5. Emerging principles and rules of prevention and mitigation

Norms, principles, and rules of international environmental law have evolved, particularly since the 1972 Stockholm Declaration on Human Environment, to address problems of global environmental change. In the following paragraphs, an attempt is made to clarify the newly emerging principles and rules of prevention and litigation.¹³

(A) The principle of a common interest of humankind

As discussed in section 3 supra, global environmental change is not only a matter of concern among discrete states, i.e., "acting" states and "affected" states, but is a matter of concern to the entire international community. indeed it can be said to be a common concern of humankind. There is a general recognition that humankind has common interests in protecting and managing the climate system, the ozone layer, the rain forests, and biological diversity for both present and future generations. It is also recognized that these common interests are superior to those of the individual states and total more than merely their sum (see, e.g., Professor Kiss, infra). international instruments incorporate this recognition in specific fields of environmental protection. For instance, Resolution 43/53 of the UN General Assembly recognizes that climate change is a common concern of mankind.¹⁴ The 1972 Convention for the Protection of the World Cultural and Natural Heritage considers in the preamble that "deterioration or disappearance of any item of the cultural and natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world" and that "parts of the cultural and natural heritage... need to be preserved as part of the world heritage of mankind as a whole" and that "it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value." It then recognizes in Article 4 the duty of the Contracting Parties to ensure "the identifications, protection, conservation, presentation, and transmission to future generations of the cultural and natural heritage." The 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora recognizes in the preamble that "wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come." A Draft Convention on the Conservation and Sustainable Use of Biological Diversity,¹⁵ prepared by FAO on 11 June 1990, stipulates that the states are guardians to conserve biological diversity. It provides in Article 2 that

"[T]he Parties accept as fundamental principle that biological diversity is a heritage of humankind and, where located within the limits of national jurisdiction, is under the sovereignty of the states where it is located. States have the duty of guardianship of biological diversity, in time and space."

It is noteworthy that, although the protection of the atmosphere and climate, cultural and natural heritage, and endangered species are under the jurisdiction of the sovereign states where they are located, the states are additionally under international obligations to protect and conserve these resources for the benefit of present and future generations. These natural or cultural resources are regarded as international or global common¹⁶ whose uses are limited by a common interest of mankind. The states are regarded as guardians or custodians of the international community.¹⁷ It should also be noted that some newly emerging pollution-control rules, such as those concerning CFC and halon phase-out measures and potentially carbon dioxide reduction measures and conservation rules of global natural or cultural heritage are and will be based upon this general recognition of a common interest of humankind.

The high seas, the deep seabed, the moon, and their respective resources are located beyond the boundaries of natural jurisdictions. Their uses are open to every nation of the world and they are regarded as international or global commons; the deep seabed, the moon, and their resources are especially regarded as the common heritage of humankind¹⁸ The common heritage of humankind is under the stewardship of the international community as a whole and must be managed by existing and future international regimes.

Implementation of the principles and rules of prevention and mitigation under the auspices of international institutions and agencies is one of the characteristics of international environmental law. It is common that multilateral treaties that stipulate newly emerging principles and rules of prevention and mitigation provide for an institutional framework - such as an Executive Body, a Conference or Meeting of the Parties, and a Secretariat - to implement the objectives of the treaties on the basis of a general obligation to cooperate. Such principles and rules are discussed infra in more detail.

(B) The principle of cooperation in scientific research, systematic observations, and assistance

Because of scientific uncertainty regarding environmental change, the Contracting Parties usually promise as a first step in agreements to cooperate in scientific research to identify the nature and the extent of problems. The principle of cooperation in scientific research and in systematic observations is widely used in international instruments for confronting global environmental change. Cooperation helps the Contracting Parties determine future specific control measures in any particular situation by helping to provide them with increasing scientific knowledge and expertise. It is often much easier for the Contracting Parties to agree upon cooperation in scientific research than to take specific control measures.

One of the recent developments in the principle of cooperation is the role played by international institutions and agencies through which the Contracting Parties cooperate for scientific research and systematic observations, environmental monitoring, and the collection, validation, and transmission of scientific data. International institutions and agencies also assist developing states with scientific research and systematic observations through financial arrangements. These developments facilitate scientific research, help generate comparable or standardized observational and monitoring instrumentation and methods, and foster worldwide reliable scientific data that are the prerequisites for international action to cope with global environmental change.

