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Duty to future generations

The human right to a healthful environment should be viewed in the context of a duty to future generations.43 The duty to preserve and protect the environment is a duty that is owed not merely to all other human beings, non-human beings, and inanimate objects in present time but extends also to future generations. The duty is expressed in the theory of "intergenerational equity," which articulates that "all members of each generation of human beings, as a species, inherit a natural and cultural patrimony from past generations, both as beneficiaries and as custodians under the duty to pass on this heritage to future generations," and that this right to benefit from and develop this natural and cultural heritage is inseparably coupled with the obligation to use this heritage in such a manner that it can be passed on to future generations in no worse condition than it was received from past generations.44 This theory of intergenerational equity finds support from religious and ethical norms and from numerous international instruments commencing, in modern times, from the Charter of the United Nations, the Universal Declaration of Human Rights and its two International Covenants, to a host of conventions and declarations that are concerned with the dignity, worth, and progress of mankind. When we speak of mankind, we speak of the human race as it exists today and also as it will in the future. And, therefore, an intergenerational dimension must be necessarily inferred in these international instruments extending to all future generations as an obligation erga omnes that derives some support from customary international law45 and is regarded as an emerging norm of customary international law. Another view is that the universal and unequivocal recognition of the duty to protect the interests of future generations, as well as of the principles necessary to implement that duty, should be achieved on the basis of treaty rather than be left to the development of customary law.46

As in the case of non-human beings and inanimate objects, a question arises whether this duty to future generations is correlative to a right inhering in future generations. If rights cannot be attributed to an unborn child, can they be attributed to unborn generations? Unless life on this planet becomes extinct altogether, in which case no occasion for enjoying the benefit of planetary resources or cultural heritage will arise, future generations may be regarded as of certain and definite existence, although lying in the future. We can conceive of a time continuum in which human generations are positioned at successive points of time. They will have definite and certain positions, depending on the number of years when one generation can be said to follow another. A continuous relationship links the generations, and they succeed each other with definite certainty and constant regularity. The existing concept of a right-duty relationship will, in this context, have to be developed further to accommodate the case of rights of future generations. These rights, as Professor E. Brown Weiss47 observes, are not rights possessed by individuals but are generational rights, conceived of in the temporal context of generations. They will be governed by considerations different from those applicable to the case of an unborn child, the incidents in each case being different from the other. Professor Brown Weiss points out that "while rights are always connected to obligations, the reverse is not always true,"48 and she refers to Hans Kelsen49 and John Austin50 in support.

The concept of "the common concern of mankind"

Another dimension of man's relationship to the natural order is implied in the concept "the common concern of mankind." This concept was the subject of reference in United Nations General Assembly Resolution No. 43-53 of December 1988, and while covering climate change directly, it focuses on issues that are generally basic to mankind. The concept possesses a social dimension as well as a temporal dimension and is considered relevant to other sectors of international environmental law, including the conservation of biological diversity. The UNEP Group of Legal Experts, which was constituted to examine the implications of that concept, at its meeting in December 1990 in Malta, expressed the view that the concept of "common concern of mankind" is a more suitable and neutral concept in dealing with planetary resources than the earlier concept of "common heritage of mankind," in that proprietary considerations were excluded. The element of reciprocity, moreover, was avoided by choosing a concept based in considerations of ordre public. The ingredients constituting the concept of "common concern of mankind" lay in "involvement of all countries, all societies, and all classes of people within countries and societies, long-term temporal dimension, encompassing present as well as future generations, and some sort of sharing of burdens of environmental protection."

As will be apparent from this, the concept has been considered to possess several advantages, in that the word "mankind" implies a link with the human rights framework and with the long-term temporal dimension, including the inclusion of future generations; the word "concern" emphasizes the preventive character of environmental protection as well as the consequential effects or responses called for; the word "common" implies in international law the same sense as "public order" in municipal law, all of them making the notion of "common concern" akin to the related concepts of "obligations erga omnes," "jus cogens," "common heritage," and "global commons."51

This emerging concept provides greater flexibility than earlier notions in describing comprehensively the true nature and measure of man's obligations to elements of a global concern and avoid many of the pitfalls implied in those earlier notions.

