|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|1. Global environmental change and international law: the introductory framework|
The book is divided into three parts: the rules and processes of international environmental law; special issues related to the further development of human rights law; and institutional and systemic issues.
In "International Norm-making," Paul Szasz summarizes the international legislative process. He emphasizes that the process, although imperfect, has responded well to burgeoning environmental problems by producing an unprecedented volume of international legal norms. He suggests that what are commonly perceived as flaws in the process (e.g. delays, the need for compromises and finding a reasonably high common denominator, or the fact that international agreements are generally binding only on the ratifying parties) are the very features that have contributed to the prolific output of international legislation by creating the flexibility to generate new approaches to new problems.
Szasz argues, however, that a major impediment to the effective implementation of these norms is their often uneven applicability. Unevenness may stem from countries approving international agreements with reservations that exempt them from certain provisions or, alternatively, from the fact that many countries (particularly developing countries) fail to ratify agreements simply because they are unable to handle the administrative burdens of the domestic ratification process.
One way to prevent the patchwork effect of uneven applicability is the simplification of treaty adoption and amendment procedures to assure that all parties subscribe to the same version of an agreement. Intergovernmental organization (IGO) secretariats should also have a greater role in assisting countries struggling with the domestic administrative burdens of ever increasing numbers of international agreements.
Szasz examines conventional and, to a lesser extent, customary sources of law in order to shed light on how international norms are created. With respect to the conventional law, he traces the steps and the parties involved at each stage in the treaty-making process, including the initiation of the process, and the formulation, adoption, and bringing into force of multilateral treaties. He then includes a section on the necessity of and mechanisms for keeping international legislation up to date in a world where the pace of change is rapid. With respect to customary law, Szasz argues that it, too, is subject to deliberate legislative activities, albeit more subtly than in the treaty-making arena. International resolutions (such as those issued by the United Nations General Assembly) may, depending upon the circumstances, help to form and guide customary international law. The effect of UNGA resolutions, particularly as they relate to the evolution of human rights law, is discussed in the chapters by Pathak and Cançado Trindade.
"Changing Requirements for International Information," by Peter Thacher, explores the evolving role of information in the global response to environmental problems. While progress in gathering and sharing of environmental information has been made since the 1972 Stockholm Conference, Thacher points out that it has been largely limited to the field of pollution control and has served primarily "assessment" purposes. The current challenge is to infuse information into the decision-making process and to move to a deeper level of inquiry - that of gathering data on the effects of economic activity on global environmental systems. Thacher argues that to be effective in moving the planet toward the goal of sustainable development, information gathering and exchange efforts must be "transparent" and accessible to all.
This chapter touches on many of the themes mentioned earlier. The crucial role of information in international responses to global change forces consideration of issues of scientific uncertainty and credibility, intrudes into matters traditionally cloaked by state sovereignty, throws stark light on the disparity among countries in their ability to produce or make use of more information, and suggests a systemic or ecosystem approach to global environmental problems.
Thacher echoes the thrust of Lai's chapter by noting that global environmental problems cannot be resolved without a concomitant effort to reduce poverty and wasteful consumption patterns. Thacher parts company with Lai in advocating the use of conditional aid to promote compliance with international information needs.
Thacher discusses recent trends in the role of environmental information in assessment efforts, environmental impact minimization efforts, and international agreements. He highlights the need for unfettered, independent scientific judgements to guide policy, the challenge that sovereignty issues present to the free exchange of information (even though such issues are less important for environmental than other types of information), and the requirement that international regimes be flexible enough to account for the inevitable and often rapid change in environmental, economic, and social data.
Thacher then turns to the information-exchange effects of proposed or experimental regimes designed to foster a global transition to sustainable development. He discusses the proposals contained in the WCED report, Our Common Future, including the creation of a UN Commission for Environmental Protection and Sustainable Development that could serve "inter alia" as a collection and dissemination centre for environmental data. He also considers the Global Environmental Facility, which aims to aid developing countries respond to global environmental risks, the International Geophysical Biological Program, whose purpose is to identify and refine the precise information necessary to manage global change, and the precautionary principle that speaks to hedging our global bets in the face of an uncertain future by ensuring that the available information is effectively used.
