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III. Themes

This book addresses new directions in international environmental law and, to a lesser extent, in international institutions. To accomplish this, the authors look at the challenges posed by issues of global environmental change and sustainable development and at historical experience.

Six themes, which emerged in good part from the discussions of the group, appear throughout the book. These include the growing common interest in the environment, the recognition of the scientific uncertainty about the environment, the adoption of an anticipatory approach, the relevance of human rights, the relationship between economic development and environmental protection, and the new approaches in implementing international environmental agreements.

The common interest in the global environment

Traditional international law is based on the territorial sovereignty of states, whose legal status is characterized by the three principles of sovereignty, independence, and equality.

Within states there has been an expanding recognition of a common interest among people in elaborating general environmental principles and rules that are not based on principles of appropriation - such as rules governing hunting, fishing, the use of national parks, and the disposal of wastes.

Similarly, at the international level, there has been a growing body of norms that restrict the actions of states in furtherance of general international community interests. Alexandre Kiss comments on this theme as follows:

Thus, as the concept of appropriation - territorial sovereignty - fades out, states are more and more considered - and even consider themselves - as obliged to act inside the limits of their jurisdiction on behalf of the interests of mankind. The developments during the last 40 years in the two main fields where basic needs of the planet and of its inhabitants must be met, human rights and environmental protection, very clearly show this general trend. As early as 1968, this conception appears as far as environment is concerned, in particular in the African Convention on the Conservation of Nature and Natural Resources, according to which where an animal or plant species threatened with extinction is represented only in the territory of one State, that State has a particular responsibility for its protection (art. 8).

Such a fundamental change in our conceptions of international law can be compared to the Copernican revolution which proclaimed that the center of the universe was not the earth but the sun: States are less and less the center of international legal relations, the focus becoming more and more mankind and its individual representatives, human persons. The growing number of international conventions which do not provide for reciprocity in the obligations accepted by States is very significant in this regard. It is clear that international treaty rules aiming at environmental conservation are among the best examples of such provisions corresponding to general interest.

The recognition of a common interest of States in the global environment may lead to international rules which are considered erga omnes. applicable to all states and enforceable by all States. The International Court of Justice, in the well-known Barcelona Traction case, set forth this distinctive category: "(A)n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.19

In international environmental law, we are redefining the concept of national interest. National interest has traditionally meant the identification of interests of one country that are distinct from or even contrary to those of another. But increasingly we recognize that the global environment has interests that are common to all countries. In the case of ozone depletion, for instance, at the most basic level the US interest is not contrary to that of England or Germany rather there is a common interest in controlling ozone depletion. The same can be said for controlling marine pollution, the transport of hazardous waste, or the concentrations of greenhouse gases. The traditional definition of national interest, based on the underlying assumption that one state's national interest conflicted with that of other states, is increasingly irrelevant. Environmental protection is not a zero-sum game.

This is not to say that we no longer have conflicting interests on these issues within or between countries. The allocation of financial resources to control pollution or conserve natural resources or the designation of suitable places to dispose of nuclear wastes remain contentious issues. Moreover, transboundary interest groups often conflict with each other and with governments on these issues. However, there is an emerging common interest among countries that it is in their national interest to address issues of global and regional environmental change. That is reflected in the rapid developments in international environmental law.

The authors analyse in their chapters many of the elements that point to the emergence of the common interest in conserving the global environment. Kiss, in his analysis of systemic changes in international law, develops the point in depth.

Scientific uncertainty

Scientific uncertainty is as inherent in international environmental issues as it is in domestic ones. The environmental system, including the human component, is complex and incompletely understood. We are a part of that system: our actions affect the system and we are in turn affected by it. We do not have a full understanding either of the system or of our interactions with it. Since scientific uncertainty characterizes all environmental issues, a major challenge of international environmental policy-making is to identify, assess, and manage risks. This calls for early-warning systems and a system for prioritizing risks, since resources to address risks are always limited. Thacher discusses issues of risk assessment and risk management, as does Brown Weiss in the intergenerational context. The theme appears, often implicitly, in almost all of the chapters.

