services establishments. Thus, with respect to the overall status of the environment, the economic predictions noted earlier are true, but the predictions falter with respect to forma1 environmental standards in Ukraine. When compared to an industrialized and relatively wealthy nation such a s Canada, Ukraine's legislation excels in terms of
comprehensiveness and stringency. Upon becoming independent, Ukraine very quickly created environmental protection legislation that, on paper, strictly protects its natural resources?" In other words, formally, Ukraine is not engaged in a "race to the bottom" with respect to environmental standards.
As noted in this thesis' introduction, similarities between Canada and Ukraine are more strikïng given the differences in their levels of development, particularly with respect to their economies. The "race to the bottom" concepts merits M e r discussion because it highlights the significance of Ulaziine having water protection laws comparable to Canada's. The "ce
to the bottom" has been defined as "[the] progressive
relaxation of state environmental standards spurred by interstate cornpetition to attraci
"'( ...continued) 1995 at 4 [hereinafter 4'AnthropogenicEflect"].
3n~conornic Commission for Europe, supra note 15 at 50. 374~nthropogenic Effect, supra note 371. 375~ecall, Ukraine's LEP was passed in 1991 and the Water Code was passed only four years after independence in 1995.
i n d ~ s f r y . ~The ' ~ ~principle, ~ denved somewhat fiom the classic Prisoner's Dilemma concept, is supposed to be especidy relevant to lesser economically developed States. if this principle is vaiid, then Ukraine's legislative achievements are significant. Altematively, Ukraine's legislation rebuts this principle. Regardless, Ukraine's high correlation with international laws becomes more significant in the context of econornic factors. The preceding discussion evidences the discrepancy between formal and substantive irnplementationof international pollution obligations. Although Ukraine has strict water standards, pollution continues. Ukraine's legislation is, in fact, so strict with respect to its pollution prevention requirements that it is impossible for Ukraine to comply with its own legi~lation.'~~ But for a few exceptional provision^^'^ the legislation mandates rigid pollution prevention requirements without any references to capacity or a gradual increase in protection af5orded to water resources. Since the introduction into being of the Water Code, Little has changed in Ukraine which would make cornpliance with the Code's smct pollution provisions economically
feasible?
Studies have indicated that the most significant source of pollution in Ukraine
376K.Engel, "State Environmental Standards: 1s There A "Race" and 1s It 3 0 the Bottom" (1997) 48 Hastings L.J. 471 at 474. See also: Lan Cao, "Towards a New Sensibility for International Economic Development" (1997) 32 Tex. Int'l L.J. 209. 3nThe standards set by Ukrainian laws and regdations are sometimes unattainable for two reasons. First, econornic circumstances in Ukraine necessitate that some industries continue to pollute (e.g. outdated water treatment facilities). Secondly, however, some standards are unattainable simply because they are exceptionally stringent. For example, some levels of pollution are routineiy reported in the media in relation to the number of times the pollution exceeds maximum emissible concentrations. See: Pryde, supra note 24 at 168. 378Forexample, article 38 discusses how quality will be increased in water bodies as opposed to setting a fixed standard with which users of the resources m u t comply. See: Water Code, supra note 222, art. 38. 3 m ~ i trespect h to stafnng problems, the number of inspectors in the Ministry of Environmental Protection was insacient in the year pnor to the passage of the Water (continued...)
is out-dated inefficient technology used by industries and enterprises (including water treatrnent enterprises)?" The introduction of improved technologies is, however, very costly. The only other alternative which would r e d t in cornpliance with pollution control provisions is the suspension of operation of industries and enterprises, which is also unfea~ibfe."~As noted by the Ula?iinian Institute of Scientific, Technical and Economic Information, &'therealization of these rneasures [the introduction of pollution prevention technologies] will require colossal outlays, which is impossible to accomplish while the country is in an economic cri si^."^" Neither individual industries nor the govemment appear able to finance the necessary capital pollution reducing technologies. In 1995, the year the Water Code was passed, the percentage of the government's investment in environmental protection out of 3n(...continued) Code: "Heaith Consequences of Mariopol's Environmental Contamination Viewed" (18 Apnl 1994) FBIS-USR-94-140 at 23. 3 " ~ a t e ris used inefficiently by al1 branches of industry. Most industnal plants are outdated (some as old as the tum of the century) and hence are not efficient by today's technological standards. Excessive quantities of water are consurned and used by many industries. It has been suggested that many enterprises use two to five times as much as would be necessary if better and more modem technologies were used; some use up to ten to thirteen times as much. See: Economic Commission for Europe, supra note 15 at 49. 381Notethat pollution has decreased in Ukraine since the Water Code was passed. This decrease in pollution, however, is generally attributed to the forced closure and suspension of operations of industries in Ukraine due to econornic duress: "Ukraine Minister on Integration of Economic, Ecological Refom" (23 May 1994) FBIS-USR-94054 at 39. For example, the energy crisis in Ukraine resulted in a decrease in pollutant emissions h m mobile sources. In other words, consumption of fuel by motor vehicles dropped because of a gas shortage: Economic Commission for Europe, supra note 15 at 59. Furthermore, some literature has noted that the decreases in pollution con& of less than the decrease in levels of economic production. In other words, per-unit-ofproduction pollution levels appear to have been increasing in recent years: Pryde, supra note 24 at 8-9.
3n~krainianInstitute of Scientific, Technical and Econornic Information, Water Protection Measures in Ukraine and Means of lncreasing their Effectiveness, Kiev, 1995 at 1O mereinder "Water Protectionyy].
the national budget was only 0.44 percent?83 It has k e n suggested that an investment equivalent to about 3 to 5 of Ukraine's GNP is necessary to adequately address environmental protection problems?
uiterestingly, however, it is estimated that more of
the environmental protection budget is spent on water than on air or soi1 p~llution."~ Furthemore, the pollution fee system in Ukrauie, created as an economic incentive to reduce pollution, is only effective when polluting industries have a capacity to pay fees. Thus, some local govemments may exempt enterprises fiom paying such fees. On a larger scale, d l polluters were exempted fiom paying the fees for pollution within the limits of their maximum permissible emissions and discharges for periods up to 1996.386
In contrast, in Canada, no vast surplus of budgetary funds exists for the purpose of environmental protection, but the hanciai means to protect water resources
nonetheless exist to a far greater degree than in Ukraine. Consequently, on the basis of the aforementioned principles, one might predict strong environmental Iegislation in Canada or, at least, legislation that is better than Ukraine's. Yet, in Canada, where environmental protection is a luxury more readily afforded than in Ukraine, the water protection laws are much less stringent (both at federal and provincial levels). 3s3Notably,pnor to Ukraine's independence only Iess than half of one percent of the gross national product was devoted to environmental protection: Economic Commission for Europe, supra note 15 at 57. This figure also represents an increase compared to 1993, when the national budget allotted only 0.25 percent of the GDP to the environment: William E. Freeman, "Environmental Management in Ukraine" in Pryde, supra note 24 at 159. 3"~conomicCommission for Europe, supra note 15 at 58. 38S~reeman, supra note 383 at 163.
'''fiid at 169. Note, this point seems to indicate that maximum pedssible concentrations (MPC)are not necessarily the most effective means of pollution control in Ukraine because the possibility that the MPC will be exceeded is acceptable. Note, however, that fees collected for pollution in excess of MP emissions and discharges are much higher than fees collected for acceptable pollution and are taken out of profits (rather than considered to be production costs, as are fees collected for pollution up to discharge and ernission limits).
