Global Environment and Protection

If you study Global Environment and Protection, you answer one 25-mark extended response (about 1,000 words). Questions ask you to evaluate how effectively legal and non-legal measures protect the global environment.

• The nature of the global environment: the concept of the environment and the global environment, the need for global cooperation, and the development of ecologically sustainable development (ESD).
• Responses: international law (declarations, treaties, the UN and other intergovernmental organisations, courts), Australian law (Commonwealth and NSW), and non-legal measures (NGOs, the media, science, business).
• Contemporary issues: for example climate change, biodiversity, the marine environment and transboundary pollution.
• Themes and challenges: the role of the law in protecting the environment, the impact of state sovereignty, the effectiveness of legal and non-legal measures, and the role of law reform.

The law below is as at October 2026. Name and date every treaty, statute and case.

Pollution, greenhouse gases, migratory species and the oceans cross borders. The atmosphere and the high seas are global commons: no state owns them, so each has an incentive to use them and leave the cost to others. That is why cooperation through international law is needed — and why sovereignty (each state's right to control its own territory and decide whether to be bound) is the biggest obstacle.

Stockholm Declaration Principle 21 (1972): states have the sovereign right to exploit their own resources and the responsibility not to cause damage to the environment of other states or areas beyond national jurisdiction.

Brundtland Report, Our Common Future (1987): sustainable development "meets the needs of the present without compromising the ability of future generations to meet their own needs".

The NSW Protection of the Environment Administration Act 1991 s 6(2) lists the ESD principles:

ESD is an object of the EPBC Act 1999 (Cth) and the EP&A Act 1979 (NSW). Evaluation: influential, but decision-makers usually only have to _consider_ it, so it can be outweighed by economic benefits.

Key instruments

Soft law and hard law: declarations (Stockholm, Rio) are not binding but shape state practice; treaties bind only the states that ratify them.

Courts and advisory opinions

• Trail Smelter (1941, arbitration): a state must not allow its territory to be used to cause serious harm to another state.
• Gabčíkovo-Nagymaros (Hungary v Slovakia) (ICJ, 1997): environmental considerations and sustainable development are relevant to how states perform their treaty obligations.
• Pulp Mills (Argentina v Uruguay) (ICJ, 2010): environmental impact assessment is required where there is a risk of significant transboundary harm.
• Whaling in the Antarctic (Australia v Japan) (ICJ, 2014): Japan's program was not for scientific research. Japan paused, then resumed Antarctic whaling under a redesigned program until it left the International Whaling Commission (2019) and moved to commercial whaling in its own waters.
• ITLOS advisory opinion (May 2024): greenhouse gas emissions are marine pollution under UNCLOS.
• ICJ advisory opinion on climate change (23 July 2025): unanimous; states have binding obligations under treaties and customary law to prevent significant harm to the climate system; breach can be an internationally wrongful act. Requested by the UN General Assembly after a Vanuatu-led campaign. Advisory, not a binding judgment.
• Daniel Billy v Australia (UN Human Rights Committee, 2022): Australia violated Torres Strait Islanders' rights by not protecting them adequately from climate impacts.

• Paris Agreement (2015): hold warming well below 2°C and pursue 1.5°C; each state sets its own target (NDC) and updates it every five years; targets not enforceable. The United States withdrew a second time, effective January 2026.
• COPs: COP28 Dubai (2023) — transition away from fossil fuels in energy systems (the first COP decision to refer to fossil fuels generally); COP29 Baku (2024) — climate finance goal of at least US$300 billion a year by 2035; COP31 Antalya, Türkiye (9–20 November 2026), with Australia's Chris Bowen as President of Negotiations and a pre-COP in Fiji and Tuvalu (October 2026).
• Australia: Climate Change Act 2022 (Cth) — 43% below 2005 levels by 2030 and net zero by 2050; 2035 target of 62–70% (September 2025); Safeguard Mechanism (reformed 2023) for the largest emitters; Climate Change (Net Zero Future) Act 2023 (NSW). But Australia is a major coal and gas exporter and continues to approve fossil fuel projects (for example the North West Shelf extension, 2025).
• Domestic litigation: Gloucester Resources v Minister for Planning (NSWLEC, 2019) — Rocky Hill mine refused partly for climate reasons; Bushfire Survivors for Climate Action v EPA (NSWLEC, 2021) — EPA must develop climate policies; Sharma v Minister for the Environment — duty of care found at first instance (FCA 2021) but rejected by the Full Federal Court (2022); Pabai v Commonwealth (FCA, July 2025) — severe harm accepted, but no duty of care; appeal heard by the Full Federal Court in July 2026.
• Youth Verdict v Waratah Coal (Qld Land Court, 2022): recommended refusing a coal mine because its climate effects would limit human rights under the Human Rights Act 2019 (Qld), including First Nations cultural rights and children's rights.
• Climate mobility: the Australia–Tuvalu Falepili Union (in force 2024) offers up to 280 Tuvaluans a year a pathway to live in Australia.