Thacher concludes that these proposals and pilot programmes may very well form part of new international arrangements regarding the generation and use of information that are likely to emerge from the UNCED in 1992.
In "Emerging Principles and Rules for the Prevention and Mitigation of Environmental Harm," Toru Iwama identifies newly developing norms, principles, and rules for the prevention and mitigation of environmental harm: these principles and rules are emerging in light of global change and the growing recognition that anticipatory action is necessary to protect mankind's common interest in a healthy environment.
Iwama distinguishes between legal and economic approaches to environmental protection. Both are designed to modify behaviour, the former through customary and conventional law, the latter through economic incentives created by taxation or pollution charges. Iwama also distinguishes between prevention and mitigation responses on the one hand and ex post facto liability and reparation re sponses on the other. In both of these comparisons Iwama prefers the former.
Iwama discusses both the substantive and procedural aspects of traditional principles and rules that stem from notions of limits on sovereignty in customary law and that underlie Principle 21 of the 1972 Stockholm Declaration. While he acknowledges that traditional international law has effectively addressed some transfrontier pollution problems, he notes that these traditional principles and rules are inadequate to meet the challenges of the new global environmental threats.
Iwama then turns to a brief review of global environmental change, touching on problems of scientific uncertainty, intergenerational equity, interconnectedness of natural systems, divergence of North and South perspectives, time-lag effects, and the global scale of change.
He then analyses environmental law principles that are emerging in response to these unprecedented changes. Seven emerging principles are identified. First, mankind has a common interest in global environmental change. Second, a "double-track" approach has emerged to allow anticipatory action to be taken in light of scientific uncertainty. This approach typically features a general framework convention and is later supplemented by annexes or protocols. Third, cooperation in matters of scientific research and systematic observation is becoming standard procedure. Fourth, the exchange of scientific and other information is becoming increasingly commonplace. Fifth, new requirements for prior notice, environmental impact assessments, and consultation are emerging - all of these are reflective of the emphasis on preventive measures. Sixth, risk assessment, warning, and emergency assistance are also becoming more widely accepted. Finally, the use of trust funds to support prevention and mitigation efforts has gained wider acceptance.
Iwama concludes that these emerging principles constitute a move towards a form of "international governance," typified by the Vienna Convention and its Montreal Protocol, which might serve as a prototype for agreements on global climate change.
In "State Responsibility, Liability, and Remedial Measures under International Law: New Criteria for Environmental Protection," Francisco Orrego Vicuña moves from these rules of international law that prevent and mitigate environmental harm to focus on those rules that are designed to redress the harm once it has occurred. Orrego Vicuña begins with the same basic principle of international law cited by Iwama, namely that states are responsible for environmental damage caused by activities within their jurisdiction or control. He devotes considerable time to an analysis of how this basic principle has evolved in response to the exigencies of environmental problems.
The concept of state responsibility has expanded to include transnational and global consequences and in doing so has created entirely new obligations for states. These new obligations, coupled with other emerging developments, combine to greatly expand liability for international environmental degradation. Orrego Vicuña identifies the following developments in the international law of state responsibility: (1) a trend toward stricter forms of international responsibility that may assign liability for environmental damage in the absence of fault or even in cases where a lawful activity caused the harm; (2) a looser definition of damage that begins to recognize environmental harm as damage in itself sufficient to invoke liability; (3) a movement towards the idea that any state may bring an action to enforce an erga omnes obligation owed to the international community at large; and (4) relaxed procedural arrangements that allow foreign access to domestic court systems.
Orrego Vicuña insists that while the theoretical aspects of state responsibility can be quite complicated, the concept is more straightforward and less abstract in practice. He cites numerous examples of developments in treaty and domestic law to illustrate this point. He also includes an in-depth discussion of the international regimes for the protection of the seas and of the Antarctic as case-studies of how new developments in the law of state responsibility have already been incorporated into international environmental law.