Thus, intuitively and accordhg to environment-economicstheories, one could feasibly predict that Canada would have better water protection laws than Ukraine and perhaps even that ükraïne would have shoddy environmental protection legislation. Both predictions are wrong. While economics carmot be rejected dtogether from an analysis of the implementation of international standards into domestic law, in this instance and perhaps more generally, a danger of exaggerating the importance of economics in relation to how States formally implement water pollution laws exists. c) Legal History
The term legal history is used in two senses. Legai history is used literally to refer to what Ukraine was doing legislatively before it becarne independent and prior to the passage of the Water Code and other legislation that incorporates international standards. In addition, legal history refers to the philosophies of law that pervaded Ukraine pnor to the dissolution of the Soviet Union. An understanding of the developrnent of philosophies in regards to the
environment and international law in Canada and Ukraine as well as their ctment status might logically influence the development of legislation in each country. In other words, legal practices are motivated by ideological formations.'"
As noted by Feldbrugge in
regards to the dissolution of the Soviet Union: "The direction of the reform flows from the nature of the past status quo."388This comparative stuciy suggests, however, îhat this
factor might not be exceptionally relevant, in regards to the creation of formal water protection legislation. Prior to becoming independent in 1991, Ukraine was a republic of the Soviet
Union. Although Ukraine had a legislatwe for the republic, dl of the republics were essentially govemed and dominated from Moscow by the centralized, single party, Comrnunist system. As such, Ukrainian laws and its legal system were products of the
387Legrand,supra note 2 at 265. 388F.J.M.Feldbrugge, Russian Law: The End of the Soviet Sysfem and the Role of Law, Dordrecht (The Netherlands), Martinus Nijhoff Publishers, 1993 at xi.
Soviet regime. The first relevant Soviet tradition to consider is the Soviet attitude towards natural resources. Secondly, Soviet legal philosophies with respect to international Iaw might
also logicaily impact upon Ukrainian legislative processes today. Soviet approaches regarding the environment and international relations permeated Ukraine for over eight decades and potentially might still colour current Ukrainian legal culture today. The comparative study suggests that legal history has not significantly affected the development of Ukrainian water legislation since its independence.
While Marx and Engels discussed environrnental protection in their writings, actuai Soviet formulations of their ideologies failed to incorporate adequate environmental protection measures and, in fact, harshly degraded the Soviet environment. Rapid industrïalization at a minimum expenditure (or even, at any means) characterized It was assumed that central planning would protect nature better Stalin's policie~.)~~ than private enterprise, but, at the same t h e , Soviet economic planning did not factor or
incorporate the costs of environmental degradation at a P O Marxist ideologies, the only ones allowed in the Soviet Union, also had to appear
correct. If costly environmental degradation were obvious in the former Soviet Union, this degradation might be perceived as a flaw in Marxist ideology. Thus, pnor to
Ukraine's independence, to maintain an aura of well-being and efficiency, accurate information about the deteriorathg state of the Soviet environment was withheld from the population?'' Although the preceding approaches to environmental management in the former
Soviet Union were prevalent, the population did not necessarily share the official ideology promoting rapid industrialization and development at the expense of the
389~ryde, supra note 24 at 7. 3 W ~ discussion or regarding, emphasis on exponential economic growth in Soviet Union without attribution of economic value to environmental degradation in economic analyses, see: Zumbrunnen, supra note 38 at 53. 391Pryde, supra note 24 at 342.
environment. Nonetheless, this anthropocentrîc approach to environmental management was dominant in M
e and the other Soviet republics. This environmental legacy
remains with Ukrainians.
In addition to rather detrimental policies in regards to the environment, Soviet ideologies took a suspicious view of international law. The Soviet Union's participation
in international treaties and certain international organizations occurred despite a cynicisrn regarding international law. Customary international Iaws, in particular, were viewed as bourgeois products of imperialism and capitalism. Soviet philosophies regarding international law rejected the proposition that international agreements could grant rights to individuals and acknowledged oniy that contracting parties were obligated
by international d e s . While these Manrist-Leninist approaches to international law forcefully oppose participation in the international legal system, the Soviet Union nonetheless participated in numerous treaties and international organizations, presumably because it was in their interest to CO-existprofitably to some degree with the Capitdist w~rld?~" Thus, Ukraine's iegal history is permeated with not only ambivalent feeling towards environmental protection but also some reticence towards the d e of international law. While Ukraine may have actively participated in the dissolution of the Soviet Union and thus have rejected the Soviet Union and its ideologies, Ukrainians have been exposed to very particular views towards the environmental and international iaw.
M e ' s actions, however, in regards to environmentai law and international law diverge somewhat fiom those expected of it as a Soviet republic. One might expect
Ukraine to emerge slowly fiom the shadow of Soviet ideologies and philosophies. Mead, Ukraine has enacted substantial amounts of stnngent environmental protection legislation. Furthemore, Ukraine has aggressively involved itself international cooperative efforts and agreements regarding water resources and the environment more
39'~eorge ZaphUiou, "Comparative Approaches to the Theory of International Law" (1986) 80 Am. Soc. Int. L. Proc. 152 at 169.
generdly? One aspect of Soviet legal history is consistent with curent Ukrainian legal practices. Although the Soviet Union developed its natural resources aggressively and
with little regard for environmental protection, the Soviet Union did have environmental protection legi~lation.~"Entire acts and some constitutional references espoused As eariy as 1960,the Ukrainian republic had an environmental protection principle~?~~
act entitled "Environmental Protection in the Ukrainian SSR'73% The existence of environmental protection legislation both prior to and d e r
Ukrainian independence suggests that Ukraine had some familiarity with formal environmentai protection legislation and thus did not deviate wildly fiom the prior Soviet legal traditions with which it was familiar. Soviet era legislation in Ukraine, however, contained no procedure for implementation and was essentially a declaration with no regulatory capacity?" Current water legislation in Ukraine, while somewhat declaratory, contains means for implementation and has been further implemented by regulatory executive legislation. Ukraine diverges fiom the Soviet environmental and international law philosophies prevalent prior to Ulcraine's independence. Therefore, on the whole,
393~or a discussion of Ukraine's cooperative efforts with other States in regards to water and environmental protection, see text accompanying notes 293-3 15. Legal histoiy here is discussed in the absence of any consideration for other factors. The imperative need for acceptance within and assistance from the international comrnunity since Ukraine's independence wouid likely have motivated a rapid transformation of Ukraine's ideologies to ensure consistency with the ideologies of the Western world. 394Theexistence of formal environmental protection in the Soviet Union strikingly
evidences the dichotomy between fonnal and substantive law. the Soviet Union, different domains such as water, forestry and so on were regulated by separate enactments. See e.g. the 1970 Fundamental Pnnciples of Water Legislation in W.E. Butler, Soviet Law,London Butterworths, 1988 at 275. Also, Soviet legislation often contained the sarne clause as Ukrainian legislation in regards to treaty supremacy. 3 9 s ~
396U.N.Economic Commission for Europe, supra note 15 at 52.
legal history appears not to have inhibited or has at least remained a neutrai factor in the development of water protection legislauon in Ukraine.
