National Level

Over 60 Constitutions contain specific provisions relating to the protection of the environment and natural resources. Some of them recognize explicitly the right to a satisfactory environment even if the adjectives used differ from one Constitution to another. This right is generally presented as entailing corresponding duties towards the State and its institutions and obligations for individuals and organs of society. A few recognize corresponding rights for the individuals and groups.

An increasing number of States have developed the framework of laws and regulations needed to ensure implementation of this right. Some of them have spelt out the substantive aspect of that right and the related procedural rights, such as, the right to health, to life, to participation, to association, to information, and to legal action or recourse. Some countries have provided for the
punishment of offences against the environment and/or have affirmed the principle of compensation for the victims, as well as reparation for damage. In some cases there is also a reference to preventive aspects. A number of cases in national courts directly affirm and enforce the constitutional right to the environment.

For example, the Supreme Court of India cited the fundamental duty of all citizens under Article 51 (A) of the Constitution to protect the environment as a basis for its decision to enjoin illegal mining operations. The Court noted that the obligation to maintain an ecological balance extended as much to the State as to individuals. In another case, the same Court gave express recognition to the right to environment, stating that: “...[the] right to life is a fundamental right [which] includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”

Colombian Courts have also affirmed and enforced the constitutional right to environment. The Court of the district of Antioquia acknowledged the “grave consequences” to the health and life of the indigenous peoples as a result of living in deforested and polluted areas. The Court stated that “...the devastation of their forests alters their relation with the environment and endangers
their lives and culture and ethical integrity ...” It ordered the defenders to pay for an environmental and cultural impact study to be carried out by the appropriate authorities. In another case, the First Superior Court of Tulua-Valle ordered the suspension of an asphalt plan
operation, stating that “... it is evident that there is a threat to a fundamental right recognized in the national constitution ... which could be violated, causing irreparable harm to the community.” The Constitutional Court of Colombia upheld the decision of the First Superior Court.

The Supreme Court of Costa Rica ordered that a dump threatening the rights to life and a healthy environment be closed immediately, asserting that “...life is only possible in solidarity with nature ...” The Philippines Supreme Court recently affirmed the right of present and future
generations to a balanced and healthy environment and ruled that the plaintiffs, who were children, had standing to represent future generations.

Review of Further Developments

Although the relationship between human rights, environment and development is widely recognized, it still requires discussion particularly in relation to the scope and content of an emerging right to the conservation of the environment. The expressions qualifying the word “environment” are diverse and many adjectives have been used to describe its characteristics; decent, secure, pleasant, liveable, desirable, natural, pure, clean, safe, satisfactory, healthy, human, unpolluted, ecologically balanced and so on. However, these various qualifications reveal the same underlying aspirations reflected also in the developing practice and legislation at national, regional and international levels.

ILLICIT Dumping of Toxic and Dangerous Substances and Waste

Transboundary movement of hazardous wastes has engaged the attention of developing countries, particularly African States which consider that they are victims of transnational corporations who have developed a traffic of illicit dumping of toxic wastes from the North to the South. The Organization of the African Unity considered that such dumping was “... a crime against Africa.” The General Assembly condemned the dumping of nuclear and industrial wastes in Africa.

Following the adoption of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal which was the result of a compromise between the advocates of a complete ban on transboundary movements of wastes and those who
wished to organize the legal framework for such transfer, the African Countries adopted the Bamako Convention on the Banning of the Import into Africa and the Control of the Transboundary Movement of Hazardous Wastes within Africa on 29 January 1991. However, so far, the latter Convention has received hardly any ratifications.

Agenda 21 contains objectives aimed at preventing the illegal transboundary movement of hazardous wastes by, inter alia, reinforcing national capacities to detect and halt illegal transboundary movements and by assisting developing countries in obtaining appropriate information.

The Sub-Commission and the Commission of Human Rights have also addressed this issue and passed several resolutions recognising that the illicit dumping of toxic substances and wastes constitutes a serious threat to the human rights to life and health, and stressing the vulnerability and concern of developing countries. The Commission took a further step at its 1995 session. It noted with grave concern that the increasing rate of such dumping in developing countries continued adversely to affect the human rights to health and life and decided to appoint a Special Rapporteur to investigate the effects of dumping in Africa and other developing countries and make recommendations on measures to eradicate such traffic. The nomination of the Special Rapporteur will be effective after its approval by ECOSOC.

Refugees, Internally Displaced Persons, Victims of Armed Conflicts and the Environment

There is an obvious relationship between human rights, the environment and mass exodus of populations. Violations of human rights as well as deterioration of the environment are the main causes of displacement of the populations either internally or beyond the frontiers. Refugees, asylum-seekers and internally displaced persons have minimum rights and are generally the least protected and the most vulnerable. Furthermore, they are often the target of attacks by armed groups and victimised by racism and xenophobia. Asylum-seekers are faced with restrictive practices which deny them access to safe territories. In some cases, they are either arbitrarily detained or are forcibly returned to countries or areas where their lives, security, dignity and liberty are threatened.

Environmental refugees and internally displaced persons currently number about 25 million although there is no specific reference to them in the 1951 International Convention Relating to the Status of Refugees. This Convention only refers to persons who flee their country of origin due to a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. This restrictive definition excludes de jure internal displacements even if resulting from the reasons enumerated by the 1951 Convention, as well as exodus across the frontiers as a result of the adverse consequences of environmental degradation including those directly threatening life, health and other fundamental human rights. These could be natural events such as drought, famine, earthquakes, desertification or human-generated disasters like ill-planned large scale projects such as dams, industrial disasters, nuclear accidents, pollution, improper handling of hazardous wastes, and armed conflicts.

Assistance has been dispensed to such groups on a specific basis and on the demand of the General Assembly, its subsidiary organs and specialised agencies, but they are still excluded from the benefits of international protection assumed in particular by the UNHCR (United Nations Commission on Human Rights).

In addition to its study on mass exodus, the Commission on Human Rights considered the issue of the internally displaced. In 1992, a Representative of the Secretary-General was appointed to gather information and study the issues related to this phenomenon.

Armed conflicts are the cause of a great deal of harm to the environment and of massive and gross violations of human rights despite the universally recognized principles of humanitarian and international law such as the UN Charter’s prohibition of the use of force and the customary international law principles of humanity and proportion which impose limits in the conduct of war.

These fundamental principles also find their legal expression in various international instruments, in particular, the 1977 Protocol I Additional to the Geneva Conventions of 12 August, 1949, relating to the Protection of Victims of International Armed Conflicts. Article 35 §3 of this Protocol stipulates as follows:

“It is prohibited to employ methods or means of warfare which are intended or may be expected to cause widespread, long term and severe damage of the natural environment.”

This general provision which reaffirms the fundamental humanitarian principle, whereby it is forbidden to inflict unnecessary harm, is devoted to the protection of the environment. Article 55 reiterates the obligation to protect the natural environment and extends that protection to the elements that may cause a “prejudice...to the health or survival of the population. Attacks against the natural environment by way of reprisals are prohibited.”

Principle 26 of the Stockholm Declaration, § 5 and 20 of the World Charter on Nature; Principle 24 of the Rio Declaration, and the Conclusions and the Final Declarations of the International Conference on the Protection of the War Victims all contain similar provisions. The General Assembly is still considering the question of the protection of the environment and its exploitation as a weapon in periods of armed conflicts. The WHO, however, has decided to request an advisory opinion from the International Court of Justice on the question: “In view of health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law, including the WHO Constitution?”