Orrego Vicuña thus argues that the essential building blocks of an effective international law response to global environmental problems are already in existence and therefore the challenge is not to develop entirely new mechanisms but rather to implement more widely existing concepts and principles. He suggests, among others, the following steps: assigning liability directly to the private actor responsible for the harm or using "product liability" concepts to extend responsibility to the ultimate source of the harm; invoking subsidiary state liability when a private operator cannot meet the obligation; using financial guarantees such as environmental bond posting; establishing an International Claims Commission; establishing liability for wrongful enforcement measures; developing procedural rules to ease barriers to effective enforcement; and expanding definitions of environmental damage to include large ecosystems. Orrego Vicuña also mentions proposals to create international licensing mechanisms and to expand the use of trust funds by adopting levies on consumption of certain raw materials or emissions of certain pollutants. However, he cautions that such schemes may be overly intrusive on traditional notions of state sovereignty and may impede the operation of free markets.
Orrego Vicuñna concludes that although environmental change is driving a process of new thinking and conceptual development in international environmental law, the harmonization process that underlies the creation of international law will ensure that the opposing extremes of either environmental degradation or creating a "world ecological government" are avoided.
In chapter 6, "Law and Global Environmental Management: Some Open Issues," Peider Könz provides a fresh perspective on how national and international legal systems together address international environmental issues. He describes the historical reliance on principles of tort law in the common law and civil law traditions and the need for alternative doctrines. In Könz's view, the soft-law instruments that have proliferated at the international level are a welcome feature, for they ensure the formation of a consensus that can in turn lead to the development of binding international agreements imposing significant obligations and commitments.
Könz devotes considerable attention to the methods available to resolve international environmental disputes, analysing in particular the use of national courts and fore for raising claims of damages to individuals (as in the Bhopal or Amoco Cadiz cases). He points to a "jurisdictional ballet" surrounding environmental damage claims in national courts and suggests that in the long run, treaty provisions may be important for ensuring uniformity of treatment.
Könz admirably addresses the often overlooked issues of compliance and enforcement and points to the need to ensure that legal instruments are enforced. He argues that it may be worse to have laws that are never enforced than to have no laws, since existing but unenforced laws may give the illusion that problems have already been addressed. Könz suggests several ways to increase compliance and enforcement, including economic and fiscal incentives compatible with market mechanisms. He also highlights the role of nongovernmental organizations in enforcing environmental norms at both the local and international levels.
In "Legislation and Implementation of International Environmental Law and the Third World," Lai Peng Cheng develops the theme that progress with the international environment and with third-world economic development must proceed on parallel tracks. Lai believes that for progress to be made on the former, the third world must participate fully in the process of legislating and implementing international environmental law. He concludes that the developing countries will be unable to participate fully in global environmental efforts until they are able to build sound economies based on agricultural and industrial progress.
Lai places the bulk of the blame (and consequently the responsibility) for global environmental problems on the developed world. He points out that the developed world is responsible for most of the industrial emissions believed to cause acid rain, ozone destruction, and global warming. However, he stresses that the third world, which represents the majority of the world's countries and the vast majority of its people, has a shared interest in and a responsibility for the global environment.
Although Lai blames underdevelopment caused by "colonial plunder" as the primary source of third-world environmental problems, he also recognizes that "governmental and cultural negligence" have played a role. He cites weak economies, high debt burdens, and rapid population growth as further impediments to third-world environmental efforts.
Lai suggests a number of steps to enhance third-world participation in international environmental efforts. He emphasizes the importance of development assistance, arguing that if third-world countries are forced to choose between economic development and environmental protection, environmental protection will always lose. He suggests that international and regional development banks make low-interest, long-term financing available for environmental programmes and that international trust funds earmarked for third-world environmental efforts be expanded to address this problem. He also suggests that international regimes allow for creative participation by third-world countries, an example being the two-tiered approach adopted by the Montreal Protocol. He exhorts the developed countries to co-sponsor environmental studies, monitoring, and educational efforts in the developing countries. Finally, Lai insists that technology transfer and other incentives (such as tax breaks or low-interest loans) be offered free of strings attached in order to encourage third world participation in global environmental efforts without infringing on the sovereignty of independent states.