In this regard, a discussion of Canadian legd attitudes and philosophies is not particularly insightfid. Canada has a long history of participation in international Iaw
making. In addition, Canada has participated diligently in promoting the cause of environmentai protection. While Canada merely continues on a unbroken path with respect to its legal culture and philosophies, Ukraine has veered sornewhat frorn its legal and philosophicai predecessors. d) Necessity
Thus fat, the discussion has revolved around factors that rnight potentially but do not in fact significantly affect Canada and Ukraine's implementation of international water standards. Necessity, however, is a factor which appears to have affiected the implementation process in Canada and Ukraine. The tenn necessity refers to a pressing or urgent demand for water protection. Specifically, in Ukraine, water pollution is such a significant problem that in some cases, it even threatens the health of the population. For example, statistics indicated a decline in the life expectancy of Ukrainians and have repeatedly attributed
this decline to environmentai factors such as degraded water q~ality.'~~ Ukraine's land area as well as water resources are much smaller than Canada's.399 For example, of the
3981naddition to declines in birth rates, Ukrainian life expectancies are low in cornparison to the rest of the world. Ln Western "developed" states, men live from six to nine years longer than Ukrainian men and women live fiom four to six years longer. In regards to life expectancy, Ukraine ranks 52nd in the world. See: "Ecological Statistics for Ukraine Reported" (9 August 1993) FBIS-USR-93-102 at 59; Economic Commission for Europe, supra note 15 at 50. relatively low fieshwater endowment coupled with the high density of population and industry contributes to water quality problems in M e : Zurnbninnen, supra note 37 at 33. Also, the extent to which land and naturd resources have been developed is much greater in Ukraine. For example, only 8 percent of Ukraine's temtory is considered to be in a pristhe state. In total, 69.6 percent of Ukraine's total temtory (continued...)
former Soviet republics, Ukraine ranks second to last in per capita water resources?" As noted earlier, almost al1 of Ukraine's water resources are poUuted to some degree.
In Canada, water pollution is not a particuiarly pressing issue. While Canada pollutes its water resources, the extent of the pollution compared to the abundance of water resources does not pose an imminently cntical problem. For example, Canada has the greatest proportion of the world's kshwater resources on its territory:'' Furthemiore, Canada has industnal technologies that are more advanced as well as the economic capacity for technological improvement (as compared to Ukraine). In other words, in Canada, water poilution is sirnply neither an urgent or popular issue. Of the two states, Ukraine greatly needs an improvement in the quality of its
water resources. The creation of a stringent water protection b e w o r k is consistent with the problems of water pollution evident in Ukraine. In Canada, meanwhile, the need
for d e s aimed at the reduction and control of water pollution is not urgent. The legislation in Canada is consistent with Canada's need for water protection (due to an abundance of resources, etc.). Necessity can therefore be inferred as a factor that encouraged the deveIopment of stringent, albeit aspirational, water legislation in
(...continued) has been developed for agrïcultural purposes. Industrial developrnent in concentrated areas where water resources are particularly threatened. For exarnple, 40 percent of industrial stems firom the Dnipro and Donets River bains, an area equivalent to only 18 percent of Ukraine's temtory. See: Economic Commission for Europe, supra note 15 at 5 1;"Ecological Statistics for Ukraine Reported" (9 August 1993) FBIS-USR-93-102 at 59. 399
4wBothsurface and ground water resources in Ukraine depend significantly on precipitation. Surface run-off is not abundaut. See: Stebelslqr, supra note 37 at 146, 160. Water rationing incidents evidence the fluctuations in water availability in Ukraine: "Drought Forces Water Rationing in SUnferopol" (29 August 1994) FBIS-SOV-94-167 at 45. 4 0 ' ~ .Bixby, The L m and the Lakes, Toronto, The Centre for Great Lakes, 1986. Another way of emphasizing Canada's endowment of kshwater is to note that the Great Lakes comprise 95 per cent of North America's fieshwater resources.
Politics is a broad term that can refer to innumerable aspects of the law making and government systems in Canada and Ukxaine (e-g., political culture, maturity of law-
rnaking bodies, system of govemment, administrative organization of governmentai bodies, etc.). Two particdar political factors are studied in this chapter, politicai culture and the level of organization in each state's bureaucracy. These two political factors, on the basis of this comparative study, may have infiuenced the implementation process in Canada and Ukraine. Before discussing the factors, it should be noted that politics (including these factors) is a difficult variable to assess in relation to the implernentation of international obligations. The lack of extreme superficial differences between the Canadian and
Ukrainian political systems challenges an analysis of the relevance of politics. Evidently, Canada has been a multi-party democracy much longer than Ukraine has. Despite the differences in the matuRty and effectiveness of each COU~@S political systems, the formal similarities in their structures make it difficult to make a cogent assessrnent of the importance of various political factors on the bais of a superficiai analysis. The limitations of this project prohibit a comprehensive comparative examination of politicd factors which might meaningfdly eliminate or evidence the relevance of various factors. Furthemore, as noted above, cbpolitics"consists of numerous components. These components do not necessarily act in tandem with one another. Thus, some socalled political factors may be relevant while othea are not. Any conclusion on the sum of 4 0 '
-One rnight argue the exact opposite. Potentially, one might assume that good legislation correlates to a higher quality of water resources (assuming the legislation is effective). In other words, the need for strong legislation arising fiom water quality problems logically might mise precisely because of a lack of such legislation. Ukraine's water legislation, however, dates h m 1995. Therefore, the aforementioned logic is not wholly applicable in this context. Ukraine and its legislation is too "new" to have been a contributing factor in the degraded status of water resources in that state.
these factors, however, is impossible on the basis of the information in this comparative study. At best, it is possible to suggest that the different components that make up the Canadian and Ulcrainian political systerns may affect the implementation of international standards, but not necessarily in the same manner.
In attempting to identify what factors might encourage Ukraine to mate particularly comprehensive and detailed water legislation, two factors (which differ in Canada and M e ) might explained Ukraine's relatively strict water protection laws. The first is Ukmine's political culture (discussed in more detail in Chapter Two). Secondly, the level of organization in each state's bureaucracy differs. A correlation exists between strong water pollution legislation in Ukraine and
popular opinion on the topic of the environment. As noted earlier, environrnental protection has enjoyed a high profile status in Ukraine. In Canada, the urgency and profile of the environmental lobby is less intense than in ~kraine:'~ Without exploring at length the responsiveness of each states' governments to popular demands, arguably, the priorization of environmental protection in Ukrainian political culture effected, in part, relatively strict water protection legislation.
As noted, the relative bwaucratic and administrative matwnty of each state rnay also affect the nature of water protection legislation in each state. In regards to environmental protection, only in 1988 was a State Cornmittee for Environmental Protection created in Ukraine. In that same year, an environmental protection cornmittee was formed for the USSR as a whole an in the individual republics. These cornmittees were intended to uni@environmental authority among various Soviet govenunent
agencies. m e r agencies and miristries, however, retained much of their previous responsibilities: the hydrometeorology committee retained environmental monitoring funetion, forestry agencies retained authority over forests, etc. Thus, prior to the dissolution of the Soviet Union, the Ukraine state committee for environmentai protection was only one of several agencies responsible for environmental protection.
"3J. Rush, "Budget", The (Toronto) Globe and M d ,Sept. 6, 1992. This article discusses diminishing environrnental activism in Canada.