Disabled Persons

Environmental factors are frequently responsible for disability. The situation of disabled persons requires specific attention because of their total dependence vis-avis the environment. The problems posed by disabilities must not be minimised. According to WHO over 500 million individuals suffer from some form of disability. ILO estimates that 160 million of the disabled people are women and 140 million are children. A study conducted by the Special Rapporteur of the Sub-Commission has strengthened awareness of the human rights of the disabled persons and their special requirements.

Migrant Workers

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families stresses “...the situation of vulnerability in which ...they... frequently find themselves...”, as well as the need to ensure international protection of their rights which should be implemented on the basis of the principle of nondiscrimination.

Children and Young People

Children and young people are a force for the future and investment in them is vital. At the same time they need protection because of their vulnerability to theconsequences of environmental degradation. UNICEF (The United Nations Children’s Fund) describes them as being trapped in the spiral of “... poverty-populationenvironment.” Their huge potential is jeopardised by “... the mutually reinforcing problems of persistent poverty, rapid population growth and environmental degradation.”

Studies submitted to the Sub-Commission’s Working Group on Contemporary Forms of Slavery reveal that millions of children continue to be victims of various forms of slavery and of the degradation of their environment and living conditions. They suffer rape, ill-treatment, economic exploitation, sexual abuse and debt bondage. They are often forced into lives of child soldiers, street children, unwilling drug pushers, etc.

It is hoped that the Committee on the Rights of the Child established under the 1989 Convention will address these particular issues. The Convention explicitly refers to the “natural environment” even though it is with reference to the need to direct the education of the child to the development of respect for the environment. As with other human rights instruments, many of its provisions are intended to be implemented from an ecological standpoint.

Women

In a number of countries throughout the world, women are denied their fundamental rights. A discrepancy exists between the formal recognition of the decisive role women play in promoting sustainable development and the place they occupy in practice. Even where they are no longer regarded as victims of environmental degradation, but instead are seen as agents possessing essential assets for the preservation of the environment, they are still the first to suffer from the consequences of the deterioration in living, working, housing and other environmental conditions. Because of traditional patterns which perpetuate gender-role stereotypes, it is in practice difficult to ensure effective and genuine participation of women in public life. They are thus prevented from influencing decision-making.

However, the decisive contribution of women in promoting development and preserving the environment is well recognized. It is recognized that women’s organizations have promoted environmental awareness and that women play a critical role in the management, use and protection of natural resources and in environmental education.

Agenda 21 devoted considerable attention to “Global Action for Women Towards Sustainable Development...” and proposed a series of objectives to be achieved in order to ensure the promotion of women’s rights and to realise their integration and effective participation in the development process. Principle 20 of the Rio Declaration stipulates that “women have a vital role to play in environmental management and development. Their full participation is therefore essential to achieve sustainable development.


The 1993 Vienna Declaration and Programme of Action recognizes in part I § 18 that “...the human rights of women and the girl-child are inalienable, integrated and an indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.”

The Commission on the Status of Women established by ECOSOC (UN Economic and Social Council) in 1946 and the Committee on the Elimination of Discrimination Against Women, also play an important role in strengthening the role of women in promoting economic, social, cultural and political activities for sustainable development.

Indigenous Peoples

The specific relation of indigenous peoples to the land and the Earth—or them “The Earth does not belong to man; man belongs to Earth”—underlines the interest that attaches to their cultural and economic environment. Their defence of the land and natural resources is always presented as a struggle for the cultural and human survival of their future generations. Testimonies and studies have highlighted the damage that has been caused to indigenous peoples by development projects which have incorporated reserves of natural resources into national and international economies without the consent and participation of the indigenous peoples who depend on these resources, and without paying attention to the adverse consequences of such projects on the rights of such peoples, in particular, to life, health and to a means of subsistence.

The United Nations and its specialised agencies pay particular attention to the relationship between environment, development and the rights of indigenous peoples. These issues were addressed during the Rio Earth Summit, the Vienna World Conference of Human Rights and the 1993 International Year for the World’s Indigenous People.

ILO (The International Labour Organisation) promulgated Convention No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries. This was revised in 1969 by Convention No. 169 which addresses issues of land rights. The Convention covers a diverse range of issues including special measures to protect the environment; the need for direct participation by indigenous populations in environmental impact studies prior to development schemes in their territories; a recognition of the special importance of land to the culture and spiritual values of indigenous peoples; landownership rights; protection from unlawful relocation; procedures for redress; and the need for penalties for land violations. Regrettably, few governments have ratified the Convention and here is no public information regarding complaints that are lodged within the existing ILO procedures.

The Working Group on Indigenous Populations of the Sub-Commission on Prevention of Discrimination and Protection of Minorities has finalised a Draft Declaration concerning the right of indigenous peoples. This has been transmitted to the 1995 session of the Commission of Human Rights for consideration and adoption by the General Assembly of the United Nations. Its provisions cover the rights of indigenous peoples over their lands, territories, natural resources and cultural heritage. Specific mention is made of the right to the protection and rehabilitation of their environment, as well as to restitution or just and fair compensation. It is stipulated that indigenous peoples shall not be forcibly removed from their lands or territories and have the right to require that States and domestic and transnational corporations consult them and obtain their free and informed consent prior to the commencement of any large scale projects.

Vulnerable Groups and Specific Issues

We have already referred to the vulnerability to environmental risks of peoples under occupation or foreign domination and of individuals and groups who are marginalised by poverty and excluded from the benefit of development. Particular attention should be devoted to groups such as women, children, disabled persons, migrant workers, environmental refugees, displaced persons, victims of conflicts and indigenous peoples as being at greater risk.

The Right to Health and Other Social, Cultural and Economic Rights

The two rights, to life and health, are “... at the basis of the ratio legis of international human rights law and environmental law.”

The notion of health implies more than the absence of illness. The World Health Organization has defined it as a state of complete physical, mental and social well-being. WHO’s Strategy of Health for All by the Year 2000 is aimed at “... the attainment by all citizens ... of a level of health that will permit them to lead a socially and economically productive life.”

The right to health is generally viewed as a composite right, consisting of the right to medical care and the right to social security services, including those related to preventive care and family planning services. It is recognized that health problems are related to economic, social, cultural and environmental living conditions. As WHO points out, health status is nearly always the best as well as the first indicator of environmental degradation. Therefore, the right to health should consist of the right to health care as well as the right to healthy conditions, implying a satisfactory environment.

Like other economic rights enshrined in the International Covenant on Economic, Social and Cultural Rights of 1966, the right to health is considered as a right of “progressive realization.” Thus, its implementation is left to the discretion of States’ Parties.

However, the notion of progressive realisation of economic rights has substantially evolved in the sense that State obligations include not only the obligation to protect and respect these rights, but also the obligation to fulfil them which implies the adoption of positive measures. Furthermore, action should be guided by inviolable postulates such as the principle of nondiscrimination, the right to information, democratic participation, gender equality, the right to a healthy environment, economic parity, and the maintenance of cultural identity and skills.

In the analysis of some of the human rights, an attempt has been made to underline the close interaction between environmental degradation and the enjoyment of these rights. The choice of these rights is illustrative, not exhaustive. One has also to bear in mind the basic principle of non-discrimination which is of great interest to vulnerable groups, particularly those facing specific situations such as armed conflicts or problems, such as illicit movement and dumping of toxic wastes.