Lai concludes his chapter with a brief examination of the People's
Republic of China's efforts to protect the environment and to participate in international environmental efforts. He cites numerous laws and regulations designed to protect the environment and points to China's participation in a number of international fore and bilateral and multilateral collaborations as evidence of China's positive attitude towards environmental protection.
In "The Human Rights System as a Conceptual Framework for Environmental Law," R.S. Pathak explores the emergence of the right to a healthful environment as a new human right. He suggests that international human rights law may provide a conceptual framework for environmental rights, and he re-examines the relation between environmental protection and development within the human rights context.
Pathak concludes with a brief survey of the evolution of man's relationship to nature and observes that, for the first time in history, the human mind has turned to recognizing, preventing, and repairing environmental damage. He traces this new development to an emerging global consensus (framing a more optimistic view of North/South relations than expressed by Lai) on the necessity of preserving our natural and cultural heritage in order to assure both the continued existence of human life and the quality of that life.
Pathak begins his analysis by examining the philosophical roots of the right to a healthful environment. He concludes that the human need for a healthful environment in order to preserve and enhance the quality of life and the moral imperative of preserving cultural evolution establishes the philosophical underpinnings of the right to a healthful environment. He then considers whether this right is a mere right or a more fundamental human right. Observing that the right to a healthful environment satisfies the four qualities of a human right (i.e. that it be general, important or fundamental, essential and enduring, and inalienable), that the right is an inherent feature of societal value structures, and that it serves as a source of other rights and laws, he concludes that philosophically, the right to a healthful environment is clearly a basic human right.
While philosophical concepts of human rights have existed for centuries, Pathak traces their emergence from doctrines of international law to the United Nations Charter and subsequent declarations and conventions. Pathak divides existing human rights law into two "generations." The first generation established primary liberties and freedoms and intruded on state sovereignty by recognizing individual rights and proscribing certain state activities. The second generation further limited notions of sovereignty by assigning proactive duties to states to provide for the basic economic and social needs of individuals.
Turning again to environmental rights, Pathak points to clear evidence of those rights in international regimes, but notes that there is no distinct integrated system of international law for the environment. He then makes the case for merging environmental law into the value structure of human rights, thereby ensuring its juridical status as a source of international law. He cites the similarities between environmental law and human rights law: both "pierce the veil of sovereignty" to protect individual and global rights; both stem from broad global principles that exist despite multicultural perspectives, and both are considered humanitarian.
While the right to a healthful environment may be considered either as a corollary to the most basic of human rights, the right to life, or as a separate, specific legal norm implied by the Universal Declaration on Human Rights and subsequent covenants, declarations, and treaties, Pathak suggests that the right may form part of a third generation of human rights. This third step in the evolution of international human rights represents the development of collective rights that reflect global concerns and that can only be enforced through the cooperation of all the actors on the global stage, including individuals, states, public and private organizations, and international organizations.
Pathak concludes that regardless as to how it is categorized, the right to a healthful environment already enjoys significant status in international law, as witnessed by its incorporation into numerous municipal law systems and international treaties.
The final section of the chapter seeks to clarify the relationship between the right to a healthful environment and the right to development. In contrast to Professor Lai's approach, Pathak suggests that the two rights are not in tension but rather that they are compatible because a healthful environment is essential to sustained development. Pathak goes on to suggest that because individual humans need both a healthful environment and the benefits of development in order to realize their full dignity and worth, the two rights are part of the same interdependent system of human rights that continues to evolve within international law.
In "The Contribution of International Human Rights Law to Environmental Protection," Antonio Cançado Trindade examines the interrelationship between human rights protection and environmental protection.
Cançado Trindade traces the similarities and affinities between human rights law and international environmental law. He notes that in both areas the trend has been first towards internationalization (i.e., a recognition of human rights and environmental problems that require limits on state sovereignty) and then towards globalization (i.e., a reflection of the indivisibility of fundamental human rights and of the global nature of environmental threats). Both domains of international protection reflect the decline of reciprocity as the basis for international obligations. Cançado Trindade analyses the emergence of absolute or objective obligations based on the "common good of mankind," framing the discussion in terms of the most fundamental of human rights, the right to life, being added to the right to health.