The right to development

The emphasis on the right to development has, at every stage, constituted a challenge to the philosophy of environmental rights. It has been, in fact, the reason for a division between the developed countries and the developing countries concerning the operation of environmental rights. Developing countries have declined to adopt fully the perspective preferred by developed countries that environmental claims are superior to the right to development. While developed countries, already at the peak of industrialization, see dangers to the ecology from the current use of certain industrial processes and the combustion of fossil fuels, developing countries find it difficult to accept entirely the abandoning of such processes and use. Developing countries urge that they are in the early stages of development, and their economies do not permit alternative systems of energy. The position taken by them is that the developed countries should transfer appropriate technology to them to relieve them of the need to rely on present industrial processes and fossil-fuel energy. Developing countries contend that there is a moral duty owed by industrialized nations to the developing world.52 They rely also on the Declaration on the Establishment of a New International Economic Order, which implies that colonial powers have an obligation to assist the development of their former colonies.53 While this rationale is not readily accepted by developed countries, it seems to be conceded that underdevelopment is the by-product of the development of the Western countries, in that the growth of the colonial territories "was blocked by the destruction of the natural balance in place before colonialism, coupled with structural disadvantages built into the present international economic system."54 Whatever view be taken, the fact of colonialism certainly is a relevant factor, and justice and equity, well accepted as concepts incorporated into international law jurisprudence55 and fundamental international instruments,56 support that claim.

The controversy has compelled an examination of the question of whether the claim to a healthful environment and the right to development are mutually hostile and implacable enemies. The hostility was perceived as long ago as the United Nations Conference on the Human Environment at Stockholm in 1972, but by the adoption of the concept of "sustainable development," which found favour with the World Commission on the Environment and Development in the

Brundtland Report, "Our Common Future" (1987). Sustainable development is a concept that implies development that meets the needs of the present generation without compromising the ability of future generations to meet theirs.

In this context the insistence by the developing nations on the transfer of technology to them by the developed countries acquires pointed importance. Developing countries do not possess as yet the level of technological expertise that could equip them with industrial strategies from which offending industrial processes are excluded. Moreover, in the presence of high poverty levels they are unable to substitute environmentally protecting energy-production methods in place of fossil fuels. The creation of an international environmental fund has been suggested as a solution for enabling the transfer of technology from the developed countries to the developing nations. The consideration of such solutions continues to engage the international community, and the developed nations find it difficult to avoid facing the issue in view of the urgency of the threat of grave environmental danger disclosed by recent scientific data. The developed nations have now expressed a readiness to assist developing countries. The Declaration of the Hague provides for such assistance.57 So does the Communique from the Paris Summit, which encourages economic incentives "to help developing countries deal with past damage and to encourage them to take environmentally desirable action."58

The Vienna Convention and its Montreal Protocol bear witness to the international anxiety following discovery of the damage to the ozone layer. Beside the hole in the ozone layer over Antarctica, another hole in the ozone layer has been discovered over Europe, the United States, and Canada. The Montreal Protocol, while insisting on the termination of industrial processes, such as the use of chlorofluorocarbons in air-conditioning, refrigerants, and certain other industrial products, has limited the time for, and the quantum of, use of offending industrial processes. Considerations relating to the developing nations have been given allowance by prescribing time-lags for compliance with the minimum standards. The United States has also agreed now to support a special international fund to provide financial and technological assistance to developing nations. This fund will enable these countries to shift to chemicals that are safer for the atmosphere. The fund is planned to total from US$150 to US$250 million.59 Recent technological developments have made alternative chemicals available. A new market for hydrofluorocarbons (HFC 134a) can be developed replacing many uses for chloro-fluorocarbons. Other ozone-friendly chemicals include terpenes, which are natural solvents. Industry continues to explore replacements for CFCs. Relevant products include hairsprays, windshield-wash fluids, and paints, but the most difficult to replace appear to be antifreeze and refrigeration compounds.

One aspect of the rival claims between environmental rights and the right to development is that while both rights can be described as emerging human rights, with both tracing their roots in the Universal Declaration of Human Rights and its two International Covenants, and the several human rights instruments following them, a relative positioning of the two rights in the hierarchy of human rights appears unavoidable. It is now settled that while human rights constitute a superior class over ordinary rights, there will be, within the categories of human rights, an observable hierarchy structured according to the relative importance of particular human rights. As between the right to a healthful environment and the right to development, one mode of preference is suggested by the existence or non-existence of alternatives. In the case of the ozone layer, it is impossible to conceive of a feasible substitute. The depletion of the ozone layer removes the protection from the sun's ultraviolet radiation that the ozone layer affords, resulting in diseases such as skin cancer, eye cataract, and other health problems of mankind. On the contrary, as has been shown, it is possible to find alternatives to the use of chlorofluorocarbons so that chlorine atoms are not released and the ozone layer is not affected thereby. There will be other areas that call for the balancing of the dimension of environmental protection against the claims of the right to development. A balancing operation, taking into account relative needs, access to alternative procedures, the cost-benefit ratio, and related factors, will determine the fine point of balance between the two rival claims. Much will turn on local conditions such as social values, economic standards, and the like.