The Soviet environmental cornmittee formed the basis for the formation of the
Ministry of Environmental Protection in 1991. Since 1991, though ükraine's entire system of ministries has been modified and adapted several times, Ukraine has retained the basic structures that characterized Soviet environmental organization. For example, cornmittees and commissions independent of the Ministry of Environmental Protection continue to exercise authonty in specifk environmental domains (e-g-water). Furthermore, since attauiing independence, Ukraine has even developed divisions and hgments within its "new" Mùiistry of Environmental Protection. For example, a State Ecological Inspectorate created pursuant to environmental legislation was made into a separate department that reports to the environment minister. Secondly, the Dnipro Commission, created to resolve environmental issues pertaining to the Dnipro River
~ other words, in basin, also exists ùidependently of the environment r n i n i ~ t r y .In addition to Soviet inefficiencies in environmental management, Ukraine has fùrther created a complex bureaucratic network for environmental protection wherein divisions of responsibility rem& unclear? Disorganhtion regarding new divisions of responsibility has caused confusion over who is responsible for what. in other words, in Ukraine,no customary means of governing water resources exists. Therefore, Ukrainian ministries, agencies and bureaucrats generally cannot rely upon traditional practices in regards to the administration of the environment, as Canadian departments are more able to do. This relative bureaucratic immaturity necessitates a clear allocation of responsibilities and authority. For water protection iaws in Ukraine to have any realistic hope of fûnctioning, they would therefore need to be detailed and comprehensive. This need for detail corresponds to the achial legislation Ukraine has produced. Arg~ably,
4wFreemanin Pryde, supra note 383 at 161- 166; "Kuchrna Urged to Take Steps to Overcome Ecological-Economic Cnsisy'(23 January 1993) FBIS-USR-93-008 at 119. 405Forexample, Freeman suggests that it wouid be unrealistic to attempt to fit the administration of environment management in Ukraine into an organizational chart based on pyramidal hierarchy: Freeman, supra note 383 at 166.
therefore, the level of organization of Wbine's administrative framework (relative to Canada's) may have afEected the manner in which Ukraine chose to legislate water protection. f) International Pressures
Just as intemal political factors can potentially influence the creation of
~ capable, to some degree, legislation within a state, the international c o r n m ~ n i @is~also of afTecting individual states' behaviour. International trade, financiai assistance, rnilitary alliances, diplornatic relations and other aspects of international relations may dl potentially affect an individual state's policies in a manner similar to domestic lobby groups. Again, like many of the other factors considereâ, the effects of international pressure are complex and difficult to precisely identify. Despite these complexities, Canada and Ukraine clearly enjoy vastly different positions in the international cornmunity. Their statw within the international community as well as their reliance on it vary immensely. Arguably, each state's position in the international community afEected the deveiopment of their domestic water policies and their implementation of international obligations. Canada enjoys a relatively privileged position in the international community as compared to Ukraine. Canada's respected status in the international community is evidenced by its participation with other states in a variety of cooperative agreements and organizations?
In other words, a certain level of acceptance towards Canada exists in
406"htemational communitf' is a malleable term. In the context of this thesis' discussion, the term includes the surn of the various entities involved in supra-national relations and govemance: other states, international financial institutions, nongovernmental organizations, etc. "'NATO, G-7, GATT and other free trade agreements. Whether or not these organizations or agreements are "good" is not as relevant as whether Canada is able to access membership in them.
the international ~ommunity.~'
In addition to its privileged status in the international community, Canada is a relatively autonomous state that does not depend on other countries significantly for its continued stabiiity or well-being. This point is largely related to the economic factors discussed earlier. Canada has historicaiiy been an d u e n t state with a generally stable economy. This economic prosperity ensures that Canada does not rely on assistance nom the international community. T'us,privileged and respected stahis and a capacity for autonomy characterize Canada's position in the international community. Ukraine's position diverges greatly fiom Canada's. Ukraine, as a "new" player in the international commiinity, has not established a reputation within the international
community. Ukraine was perhaps better known than some of the other Soviet republics pnor to the dissolution of the Soviet Union, through its individual membership in the United ~ations,* because of its relatively large size and natural wealth,'"' and so on. Regardless, Ukraine was eclipsed by the superstructure of Russia and the U.S.S.R.. Ukraine did not negotiate for itself as an independent state, did not trade its own products intemationally and so on. Unfortunately, during and subsequent to the dissolution of the Soviet Union, Ukraine has generally been revealed to the international community unfavourably. The Chemobyl nuclear incident and continued functioning of this station's atomic reactors "'Evidently, Canada is not a superpower in international relations (if there is such a concept cmently in international relations). Relative to many states, however, Canada enjoys acceptance and legitimacy in its interaction with other states in the international community. ? V h e n it joined the United Nations, the Soviet Union insisted that Uhahe and Belarus obtain their own seats. Ukraine and Belarus were not independent members of the UN. as they were controlled by the Soviet Union. Their separate inclusion as members at the U.N. was negotiated by the Soviet Union in order to augment its voting capacity against Western Nations. See: Feldbnigge, supra note 388 at 2 1-22; C. Ziegler, Environmental Policy in the USSR, Amherst, University of Massachusetts Press, 1987 at 135. 4'('For example, characterizations of Ukraine as the "breadbasket of Europe" during much of the Soviet penod were common.
has dominated international discussion about Ukraine?
' During arguments regarding
nuclear weapomy in Ukraine and the Black Sea fleet, Ukraine was not always portrayed as a stable, reliable military force. The precarious hctioning of Ukraine's economy is also fkquently highlighted. Thus, Ukraine, a s a six year old state, faces several
challenges in its efforts to forge an acceptable reputation in the international comrnunity. Arguably, Ukraine's lack of acceptance and status within the international community is evidenced by ükmine's somewhat limited participation and delayed access into international organkations and alliances. While Ukraine's independent membership was readily acknowledged by the United Nations, Russia (as opposed to Ukrauie or Belanis) retained the Soviet Union's seat at the Security Council of the United Nations. While Russia has aggressively pursued membership in organizations such as NATO, Ukraine has failed to atiain a level of acceptance comparable to its neighbour's?'
The level of autonomy that Ukraine enjoys in regards to the international commWUty and other states is also limited. Ukraine's precarious economic conditions
demand that Ukraine be treated favourably by other states and international organizations. Notably, Ukraine receives development assistance from other states. Ukraine, in 1994, received an amount equivalent to 0.4 percent of its GNP in development a~sistance?'~ This figure is interesting for two reasons. First, the fact that
Ukraine receives development assistance evidences a certain reliance upon the
'For exarnple, a s w e y of Globe and Mail articles during the last three years reveals that almost al1 articles regarding Ukraine pertain to the Chemobyl nuclear accident. '"
4'2~kraine's efforts in regards to the Council of Europe evidence its desire to integrate itself M e r into the international comrnunity. In pursuing membership in the Council of Europe, Ukraine has undertaken to co-ordinate its legislation with European standards. See: "Local Laws to Conform to European Standards" (25 July 1995) FBISSOV-95-142at 48. '13The World Bank, Development Report, supra note 33 at 192-3.
international ~ o r n m u n i t ~ ?Secondly, '~ despite dire economic conditions generally in Ukraine, most other states in the wodd receive more financial assistance, as a percentage of their GNP's, than Ukraine does? Potentially, Ukraine and Canada's positions in relation to the international community may have affected the type of water protection legislation each country created. While it would be untenable to suggest that significant international momenhim for the protection of water resources exists (e.g. in the form of boycotts of states who significantiy pollute their water resources), the objective of environmental protection has attained a fairly hi& priority in the international cornrnunity. Environmental protection
has undoubtedly become a sort of moral irnperative espoused, at least formally, by the international cornmunity. To the extent that Canada is a relatively autonornous state withh the international cornmunity, Canada enjoys a certain latitude to do whatever it wishes in regards to the environment. Canada does not have to prove its cornmitment to environmental protection to improve its reputation within the international cornmunity or to ensure its meaningful participation in international relations. In other words, Canada does not have much to gain fkom the international community by legislating strict water protection d e s .