Cançado Trindade points to a shared temporal dimension in human rights and environmental law that reflects an orientation towards the prevention of harm. He points to the theme that is developed more fully in Orrego Vicuña's chapter, namely that actual direct or indirect damage is no longer a prerequisite to international action. Rather, in both cases, the issue may turn on an assessment of the risk that harm (either in terms of environmental degradation or human suffering or persecution) will ensue from a given activity. Thus, both bodies of law reflect a concern with the effects of present actions on the future.
In addition, there is a shared ratio legis of human rights and environmental law: the right to life. The right to life implies both positive and negative obligations and further implies individual as well as social or group rights. These characteristics are shared by both human rights law and environmental law.
As in Pathak's chapter, Cançado Trindade traces the right to a healthy environment to the right to health, which in turn follows from the right to life, with each of those fundamental rights serving to define more fully the broader right, the right to a healthy environment.
Cançado Trindade gives special consideration to the case of vulnerable groups such as children, handicapped, minorities, and indigenous populations by stressing the social aspect of human and environmental rights, which provides an opportunity to empower these vulnerable groups. The protection of these groups lies at the confluence of human rights law and environmental law.
He further illustrates the interrelatedness of human rights and environmental law by examining recent developments in international human rights law, international humanitarian law, and international refugee law, which encompass environmental concerns and thus provide support for the concern for human rights protection found in the realm of international environmental law.
Cançado Trindade then suggests several lessons to be drawn from the development of human rights law that may be applicable to the implementation of environmental rights. First he points to traditional notions of "justiciability and enforceability" and suggests that environmental law may benefit from the less formal approach that has developed in human rights law, namely that of "implementation and supervision." Here the human rights mechanisms of petitioning, fact-finding, and reporting may also prove to be effective in enforcing environmental obligations. Second, he examines the German concept of Drittwirkung, the applicability of human rights and environmental obligations to third parties. Because of their "collective dimension," everyone enjoys the benefits of enforcement of these rights; however, this also implies an attendant duty to respect and promote these rights upon individuals, groups, states, and humankind as a whole. He indicates that the issue of protection erga omnes has a direct bearing on the question of the mise en oeuvre of the right to a healthy environment.
Cançado Trindade closes by addressing the argument advanced by some authors that the existence of environmental rights restricts other human rights (e.g., the right to development as limited by conservation of the environment). He argues that such criticisms are short-sighted, concluding that over the long-term, emerging environmental rights serve only to preserve, expand, and strengthen other basic human rights. In his argument, the recognition of the right to a healthy environment entails the enhancement rather than the restriction of pre-existing human rights.
In "The Implications of Global Change for the International Legal System," Alexandre Kiss examines the effect of global change on the functions and institutions of international law. Focusing first on the former, Kiss considers the law-making and implementation functions of international environmental law.
Kiss sees a trend in law-making towards an international legal system that is more flexible, open to change, and adaptable to the "intricate web of foreign relations." He catalogues a number of new approaches in the making of international law that illustrate this point. Soft-law provisions that create no immediately legally binding obligations have emerged as tools to formulate societal values and express consensus. Such provisions may later be ratified in binding form, become adopted as part of domestic law systems, become part of a framework for cooperation or more precise rule-making, or enter customary law. Similarly, "cooperation treaties," programmes for action, and "umbrella treaties" also serve as important intermediate steps towards more comprehensive regimes. Kiss also points to the adoption of more flexible standards, such as percentage reductions that result in either different obligations for different but similarly situated countries or the adoption of different standards for developed and developing countries. Kiss additionally cites the use of multiple regional conventions that apply generally agreed-upon principles to the specific conditions of a region and the use of simplified updating mechanisms. Many of these developments are also discussed in more detail by Szasz in the first chapter.