The apparent rivalry between environmental rights and the right to development has been occasioned by the circumstance that ecology and economics have been regarded from the outset as two different and distinct disciplines. The eminent development economist Amartya Sen, in his book on "ethics and economics," is critical of economists who have neglected the influence of ethical considerations in the characterization of actual human behaviour. According to him, economists have adopted a very narrow view of ethics as a result of "their preference for treating economics as a task akin to engineering."60 The Brundtland Report, in suggesting the concept of "sustainable development," has attempted to bring about a marriage of economics and ecology. The concept of sustainable development introduced some related concepts, thus incorporating the demands of intra-generational equity and intergenerational equity into a development framework - concepts such as the impact of regional and global ramifications, including spillovers; trade and cooperation; ensuring the maintenance of ecological systems and the protection of biodiversity; cautious and conservative attitudes, if there is significant risk, uncertainty, or irreversibility involved in the development project; and ensuring that the development proposed increases material and non-material well-being.61 The concept of "sustainable development," together with these related concepts, constitute the meeting point where environment and development stand reconciled, with both constituting balanced components within the environmental mosaic.

The protection of the environment and the reduction of poverty are treated as related aspects. The transfer of technology from the developed to the developing nations is a need whose imperative nature cannot be denied. The need becomes more comprehensive when it is realized that phenomena such as the depletion of the ozone layer and the greenhouse effect are problems concerning the entire planet, and therefore there is a collective global responsibility for taking and participating in all measures necessary to keep the planet in good health. It is now broadly accepted that the countries on the two continents of North America and Europe are responsible for almost three-quarters of the carbon-dioxide emissions that contribute to global warming, while peopled by a mere eight per cent of the world's population. The developing world can be held responsible for only seven per cent of the industrialized emission of carbon dioxide, although holding about eighty per cent of the world's population. Similarly, the environmental damage caused by CFCs must be attributed primarily to Western industrialized countries.62

The protection of indigenous peoples

The adverse impact of environmental degradation poses consequences for all sections of human society within its circumference. But while the more developed and economically affluent are capable of creating conditions for meeting or withstanding those consequences, or at least their full effect, there are vulnerable minorities whose very survival is threatened. In their extinction mankind loses a valuable cultural content. Indigenous communities in developing countries are most susceptible to that risk because of their intricate and fragile dependence on their natural habitat. Their survival depends upon it inasmuch as it provides, simultaneously, their shelter, their sustenance, and their fundamental culture. The nature of their dependence on their habitat is so total that any interference with it would constitute an assault on their existence. The Sub-Committee on the Prevention of Discrimination and Protection of Minorities has described their relationship with the land as comprising their "whole range of emotional, cultural, spiritual and religious considerations."63 A thoughtless and aggressive policy that destroys their habitat, be it in pursuance of a developmental programme or in consequence of military operations, produces a traumatic end to the indigenous community. In the vast mosaic of environmental protection, indigenous peoples are entitled to particular protection by reason of their sensitive relationship to their habitat. The World Commission on Environment and Development has referred to the danger of indigenous peoples being threatened with virtual extinction unless their traditional rights are recognized. It recommends that they should be given a decisive voice in the shaping of policies and programmes for the development of their areas.64

Economic considerations responsible for deforestation and use of land for agricultural and industrial purposes can do violent injury to the survival of an indigenous people and the preservation of their culture. The right to a healthful environment is as much a right to the minority community as it is of the majority, and in a conflict between the two claims the operating principle would incline in favour of preserving that which will be irretrievably lost. The right to development in action possesses the capacity of doing irremedial injury to an indigenous culture. The arrogance of developmental economics, which seeks to pursue with missionary zeal the introduction of modern values into the lives of an indigenous people, can destroy that which it intends to promote.