The 1982 UN Convention on the Law of the sea is a good example. Part XII of the Convention contains provisions on protection and preservation of the marine environment. Article 200 provides that states cooperate, directly or through competent international organizations, to promote studies and undertake programmes of scientific research. Article 204 provides that the parties endeavour, directly or indirectly or through competent international organizations, to observe, measure, evaluate, and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment. States also agreed in Article 202 to promote, directly or through competent international organizations, programmes of scientific, educational, technical, and other assistance to developing states for the protection and preservation of the marine environment, and the prevention, reduction, and control of marine pollution.

The Vienna Convention for the Protection of the Ozone Layer is another example. The Contracting Parties agreed in Article 3 to initiate and cooperate in, directly or through competent international bodies, the conduct of research and scientific assessments on such issues as the physical and chemical processes that affect the ozone layer and on alternative substances and technologies. They also agreed to promote or establish, directly or through competent international bodies, joint or complementary programmes for systematic observations of the state of the ozone layer and other relevant parameters. Furthermore, they agreed to cooperate, directly or through competent international bodies, in ensuring the collection, validation, and transmission of research and observational data through appropriate world-data centres in a regular and timely fashion. Article 4(2) provides that the Parties cooperate to promote, directly or through competent international bodies, the transfer of technology and knowledge to the developing countries, and Annex I of the Convention provides that the Parties cooperate to promote, directly or through competent international bodies, appropriate scientific and technical training, taking into account their particular needs.

In addition to funds directed towards compensating states damaged by pollution or environmental disasters, there are some funds used for conserving natural and cultural heritage, and for protecting the marine environment and the atmosphere. Funds function as a supporting mechanism for the principles of prevention and mitigation.

The 1972 Convention for the Protection of the World Cultural and Natural Heritage established the World Heritage Fund; it is financed by the Parties. The Fund is used for assisting the Parties, upon their request, in conserving properties listed on the World Heritage List.

UNEP administers two types of trust funds, general trust funds and technical cooperation trust funds,¹⁹ both funded by member states. The main purpose of the funds is to provide member states with financial support for the protection of the marine environment of six regional seas and other specified technical cooperations.

The Second Meeting of the Parties to the Montreal Protocol in London in June 1990 set up a Multilateral Fund financed by contributions from developed Parties (i.e., Parties not operating under Paragraph 1 of Article 5), the contributions being calculated on the basis of the United Nations scale of assessments.²⁰ The Fund covers all agreed-upon incremental costs, including the transfer of technology, of the developing Parties (i.e., Parties operating under Paragraph 1 of Article 5) to enable their compliance with the control measures of the Protocol. According to Article 5 of the Protocol, developing Parties are entitled to delay their compliance with the control measures by 10 years.²¹ The Multilateral Fund may well be an important paradigm for the prevention and mediation of climate change.

(C) The principle of exchange of information

Pertinent scientific, technical, socio-economic, business, commercial, and legal information are prerequisites for the implementation of international concerted actions to prevent or mitigate environmental harm arising from global environmental change. The Parties to international instruments cooperate both individually and jointly to exchange such information through international institutions; in fact, information can be more easily exchanged and disseminated to all the Parties if they are supplied to international bodies. There are two types of information exchange: information exchange upon request of the states and periodic information dissemination by international bodies (the latter being the other side of the coin of periodical information supplied to international bodies).

The Vienna Convention is a noteworthy example of the latter. In accordance with Article 4, the Parties should provide scientific, technical, socio-economic, commercial, and legal information as further elaborated in Annex II to (international) bodies agreed upon by the Parties. The bodies then disseminate such information to any requesting Parties. Articles 200 and 204 of the UN Convention on the Law of the Sea adhere to the same principle.

Information exchange raises questions of confidentiality - which information is regarded as confidential and by whom? Most international instruments provide that any information regarded as confidential by the supplying state should not be disclosed by the receiving body. The principle of information exchange is governed by national laws and regulations and practices regarding patents, trade secrets, and the protection of confidential and proprietary information.²² However, it is important that more information be made open to foster international concerted actions to cope with future global environmental change common to the international community- some international standards need to be formulated to clarify confidentiality issues in this regard.

(D) Principles of prior notice, environmental impact assessment, and consultation

These principles help to prevent disputes from arising in the transfrontier pollution context between the "acting" state(s) and the "affected" state(s) by providing the "affected" state with pertinent information of the planned activities of the "acting" state and with chances to reach an amicable solution to the potential problem between them. The so-called Montreal Rules of International Law Applicable to Transfrontier Pollution adopted by the International Law Association at the sixtieth conference²³ include these principles in Articles 7 and 8:

Article 7 (Prior Notice)

1. States planning to carry out activities which might entail a significant risk of transfrontier pollution shall give early notice to States likely to be affected. In particular, they shall on their own initiative or upon request of the potentially affected States, communicate such pertinent information as will permit the recipient to make an assessment of the probable effects of the planned activities.