Diplomats must rely on scientists to identify and help assess risks and to relate policy options to effective risk management. The international community is increasingly relying on international assessments by government-appointed experts as a basis for action. On the one hand, this gives governments confidence in the outcomes, which is essential; on the other it may invite what has been termed "negotiated science," a matter about which some of the international scientific community have been particularly critical. In the negotiations for a climate-change convention, for example, the report of the Intergovernmental Panel on Climate Change (IPCC), which consists of government-appointed experts, was instrumental to the opening of the agreement negotiations. Yet the conclusions of the panel have been criticized by some non-governmental scientists as representing compromises rather than pure scientific findings.

Governments receive scientific input from sources other than appointed experts. Traditionally we have emphasized the direct link between the scientist and the governmental policy maker, with communication flowing in both directions, but primarily upward to the policy maker. In environmental matters the relationship is actually triangular, with the public serving as the third vertex. Scientists communicate their findings to the public, and the public in turn influences policy makers, particularly elected representatives, on the basis of their scientific understanding and broader perceptions. Conversely, governments affect the public understanding of science, which in turn affects the public's relationship with the scientists.

While policy makers often resist acting under conditions of scientific uncertainty, the reality is that there will always be some uncertainty. It is a policy decision to decide what degree of scientific certainty is required before taking certain kinds of actions. The effort to formulate a precautionary principle, or precautionary approach, reflects the desire to develop international guidance on when and how to restrain activities that risk harming the environment in the future. This issue is specifically addressed in the chapter by Iwama.

Those who draft international legal instruments also have to be concerned increasingly with designing the instruments and implementation mechanisms with sufficient flexibility so that parties can adapt to changes in scientific understanding.

In negotiations for the Montreal Protocol on Substances That Deplete the Ozone Layer, policy makers knew that there would be subsequent advances in our scientific understanding of the ozone-depletion problem, and hence drafted the text of the Montreal Protocol accordingly. Thus, parties meet on a regular basis, so that they can respond to new scientific findings. The agreement also provides for regular technical assessments that are made available to parties before a meeting. The procedures in the Montreal Protocol for agreeing to reduce further the consumption of chemicals already on the list of controlled substances are easier than the procedures for adding new chemicals to the control list, and they do not require that parties formally amend the agreement.20

Other devices in international agreements to enable parties to respond to changing scientific knowledge include appendices or lists attached to the agreement that can be easily updated, scientific advisory councils or panels to monitor, assess, and/or report on environmental problems, and regular meetings of the parties.

Szasz focuses on the need for flexibility in his first chapter and identifies the various means used in treaties and the international legislative process to provide the flexibility in meeting obligations to

adapt to changes in scientific knowledge. Thacher discusses this need in the context of designing information systems, and Kiss explores its implications for the international legal system.

Systems as the focus

The third characteristic of international environmental law is an increasing focus on ecological systems rather than only on measures to control trade in species or emissions of specific pollutants. This reflects the growing awareness that ecological problems are problems of whole systems. For example, the ASEAN Convention on the Conservation of Resources addresses the conservation of ecosystems and habitats. The 1978 Great Lakes Water Quality Agreement contained language not found in the 1972 agreement to include reference to basin-wide ecosystems in the Great Lakes. This change reflects the recognition that what feeds into lakes through groundwater or by air deposition is as relevant to protecting the Great Lakes as what feeds directly into the fresh water. The 1987 Protocol explicitly includes annexes that address groundwater pollution and atmospheric transport of pollutants as sources of contamination of the Great Lakes. Similarly, in marine pollution, the focus is no longer only on specific commodities that are dumped into the marine environment, but rather on maintaining the marine ecosystem. This means a new emphasis on the importance of controlling land-based sources of marine pollution and on understanding all the sources of contamination of a marine environment.

The preventive approach

The fourth important theme states that it is much more effective to prevent pollution than to remedy its effects or to assign liability for damage. Economically it is usually much less costly to prevent the damage than to clean it up. Within the United States, the "Super Fund" legislation designed to clean up hazardous waste sites exemplifies the staggering costs of remedial measures. Unless the focus is on pollution prevention, it could happen that many of the costs of pollution will be shifted to other states or to future generations because they have no ability to bring the polluting state to account for its actions. Many of the damages are long-term. They may involve important synergisms in the environment or be effectively irreversible.

