|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|International human rights law and environmental problems|
|8. The human rights system as a conceptual framework for environmental law|
Another dimension of man's relationship to the natural order is implied in the concept "the common concern of mankind." This concept was the subject of reference in United Nations General Assembly Resolution No. 43-53 of December 1988, and while covering climate change directly, it focuses on issues that are generally basic to mankind. The concept possesses a social dimension as well as a temporal dimension and is considered relevant to other sectors of international environmental law, including the conservation of biological diversity. The UNEP Group of Legal Experts, which was constituted to examine the implications of that concept, at its meeting in December 1990 in Malta, expressed the view that the concept of "common concern of mankind" is a more suitable and neutral concept in dealing with planetary resources than the earlier concept of "common heritage of mankind," in that proprietary considerations were excluded. The element of reciprocity, moreover, was avoided by choosing a concept based in considerations of ordre public. The ingredients constituting the concept of "common concern of mankind" lay in "involvement of all countries, all societies, and all classes of people within countries and societies, long-term temporal dimension, encompassing present as well as future generations, and some sort of sharing of burdens of environmental protection."
As will be apparent from this, the concept has been considered to possess several advantages, in that the word "mankind" implies a link with the human rights framework and with the long-term temporal dimension, including the inclusion of future generations; the word "concern" emphasizes the preventive character of environmental protection as well as the consequential effects or responses called for; the word "common" implies in international law the same sense as "public order" in municipal law, all of them making the notion of "common concern" akin to the related concepts of "obligations erga omnes," "jus cogens," "common heritage," and "global commons."51
This emerging concept provides greater flexibility than earlier notions in describing comprehensively the true nature and measure of man's obligations to elements of a global concern and avoid many of the pitfalls implied in those earlier notions.
The right to development
The emphasis on the right to development has, at every stage, constituted a challenge to the philosophy of environmental rights. It has been, in fact, the reason for a division between the developed countries and the developing countries concerning the operation of environmental rights. Developing countries have declined to adopt fully the perspective preferred by developed countries that environmental claims are superior to the right to development. While developed countries, already at the peak of industrialization, see dangers to the ecology from the current use of certain industrial processes and the combustion of fossil fuels, developing countries find it difficult to accept entirely the abandoning of such processes and use. Developing countries urge that they are in the early stages of development, and their economies do not permit alternative systems of energy. The position taken by them is that the developed countries should transfer appropriate technology to them to relieve them of the need to rely on present industrial processes and fossil-fuel energy. Developing countries contend that there is a moral duty owed by industrialized nations to the developing world.52 They rely also on the Declaration on the Establishment of a New International Economic Order, which implies that colonial powers have an obligation to assist the development of their former colonies.53 While this rationale is not readily accepted by developed countries, it seems to be conceded that underdevelopment is the by-product of the development of the Western countries, in that the growth of the colonial territories "was blocked by the destruction of the natural balance in place before colonialism, coupled with structural disadvantages built into the present international economic system."54 Whatever view be taken, the fact of colonialism certainly is a relevant factor, and justice and equity, well accepted as concepts incorporated into international law jurisprudence55 and fundamental international instruments,56 support that claim.
The controversy has compelled an examination of the question of whether the claim to a healthful environment and the right to development are mutually hostile and implacable enemies. The hostility was perceived as long ago as the United Nations Conference on the Human Environment at Stockholm in 1972, but by the adoption of the concept of "sustainable development," which found favour with the World Commission on the Environment and Development in the
Brundtland Report, "Our Common Future" (1987). Sustainable development is a concept that implies development that meets the needs of the present generation without compromising the ability of future generations to meet theirs.