Right to Life

The relationship between human life and the environment is obvious. The right to life has been recognized as a fundamental right of a “suprapositive” character in that it is a norm, erga omnes enforceable in respect of all persons, even if there is no treaty obligation. The right to life is included among the peremptory norms from which no derogation is permitted. The international instruments and the regional treaties such as the European Convention on Human Rights of 1950 and the Pact of San Jose of 1969 listed it as one of the fundamental rights from which no derogation is allowed. The Human Rights Committee also stated in its General Comment that the right to life “... should not be interpreted narrowly ...” and requires “... that States adopt positive measures...” in order to protect it.

Even if the scope of the intervention of public authorities in order to ensure the protection and promotion of human rights is still subject to debate, it is widely recognized that the States obligations go beyond a passive role and beyond the obligation to abstain from infringing human rights. For example, the right to food, directly linked with the right to life, has been considered as consisting of “... the obligation to respect, which required that the State not destroy existing access to food; the obligation to protect, which required that the States prevent third parties from destroying peoples’ existing access to food; and the obligation to fulfil, which required that the State provide access to adequate food for those for whom such access had not existed.”

The jus cogens nature of the right to life implies that offenders are accountable not only for the deliberate and intentional deprivations of this right but also for failing to take positive measures, including those of a preventive character.

The Inter-American Court of Human Rights concluded in the Velasquez Rodriguez case, that the obligation of the States’ Parties to ensure the free exercise of the rights recognized by the Convention implies the duty to organize the governmental apparatus in order to ensure the full
enjoyment of human rights:

“As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights ... and if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from violation.”

Freedom of Association

This right, enshrined in Article 20 of the Universal Declaration and Article 21 of the International Covenant on Civil and Political Rights, forms a crucial element of effective participation in providing the public with a broadbasis for informed decision making. In the context of the environment, this right encompasses the freedom to associate freely and peacefully with others to protect the environment, seek, receive and disseminate information, seek administrative and legal recourse and take collective action in support of environmental causes and affected victims.

The right to organize plays a critical role in workers’ ability to protect and reinforce their right to environmental health and safety on the job. Outside of the trade union context, the right to association in conjunction with the right to freedom of expression, allows individuals, groups and nongovernmental organizations to take part in assessing the environmental impact of decisions affecting their communities, and to mobilise the human and financial resources necessary to effectively address environmental problems. Nongovernmental organizations play a vital role in participatory democracy and possess expertise useful for improving sustainable development. The United Nations system and governments are invited to strengthen mechanisms to involve NGOs in decision making.

Human Right to Information

The right to information has individual and collective dimensions and constitutes an essential attribute of the democratic process and the right to popular participation. It features prominently in the human rights instruments and is enshrined in Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights and many other global and regional documents. It is of particular importance in the environmental field. Access to environmental information is a prerequisite to public participation in decision making and timely scrutiny of governmental and private activities. This facilitates the making of appropriate choices and the prevention of irreversible damage before it occurs.

The scope of the right to information has been broadened in order to take into account its preventive aspects and transboundary impacts on the environment, as well as the necessity of interested individuals, groups, peoples and States to have access to relevant information and the corollary duty on governments and public authorities to disclose it in a timely manner.

Even if all the legal aspects of the right to environmental information have not yet been identified, the practice is evolving on the basis of the general principles defined during the Earth Summit, in particular Principles 10, 18 and 19 of the Rio Declaration.

Principle 10 stresses the importance of:
“...the participation of al1 concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities ... States shall facilitate and encourage public awareness and participation by making information widely available.”

Under Principles 18 and 19 “States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States ...” They “... shall provide prior and timely notification and relevant information to potentially affected States on activities thatmay have significant adverse transboundary environmental effects and shall consult with those States at an early stage and in good faith.”

Participation of Human

Failure to involve the affected community in decisionmaking generates development strategies which carry risks to the environment in the sense that they are generally inadequate and socially ill-oriented, do not respond to the basic needs of the population affected, and at times even threaten the fundamental rights of the vulnerable or underprivileged.

In a report devoted to popular participation, the Secretary-General of the United Nations quoted the views of Survival International which believed that:

“... denied even basic information about the projects that affect them, the peoples of the Third World are cast into the role of passive recipients of aid, and more often than not become victims of its arbitrary and illjudged effects. In improving [sic] this lack of accountability and excluding the public from any involvement in decision-making, these organizations are institutionalising undemocratic forces and reinforcing the very economic structures of exploitation and repression that are responsible for the poverty and underdevelopment they are trying to alleviate.”

Indeed, a national development strategy is viable from the economic, social, cultural and ecological point of view only if it gains the active support of the affected population. Such support will only be forthcoming if there is genuine participation of the various social strata of the population in the formulation and execution of the programs devoted to development.

As emphasized at the Global Consultation on the Right to Development:
“What constitutes development is largely subjective, and in this respect development strategies must be determined by the peoples themselves and adapted to their particular conditions and needs.”

Popular support will be lacking if the development model which is adopted ignores human rights, including civil and political rights, or is incompatible with the sociocultural characteristics of the populations concerned. It is now widely acknowledged that giving exclusive priority to economic growth and financial aspects of a project could lead to a failure of the development strategies.

The right to development is described in the 1986 Declaration as an “...inalienable human right by virtue of which every human person and peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

The Earth Summit stressed the importance of participation and even recognized, in the specific context of the environment, “... the need for new forms of participation” and “...the need of individuals, groups and organizations to participate in environmental impact assessment procedures and to know about and participate in (..pertinent..) decisions.” One should also bear in mind the Rio Declaration, in particular Principle 10 on the participation of citizens, Principle 20 on the participation of women, and Principle 22 on the participation of indigenous peoples and their communities. Agenda 21 places special emphasis on the adequate reinforcement of the role to be played by individuals, groups and nongovernmental organizations for the implementation of the agreed programmes. A genuine involvement of all social groups and broad public participation in decision-making is considered as one of the fundamental prerequisites for the achievement of sustainable development.

The Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on 25 June 1993 also underlined the importance of participatory democracy. It stated that:
“Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.”

The issue of popular participation becomes important in the context of the right to development. It has an added dimension in the context of the environment, bearing in mind the preventative aspects and the recognition at national, regional and international levels of the necessity to allow a broad participation in decision making regarding the environment, especially during the process of environmental impact assessments. This issue is directly related to the rights to education, information, association, expression and effective remedies. Their practical expression depends on the promotion of the related procedural rights such as the right of recourse and due
process.

Right to Development, Sustainable Development and the Environment

In its report, Our Common Future, the World Commission on Environment and Development analysed the crises besetting the planet. It emphasised the interaction between the economy and the environment at the national and international levels and provided a new understanding of
the imperative of sustainable development.

The interrelationship between development and the environment is no longer challenged. Awareness of the global character of environmental problems that create hazards for the planet, threaten the living conditions of human beings, and impair their fundamental rights and basic needs has made possible a consensus on the concept of sustainable and environmentally sound development. This was consolidated by the 1992 Earth Summit in Rio de Janeiro into an ambitious programme of action —Agenda 21, and clarified by a Declaration of 27 principles on Environment and Development, adopted at the Conference.

The Stockholm Declaration of 1972 had already affirmed the inextricable link that exists between environment and civil and political rights, such as the right to freedom, equality and dignity, and also between environment and economic rights, with reference to the right to live under adequate conditions, and in an environment that permits a life of well-being and dignity.

