|United Nations University - Work in Progress Newsletter - Volume 14, Number 2, 1993 (UNU, 1993, 12 pages)|
By Edith Brown Weiss
In the following selection, Edith Brown Weiss notes that a whole range of fresh environmental issues now test the international lawmaker, questions which did not arise at the time of the 1972 Stockholm Conference - like acid rain, ozone depletion, or climate warming. New sets of relations between nations pose thorny dilemmas - as, for example, the fight over Mexico's tuna exports to the United States. Did it violate the former's rights to trade and economic growth or the latter's environmental rules? The complexities of international enforcement of environmental agreements are also bringing many new non-governmental actors into this arena: including professional societies, corporations, industry associations and individuals. These are fermenting exciting new interactions.
Professor Brown Weiss, who has been involved for some years with UNU studies of international legal issues, is on the faculty of the Law Center, Georgetown University, Washington, D.C. The following excerpt is based on her introductory chapter to the 1992 UNU book which she edited, Environmental Change and International Law. - Editor
In June 1992, countries met in Rio to celebrate the 20th anniversary of the Stockholm Conference on the Human Environment and to commit themselves to environmentally sustainable development.
At the time of the Stockholm Conference, in 1972, countries were deeply divided over the issue of whether environmental protection and economic development were compatible. Today countries know that the two must go together. The issue that divides them is an equity one: how to finance environmentally sustainable economic development for present and future generations.
Twenty-one years after Stockholm, countries are concerned with global environmental problems that were either not yet identified or barely addressed at that gathering the largest United Nations conference ever convened up to that time. These include such now widely discussed threats as acid precipitation, ozone depletion, climate change, hazardous waste disposal, loss of biological diversity, forest degradation and land-based sources of marine pollution.
The upsurges in population, resource consumption and environmental degradation that caused such concern in the early 1970s have continued, in some cases accelerated, while our capacity to address them has arguably increased at a slower rate, albeit more rapidly than for other problems.
Evolution of International Environmental Law
Before the 20th century, there were few agreements directly concerned with the environment. International environmental law was based on the principles of unfettered national sovereignty over natural resources and absolute freedom of the seas beyond the three-mile territorial limit (the maximum range of a cannon shot in the early 17th century). Such international agreements as existed addressed boundary waters, navigation and fishing rights along shared waterways, particularly the Rhine river and other European waters. Article IV of the 1909 United States-United Kingdom Boundary Waters Treaty is a notable exception, for it provided that water "shall not be polluted on either side to the injury of health or property on the other."
Since the 1972 Stockholm Conference, the number of legal instruments has grown rapidly, to more than 900 today. Many of these agreements were thought to be impossible 10 years ago, some as briefly as two years before they were concluded. We are now facing a situation in which countries have shown considerable skill in negotiating fulsome agreements for complicated problems in short time frames (normally less than two years), but in which the international and national systems in which they function are burdened with treaty congestion. We urgently need to develop new means for coordinating the negotiation and implementation of related agreements and to encourage compliance with the agreements at the national and sub-national levels.
The subject matter of international environmental agreements has expanded significantly from the focus in the first half of this century which was mainly concerned with defining boundaries, guaranteeing fishing rights and protecting valued animal species. Today there are agreements to control many forms of pollution, conserve habitats and biological diversity, and protect global commons like the ozone layer.
The scope of international agreements has expanded significantly: from transboundary to global pollution agreements; from preservation of designated species to conservation of ecosystems: from control of direct emissions into lakes to comprehensive river basin system regimes; from agreements which take effect only at national borders to ones which constrain activities within nations, such as for world heritages, wetlands and biological diversity.
The requirements have also become more comprehensive: from a focus on research and monitoring to provisions for reducing pollutants, reporting, and controlling trade with non-parties. Most notably, there is not a single example in which the provisions of earlier conventions have been weakened; in all cases, they have been strengthened or their scope has been expanded.