As a consequence, if international agreements are to be effective in protecting the environment, they must focus foremost on pollution prevention and on the sustainable use of renewable resources. There are a number of ways international environmental legal instruments are beginning to accomplish this. Many instruments are adopting an anticipatory approach. Early-warning systems, risk assessment, and stronger monitoring provisions are being developed. Principles are emerging that would strengthen procedural requirements such as notification, consultation, access to information or environmental impact assessment that would have to be fulfilled before states could engage in activities that could significantly harm the environment outside their jurisdiction.

Another approach often mentioned as a way to discourage international environmental damage is the "polluter pays" principle. It derives from the OECD principle formulated to capture the concept that goods and services should reflect the full costs of production, including pollution externalities. However, it was not intended as a principle of international legal liability, and indeed the attempt to transform it into a principle of international liability has been questioned.

It is difficult to find instances where one country has succeeded in holding another liable for pollution damage. Moreover, in some instances of transfrontier pollution, the state suffering from the pollution may pay the polluting state to abate or control it, because it is less expensive to cover the cost of installing pollution-control equipment than to continue to suffer the damage. For example, the Netherlands and other countries bordering the Rhine agreed to pay part of the cost of controlling the pollution from French potash mines. Similarly, Germany reportedly offered to bear the cost of installing air filters in a Czech industrial plant near the border, rather than continue to suffer pollution damage.

There is ample evidence to suggest that in most instances it is more effective to prevent pollution and natural-resource degradation, such as eroded watersheds, than to compensate for damages caused. Often the damages are irreversible, or if reversible only at unacceptable costs. Moreover, there is frequently no way to calculate damages accurately, particularly in regard to the natural environment, to provide adequate compensation, nor to apportion liability if many sources contribute. From both an equitable and cost-effective approach, the emphasis should be on pollution prevention. This theme runs through many of the chapters. Iwama focuses on the procedures for pollution prevention, and Orrego Vicu˝a notes the difficulties with implementing liability for environmental damage. Brown Weiss raises the intergenerational dimensions, and Timoshenko uses the theme as the premise for his arguments on ecological security. Prevention is also noted in most of the other chapters.

Human rights

There is a growing link between human rights and global environmental change. First, many of the human rights conventions and principles are relevant to issues of environmental change. Rights of participation, access to information, freedom of speech, among others, are important for the effective management of global environmental change. Secondly, problems created by global environmental change raise new issues for those rights already articulated, such as by the creation of environmental refugees and by the potential loss of a way of life by indigenous peoples of the Amazon or of the Arctic. Thirdly, there has been considerable discussion of a right to environment, either as implicitly found in existing human rights instruments or as part of a new articulation of rights. Finally, there is discussion of the rights of future generations in the global environment. While intergenerational rights are not linked explicitly to human rights law, they can be viewed as an extension of it and may carry important implications for the so-called group rights. The chapters by Thacher, Pathak, Canšado Trindade, Kiss, and Brown Weiss address various of these issues in detail.

Economic development and environmental protection

Sustainable economic development requires development that is environmentally sound. It is inherently an intergenerational issue. The World Commission on Environment and Development defined sustainable development as "meet[ing] the needs of the present without compromising the ability of future generations to meet their own needs. "21

It is well known that poverty is a primary form of ecological degradation. Thus, meeting the basic needs of peoples is essential to environmental conservation. We are only beginning to chart the pathways for globally sustainable development by all countries. An essential part of this process will be the reconciliation and integration of environmental protection with economic growth, including environmental measures and trading practices.

Several of the chapters, particularly those by Lai and Thacher, address the link between environmental protection and economic development. Lai stresses the conflicts between development goals and environmental protection, and notes that poverty is a primary force for environmental degradation. Thacher points to pathways of achieving environmentally sustainable development. The link between economic development and environmental protection is referenced in most of the other chapters as well, including the chapters on intergenerational equity and ecological security.

Implementation

If we look into the future, we can anticipate increased emphasis on the implementation of and compliance with international environmental instruments. Several new directions deserve highlighting: the information revolution and the transparency of information; public participation in developing and implementing international environmental instruments; the emergence of economic incentives and market mechanisms as a tool of implementation; and the treatment of third parties within the agreements.