2. In order to appraise whether a planned activity implies a significant risk of transfrontier pollution, States should make environmental assessments before carrying out such activities.

Article 8 (Consultations)

1. Upon request of a potentially affected State, the State furnishing the information should enter into consultations on transfrontier pollution prob lems connected with the planned activities and pursue such consultations in good faith and over a reasonable period of time.

2. States are under an obligation to enter into consultations whenever transfrontier pollution problems arise in connection with the equitable utilization of a shared natural resource as envisaged in Art. 5.

The Montreal Rules link procedures of prior notice, environmental assessment, and consultations in a systematic way.

As indicated in Principle 11 of the Principles of Environmental Impact Assessment adopted by the 14th Governing Council of UNEP in July 1987,²⁴ it will become necessary for states to conclude bilateral, regional, or multilateral arrangements by providing for notification, exchange of information, and agreed-upon consultation on the potential environmental effect of planned activities under their jurisdiction or control that are likely to significantly affect other states or areas beyond their national jurisdiction.

Some brief comments are in order regarding environmental assessment and consultations. The environmental assessment can be used to decide whether planned activities will or will not lead to a breach of substantive legal obligations incumbent upon states to prevent unlawful transfrontier pollution, and if they are to be specified in legal instruments.²⁵ In comparison, consultation means something more than notification, but less than consent.²⁶ Consultation does not require agreement with the "affected" state(s) but it does take into account that state's(s') views or recommendations. Consultation is thus a preliminary stage to negotiation; however, negotiation implies a more sustained effort to reach an agreement than does consultation.²⁷

The Montreal Rules will not alone suffice to prepare for and remedy global environmental change. It is necessary for a competent international body to intervene on behalf of the international community as a whole in the decision-making processes of planned activities that may significantly affect the global environment.

The Meeting Statement adopted in February 1989 by legal and policy experts from every continent of the world includes elements to be addressed in any framework "umbrella" convention on protection of the atmosphere²⁸ and provides for an innovative approach. According to the principles of prior notice and environmental impact assessment adopted in the Meeting Statement, when a state has reasonable grounds to believe that planned activities under its jurisdiction or control may cause an atmospheric interferences outside its jurisdiction, it shall give timely notice of such planned activities to the competent international organization (and to the other states concerned), make an assessment of the potential effects of such activities, and on its own initiative or upon request of the competent international organization (or of the other states concerned), provide such relevant information as will permit the competent international organization (or the other states concerned) to make an assessment of the probable effects of the planned activities. The Meeting Statement made a clear distinction between the protection of the atmosphere and protection of the climate, and advised to delete texts between brackets for the purposes of an instrument on climate protection.

The Meeting Statement also included the principle of consultation, according to which consultations shall be held upon request at an early stage between both the competent international organization and states concerned and between the international organization and the states under whose jurisdiction or control activities that require prior notice are planned.

These principles embodied in the Meeting Statement are newly emerging and are applicable to global environmental change, a threat that entails extended effects upon the majority of members of the international community. It is necessary for international institutions, with full expertise, to participate in consensus-making processes.

(E) The principle of risk assessment, warning, and emergency assistance

In coping with environmental disasters, such as nuclear accidents and oil spills, it is necessary to have made a prior risk assessment to the states concerned and to competent international organization(s) and to provide emergency assistance to the affected states.³⁰ A plausible approach to emergency situations was proposed in the 1989 Ottawa Meeting Statement. According to the Statement:

When a State becomes aware of an emergency situation or other change of circumstances arising from incidents or activities under its jurisdiction or control and suddenly giving rise to an atmospheric interference or significant risk thereof causing or likely to cause harm in an area under the jurisdiction of another State or in an area beyond the limits of national jurisdiction, it shall immediately take appropriate measure, to control the cause of the emergency situation and immediately notify other States affected or likely to be affected by such an atmospheric interference, as well as the competent international organization.

Other approaches are included in the two 1986 IAEA Conventions, the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. The former says that in the event of nuclear accident the state Party shall notify, directly or through IAEA, affected states or states likely to be affected by the accident and provide them, directly or through IAEA, with relevant information specified in Article 5. In contrast, the latter provides that when a state Party is in need of assistance in the event of such an accident, it can call for such assistance from any other state Party, directly or through IAEA, and from IAEA or other IGO - such accident need not originate within the territory, jurisdiction, or control of the requesting state.