The opposite holds true for Ukraine. Ukraine has a relatively undeveloped and somewhat tamished reputation (rightly or wrongly) in the international comrnunity. An appearance that Ukraine was attempting to protect its water resources might improve its reputation regarding environmental maners. An improved reputation and legitimacy among the international community would not harm Ukraine's oppomuiities for improved participation in international fora.
4'4Thisfigure simply M e r evidences the inability of former Soviet republics to finance effective environmental protection programs. Pryde asserts that the necessary capital for environmental protection programs is not available fiom intemal sources: Pryde, supra note 24 at 343. 'l'For example, in that same year, Russia received a greater amount of development assistance both as a total sum and percentage of its GM?. See: The World Bank, Development Report, supra note 33 at 192-3.
Perhaps more importantly in the short term, the establishment of forma1 environmental protection standards might attract financiai assistance. Assistance fiom international financial institutions, as well as other states, has increasingly been linked to environment. standards. On that veh, Ukraine has actively been pu~suingfinancial assistance fiom financial institutions which focus on environmental protection initiatives. Some international assistance initiative have been linked to water resource protection? Arguably, explicitly stringent water protection standards might improve Ukraine's status in a variety of ways in the international community. Conversely,
particularly "good" water protection Iaws would not accrue many benefits to Canada fiom the international community. Therefore, this thesis' comparative study suggests that it is plausible that international pressure is a factor which motivated Ukraine, an underprivileged state, to develop stringent water protection standards.
3) Conclusions regarding the process of implementation and international law generally The final phase in this chapter's discussion examines the insights that this
comparative study imparts regarding the implementation process and international law's transformative capacity more generally. n i e terrn %ansformative capacity" refers to the utility of international standards as a means of motivating the creation of domestic
legislation. The sum of the data contained in the comparative study and subsequent discussion supports the probability and signincance of international law's transformative capacityY7
'16For exarnple, the IRDC in Canada is currently involved in a project aimed at the improvement of the Dnipro River. See: Semichaevsky, supra note 38. "'Though discussion regarding the fiindamental question of whether international law conclusively affects state behaviour is abstract and perhaps redundant, given the preponderance of international legal activity, the comparative study does provide some opportunity to muse regarding the apparent impossibility of conclusively deteminhg the effect of international law on states. While this digresses somewhat from the topic of (contuiued...)
Before proceeding further, assumptions inherent in this thesis regarding the transfomative capacity and basic utility of international law merit m e r discussion. Much of this thesis presumes that states enact domestic legislation, at least to some degree, in order to comply with international d e s . In other words, an extreme realist perspective of intemational relations is implicitly and explicitly rejected in this thesis. Evidently, a blind acceptance of the importance and relevance of international law would not be particdarly academicdy rigorous. This thesis, however, assumes that international law can affect state behaviour, but accepts that the extent to which states are af5ected is arguable. Despite the rejection of a pure realist perspective, this thesis critically explores why and the extent to which international law affects state behaviour, on the basis of the study of Canada and Ukraine.
This partial assumption regarding international law's fundamental utility may appear to be incongrnous with one of the stated objectives of this thesis, which is an anaiysis of the transformative capacity of international law. This assumption, however, does not dirninish the coherence of the thesis' structure for several reasons. First, this thesis cannot conclusively prove or disprove that international law affects domestic legislation. Only inferences can be made on the bais of the comparative study. Thus, to avoid functioning in a structural vacuum with respect to the utility of international law, it is preferable to adopt a moderate presumption in this regard. Secondly, most of this thesis implicitly attributes some transfomative capacity to international law. For example, this chapter7sdiscussion of the factors which affect the implementation process is utterly irrelevant unless international law can, at least sometimes, affect states. This assumption regarding international law is therefore irnplicit in many aspects of the thesis and contributes to a coherent analytical b e w o r k . Finally, while this assumption might be made implicitly and explicitiy, the assumption does not prohibit a retrospective criticai discussion of the acceptance of the
"( ...continued)
implementation, a discussion of this topic reveals some of the abstract debates in which one could engage M e r .
asswnption in the context of the comparative study. On the contrary, once most of the analysis in the thesis has been complete, one is in the best position to comment crïtically
on the fundamental assumptions of the methodolog-. For these reasons, it is possible and defensible to make certain preliminary assumptions regardhg the transfomative capacity of law as well as to subsequently cntically assess those very assumptions.
The remainder of this chapter is divided into two sections. First, the proposition that formal implementation of international standards is a critical part of the process of the domestic incorporation of international d e s and, more generally, of states'
compliance with international law is explored in detail. Secondly, this thesis examines whether and the extent to which the comparative study suggests that international law actually influences the formation of domestic legislation. a) The necessity and importance of forma1 implementation
This thesis' comparative study supports and evidences the proposition that the formal implementation of international obligations is a critical part of the broader process
of the domestication of international laws and standards. Critical legal theorkts may, however, criticize propositions asseaing the importance of formal implementation on the basis that too much emphasis is placed on formal rules. Some authoa have suggested that international law scholarship generally for most of this century has been bound in doctrinal formalism. A positivist or doctrinal formalist approach to international law would generally focus on an exposition of d e s and their inherent meaning and the development of a "rule of law" in the international sphere. One of the principal and obvious cnticisms of this approach is the absence of reference to any wider conte~t?'~
This thesis undeniably f o c w s on the formal aspects of implementation and only 418
Evidently, nurnerous other criticisms also exist: denial of the choice involved in rule application, a retrospective focus which inhibits new thinking, etc. For more discussion, see: Trimble, supra note 364 at 813-4; David Kennedy, "A New Stream of International Law Scholarship" (1 988) 7 Wisc. Int. L.J. 1 at 3; Lung-Chu Chen, Introduction ro Contemporq Intemutional Law, New Haven, Yale University Press, 1989 at 11; Nigel Punk,"Critical Legal Studies in Public International Law"(1991) 32 Warv. ht. L.J. 8 1.
examines technical d e s . The subsequent analysis of these rules, however, necessarily evidences an acknowledgement of the context within which these d e s operateJI9 Thus, this thesis examines forrnal rules and the broader context which surrounds them and subsequently asserts the importance of these rules?' Furthemore, this thesis also reveais the extent to which formal d e s are one of several components of international legal relations, thus supportïng many of the assertions of critics of excessive reliance on positivism. In particular, the preceding section of the chapter which examined factors which affect the implementation process evidence the importance of the context within which international law operates. On a more specific note, in relation to Ukraine, the importance of determinate, fomal laws cannot be underestimated. As noted when discussing the lack of a developed bureaucracy with which to manage water resources, detailed, fotmal d e s are helpful and necessary when no other traditions or practices exist. Also, in a state such as Ukraine, the d e of law is a concept which continues to emerge and develop (given the previous comrnunist practices referred to eariier in this chapter). Formal, positive d e s are therefore a necessary component in the development of environmental protection practices and broader legal principles such as the rule of law, particularly in "developing" States such as Ukraine. On an academic Ievel, doctrinal methodology imparts a basic understanding of the topic studied. In relation to this thesis' study of implementation, doctrinal familiarïty
'19For example, the earlier portion of this chapter which examined the factors which affected the implementation of international standards extended beyond doctrinal analysis and attempted pragmatically to assess how implementation occurred. This pragmatic approach incorporated some interdisciplinary approaches and is more similar to legal realism than positivism. For M e r discussion on legal realism and international law, see: Puvis, supra note 4 18 at 83-4. "'For example, Trimble suggests that international law is simpiy a specialized laquage in which international relations are carried out. AIthough this perspective on international law appears to dismiss the nile-based aspect of international law, the formal rules themselves are not ignored. Rather, Trimble simply suggests a perspective on the fûnction of international law. Formal d e s , however, remain a component of this conception of law. See: Trimble, supra note 364.
must precede a aitical discussion of the implementation of international water Iaws specifically and implementation as a process more generally. In other words, an understanding of technical or formal implementation is f'undarnental to any M e r
Thus,the symbiotic relationship between fomal and substantive implementation afnrms the importance of formal implementation.
discussion of implementation processes?'