• Constitution: no environment power; the Commonwealth uses the external affairs power to implement treaties — Commonwealth v Tasmania (Tasmanian Dam case) (1983).
• EPBC Act 1999 (Cth): approval needed for significant impacts on matters of national environmental significance (World Heritage, National Heritage, Ramsar wetlands, threatened species and communities, migratory species, Commonwealth marine areas, the Great Barrier Reef Marine Park, nuclear actions, and the water trigger for coal seam gas and large coal mines since 2013). Example: the Central Queensland Coal project rejected as "clearly unacceptable" (2023).
• Criticism: the Samuel Review (2020) found the Act ineffective; the 2021 State of the Environment Report found the environment poor and deteriorating.
• Environment Protection Reform Act 2025 (passed 28 November 2025): decisions must be consistent with National Environmental Standards; a definition of unacceptable impacts; net gain; higher penalties; limits on land-clearing exemptions; fossil fuel projects excluded from fast-track pathways. The National Environmental Protection Agency started on 1 July 2026. No "climate trigger".
• NSW: Protection of the Environment Operations Act 1997 (pollution licences, the EPA, clean-up notices, prosecutions); Biodiversity Conservation Act 2016 (threatened species and offsets — the 2023 Henry review found it was not achieving its goals); the Land and Environment Court (1979), a specialist court with open standing for key environmental laws.

• UNCLOS (1982) and ITLOS; MARPOL (1973/78) for ship pollution; the London Convention (1972) for dumping.
• The High Seas Treaty entered into force on 17 January 2026; Australia signed in 2023 and introduced implementing legislation in 2026.
• Antarctica: the Antarctic Treaty (1959) and the Madrid Protocol (1991), which bans mineral resource activities.
• Australian Marine Parks: a network of Commonwealth marine parks under the EPBC Act; the Macquarie Island marine park was greatly expanded in 2023.
• Plastics: treaty negotiations failed to reach agreement in Busan (2024) and Geneva (August 2025).
• Whales: IWC moratorium on commercial whaling from 1986; humpback populations off eastern Australia have recovered strongly.
• Great Barrier Reef: the Great Barrier Reef Marine Park Act 1975 and zoning; World Heritage area; mass bleaching in 2016, 2017, 2020, 2022, 2024 and 2025, driven by ocean warming.
• Sanda v PTTEP (FCA, 2021): the operator of the Montara platform was liable to Indonesian seaweed farmers for the 2009 oil spill.

Worked example: applying the precautionary principle

A council is asked to approve a new factory beside a wetland. Scientists agree its waste water could harm a threatened frog, but are uncertain how much. Step 1: is there a threat of serious or irreversible damage? Possible extinction of a local population is serious. Step 2: is there scientific uncertainty? Yes. Step 3: following Telstra v Hornsby (2006), the burden shifts to the developer to show the threat is negligible, or the council should take precautionary measures — refuse approval, or impose conditions such as treating waste water and monitoring frog numbers. The council cannot simply say "the science is uncertain, so we will approve it and see".

• NGOs: Greenpeace, WWF, the Australian Conservation Foundation, the Environmental Defenders Office (litigation), Sea Shepherd, the Climate Council.
• Science: the IPCC (from 1988) provides the evidence base for climate negotiations.
• Media and social movements: School Strike 4 Climate (from 2018); coverage of the 2019–20 bushfires.
• Business and investors: net zero commitments; mandatory climate-related financial disclosure for large companies (from 2025).
• Limits: no power to compel states; depend on public attention.

Criteria:

• Participation (how many states are bound?) and enforcement (what happens if they break it?).
• Specificity of obligations — clear, binding targets work better (Montreal Protocol) than vague ones.
• Outcomes: has the environment actually improved (ozone) or kept declining (biodiversity, emissions)?
• Balance of environmental protection with development, jobs and sovereignty.
• Responsiveness: law reform such as the 2025 EPBC reforms.

Typical judgement: international and Australian law have succeeded where obligations are clear, binding and enforceable, but sovereignty, economic interests and weak enforcement mean they have not stopped climate change or biodiversity loss.

• Calling the Paris Agreement targets legally enforceable (they are not).
• Saying the ICJ's 2025 opinion is a binding judgment against a particular state.
• Confusing the Kyoto Protocol (binding targets for developed states only) with the Paris Agreement (all states set their own targets).
• Using the pre-2025 EPBC Act without mentioning the reforms and the National Environmental Protection Agency.
• Writing about the environment generally without linking it to law.

• Structure: a clear judgement; paragraphs by level (international, Australian) or by issue (climate, biodiversity, oceans); always return to effectiveness.
• Sovereignty is the key theme: explain why it limits international law _and_ why states still choose to cooperate.
• Use a range of evidence: treaties, cases, reports (Samuel Review, State of the Environment), statistics with dates, media and NGO examples.
• About 1,000 words in about 45 minutes.

• World Order: state sovereignty, the UN, the ICJ, NGOs.
• Human Rights: the right to a healthy environment (2022), Daniel Billy v Australia.
• Indigenous Peoples: Torres Strait Islanders and climate change; cultural heritage and World Heritage.