Underlying the links between the right to development, which is recognized as a human right by several international instruments and defined as such by the 1986 Declaration on the Right to Development, and the environment is the notion of the indivisibility and interdependence of all human rights whether civil, political, economic, social or cultural. Indeed, the claim to the right to a satisfactory environment cannot be separated from the claim to the right to development in its individual and collective aspects as well as in its national and international dimensions.

In this context, the issue of poverty and underdevelopment is one of the concepts of the right to
development conceived as a human right, and of the right to environment perceived in all its dimensions including the human aspects of the right to sustainable and sound development. Poverty has adverse effects. It causes serious damage to the environment and consequently impedes the realisation of the right to development and other fundamental rights of individuals, groups and peoples.

This cause-and-effect relationship has been analysed and demonstrated both at the Rio Earth Summit and at subsequent fora devoted to the issues of development and social progress. Poverty causes degradation of the environment, and a degraded environment exacerbates the problems related to underdevelopment. Thus, poverty has a direct impact on the enjoyment, realisation and improvement of human rights and fundamental freedoms. Furthermore, poor populations, the underprivileged, minority groups, and indigenous peoples are the most affected since they are more vulnerable and less protected from ecological risks and environmental degradation.

Poverty leads to marginalisation. This places victims in a vicious circle that reduces the chances of economic, social and cultural integration and paves the way for violations of other fundamental human rights, assaults on life and health, degradation of living conditions, unemployment, illiteracy, non-participation in decision making, emigration, exodus, resettlement and forced evictions, discrimination, exclusion, racist xenophobia, arbitrary detention, precarious living conditions, prostitution, drugs consumption, poor housing, etc.

The consensus which was realised with respect to the concept of the right to development conceived as a human right and the concept of sustainable and environmentally sound development, has permitted the reconciliation of the three generations of human rights which are regarded as interdependent and indivisible.

In this context, external and internal factors that may constitute serious impediments to the achievement of sustainable development are taken into account. In contrast, the Declaration on the Right to Development passes over external elements such as, unfavourable international conditions, the need to establish a new international economic order and promote the realisation of the right of peoples to self-determination to enable them to exercise their inalienable right to full sovereignty over all their natural resources. Principle 23 of the Rio Declaration on Environment and Development states that “[t]he environment and natural resources of people under oppression, domination and occupation shall be respected”, while the General Assembly of the United Nations (UN) has repeatedly called for the protection of the human and natural resources of the territories under colonial domination, emphasising that “...the natural resources are the heritage of the indigenous populations of the colonial and Non-Self-Governing Territories.” Furthermore, recent discussions and studies have underlined the phenomena of population transfer and implantation of settlers and settlements which deny the right to selfdetermination, generate further violations of the principles of international law and human rights and cause adverse consequences on the environment. In some situations, these practices may amount to genocide.

The structure of international relations and more particularly the burden of debt and the impact of structural adjustment measures on the least favoured categories are not omitted in the debate related to the right to development and environment. It is widely recognized that certain international policies in the field of investment, trade, finance and aid may have adverse effects on the environment, development and human rights.

It is important to note that the Agenda 21 program has launched a global partnership on a new and equitable basis. The Earth Summit recognized the importance of achieving durable solutions to the debt problem while agreeing that the implementation of the Agenda 21 programs requires
provision of substantial new and additional financial resources to developing countries. The idea of partnership, initiated in Rio de Janeiro, is also based on the notion of participatory democracy at all levels, locally, nationally and internationally.

Human Rights Issues

“This we know, the Earth does not belong to man; man belongs to the Earth. This we know, all things are connected, like the blood which unites one family. Whatever befalls the Earth, befalls the sons of the Earth. Man did not weave the thread of life, he is merely a strand in it. Whatever he does to the web he does to himself.“”
—Letter from Chief Seattle to President Franklin Pierce (1855)

The environment, development, democracy and human rights are the fundamental values of this century. The establishment of a world order in which, to use the words of the 1948 Declaration of Human Rights, “the rights and freedoms set forth in this Declaration can be fully realised,” poses a continuing challenge.

The relationship between human rights and the environment is widely recognized. As governments, intergovernmental and nongovernmental organizations work towards strengthening the legal expression of a new generation of “ecological rights” and to progressively
integrate environmental concerns into the national, regional and international procedures aiming at the protection of human rights, new practices have evolved which portend new developments in the field of law. Human rights are regarded as “indivisible and interdependent,” and perceived in all their dimensions including those related to environment and development.

Heidelberg Appeal To Heas of States and Governments

On the closure of the Rio Summit, the following Appeal was signed by 425 members of the scientific and intellectual community. The subject matter raised by the Heidelberg Appeal and the fruitful debate it has engendered are prompting the involvement of a number of scientists and intellectuals. The values embraced by the Appeal remain a topic of ongoing interest.

“We want to make our full contribution to the preservation of our common heritage, the Earth.

We are however worried, at the dawn of the twenty-first century, at the emergence of an irrational ideology which is opposed to scientific and industrial progress and. impedes economic and social development.

We contend that a Natural State, sometimes idealized by movements with a tendency to look toward the past, does not exist and has probably never existed since man’s first appearance in the biosphere, insofar as humanity has always progressed by increasingly harnessing Nature to its needs and not the reverse.

We fully subscribe to the objectives of a scientific ecology for a universe whose resources must be taken stock of, monitored and preserved.

But we herewith demand that this stocktaking, monitoring and preservation be founded on scientific criteria and not on irrational preconceptions.

We stress that many essential human activities are carried out either by manipulating hazardous substances or in their proximity, and that progress and development have always involved increasing control over hostile forces, to the benefit of mankind.

We therefore consider that scientific ecology is no more than an extension of this continual progress toward the improved life of future generations.

We intend to assert science’s responsibility and duties toward society as a whole.

We do however forewarn the authorities in charge of our planet’s destiny against decisions which are supported by pseudoscientific arguments or false and nonrelevant data.

We draw everybody’s attention to the absolute necessity of helping poor countries attain a level of sustainable development which matches that of the rest of the planet protecting them from troubles and dangers stemming from developed nations, and avoiding their entanglement in a web of unrealistic obligations which would compromise both their independence and their dignity.

The greatest evils which stalk our Earth are ignorance and oppression and not Science, Technology and Industry whose instruments, when adequately managed, are indispensable tools of a future shaped by Humanity, by itself and for itself overcoming major problems like overpopulation, starvation and worldwide diseases.”

The Role of Natural and physical sciences

BROADENING THE SCIENTIFIC TRADITION:


There has always been a lively debate about the objectives and definitions of science…Part of the problem lies in the misinterpretation by the various antagonists of each others’ positions. Science certainly seeks to move forward on the basis of broad principles, theories, laws and hypotheses, namely statements of interpretation that apply to a broad array of circumstances, and which are subject to continuous scrutiny through experiment, observation, verification and replication. These are proper procedures. They form the basis for both the social and natural sciences. As we have seen, the problem is not so much whether these approaches are necessary, because they are. The issue is whether they should be extended by other forms of judgement and dialogue to create a partnership with society on a broader front. This would allow science to be more aware of its scope for misdirecting human development even when it is sincerely searching for the truth.

Let us look first at the scientific method as it is commonly understood. Science evolves by theory building, theory testing and normative evaluation. The basic theories themselves are examined for their correctness in terms of their internal logicality, and for their consistency, that is their inherent plausibility.