Formal implementation (and its study) is a precursor to substantive implementation (and its study).
Tuming to a more practical issue in international law, formal
implementation is important because it provides a reasonably accessible means of monitoring state practice in relation to international d e s . Monitoring state behaviour is a challenging undertakuig. For exarnple, this comparative study of Canada and Wuaine reveals some of the d f i c d t i e s in monitoring the formal aspects of international law implementation. Given the difficulty in obtaining forma1 legislation fiom states such as Ukraine, where political bureaucraties are still developing and where laws are not comprehensively or readily available, obtainuig reliable information on substantive cornpliance would be daunting and impracticable. On the basis of these observations regarding Ukraine, one can reasonably assert that the monitoring of formal implementation is easier than monitoring actual implementation? Monitoring is discussed because knowledge of the correlation between intemationai rules and state practice is critical to understanding the effectiveness of international laws. Arguably, no single international system of enforcement of international environmental laws exists. International law loses its legitirnacy unless
4"Sacco discusses the difference between the pattern of behaviour mandated by or formulated in a d e and the mental picture people in a society have of that rule. Again, knowledge of the technical rule precedes any study of society's perception of that d e . See: Sacco, supra note 1 at 9. " ~ o m a l d e s are important not only because they provide a means of monitoring but especially because they provide a feasible means of tracking the implementation of international standards. Particularly among developing states, the monitoring of actuai cornpliance wouid be exceptionallychallenging (due to a lessor fervour for record keeping, generally less legalistic cultures, etc.). See: Kamieniecki, supra note 4 at 322.
some means of checking the extent of state compliance with international obligations
exists. The monitoring states' implementation of international obligations is one rneans of measuring state compliance.
This discussion of monitoring is relevant for two reasons. First, this study reveals formal implementation is easier to monitor than substantive implementation. Hence, formai implementation is important because it provides a baseline insight into states' cornpliance with international obligations (an insight which may be impossible in relation to substantive impiementation). Secondly, these comments regarding monitoring more generally re-aami one of the challenges of international law, compliance. Even before one can discuss how to ensure compliance, one must discuss how to identiQ noncompliance. While this discussion of the importance of monitoring state compliance with international law digresses somewhat fiom the topic of implementation, the comments regarding monitoring are relevant in so far as they evidence the utility of fomal implementation in this context. In short, this digression regarding monitoring evidences the important functions that formal implementation fûifïlls in the broader relationship
between international and domestic Iaw. b) The effects of international law on domestic legislation
HaWig discussed the marner in which and some of the reasons why irnplementation occurs, a broader question remains. The remainder of this chapter discusses the utility of international standards in directing or guiding the development of dornestic legislation. In other words: does international law affect domestic legislation and if so, to what extent? On the b a i s of this thesis' comparative study, the answer to the first part of the
question ranges fiom a conservative "maybe" to an optimistic "probably." A temptation exists to either wholly discredit or endorse international law's capacity to influence domestic legal practices. Trimble aptly noted in regards to international law, however, that "idedism leads to the inflation of the role of international law and a Iack of
credibility.."=
A balance m u t be struck, however between this cntical analysis and
cynicim~While excessive idealism diminishes the legitimacy of international law, excessive cynicism will not contribute to the struchiring of a more coherent international order eitherJZ4The remainder of this chapter explores the question and offers some constructive comments without leaping to excessively bold conclusions? The question of whether international law affects domestic legal systems is complex for a number of reasons. First, international law does not consist of a cohesive, single body of rules. An examination of the sources (or types) of international law used by the International Court of Justice provides four categories used by this adjudicative In addition, "soft law" as discussed in Chapter Three appears to be an evolving
body?
source of international law. Given that a variety of types of international d e s exists, states do not necessarily incorporate or accept al1 international d e s equally (as noted earlier). Secondly, the task of understanding a state's cornpliance is complicated ,if not impossible, because of the difficulties inherent in proving why states act as they do. Rarely do States explicitly enurnerate any comprehensive or diable lists of the factors that motivated their behaviour in a given instance. Entire books have been written
regarding why states act as they do in relation to one another and the international
'"~rimble, supra note 364 at 822. 4 2 4 P ~supra s , note 4 18 at 126. 425Thisdiscussion regarding the fundamental utility of international noms seeks to validate the utility of international standards. An interesthg perspective is offered on this exercise by post-modem theorists: "The implications of contemporaryjurisprudence necessitate the rejection of the early modemist quest to find some ultimate justification for believing in the d e of international law. ' w e ] cannot see the international legai world as it somehow actually exists, simply because that world and our way of looking at it are one and the sarne thing.' ..." See: Purvis, supra note 4 18 at 120; Anthony Carty, The Decay of International Law, A Reuppraisal of the Limits of Legd Imagination in International Affairs, Manchester, Manchester University Press, 1986 at 129. 426Formore detail regarding sources of law as accepted by the International Court of Justice, see text accompanying note 60.
community?
Thus, the study of whether and how states comply with international law
is largely an inferentd, argumentative and imprecise discipline.
In the absence of explicitly stated intentions on the part of Canada and Ukraine, it is therefore impossible to assert unequivocally that these m e s created water protection legislation wholly or in part for the purposes of cornplying with their international obligations."'
The creation of legislation might plausibly be motivated by a variety of
factors. In other words, the only certain response to the question "does international law affect state behaviouf' that c m be made on the basis of this study is "maybe." Nonetheless, inferential reasoning and deduction based on the comparative study suggest that international law "probably" affects domestic legislation . Treaty obligations were explicitiy mentioned in Canadian and Ukrainian legislation regarding water poilution. Thus, treaty obligations clearly appear to posses some transfomative capacity. The fact of Canada and Ukraine's participation in numerous treaties evidences some acceptance of the legitimacy of international law on the part of both states. Canada and Ukraine's participation in the propagation and implementation of treaties, international legal mechanisms, speaks directly only to aspects of international law. Nonetheless, in so far as Canada and Ukraine clearly accept treaty obligations and b e c a w they also participate in other foms of international agreements and organizations. their acceptance of international law is established. While Canada and Ukraine's participation in international organizations and agreements is readily ascertainable, their contributions to and opinions on customary international law are more intangible. Presumably, neither state objects to the inclusion of custom as a fonn of international law. Both states are members of the United Nations, whose International Court of Justice Statute explicitiy incorporates custom as a form of international law. These instances of incremental, indirect acceptance of custom support
"'See, e.g.: Henkin, How Nations Behave, supra note 53. "*~rimblesuggests that apart fiom practical factors such as economics, other more ethereal factors such as moral suasion and legitimacy afTect states' compliance with international laws. Trirnble, supra note 364 at 839-843.