Prevention Is Fairer, Cheaper
If international agreements are to be effective in protecting the environment, they must focus foremost on two interlinked objectives: pollution prevention and the sustainable use of renewable resources. There are a number of ways international environmental legal instruments are addressing these, mainly by adopting an anticipatory approach: providing for early-warning systems, risk assessment, stronger monitoring provisions, along with measures for technical and financial assistance to enable countries to develop the capacity to prevent pollution. Principles are also emerging that would strengthen procedural requirements - such as notification, consultation, access to information, or environmental impact assessments - before states engage in activities which could significantly harm the environment outside their jurisdiction.
There is ample evidence to suggest that in most instances it is more effective to prevent pollution and natural resources degradation - as, for example, eroded watersheds - than it is to try compensate afterwards for the damages caused. Often the damages are irreversible, or if reversible, only at unacceptable costs. Moreover, there is frequently no way to calculate environmental harm accurately - particularly where many sources have contributed to the damage. From both an equitable and cost-effective approach, the emphasis should be on prevention.
The System Is the Problem
There is growing awareness that environmental problems are essentially systems problems. This means that international legal instruments are increasingly focused on ecological systems rather than targeted only on measures to control trade in species or emissions of specific pollutants.
The ASEAN Convention on the Conservation of Resources, for example, addresses the conservation of ecosystems and habitats. The 1978 Great Lakes Water Quality Agreement changed language in the 1972 agreement to include references to basin-wide ecosystems in the Great Lakes. This reflected the recognition that what feeds into lakes through ground water or by air pollution is as relevant to protection of water bodies as what feeds directly into the fresh water. The 1978 protocol explicitly includes annexes which address ground water pollution and atmospheric transport of pollutants as sources of contamination of the Great Lakes.
The Future: More "Soft Law"?
Given the surprising developments of the past 20 years, what awaits us in the future? In the next decade, more international agreements and other legal instruments are due to be concluded. At the same time, however, countries may slow the rate of concluding binding new agreements as they find, especially in the developing countries, that they are becoming overtaxed by the resources needed to engage in new negotiations while implementing effectively agreements already concluded. In turn, this may presage greater reliance on international legal instruments that are not formal conventions, or what some jurists call "soft law," which can help to create an international consensus and lay the groundwork for later binding treaties.
The new international conventions are likely to continue to be ever more demanding in terms of the actions they ask of countries. Frequently this may initially take the form of a so-called "framework" convention, non-binding but signalling intent to take later action; these are then followed by protocols spelling out detailed obligations in specific areas. A good example would be the Vienna Ozone Layer Convention, and its subsequent Montreal Protocol on Substances that Deplete the Ozone Layer which specifies reductions in emissions of chlorofluorocarbons (CFCs) by the industrialized countries. This is also the form of the recent Antarctic Environmental Protocol and the regional seas conventions.
Bigger Role for NGOs
We are also likely to see increased emphasis on monitoring compliance with the conventions and on providing means to facilitate implementation and compliance. The role of non-governmental organizations in the negotiation and implementation of agreements will also likely grow. Several approaches for encouraging compliance with international environmental instruments may continue to get increased attention: such steps, for example, as reporting by parties and making information associated with the agreements transparent; public participation in developing and implementing international environmental instruments; use of economic incentives and market mechanisms as tools of implementation; and treatment of third parties within the agreements. There has been an unprecedented empowerment of non-governmental organizations and individuals with respect to the decision-making processes and the implementation of international legal instruments.
There will also be continued attention to the trade implications of the agreements that are negotiated - in particular issues of consistency between environmental and trade regimes. The trade issues raised by environmentally-oriented actions have taken a number of forms. One concerned the consistency of environmental restrictions on trade with the General Agreement on Tariffs and Trade (GATT). A notable case was the argument in 1991 over whether a United States embargo on Mexican tuna violated GATT rules.
Finally, we will need to recognize that a growing part of international environmental law is being made outside the formal intergovernmental negotiating process. The corporate sector, mixed groups of industry and environmental organizations, environmental non-governmental organizations, industry associations, and professional societies are all actively engaged in formulating standards of behaviour for their clients and others to follow. The interaction of governmental and non-governmental norms certainly merits further attention.