These theories in turn are converted into hypotheses or propositions whose truth or applicability to a given set of circumstances is subjected to analysis. Normally that analysis relies upon observations and meticulous recording; experimentation, also with meticulous recording; or modelling, through which representations of ‘reality’ are created to provide a more manageable basis for examination and prediction. Where there is a historical record, the model can be calibrated against measured output to test its robustness and accuracy. Where there is no historical record, or where the model is essentially designed to depict the future, the only test for reliability is peer group criticism of the model’s assumptions, interactions and sensitivities to relationships between cause and outcome which are uncertain or simply not known.

Peer review is the combined judgement of those who are both knowledgeable and experienced, and who sincerely wish to retain the credibility of their collective profession by maintaining the very highest standards of excellence. This is the vital basis of predictive science. We shall see that the great global change issues—climate change, ozone depletion, biodiversity loss, tropical forest removal, microtoxicological disturbance of ecosystems—cannot be predicted with absolute certainty. All are therefore subject to networks of peer scientific review with the aim of generating consensus as a basis for political conviction and action. This prediction is followed for both the social and the natural sciences. For interdisciplinary science the task is more difficult and less successful, but the principle of retaining authoritative professionalism remains.

There is a third aim of science, namely to provide a background of advice as to what is good practice. This is known as its normative role, which can only be conducted through evaluative criteria based on socially agreed norms. Such norms are usually controversial, and certainly ambiguous. They apply to principles of justice fairness, efficiency and whatever else is deemed to be morally right. Clearly the definitions of these principles will vary from political culture to political culture, and will even be disputed by scientists themselves. For example, economists regularly battle over which should have supremacy, efficiency or equity. We shall see...that this is by no means a clear distinction any longer. Politicians prefer to think in terms of fairness or evenness of treatment, even when this means a more costly (i.e., less efficient) solution.

It is wise not to assume that there is a single normative criterion. Different circumstances will throw up varying yardsticks:

• Efficiency in the form of least-cost solutions is fine where there is something close to a functioning market which manages to incorporate environmental side effects into price.
• Fairness or equity for all concerned tends to operate where rights are universally shared between present and future generations, and where collective action, usually involving many nation states acting together, is necessary to produce a desired outcome.
• Paying for past debts (i.e., differential equity) is applied for issues such as the clean-up of contaminated land, the reduction of greenhouse emissions (where some countries have emitted over longer periods), and (increasingly) the reallocation of water rights. However, such a norm is very contentious politically; usually those first in, and/or politically the most
  powerful, have to be persuaded by the collective weaker (usually victimized) interests to pay up. Yet in modern environmental science this normative principle is an important one.
• Equivalence of treatment may not be very costeffective, but it applies to the principle of burden sharing. This is commonly found in circumstances where a number of countries are contributing to environmental degradation, and even when some are creating more damage than others, everyone is expected to pull their weight simply because it is seen as socially responsible and a statement of collective solidarity. In such circumstances, ‘scientific’ justification of contribution and removal is by no means the basis for negotiation. It is primarily a matter of being part of the whole commitment. Such shared action helps to keep all the concerned countries involved.

All these evaluative criteria apply to environmental problem solving. Efficiency issues tend to dominate economic analysis…while equity considerations strongly influence collective agreements… Paying for past debts appears in risk management matters while equivalence of treatment turns up in ethical approaches to ecosystem management for the good of the planet as a whole…and in health and environment issues.

Differences between the scientific and environmental policy communities regarding marine environmental protection strategies are discussed in the context of the nature and extent of scientific influence on marine environmental policy. Public perceptions of the nature and severity of marine pollution frequently differ from scientific assessments. The thesis of this paper is that the increasing influence of public perception on marine environmental protection policy is leading to the adoption of simplistic and unnecessarily extreme approaches to marine pollution prevention and to a reduced reliance on science. This trend is illustrated by some recent international developments and some suggestions are made towards enhancing the influence of science on marine protection policy.



CONCLUSIONS
There appears to be a trend towards reduced scientific influence on international mechanisms for improved marine environmental protection. This reflects the increasing influence of public perceptions which has led to the adoption of simplistic and unnecessarily extreme approaches towards preventing pollution such as the drive towards zero discharge and the foreclosure of marine waste disposal options. The fact that these strategies are being adopted with very limited assessment of the adverse effects on other sectors of the environment emphasizes the continued preoccupation with sectoral approaches. The comprehensive long-term protection of the environment, including the marine sector, requires the adoption multisectoral perspectives for the setting of priorities and formulation of action for the prevention of pollution.

Science should lead the way to this broader appreciation of the subject and educating policy makers who are preoccupied with sectoral issues. This can only he done if scientists themselves adopt a broader perspective and point out the dangers involved in the selection of simplistic and short-sighted strategies to the solution of perceived problems. An attempt to forestall political acceptance of extreme attitudes based on non-scientific perception has been made under the “Heidelberg Appeal” that has been signed by several Nobel Laureates and other distinguished scientists.

If we collectively fail to reverse the trend towards the discounting of science in the development of environmental protection measures, we will be both failing our professional responsibilities and risking a further decline in the influence of science on the development and implementation of marine protection measures.

New Quest for Environmental Equity

While there has always been a quest for equity among countries in using and caring for the environment, there is a growing realization that environmental equity extends to future generations and speaks to poor communities within countries. The poor are often disproportionately exposed to toxic chemicals and contaminated waste sites, breathe dirty air, rink polluted water, and are forced by poverty to exploit soils, forests and other resources in an unsustainable manner. The benefits of industrialization accrue disproportionately to the wealthy. This is especially the case in countries in which there is little social mobility. It is thus poor people within countries who should be major champions of sustainable development.

Many states may regard international consideration of the distribution of environmental burdens within states as intrusive. But the challenge will grow. Nongovernmental organizations and others may become active champions of environmental justice within their own countries and across borders. In the United States there is a growing movement for environmental justice, which is targeted against environmental contamination of poor neighborhoods. International law can provide a normative framework for ensuring that economic development does not take place on the environmental backs of the poor.

As indicated at the outset, international environmental law is in transition. While it is expanding rapidly in scope and coverage, we are nonetheless still developing the intellectual framework and defining the contours of the subject. We have made enormous progress in the last two decades. Concern with international environmental issues has brought new openness to the international legal system, fostered new actors and new constituencies, and tightly linked national and international law. In many ways the new directions of international environmental law reflect broad changes that are taking place in the international legal system. How we manage these directions will have important implications not only for sustainable development and the robustness of the human environment, but also for the international legal order in the decades to come.

New Integration of Environment and Economic Law

Traditionally, international environmental protection and international economic law have been treated separately. The focus has been on controlling specific pollutants or conserving particular species as ends in themselves. In the new model, the focus is on ecosystems conservation, pollution prevention, and a precautionary approach, not only as environmental goods but as integral to sustainable development.

In the quest for environmentally sustainable development, the focus will likely be on considering
environmental concerns at the front end of the industrializing process, so as to prevent pollution,
minimize environmental degradation, and use resources more efficiently. This should mean increasing concern with making the entire production system environmentally sound. International environmental law will need to reflect this emphasis by focusing on performance standards to prevent pollution and minimize degradation, rather than on liability for damage, and on providing incentives to companies to use environmentally sound processes. Environment and trade issues will be increasingly joined.