the proposition that Ukraine and Canada perceive international law, both treaties and custom, to be legitimate and binding. Despite this probability that Ukraine and Canada both accept custom as international law, none of the legislation studies f?om either Canada or Ukraine made any references to customary legal obligations. This silence does not negate the possibility that Canada and Ukraine intended to comply with international customary d e s nor necessarily undermine the previous conclusions. The absence of references to customary international law does, however, evidence an unequal treatxnent of treaty and custom in domestic legislation. One specdative explanation of why treaty obligations are mentioned while customary d e s rnay arise fiom the nature of treaty and customary international obligations. Treaties, compared to custom, consist of specific obligations which states have explicitly accepted with other parties. In international Iaw, treaty practice is relatively established and mandates that treaty obligations be Mfilled in specific manners. in contrast, no such established procedure for the incorporation of customary
legal obligations exist. Futhermore, the content of custornary d e s , as shown in this study, is ofien declaratory and broad. Customary rules are also much more difficult to identie as compared to treaty obligations, especially since a customary legal obligation can bind a state without any express acceptance of the d e on the state's part. Therefore, states may be reluctant to explicitly bind themselves in their domestic legislation to customary d e s , given the ambiguity regardhg their scope and, ui some cases, existence. Within the domestic legal system, the practical effect of such an explicit incorporation might be minimal in any case. The additional force that the mere reference to customary obligations might impart upon these rules within the domestic legal systems is questionable.
in other words, the absence of references to customary d e s may not be signifiant in practical terms. Customary obligations, because of their imprecise and generai nature, would presumably be given greater force within a domestic system by their reformulation in domestic laws. Estates are reticent to make assertions regarding
their intention to comply with customary obligations within domestic legislation, then the only means of measuring the state's implementation of international obligations is by correlating domestic d e s with international d e s . in regards to states' intentions to comply with customary obligations, inferential reasoning would be the only means of suggesting a conclusion in this regard. Two observations following the comparative study support the proposition that customary international water standards af3ected Canadian and Ukrainian legislation.
First, a correlation exists between Canada and, particularly, Ukrainian legislation and the international customary d e s identiiied in Chapter Three. Although Ukraine's laws correlate more highly with the obligations contained in customary rides, both coutries, to some degree, comply with their international obligations. As noted previously, the
existence of this correlation in and of itself does not evidence an intention on the part of either Canada or Ukraine to comply with their international obligations. The correlation, however, lends more support to the proposition that international law c m affiect domestic legislation than to the proposition that international law does not impact upon state legistative practice. A total lack of correlation would, conversely, support the latter proposition. Secondly, as noted earlier, an examination of Ukraine's legislation reveals that it contains a nurnber of concepts and principles that are prevalent in the discourse of international environmental law. Concepts such as the right to a health environment,
environmental assessrnents, the link between economics and the environment and so on permeate the Ukrainian legislation?
Thus, Ukraine seemingly had some awareness of
429TheCanadiart legislation is rather sparse compared to the Ukrainian legislation. Apart h m environmental assessments, the aforementioned principles do not appear in Canadian environmental protection legislation to any significant degree. The absence of such references might simply be explained by the efficient nature of the Canadian legislation. Only a minimal number of declaratory or aspirational provisions are included in the Canadian legislation. Many of these concepts appear in such declaratory provisions in Ukraine's legislation. In other words, the fact that the Canadian Iegislation does not correlate as strongly to international d e s as Ukraine's does not necessarily dirninish the relevance of this point. The nature of each state's pollution laws (each (continued...)
these developing and existing intemationai environmental obligations and concepts. The extent of the correlation between Ukrainian and international d e s supports the proposition that international law af3ects state practice. In other words, Ukraine's detailed, as opposed to just vague, implementation of laws conelating strongiy to international d e s is an even stronger indicator of Ukraine's intention to cornply with international standards. The preceding section in this chapter regarding factors that affect the implementation process dso evidences the utility of international law in the transformation and development of domestic law. First, Ukraine has developed domestic legislation and negotiated international agreements in order to protect water resources despite significant motivations to do the opposite. In particular, Ukrauie has developed stringent formal legislation despite economic disincentives to do so (Le. lack of economic development). Arguably, international law was at least one of the factors which countered the economic disincentives, Secondly, Ukraine is also apparently motivated to protect its environment in order to gain acceptance and assistance from the international community. While Ukraine's behavior (i.e. developing a strict Water Code) is pragmatic, it may also reflect the impact of law in the international community. Customary international d e s are the culmination
of consistent state practice and opiniojuris. Ukraine, as a new state, is obligated to respect these customary d e s . Especially in the realm of the environment, it is only logical that the states which assisted in the creation of a customary rule and believe it to be binding would expect and "encourage" Ukraine's cornpliance with the rule. Other states' desire for Ukraine's state practice to be consistent with customary laws would be even greater Ui the dornain of international environmental law, where the greatest benefit fiom the rule c m only be denved when al1 states c ~ r n p l y ?Thus, ~ ~ the pressure of the
429(...continued) state's approach to pollution control) simply differ. "('The optimum benefit of environmental d e s is denved when al1 states comply, (continued...)
international community upon Ukraine to protect its environment rnay be a predictable part of international relations (especially according to reaiists), but this international
pressure may also be a comportent of the customary legal process (e.g. encouraging cornpliance).
Thus,the preceding discussion of the factors that B e c t the implementation process afErms the proposition that international law is one of several factors which affects domestic legislative behavior. In other words, the analysis of these factors tends to evidence international law's transfomative capacity. Indeed, the factors discussed could not independently (and without a consideration of international law) fully explain the iegislative behavior of Canada and ükraine with respect to water resources.
Several points contained in this chapter's discussion also suggests that if international law does indeed affect state legislative practice, that not al1 states are equally affected by international law. Ukraine and Canada both have some water pollution legislation. The Ukrainian legislation, however, is distinctly more detailed, d n g e n t and correlative to international standards. The proposition that not al1 states are necessarily affected equaily by international law is linked to the earlier discussion of the factors influencing Canada and Ukraine's implementation of international water obligations. On the basis of the cornparison between Canada and Ukraine, arguably, states with a greater autonomy and stability in the international community are potentially l e s likely either to be affected by
international obligations or, articulated slightly differently, are perhaps less likely to comply with international laws at al1 or to their Mlest.
In other words, the greater capacity that a state has for stable independent existence, the lesser the likelihood that it will consistently and filly implernent its international
"O(.
..continued)
otherwise issues pertaining to concepts such as the Pnsoner's Dilemma and the Tragedy of the Commons arise.
obligations in order to coxnply with international I~w!~'
In sum, this comparative study does not conclusively prove that international water obligations encouraged Canada and Ukraine to implement water protection legislation. Regardless, a search for objective and determinate proof that international law is likely inherentiy elusive. The comparative study does, however, incrementaily evidence that international d e s generdy have a transformative capacity. As noted earlier, though it may as& in greater understanding and the correction of erroneous presumptions, excessive cynicism regarding international law and even immoderate specuiation about the fündamentai existence and utility of international law does not constructively contribute to the continued structuring of an international order.
The cumuiative sum of the data contained in the study strongly evidences that international law probably affects domestic legislation. Fundamentaily, it seems impossible to explain the state of Ukraine's legislation regarding water pollution without relying on international law, at least to some extent. Thus, while the quantification of international law's impact on Ukraine and Canada's behavior is impossible, the comparative study evidenced that international law possesses transformative capacity,
which may simply Vary contextudly in its effect.