Where an indigenous community inhabits an island, such island culture depends for its sustenance upon the marine environment. The sea provides food and brings tourism and commerce. A disruption of that ethos by whatever means could easily deprive the people of their only source of subsistence, leading ultimately to their extinction. Global warming produces consequences of immeasurable danger to an island existence, with fatal consequences for the indigenous community and its indigenous culture.

An indigenous people is entitled to the preservation of its culture. The Universal Declaration of Human Rights, by Article 22, directs the protection of individual social, economic, and cultural rights. The various facets of the right to participate freely in cultural life presupposes the maintenance by an indigenous community of its identity and its protection against assimilation by the state. It also guarantees the right to cultural participation or minimal self-determination by the minority community. Ethnocide is as significant a form of destruction as any other. Involved in the protection of cultural values is the right to life and the right to security of person construed in terms of the quality and condition of life. Protected by the doctrine of jus cogens, they are non-derogable. While some municipal constitutions have specifically provided for the protection of such minorities,65 the international law regime needs to be strengthened and reinforced in its protection of indigenous peoples.

The conflict between environmental rights and the right to development, which has been treated previously, raises the same issues in the case of indigenous peoples. The notion of sustainable development applies to their context also. Informed by social justice, it is a promise to protect their right to life and their way of life against the threat of environmental degradation.

Environmental rights and international refugee law

At various times in history individuals and groups have been compelled to abandon the home state because of the fear of persecution occasioned by policies based on religion, race, nationality, social, or political programmes and the like. The mass emigration of Russians and Armenians provoked by the installation of a Communist regime in Russia and similarly the emigration of Jews and other communities when Germany and its neighbouring territories came under East rule are historic examples of refugee movements. Natural disasters, destitute economies, and general political turmoil have also prompted large groups of people to seek refuge in more stable societies. Migrations of this character have generally taken place from less-developed countries. Environmental disasters may now be added to the list.

The international instruments incorporating the refugee law today are the Convention Relating to the Status of Refugees66 and the related Protocol67 Besides there are international institutions, the primary refugee relief organization of the United Nations being the United Nations High Commissioner for Refugees (UNHCR), aided by Unesco, UNICEF, and UNDP. In the drafting and adoption of the Convention an attempt to embody a comprehensive humanitarian protection was defeated. The generality of human rights values was compelled to give way to a much narrower focus, that of persecution for reasons of race, religion, nationality, or membership of a particular social group or political opinion. Persons who feared persecution by the denial of basic civil and political rights alone fell within the Convention.68 The grant of refugee status was broadly intended for the benefit of European refugees from Eastern Europe. Non-European states together with Belgium and the United Kingdom argued against a regional bias being given to the Convention. But the situation remained unaltered, except that subsequently by the Protocol the temporal restriction enacted in the definition of "refugee" was removed. The limitation implied by the grounds on which refuge could be sought continued as before. A narrow door was opened. The broad concept of humanitarianism was abandoned. This resulted in a two-tiered scheme for refugees, European refugees alone being granted legal protection in the context of residence abroad. UNHCR's competence enabled relief to be given to large groups of persons in Africa, Asia, and Latin America, but the assistance is not of the same quality as that provided to refugees under the Convention, being confined to an emphasis on return, local resettlement, or confinement in camps of refugees into Western countries. This dichotomy in international refugee law has been sought to be explained by the anxiety of the developed states to avoid difficulties of adjustment within their societies on account of cultural, ethnic, political, and economic differences.69

Differential treatment under the international refugee law proceeding essentially on considerations of territorial origin, ethnic distinctions, and cultural differences testifies to refuge being granted for reasons convenient to the state of refuge rather than considerations flowing from the broad concept of humanitarianism. The title to consideration for the grant of refuge should be determined by the nature of the forces compelling the seeking of refuge. This is reflected in the Preamble to the Convention, which, in its first two recitals, refers to the principle affirmed in the Charter of the United Nations and the Universal Declaration of Human Rights that human beings will enjoy fundamental rights and freedoms without discrimination, and that the United Nations is seized of a profound concern for refugees to whom it assures the widest possible exercise of those fundamental rights and freedoms. Having regard to the present state of the international refugee law, the criticism that "the rhetoric of human concern lingers, but the modern apparatus of international refugee law is more closely tied to the safeguarding of developed States than to the vindication of claims to protection"70 appears to possess some merit.