New Accords in the Private Sector

The most important development for the next century may be the emerging interaction of international intergovernmental environmental law with transnational environmental law developed primarily by the private sector and nongovernmental institutions. Concerns about ompetitiveness and a level playing field cause both governments and nongovernmental actors to focus on environmental standards and practices in different countries and compliance with them. The European Union has long been concerned with differences in environmental standards among member states.

Increasingly industrial associations, multinational companies, and coalitions of business and environmental interests are the most important driving forces behind the new focus on developing common transnational environmental standards and environmentally sound business practices.

Within the last few years, industry associations have begun to formulate common environmental standards across industries. The most prominent of these organizations is the International Standards Organization (ISO), a hybrid governmental/private group with 97 member countries, 176 technical committees, and 2,698 subcommittees and working groups. While historically the ISO has been concerned with developing technical and manufacturing standards for products, in 1979 it began to develop global quality standards, which in January 1993 became mandatory for any company manufacturing or exporting products to the European Union. As environmental concern grew, the ISO formed the Strategic Advisory Group on the Environment (SAGE) to consider the need for standard environmental-management practices in five areas: management systems; audits; lifecycle assessments to determine environmental impacts; environmental performance evaluations; and labelling.

The development of these standards can have important influences on governmental control of business behavior. They may set standards for practices that governments never address; or they may set standards that precede government action or provide greater specificity; or they may set standards that are inconsistent with particular national standards. Within countries, the
standards could be used by federal and state authorities to determine appropriate responses to non-compliance with governmental standards, including criminal actions, or to assess the standard of care in common law damage claims.

Some efforts to develop common standards or processes outside the intergovernmental framework take place informally. Before the Rio Conference, the International Chamber of Commerce (ICC) drafted a Business Charter for Sustainable Development that contained sixteen principles of environment management. The World Industry Council for the Environment (WICE), a group of more than 90 international companies, has tried to ensure a strong voice for industry in setting governmental environmental standards by targeting the development of self-regulatory guidelines and an inventory of life-cycle analyses.

As large companies in the private sector increasingly regulate themselves as a way to project corporate good citizenship, to ensure a level playing field, and to pre-empt or modify governmental regulation, countries must face the question of accountability by the private sector to the public. This involves both questions of direct participation in formulating the standards and indirect influence from the market place. Consumers are expected to reflect their preference for environmental protection by buying products produced in an environmentally sound manner
or by refraining from buying products or materials that are environmentally unsatisfactory. But this assumes that the market works perfectly and that prices adequately reflect environmental costs and benefits, which they do not. In the next decade, governments and the private sector need to work together to ensure accountability.

The New Focus: Compliance

The traditional model pays little attention to compliance with international legal instruments. States assume that other states will have the capacity to comply with treaty obligations and do not consider that a treaty’s primary purpose may be to build the local capacity of member states to comply or to encourage nongovernmental participation in discharging international obligations. In
this approach compliance can be measured in a snapshot. Compliance is regarded hierarchically: governments join treaties and adopt national implementing legislation or regulations, with which domestic units comply.

In the new model, agreements evolve over time and, most importantly, compliance by countries changes over time. States do not necessarily comply widely with their obligations. This suggests redirecting our attention from mainly negotiating new agreements, a politically attractive strategy, to building compliance with them, for which there may be little political gain. Focussing on compliance requires, among other things, that we acknowledge the link between national and international law, the importance of non-state actors, the need for adequate administrative capacity in governments, and the central role of monitoring and information flows.

It is useful to distinguish between implementation, compliance, and effectiveness. Parties implement international agreements when they take measures to make them effective in their domestic law. They comply with them when they adhere to implementing measures and when the targeted actors change their behavior. International agreements contain a variety of specific obligations, some procedural, such as reporting requirements, others substantive, such as phasing out certain chemicals by a targeted date. Effectiveness differs from compliance in that even if a country complies with a treaty, the agreement may be ineffective in achieving its stated purposes.

Compliance involves a dynamic process between governments, secretariats, international organizations, nongovernmental organizations, subnational units, and actors whose behavior is targeted by the agreement. Compliance changes over time, both within countries and among countries party to the agreement. The results from an international study of five environmental and natural resource agreements in nine countries suggest that, in general, there is a secular trend toward improved implementation and compliance. There appear to be many reasons for this, but one of the most important is international momentum, which means the collective force
of states, secretariats, nongovernmental organizations and individuals as it is brought to bear upon the behavior of a state party to the agreement.

The New Terrain: Treaty Congestion

Since 1970, the international community has become veryskilled at negotiating international environmental agreements and non-hierarchic legal instruments. Countries now conclude complicated agreements in less than two years: the Framework Convention on Climate Change, the Environmental Protocol to the Antarctic Treaty (with four detailed annexes), the Biological Diversity Convention and the United Nations Economic Commission for Europe protocols on industrial accidents, volatile organic compounds, and last year, sulfur dioxide. (It still usually takes more than two years for them to go into effect.)

The number and variety of environmental agreements has reached the point that some critics ask whether they may not severely strain the physical and organizational capacity of the countries to handle them. There are signs of treaty congestion, in the sense of separate negotiating fora, separate secretariats and funding mechanisms, overlapping provisions and inconsistencies between agreements, and severe demands on local capacity to participate in negotiations, meetings of parties, and associated activities. This affects the international community as a whole, since there will always be limited resources to address difficult issues and some countries may suffer particular inequities in their ability to participate effectively in the new regimes. This does not mean that we should refrain from concluding new international legal instruments, only that the highway for them needs to be smooth and more efficient.

With such a large number of international agreements, there is great potential for overlapping provisions in agreements, inconsistencies in obligations, significant gaps in coverage, and duplication of goals and responsibilities. This issue was recognized during the parallel negotiations for the Framework Convention on Climate Change, the Biodiversity Convention and the nonbinding Forest Principles, all of which may affect forest management. The Biodiversity Convention includes a separate article on “Relationship with Other International Conventions”.

Some issues require analyzing the intersection between provisions of different agreements, such as those in the London Convention of 1972 with the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, or those in the Law of the Sea Convention with the London Convention of 1972 or the Antarctic Treaty. Reconciling provisions in different agreements is likely to become a more frequent issue. Moreover, different international dispute settlement bodies may give different answers, which suggests a need to coordinate in this area as well.

International environmental law has developed in a piecemeal, almost random, manner. In contrast to other fields such as trade, there is no comprehensive agreement on the environment. The Legal Experts for the World Commission on Environment and Development suggested that [such] an international agreement on the environment be concluded. The World Conservation Union (IUCN) has recently produced such a draft agreement. Some scholars have suggested that a code on the environment be negotiated to provide parity with the comprehensive framework provided by the General Agreement on Tariffs and Trade and the new World Trade Organization Agreement into which it is incorporated. It is now timely to address whether such an agreement or code is needed. Treaty congestion also contributes to significant inefficiencies in implementing international agreements. There are usually separate secretariats, monitoring processes, scientific councils, financing mechanisms, technical assistance programs, and dispute resolution procedures. In the future, it may be possible to induce more efficiency by using information technology and by such measures as regular meetings of the secretariats for related
treaties, as the United Nations Environment Programme is now initiating. The information revolution can assist by facilitating gathering, analysis, and dissemination of data and making communications easier and less costly.