'"'For a more detailed discussion regarding the eEects of international law on developing countries, see: Surakiart Sathirathai, "AnUnderstanding of the Relationship between International Legal Discourse and Third World Countries" (1984) 25 Harv. Int. L.J. 395.
CHAPTER SEVEN: CONCLUSION
The interaction of international and domestic legal systerns consists of, as noted repeatedly throughout this project, a cornplex, somewhat circular and symbiotic relationship. Even within the context of this small project, numerous and diverse topics and issues were presented and arose for discussion. Because of the breadth of the issues canvassed in this project, the concluding comments in this final chapter will generally be organized in relation to the following three topics: rnethodology; Canada and Ukraine; and implementation generally. Significant portions of this project have explored the LMitations of the methodology of this thesis. In the end, this thesis (i.e. the completed methodoiogical plan for this project) suggests that a study of the formal laws implementing international d e s
can be a usefid exercise for a number of reasons. This project revealed and afEmed the proposition that one cannot intuitively divine the factors which affect the formal implementation of international laws into domestic legai systems. Furthemore, while any study of formal laws may have its limitations in regards to the substantive
understanding imparted in regards to the issued being studied, a bnie understanding of even just the forrnal aspects of the international law implementation process can only
legitimately be claimed following a rigorous study of fomal d e s . nius,a comparative study of two states' formal legislation undertaken for the purpose of analysing the implementation process contributes incrementally to an understanding of the formal aspects of the incorporation of international rules into domestic systems. Some might also suggest that this comparative study of Canada and Ukraine's legislation regarding water and environmental protection yields little more than an doctrinal summary of the forma1 laws in each state regarding water pollution. Such a conclusion stems from a superficiai examination of the comparative study. With the inclusion of limited data about each state examined in the study in order to supplement the surveyed legislation, a variety of conclusions rnay be offered. Predictions can be
made. A variety of ùiferences may be proposed. Numerous questions that ment m e r
study surface. As with scientific experirnents, flaws and Mtations in a study's methodology
become most apparent during the course of the study or expirement and when it is completed. In other words, the actual completion of a methodological plan possesses some inherent ment. In partïcular, the completed comparative exercise u n d e d e n in this thesis provides certain definitive answes regarding the limitations of this methodology in regards to the study of implementation. Apart fiom rnethodological observations, this thesis also offes certain valuable insights regarding Canada and Ukraine's implementation of international water laws. One of the most interesthg insights provided by the comparative study was the refutation of the "race to the bottom" principle which might have been expected in Ukraine. As noted at the beginning of this project, the comparative study was intended to dispel and challenge assumptions regarding Canada and Ukraine. While this study did not yield many surprises regardhg Canada's water protection firamework, Ukraine's relatively stringent laws were somewhat unpredictable. Given the significantly poor reputation that Ukraine has acquired since (and even pnor to) its independence in I W I , the quantity, detail and stringency of its water laws were not foreseeable. On the basis of Ukraine's reputation in the domain of environmental protection and on the basis of the "race to the botton" principle (that suggests that developing states are encouraged to maintain low environmental standards), one might have logically, but erroneously, predicted that
Ulcraine would not rush to irnplement international water standards into its domestic laws. In regards to Ukraine, this study motivates one to question the extent to which substantive implementation of international obligations is carried out in Ukraine. Although this topic was expressly excluded fkom this thesis, the study of formal implementation necessarily provokes questions about the next logical step in a broader examination of the interaction of international and domestic legal systerns, substantive implementation and compliance. The feasibility of a study of substantive implementation, however, would have to be very senously examined in the context of the availability or existence of data regarding the enforcement of domestic laws and so on. The comparative study of Canada and Ukraine also reveals the importance of
temporal facton in international law and reflects a time line in the development of international water law. Canada's laws might be considered to represent international law regarding water pollution in previous decades. Given that Canada's environmental protection laws aimost al1 precede Ukraine's water legislation, Canada's legislation may reflect international obligations as they existed in regards to water pollution prior to the 1990's. Ukraine, conversely, only passed its environmental protection legislation subsequent to 1991. Most of Ukraine's legislation correlates more highly to currently international enWonmental principles and is generally more stringent than Canada's. Arguably, assuming that international law possesses some ability to influence the creation or development of domestic laws, some of the con-
between Canada and
Ukraine's legislaîion appears to be attributable to the temporal difference in the development of theïr legislation.
On the topic of implementation more generally, this thesis' comparative study invited inferences and discussion on a number of issues. First, this study very quickly revealed the dichotomy between formal and substantive law. This understanding of the forrnal (as compared to substantive) aspects of implementation is crucial. While fomalism and positivism may justifiably be criticized in some regards, d e s f o m an integral part of law. A thorough understanding of the interrelationship of international and domestic law cannot be achieved without the study of both formal and substantive aspects of this interrelationship. While both substantive and formal aspects of law are
important, with respect to rnethodology generally, no substantive study or analysis can be undertaken without some identification and knowledge of formal rules. The comparison of Canada and Ukraine also provided a means by which the utility of international law could be situated within the broader context of the interaction between international d e s and domestic legislative behaviour. Assuming that international law does affect state behaviour, one must also accept that other factors influence the development of legislation within States. This thesis' comparative study revealed some of the factors which afEected the implementation process (Le. economics, etc.). The study also revealed that the respective influence of different facton,
including international obligations, on individuai states cannot be determinatively established and must generally be inferred. In otherwords, the thesis' analysis suggested the difncuity and perhaps impossibility of decisively identifjkg the factors that motivate states to act as they do. While one may, to some degree, evidence that certain factors do
affect the development of dornestic legislation, the quantification of the importance of international law remains an elusive objective. The primary objective of the thesis was to explore international law's transformative capacity with respect to domestic legislation. In particular, Canada and,
in particular, Ukraine were studied in an attempt to assess the utility and influence of international standards in regards to the development of dornestic legislation. None of the data in the comparative study strongly, if at dl, suggested that international law lacks transfomative capacity. Conversely, a number of observations of the comparative study hcrementally evidence the inherent utility of international law in modelling the formal legislative behaviour of states. First, Ukraine's legislation incorporated numerous, specific principles prevalent
in the discourse of international environmental law currentiy. Secondly, the improvement in domestic environmental protection standards in Canadian and Ukrainian legislation correlates temporally to the development of mater and more detailed international environmental standards. Thirdly, Canada and Ukraine have both participated in a numerous international agreements and instruments regarding water protection and the environment generally, which evidences some reliance on their part on the utility and binding nature of the international legal system.
In SUI, the comparative methodology used to study Canada and Ukraine's irnplementation of international water standards contained inherent limitations which afFected the detenninacy and scope of the conclusions that could ultimately be reached in this thesis. Despite these limitations, the comparative study has been revealing. To a
large degree, Ukraine's legal slate was wiped clean by the dissolution of the Soviet Union in 1991. Yet within less than seven years, this "new" state has developed domestic legislation which correlates repeatedly and strongly with international d e s , more so than even a developed state's legislation (such as Canada). Thus, the lirnited
comparative study of Canada and Ulcraine legitimates a potentially much broader and
more signifïcant principle, the tramformative capacity of international law, and thus incrementaliy evidences international law's utility as a means of influencing the
development of legal and legislative practice within States.
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