We are now in the midst of an information revolution that will have fundamental implications for international environmental law and institutions. We can now gather and disseminate information at speeds and in quantities that far surpass the capabilities of 20 years ago. This makes possible monitoring on such a vast scale and in such detail that the implications are only now beginning to be recognized. The corollary to the information explosion is the growing transparency of environmental information; information is increasingly available to governments, non-governmental organizations, and the public. This means an unprecedented empowerment of nongovernmental organizations and individuals with respect to the decision-making processes and the implementation of international legal instruments. Thacher in particular develops these themes, and Canšado Trindade addresses them in the context of human rights and the environment.

The more recent international environmental instruments have recognized the importance of including all the relevant parties in the agreement. Otherwise, the agreements could create environmental degradation havens or, alternatively, "free-rider" problems. The latter problems result because remedial or preventive environmental actions taken by some countries (often at great expense) automatically benefit other countries, which bear no share of the costs. Thus, the question in addressing both pollution havens and free-rider problems is how to include all relevant actors in the agreement. One method is to offer economic incentives, such as technical assistance and financial support, and differentiated implementation schemes for developing countries. In the Montreal Protocol, for example, parties created a fund to provide assistance to the developing countries that join, and established a 10-year delay in compliance for developing countries that fall below a certain level of chloro-fluorocarbon consumption.

The other way of encouraging participation is to ban trade with non-parties to the agreement. The concept was incorporated into the Convention on International Trade in Endangered Species, but has seldom been used since then. It has been incorporated, however, into two recent agreements: the Montreal Protocol on Substances That Deplete the Ozone Layer and the Basel Convention on the Transboundary Movements of Hazardous Wastes. Both the Environmental Working Group of the General Agreement on Tariffs and Trade and the OECD Trade and Environment Working Groups are now considering whether such provisions are consistent with the GATT,. which prohibits restrictions on trade except under certain conditions.

Finally, market mechanisms offer a way to increase the efficiency of implementing international environmental agreements, and they have been gaining new attention. In Europe, this has taken the form of proposed taxes on specific resources (such as energy) or particular "pollutants" (such as carbon dioxide). In the United States, it has taken the form of a trading scheme involving marketable permits to emit limited amounts of air pollutants. This is reflected in the implementation of the Montreal Protocol and in the proposed implementation of the provisions of the 1991 Clean Air Act addressing the precursor pollutants to acid rain. Market mechanisms have also been discussed in connection with implementing the Canada-United States Air Quality Accord and with a global regime for controlling green house gas emissions.

IV. Important future themes

There are several important themes that are not widely treated in the book but that deserve such attention in future works. The first concerns how to increase compliance with those international legal instruments that have already been negotiated. We need better data on the extent to which states are complying with these agreements and on whether the agreements as drafted are accomplishing their purposes. The analysis of these issues is often complex, and the data difficult to obtain.22 In addressing these issues, we need to understand not only whether implementing legislation or directives satisfies the requirements of the agreement, but also the extent of compliance with such legislation. Moreover, it is important to understand the role of the international secretariats in assisting with compliance, the methods of compliance that are most successful, and the factors that influence national compliance with international environmental instruments.

A second issue of growing importance is the linkage between environment and trade. Global change can be expected to generate more rules of environmental protection, some of which may be challenged as barriers to trade. Conversely, trade rules have important implications for the ability of countries to protect the environment.

The trade issues raised by environmentally oriented actions take several forms: environmental restraints on imports are viewed as disguised trade barriers; differential environmental standards are seen as preventing a level playing-field and affecting competitiveness; and trade prohibitions and trade sanctions contained in international environmental agreements are perceived as a violation of the nondiscriminatory provisions of GATT. The recent report of a GATT dispute panel stating that US legislation banning imports of tuna from Mexico if harvested in a manner harmful to the sustainability of dolphins violates the GATT raises important issues of the application of GATT to production processes and to the unilateral right of a country to take measures to protect the environment beyond national jurisdiction. The United States Congress has also been considering legislation that would limit imports of other products, such as tropical woods, if harvested in an environmentally unsustainable manner.

There is an increasingly important host of issues involving the nexus between environment and trade. Both the environment and the trade communities recognize this linkage now, albeit somewhat reluctantly. The OECD, for the first time, held in 1991 joint meetings of its environment and trade committees and has engaged countries in serious consultations on the issues. The GATT Environment Working Group has also started to meet. The environment and trade issues deserve careful treatment in future work on global environmental change.


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