Possibly it is time to consider developing the environmental counterpart to the World Intellectual Property Organization, which consolidated the administration of separate intellectual property conventions. While transferring existing agreements to a new jurisdictional umbrella would be difficult, it might be possible to consolidate new international environmental agreements in a central home or to develop a coordinating mechanism to encourage efficiency.

Finally, treaty congestion leads to overload at the national level in negotiating and implementing the agreements. Today a large number of international environmental institutions and treaty regimes have some claim on the administrative capacity of national states. Even industrialized states with well-developed regulatory mechanisms and bureaucracies show signs of being overwhelmed. As attention shifts to the need to comply with existing agreements, the burden on the administrative capacity of states will become more acute. Attention must be given to developing local capacity to implement and comply with international environmental agreements
effectively and efficiently.

The New Actors

In the new model, nongovernmental organizations (NGOs) of various kinds and industry associations play increasingly important roles in negotiating, implementing, monitoring, and enforcing international environmental agreements. While such NGOs are far more numerous in industrialized Western countries, they are increasingly potent in worldwide. Some NGOs are international, others are nationally or locally based, and still others emerge for a specific issue and then disappear when the issue does.

Interactions among NGOs, governments, and intergovernmental organizations are complicated. NGOs try to influence national governments directly and indirectly through increased public awareness and pressures on national legislatures. Governments use NGOs to convey their positions to the public. Ministries or agencies within governments may use NGOs to strengthen their views in relation to other parts of the bureaucracy. NGOs provide intergovernmental organizations with important, independent communication links with national governments, and NGOs rely on intergovernmental organizations to provide information and insights that are useful in influencing national governments. In a few instances, such as the World Heritage Convention and the Convention on International Trade in Endangered Species, nongovernmental organizations have been integrated into the international institutional structure for implementing and monitoring compliance with agreements. NGOs are routinely present at intergovernmental negotiations and hold forums that precede large intergovernmental meetings, such as in Rio and currently in Copenhagen.

Information technology is critical in the new model. New technologies empower groups other than states to participate in developing and implementing international law. They empower publics to participate in the process of governance. But the new information technologies also enlarge the gaps between those who have the technology and know how to use it and those who do not. Those who do not have the technology also need to participate effectively in the international system and to have confidence in the information generated and disseminated by others. We now have access to an increasingly wide array of information. But the potential danger is that people can increasingly choose to be exposed only to certain kinds of information and views and to avoid random exposure to different opinions. The irony is that as democracy opens up access to information and as technology enhances the variety of information available, technology also may make it easier to narrow the range of exposure. This in turn has implications for global governance and for the development of international environmental law.

Six new directions in international environmental law

1. The New Actors
2. The new terrain: Treaty Congestion
3. The New Focus: Compliance
4. New Accords in the private sector
5. New Integration of environment and economic law
6. New Quest for Environmental Equity

The Role and Scope of International Environmental Law

International environmental law can be located in both environmental law and international law. It is transboundary, multi-disciplinary, cross-sectoral and based on natural science and a systems approach to sustainable development, as will be described in the following chapters. International environmental law is one of the fastest-growing areas of law and one which will affect governments, business and industry, nongovernmental organizations, and local communities in many areas of decision-making in the future. Principles of international environmental law are emerging which reflect interrelationships between nature and human activity. New law is found in multilateral environmental treaties and in “soft law” declarations from meetings and conferences. Soft law and treaties are affected by the participation of many stakeholders in the underlying economic, social, and political issues. Principles of international environmental law include “common but differentiated responsibilities”, “the polluter pays”, “the precautionary principle”, “intergenerational equity”, and “sustainable development”.


The two decades since the United Nations Stockholm Conference on the Human Environment have seen extraordinary change. In 1972, there were only about three dozen multilateral treaties concerned with environment. Today over 900 legal instruments are fully concerned with environmental protection or contain important environmental provisions. The agreements have expanded in scope and become increasingly detailed. In 1972 environment was a new subject in international law. Today it is mainstream. Moreover, it is integrally linked with international economic law through the concept of sustainable development.

How we make, implement, and comply with international environmental law has been changing. The traditional model centers on states, relies on legal instruments to provide fixed solutions to clearly defined problems in a world that changes slowly, and assumes that states comply with most of their obligations most of the time. The line between international and national law is sharply drawn, and there is a strong preference for binding agreements. But the world is moving to a dynamic, more open, and complex system. In this system, states are still key actors but other actors are also important; international and national law are dynamically joined: and non-binding legal instruments are attractive.


The new model is a network of states, intergovernmental organizations, international nongovernmental organizations, transnational corporations and industry associations, national and subnational nongovernmental organizations, transnational expert communities and ad hoc associations that are intricately connected through binding and non-binding or incompletely binding international legal instruments and associated institutions. While this development can be seen in international environmental law, it is also apparent in other areas of international law. It has important implications for the transformation of sovereignty.

Several global developments contribute to this transition in international environmental law: the linkage of environmental protection with economic competitiveness, the blurring of the clear distinction between international and local occurrences, the rise of non-state actors, such as environmental organizations and industry associations, advances in information technology, and the increasingly rapid rate of change in many aspects of society, especially in our scientific understanding of environmental issues.

International Environment Law

The Permanent Court of International Justice defined international law in The Case of the S.S “Lotus” as follows:

“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these coexisting independent communities or with a view to the achievement of common aims.”

International environmental instruments primarily include conventions, protocols, and “soft-law” instruments such a guidelines or codes of conduct. In addition, agreements, resolutions, and declarations adopted to facilitate the implementation of treaties and conventions
are relevant. International environmental law assists in building and captures consensus between nations on goals for environmental protection and resource conservation and sustainable use.

National Environment Law

Broadly speaking, national environmental law consists ofthe legislation, standards, regulations, institutions and administrations adopted to control activities damaging to the environment within a State. This would include framework environmental legislation, sectoral legislation and incidental legislation. Framework environmental legislation is a single law which contains a comprehensive system of environmental management. This would include the institutional issues such as which government authority will manage the environment, pollution control, enforcement, etc. Sectoral legislation addresses specific aspects of the environment and human activity such as a law establishing a national park or legislation to control factories. Sometimes countries have both sectoral legislation and framework legislation while other countries have one or the other or neither. Incidental environmental legislation refers to those laws that are not specifically intended to address environmental issues but do contain some elements that have an impact on environmental issues. This might include, for example, criminal legislation that contains a prohibition on polluting or tax laws that contain a tax rebate for installing pollution control devices in a factory. In some cases these national laws are a reflection of international norms or commitments and are adopted with the intent of implementing international environmental conventions. For example, legislation must be enacted at the national level to create a Management Authority to issue export permits for species protected under the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES). National environmental law is a mechanism for translating environmental and sustainable development policies into action at the national level.

Role of environmental law

Laws generally reflect and shape a society’s norms. They can change attitudes towards particular aspects of life, and control behavior. Laws can be defined as codes of conduct appropriate to the values of the community drafting and enforcing them. There are of course many types and sources of law, such as customary or traditional, canon, common, and civil law. These may be written or unwritten, but all define acceptable behavior within that society. Codes of conduct with regard to the environment are contained in all sources of law, some of which date back thousands of years.

Environmental law is a category of law, much as are laws regarding transportation or criminal activity. The definition of what constitutes an environmental law is as wide as the definition of environment itself. Environmental law can be generally defined as the body of law which contains elements to control the human impact on the earth. Elements of environmental law can be found throughout a society’s legal codes, whether specifically referred to as “environmental” or not.