Kiss then turns to the implementation function. Global change has in some areas forced states to act as organs of implementation of international law by virtue of their domestic legal systems; while in other areas, international bodies have emerged to oversee implementation. As an example, Kiss cites human rights law and the institutional mechanisms designed to oversee its implementation (these are also discussed in detail by Cançado Trindade). Although no complete international framework exists to oversee the environment, Kiss, like Szasz in chapter 11, sees progress towards such a framework in the rise of "reporting systems," the expanding role of UNEP, and the increasing participation of non-governmental organizations.
There are also related important changes in the law of liability. Despite persistent civil-law notions of liability that require the existence of actual damage to identifiable individuals, Kiss sees an emerging public-law concept of liability that allows enforcement where there is merely a threat or risk of harm or, alternatively, for the protection of global commons on the basis of harm to humankind as a whole. Orrego Vicuñna discusses this evolving law of liability in greater detail in chapter 5.
In the second part of the chapter, Kiss examines the impacts of global change on international structures. First, he sees growing limitations on the actions of individual states as the focus of international law starts to shift from relations among states to humankind. Second, he examines a number of new factors influencing the international system. The injection of public opinion via non-governmental organizations, the emergence of "peoples" and humankind as entities with legal rights, and the incorporation of a temporal dimension through concern for the future combine to create what Kiss views as dynamic and flexible elements within a normally static legal system. Third, in contrast to the view expressed by Orrego Vicuñna, Kiss believes the implication of global change is the emergence of a "real system" of international institutions to address the global concerns of humankind. He predicts the continuing trend toward global cooperation, negotiation, and international regulation as conservation and resource-management efforts increase.
"Restructuring the International Organizational Framework," by Paul Szasz, asserts that global change and the evolving legal doctrines discussed throughout this book highlight the need for a restructuring of the international organizations that oversee environmental protection. To that end, Szasz surveys the many different models for change that are possible.
Szasz begins with a review of the "modest" current structure and discusses the problems with it. First he points to the insufficient clout of UNEP, which is constrained by a limited budget and by its location in Nairobi, far from the headquarters of the programmes that it is supposed to coordinate. Szasz then attributes the low priority and amount of debate of environmental issues within the General Assembly and the Economic and Security Council to their status as relative newcomers on the international scene. Finally, Szasz cites the lack of a high-level advocate for the environment (such as the UNEP Executive Director) at UN headquarters in New York or as part of the Secretary-General's cabinet.
Szasz recognizes that any change will be a function of the objective of such change, but nevertheless he stresses several important limitations on international institutional change. One limitation is the trade-off between a single large organization that may reduce duplicative efforts but become increasingly unmanageable and many smaller organizations that have the opposite effects. Another limitation is "getting there from here," or how difficult it is politically to achieve a transition to the new structure.
Szasz then examines potential changes both within and without the United Nations system. First he considers creating new responsibilities and powers for the principal United Nations organs, such as the General Assembly and the Security Council, or possibly creating a new principal organ for the environment. Most substantial changes to the structure or roles of the principal UN organs would require amending the UN Charter, a difficult and rarely used process; however, having environmental issues decided within the core UN organs would greatly enhance the visibility and potentially binding nature of those decisions. Second, Szasz considers extending and upgrading subsidiary UN organs, particularly UNEP, and established coordinating bodies. Third, he examines the use of organs created through the treaty process, pointing out that while such organs are very flexible and can readily adapt to changing conditions, the difficulty is coordinating these many organs for an organized global response to environmental change. Finally, he explores the use of specialized or related UN agencies that, while falling under the UN umbrella, are less bound by the formal strictures of the UN. Szasz concludes that most of the models for change to the international organizational structure of environmental protection have precedents in existing structures and are thus achievable if it is what the world community wants. He includes a brief annex on the learning capacity of international institutions.
In "Intergenerational Equity: A Legal Framework for Global Environmental Change," I argue that the need for intergenerational equity is inherent in sustainable economic development and must guide our approach to managing global environmental change.
I point out that the human species has two important relationships: the first is the relationship between generations of the human species and the second is the integral relationship of the human species to the natural system. As the most sentient of species, we have a special responsibility to care for that system.
