|United Nations University - Work in Progress Newsletter - Volume 12, Number 1, 1989 (UNU, 1989, 12 pages)|
By Edith Brown Weiss
While current extremes of weather in various parts of the world may provide a foretaste of the kinds of environmental changes now underway, our children - and children's children - will be the true inheritors of the outcome of what we are doing to the Earth today. Global change, says Edith Brown Weiss, "may be the most important legacy that we leave to our descendants. " Dr. Brown Weiss, a legal scholar of environmental impact at Georgetown University (USA), feels that our laws and institutions, if used wisely, can help slow the rate of ecological change and mitigate its long-term damage. But a host of new and enormously complex legal issues revolve around the fact that we are already setting in motion processes and problems which will affect the well-being of our descendants many generations removed. In this excerpt from the paper she presented to the Tokyo symposium on the Human Response to Global Change, Dr. Brown Weiss reviews aspects of current international law and their implications for dealing with global change. She is the author of the recently published volume, In Fairness to Future Generations: International Law, Common Patrimony, and International Equity, which is based on the UNU study of these issues which she directed. - Editor
We are now engaged in the largest global experiment our species has ever known - one which will have vast and complex effects on the welfare of future generations. Global change raises serious issues of equity between the present generation and future generations, and between communities within future generations. We are capable of using the Earth's resources for our own benefit, and passing on the very substantial costs to future generations. While we have certain rights to use the resources of our planet, we also have certain obligations to future generations which must guide our actions today.
This does not mean that we must do everything we can to preserve the present climate and prevent change. Change may not necessarily be more harmful to future generations - if we can slow the rate of change, minimize direct damage from it, and provide future generations with the resources and skills for adapting to climate change. Inter-generational equity provides an important normative framework within which our decisions today should take place.
Global change also raises issues that are already familiar to us in coping with modern-day environmental disasters and assessing environmental risks. These include risk assessment, natural disaster and accident prevention, damage mitigation, emergency assistance, and liability and compensation for damage. What is new is the time frame - that the actions we take today are setting in motion, possibly irreversibly, consequences for future generations. This requires new thinking about how to assess long-term risks, provide effective warnings to present and future generations of expected global changes, and transfer resources, particularly knowledge, to future generations for coping with the changes - and effecting such transfer in forms they will find useful.
Current Law: Prevent, Minimize, Compensate
In international law, there are three primary duties in managing environmental disasters: (1) prevent the disasters; (2) minimize the damage; and (3) compensate for the damage.
The duty to compensate represents the traditional legal approach to disasters. It is also the least effective in controlling disasters. The duty to minimize damage and provide emergency assistance has been growing in international law. It applies, for example, both to the State in which the accident occurs and to those States that are in a position to help.
The obligation to prevent environmental disasters is part of the principle of State responsibility reflected in the Stockholm Declaration on the Human Environment and is confirmed in other texts. The duty obligates States to follow safety procedures to minimize the likelihood of major environmental accidents - such as toxic chemical spills, nuclear reactor accidents or forest fires.
The Ounce of Prevention
The duty to prevent environmental disasters is particularly important for global change, since it is premised on the factual awareness that it is far more effective protection of the human environment to prevent accidents than it is to try to compensate for them after they have occurred. This is true for protecting against long-term damage to the environment, which may be irreversible or reversible only at staggering costs. And it is particularly true for protecting the interests of future generations, who will suffer the environmental damage and may be unable to afford restoration costs - if indeed restoration is even possible.
Responding to global change inherently involves large scientific uncertainties. We need to know more about how the climate system works, how human activities affect the system, and how global climate change will affect the natural and cultural environment. As our knowledge advances, it must be incorporated into our laws and institutions. To do this requires an understanding of how legal regimes have provided for and responded to changes in scientific knowledge. It is important to study those ways in which existing national laws and international agreements address scientific uncertainty, and evaluate the conditions which have determined their effectiveness.
There are several devices already in use in various international agreements for accommodating advances in scientific knowledge: protocols and annexes, lists of controlled items, and scientific advisory bodies:
· Protocols and annexes are used to implement rather general terms in agreements and to regulate additional activities as scientific understanding advances. To cite one example: the Montreal Protocol on chlorofluorocarbons to the Vienna Convention on Protecting the Ozone Layer.
· Appendices or lists are used to designate regulated items, which can be changed as scientific knowledge increases. In some instances, the appendices set forth scientific criteria for placing items on the list. The Great Lakes Water Quality Agreement between Canada and the United States, for example, lists hazardous and potentially hazardous pollutants in appendices.
· Scientific advisory boards have been established by some international agreements to advise on questions relevant to implementing the conventions. For example, the Migratory Species Scientific Council, attached to the Convention on the Conservation of Migratory Species of Wild Animals, is to provide scientific advice to the parties, recommend and evaluate relevant research, recommend migratory species for inclusion in the agreement, and suggest conservation measures.
Those whose actions contribute to global change may need to compensate those who suffer particularized harm - either from such change itself or from the measures needed to prevent or adapt to global change. In particular, some form of compensation may need to be provided to future generations in the form of trust funds or research programmes directed at long-term problems which would not otherwise be funded by the private sector.
We already have considerable experience to draw upon in international law and in national and local legislation. Internationally, for example, this experience includes the International Oil Pollution Compensation Fund and the Fund for the Protection of the World Cultural and Natural Heritage. Within certain countries, there are funds for cleaning up toxic contamination, oil pollution funds, hazardous waste funds, trust funds generated by revenues from timber extraction and mineral exploitation, and cultural heritage conservation funds, among others.
The World Heritage Fund is an important example because it is directed to supporting efforts to conserve natural resources rather than to control pollution from wastes or oil spills. The United Nations Environment Programme has also created a number of trust funds, financed by government contributions, for the protection of marine environments and coastal areas in five regions.
A study of the design and operations of funds like these to determine what factors affect their effectiveness could yield useful insights into how to design international funds connected to problems of global change. It will be particularly important to understand how trust funds can be designed to focus on measures which will protect future generations from the costs of global climate change.
Changes since Stockholm Conference
In the 16 years since the Stockholm Conference on the Human Environment, we have seen a dramatic change in world consciousness of environmental issues and in the willingness of all countries to address them. In 1972, countries were sharply split over whether environmental protection and economic development were consistent; now we know that environmentally sustainable development is essential for all countries. In 1972, there were few international agreements concerned with environment; today there are more than several hundred. There were few national environmental laws; today almost every country has at least one piece of environmental legislation, and many constitutions expressly provide for conserving the environment.
The important question for our research agenda is to understand why international co-operation in the form of new agreements - and, in some case, new institutions - has been able to develop rapidly and sometimes relatively effectively in the last two decades. Conversely, we also need to know more about why the laws that have been established are not more effective in addressing environmental problems.
These are difficult issues, but they can be broken down into manageable parts. What are the characteristics of the environmental problems about which countries have been able to achieve agreement? Are there certain kinds of arrangements which have worked better for certain environmental problems? How have regulatory controls been implemented nationally, and locally? What were the important factors determining the limits or controls that were reached? These are just a few of the questions we need to address with our research.
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