In this context the insistence by the developing nations on the transfer of technology to them by the developed countries acquires pointed importance. Developing countries do not possess as yet the level of technological expertise that could equip them with industrial strategies from which offending industrial processes are excluded. Moreover, in the presence of high poverty levels they are unable to substitute environmentally protecting energy-production methods in place of fossil fuels. The creation of an international environmental fund has been suggested as a solution for enabling the transfer of technology from the developed countries to the developing nations. The consideration of such solutions continues to engage the international community, and the developed nations find it difficult to avoid facing the issue in view of the urgency of the threat of grave environmental danger disclosed by recent scientific data. The developed nations have now expressed a readiness to assist developing countries. The Declaration of the Hague provides for such assistance.57 So does the Communique from the Paris Summit, which encourages economic incentives "to help developing countries deal with past damage and to encourage them to take environmentally desirable action."58
The Vienna Convention and its Montreal Protocol bear witness to the international anxiety following discovery of the damage to the ozone layer. Beside the hole in the ozone layer over Antarctica, another hole in the ozone layer has been discovered over Europe, the United States, and Canada. The Montreal Protocol, while insisting on the termination of industrial processes, such as the use of chlorofluorocarbons in air-conditioning, refrigerants, and certain other industrial products, has limited the time for, and the quantum of, use of offending industrial processes. Considerations relating to the developing nations have been given allowance by prescribing time-lags for compliance with the minimum standards. The United States has also agreed now to support a special international fund to provide financial and technological assistance to developing nations. This fund will enable these countries to shift to chemicals that are safer for the atmosphere. The fund is planned to total from US$150 to US$250 million.59 Recent technological developments have made alternative chemicals available. A new market for hydrofluorocarbons (HFC 134a) can be developed replacing many uses for chloro-fluorocarbons. Other ozone-friendly chemicals include terpenes, which are natural solvents. Industry continues to explore replacements for CFCs. Relevant products include hairsprays, windshield-wash fluids, and paints, but the most difficult to replace appear to be antifreeze and refrigeration compounds.
One aspect of the rival claims between environmental rights and the right to development is that while both rights can be described as emerging human rights, with both tracing their roots in the Universal Declaration of Human Rights and its two International Covenants, and the several human rights instruments following them, a relative positioning of the two rights in the hierarchy of human rights appears unavoidable. It is now settled that while human rights constitute a superior class over ordinary rights, there will be, within the categories of human rights, an observable hierarchy structured according to the relative importance of particular human rights. As between the right to a healthful environment and the right to development, one mode of preference is suggested by the existence or non-existence of alternatives. In the case of the ozone layer, it is impossible to conceive of a feasible substitute. The depletion of the ozone layer removes the protection from the sun's ultraviolet radiation that the ozone layer affords, resulting in diseases such as skin cancer, eye cataract, and other health problems of mankind. On the contrary, as has been shown, it is possible to find alternatives to the use of chlorofluorocarbons so that chlorine atoms are not released and the ozone layer is not affected thereby. There will be other areas that call for the balancing of the dimension of environmental protection against the claims of the right to development. A balancing operation, taking into account relative needs, access to alternative procedures, the cost-benefit ratio, and related factors, will determine the fine point of balance between the two rival claims. Much will turn on local conditions such as social values, economic standards, and the like.
The apparent rivalry between environmental rights and the right to development has been occasioned by the circumstance that ecology and economics have been regarded from the outset as two different and distinct disciplines. The eminent development economist Amartya Sen, in his book on "ethics and economics," is critical of economists who have neglected the influence of ethical considerations in the characterization of actual human behaviour. According to him, economists have adopted a very narrow view of ethics as a result of "their preference for treating economics as a task akin to engineering."60 The Brundtland Report, in suggesting the concept of "sustainable development," has attempted to bring about a marriage of economics and ecology. The concept of sustainable development introduced some related concepts, thus incorporating the demands of intra-generational equity and intergenerational equity into a development framework - concepts such as the impact of regional and global ramifications, including spillovers; trade and cooperation; ensuring the maintenance of ecological systems and the protection of biodiversity; cautious and conservative attitudes, if there is significant risk, uncertainty, or irreversibility involved in the development project; and ensuring that the development proposed increases material and non-material well-being.61 The concept of "sustainable development," together with these related concepts, constitute the meeting point where environment and development stand reconciled, with both constituting balanced components within the environmental mosaic.
The protection of the environment and the reduction of poverty are treated as related aspects. The transfer of technology from the developed to the developing nations is a need whose imperative nature cannot be denied. The need becomes more comprehensive when it is realized that phenomena such as the depletion of the ozone layer and the greenhouse effect are problems concerning the entire planet, and therefore there is a collective global responsibility for taking and participating in all measures necessary to keep the planet in good health. It is now broadly accepted that the countries on the two continents of North America and Europe are responsible for almost three-quarters of the carbon-dioxide emissions that contribute to global warming, while peopled by a mere eight per cent of the world's population. The developing world can be held responsible for only seven per cent of the industrialized emission of carbon dioxide, although holding about eighty per cent of the world's population. Similarly, the environmental damage caused by CFCs must be attributed primarily to Western industrialized countries.62