International law has traditionally focused on relationships between states in the present generation, with intertemporal rules linking the present to the past. But there has also been a growing recognition of the link to the future, as reflected particularly in the environmental and human rights fields.
The theory of intergenerational equity posits that all generations are part of a human partnership extended over time with rights to use the planet for their own benefit and obligations to care for it for future generations. Every generation has a right to receive the planet in at least as good a condition as previous generations received it. This leads to a set of intergenerational rights and obligations, defined as comparable options, comparable quality, and comparable access.
These rights are distinct from individual human rights because they are rights that generations hold as a group and do not depend on knowing the number or kind of individuals in the group, and that can be defined by objective criteria.
I argue that the concept that future generations have rights in the condition of the natural system has fundamental implications for our institutions. I perceive it to mean that future generations must be represented in the market-place and in decision-making processes in ways that reflect the fact that they have an equal right to the resources of the planet.
I conclude with an analysis of steps that might be taken to implement norms of intergenerational equity. I analyse the relationship between intergenerational equity and equity among communities today and show that implementing intra-generational equity is an important component of achieving intergenerational fairness.
In "Ecological Security: Response to Global Challenges," Alexandre Timoshenko explores other new approaches to international environmental issues, namely expanding traditional notions of security to encompass environmental threats and focusing on global as well as the more traditional national concerns. Citing continued environmental degradation in the face of "mushrooming" activity designed to control such deterioration, Timoshenko argues that a new conceptual approach to ecological problems is necessary. While other new concepts such as primacy of international law, common interest, intergenerational equity, and common heritage of mankind are important elements of any new legal regime to protect the environment, Timoshenko asserts that only an ecological security conceptual framework will provide the basis for ordinary people (i.e., not just academics and politicians) to understand environmental problems and the basis for the personal involvement necessary to redress them.
Timoshenko sees three different levels of ecological security: first, environmental problems may threaten economic and political stability; second, environmental disagreements may erupt into military conflicts; and third and most important, from the global perspective, ecological imbalances may become so severe that they will disrupt the life-sustaining processes of the Earth.
Timoshenko then traces the movement of ecological security from the realm of political debate to juridical thinking. He documents the linkage between environment and security in a multitude of works by international legal scholars, in United Nations resolutions and documents, and in the works of numerous international commissions and expert study groups. According to Timoshenko, the benefits of such a linkage are: (1) higher priority for ecological issues; (2) shifting the burden onto the international community; (3) linking the environment to other important international concerns; and (4) integrating the world's peoples into a unified whole with a common purpose.
As a start towards a more useful conceptual approach, Timoshenko suggests 11 principles that would underlie a system of ecological security. The principle of equal ecological security would require that no state achieve well-being at the expense of another. Although it needs further elaboration, the principle to ban ecological aggression would discourage wartime exploitation of the environment. The principles to control and monitor compliance with rules of ecological security and to exchange information on national and regional ecological situations would combine to reduce tensions surrounding suspected non-compliance. The principle of prevention of transboundary harm would mark the shift from "react and correct" to "foresee and prevent" that Iwama discusses in chapter 4. The principle of cooperation in ecological emergencies exists in several treaty regimes but is not yet universal. Further cooperation is envisaged in the principle of the obligation to share scientific knowledge and environmental technologies. The principle of peaceful settlement of environmental disputes would seek to prevent bloodshed, and the principle of international responsibility for ecological harm would provide the teeth for ecological security. The principle of sustainable development would harmonize development and environmental concerns. Finally, the principle of a human right to a favourable environment (fully explored in part 3) would define individuals' benefits and obligations under an ecological security framework and thus lead to increased public participation in decision-making.
The chapters provide a framework for addressing many of the issues raised by global environmental change. They were drafted before both the Gulf War and the United Nations Conference on Environment and Development in Rio in June 1992, although they were informed by the debates for the latter. They reflect the perspectives of a culturally diverse group of authors. The book is not a final pronouncement on any of the issues, nor does it address all the issues. Rather, the authors hope that it will serve to stimulate further discussion and analysis.