Environmental law can be divided into two major streams—international environmental law and national environmental law.

What is environment management?

What is the scope of the “environment” when we speak ofenvironmental management? environmental issues are often narrowly defined in the press and in the mind of the general public. Many would think merely of issues of pollution such as air pollution from diesel trucks or water pollution from sewage or industrial waste. Although these are certainly elements of the problem, it is important to take a wider perspective to encompass the management of resources.

Beyond the elements that are generally conceived of as being “of nature,” there are also human elements of the environment including human settlements; cultural, historical, and religious aspects of human activities; population; and minorities and indigenous peoples. Environmental management then is the administration of human activities as they affect and relate to the entire range of living and non-living factors that influence life on the earth and their interactions. A broad definition of environmental management allows policy makers to draw together disparate components that would otherwise appear to be outside the realm of environmental management.

As a result of the obvious links between short–term economic gain and environmental degradation, many have come to view environment and development as fundamentally contradictory elements. As conflicting values, one must be forgone in order to provide for the other. This is a flawed position, as it denies the importance of development to environmental protection, and conversely, appears to justify continued environmental degradation as an inescapable aspect of development. This dialectic approach is inadequate to deal with the complexity of the issues.

The World Commission on Environment and Development commissioned by the United Nations in 1987, otherwise known as the Brundtland Commission, attempted to highlight the problems facing the world and to offer a new means to address the dual concerns of environment and development. The practical problem facing humanity is how to protect the environment while
still guaranteeing a level of development consistent with human well-being on a global scale. “Sustainable development”, a term popularised by the Brundtland Commission, has been embraced as the new philosophy.

Sustainable development involves the integration of environmental and developmental aspirations at all levels of decision making. It involves the application of concepts such as:
• intragenerational and intergenerational equity: that is, “equitable” access to environmental resources both within the present generation as well as for future generations;
• application of the precautionary principle or approach; and
• the maintenance of biological diversity and biological integrity; both of these are vitally important for the continued existence of ecosystems.

The concept of “sustainable development” has been adopted almost universally by the international community, national governments and non-governmental organisations since the publication of the Brundtland Report and has been institutionalised by the United Nations Conference on Environment and Development (UNCED). However, the concept of sustainable development was not new at the time of UNCED. Indeed, the concept was already expressed in Principle 2 of the Stockholm Declaration in 1972 which provided:

“The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.”

UNCED sought to build on this definition through a number of provisions in the Rio Declaration. A further mandate of UNCED was to formulate appropriate mechanisms so that “sustainable development” could be achieved globally.

Although a final definition has yet to be agreed upon, for the purposes of this Training Manual we shall adopt the definition provided by the Brundtland Report:“development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

Environmental management for sustainable development can be defined as the administration of
human activities as they reflect upon and relate to the entire range of living and non-living factors that influence life on the earth and their interactions for the purpose of ensuring development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

What is environment?

The term “environment” means different things to different people. Some would consider the term to refer to the basic elements of the earth, such as the air, land and water. Some definitions, particularly in the context of which we are presently speaking of the environment consider the environment to consist only of those natural resources upon which humans place a value, that is aspects of the earth, sky and waters that can be polluted or used up. Another definition might include all living elements of the earth as well as the natural resources, but not include humans in the definition or define the environment as it relates to humans. The primary criticism of these
definitions is that they fail to place humans within the environment, divorcing humans from the natural environment and implying that humans are somehow above or beyond nature.

Increasingly, the environment is described in a much more holistic sense. The place of humans in the environment was recognized at the UN Conference on the Human Environment held in Stockholm in 1972: “Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social, and spiritual growth”. The World Charter for Nature, adopted by the UN General
Assembly in 1982, states: “Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. Civilization is rooted in nature, which has shaped human culture and influenced all artistic and scientific achievement, and living in harmony with nature gives man the best opportunities for the development of his creativity and for rest and relaxation.”

Listed below are some definitions of the environment taken from environmental legislation throughout the world...
Thailand’s Enhancement and Conservation of National Environmental Quality Act, B.E. 2535
(1992),
s. 4: “‘environment’ means various things of a physical and biological nature surrounding human beings and created naturally, and man-made objects.”


Australia’s Environment Protection (Impact of Proposals) Act 1974,
s. 2: “all aspects of the surroundings of human beings, whether affecting them as individuals or in their social groupings.”


It is desirable that any general definition of the environment include the entire range of living and nonliving factors that influence life on the earth and their interactions. This would include living and non-living aspects. Living resources would include animals, including humans, plants and microorganisms. Non-living resources would consist of two elements. One element would be the physical life support systems of the planet such as the geography, hydrology, atmosphere, matter, and energy. The other would include the historical, cultural, social and aesthetic components including the built environment.

Environmental economics and sustainable development

As the importance of “economic” values grows, environmental concerns must be increasingly cast in terms that fit within this paradigm. Consequently, the following concepts are essential:
• The concept of a green economy as part of sustainable development.
• The valuation of environmental assets, functions and services.
• The functions of the different forms of economic instruments (for example, charges or tradeable
emission permits) and their application to pollution control policy.

ROLE OF SCIENCE, TECHNOLOGY AND ECONOMICS IN SUSTAINABLE DEVELOPMENT

The issues involved here are best examined through:

• Consideration of the over-riding priority to be givento meeting the essential needs of the world’s poor (North/South environmental perspectives).

• Examining the limits of existing technology and social organisation having regard to the environment’s ability to meet present and future needs.

• Understanding the importance of social and economic equity within and between generations.
• Consideration of the need for a progressive transformation and integration of the economy and
society of all nations in terms of sustainability.

• The importance of economic and social justice withinand between nations as part of this process.

Interdisciplinary approaches

This is intended as a broad introduction to the interdisciplinary approaches that are necessary to understand complex ecosystems and human impacts upon them. Environmental lawyers are not technical experts in many of these areas but they need to access expertise and use it to identify environmental problems and potential legal strategies and options. Environmental legislation and case law is usually a part of a wider project involving institutional capacity building, education (technical and social), pure and applied research (into the environmental problems), public participation, economic measures (taxes, subsidies, environmental technology transfer or preferential or subsidised terms) and providing the financial resources to implement this wider project including compliance and enforcement aspects. Often these financial resources may have to be found by increasing productivity or cuts in other budget areas or through funding sources such as the Asian Development Bank (ADB), World Bank, the Global Environment Facility, funds under environmental treaties and foreign aid. Environmental legislation will not work well unless the causes of environmental degradation are understood and legislative responses are integrated into the wider social project. Institutionalcapacity to implement and enforce legislation, its appropriateness in the context of a particular history and culture, the exploration of innovative approaches and the provision of adequate resources are issues that will be explored in more detail later.

Environmental Law

Environmental law is still a youthful field of law. As it continues to evolve, unevenly around the world, it has come to have varied meanings for different regions and scholars.

There may explore various definitions of environmental law and it is suggested parameters useful for a study of comparative environmental law, international environmental law, the role of natural and physical sciences, and characteristics of environmental law in Asia and the Pacific. Here it is tried to discuss environmental law as a foundation for sustainable development, advocating a broad, scientifically-based definition of environment.

Environment

The term “environment” means different things to different people. Some would consider the term to refer to the basic elements of the earth, such as the air, land and water. Some definitions . . . consider the environment to consist only of those natural resources upon which humans place a value, that is aspects of the earth, sky and waters that can be polluted or used up.