From what has been observed, it would seem that the context of the human rights culture as a value base for environmental law is not served by the present state of international refugee law. Mankind, both in its spatial as well in its intertemporal dimensions, is entitled to an environment of equality and freedom from discrimination. Natural disasters, destitute economies, and general political turmoil constitute environmental conditions as distressing as the fear of persecution on the grounds set forth in the definition clause of the Convention. When mass distress because of environmental disasters is added to man's misfortunes, the case for a broad-based humanitarianism acquires an even greater significance.

A more rational perspective characterizes the regional arrangements obtaining today in Africa and Latin America. The Organization of African Unity's Convention Governing the Specific Aspects of Refugee Problems in Africa grants protection not only to persons covered by the United Nations Convention, but also to persons who, "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality."71 There is a specific obligation to receive refugees and to secure settlement of those refugees. The Organization of American States adopted the Cartagena Declaration, which also extends protection, in addition to the persons described in the definition clause of the United Nations Convention, to persons "who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order."72

Insufficient provision in the present international refugee law for the protection of refugees can itself provide the conditions for environmental degradation. When masses of people are uprooted from their homes and have to seek refuge in another country, the want of proper facilities brings in problems of health, want, and demoralization. An environmental hazard begins to take shape, whose dimensions can affect not only the refugees but may extend to the resident population itself. Tensions are bred and escalate with easy provocation and an atmosphere surcharged with violence invariably adds to the problem of maintaining sound environmental conditions. The right to a healthful environment is put into jeopardy, with consequences that could have been avoided by a wiser, more equitable, and more generous international refugee law.

Substantive norm-making and enforcement procedures

1. Soft law

The developing international environmental law owes its origin to "soft law," which, it is now widely accepted, has a significant status in the process of norm-making. New norms conceived in response to the felt needs of international realities for filling a vacuum in the international law system or introducing provisos to existing law because of its rigidity are often evolved through constant renegotiation in the international arena. The Stockholm Declaration of 1972, regarded as a non-binding resolution, is of that nature. Principle 21 and other "principles" of the Declaration have been relied upon by governments, and their norms are to be found in state practice. And from its frequent citation in UN documents, Principle 21 may be said to have achieved the status of customary international law. UNEP, created pursuant to the Declaration, has made an important contribution in developing the corpus of international law. Periodic endorsement by the United Nations General Assembly of the priorities set by UNEP constitute an example of soft law.73 So have non-governmental organizations such as the International Law Association, which formulated the Montreal Rules of International Law Applicable to Transfrontier Pollution, and the Institute of International Law, which adopted resolutions on the Utilization of Non-Maritime International Waters, on the Pollution of Rivers and Lakes and International Law, and on Transboundary Air Pollution. Repeated observance of the suggested principles and rules, regarded as indicators of contemporary trends in the environmental law area, has prepared the way for the evolution, and subsequent adoption, of "hard law." In this, soft law acts as a catalyst. Meanwhile, the behaviour and conduct of states tend to follow the principles and rules embodied in soft law. National legislation and national courts, dealing with the responsibility of environmental protection, have often drawn inspiration and guidance from such soft law.74 Whereas in environmental protection hard law is not always readily possible in view of varying responses from state governments because of particular local economic conditions, societal attitudes, and the like, soft law plays an important role in providing direction and standards.

2. The World Bank

The principles and norms emerging from soft law relating to environmental protection have strongly influenced programmes of action everywhere, in international life and within national systems. Environmental values, for example, have now a definite and operational influence in banking systems. Nowhere has this been more evident than in the reorientation introduced in the activities of the International Bank for Reconstruction and Development. In the address delivered by Barber B. Conable, President of the Bank, he mentioned that lending for environmental, population, and forestry projects was increased; resources devoted to the environment were increased by more than 100 staff years; and environmental issues were fully integrated into the Bank's approach to development. A US$5 million Environmental Technical Assistance Program to accelerate the preparation of environmental projects was inaugurated. Environmental Assessment Guidelines were designed to strengthen the capacity of developing countries to deal with environmental problems and to ensure that the World Bank took environmental concerns into account at the earliest stage of designing development projects. The Bank decided to assist developing countries in reducing the emissions of greenhouse gases without adversely affecting development. An Energy Efficiency and Strategy Unit was created to deal with financial and policy issues. A Household Energy Unit was created for determining the most suitable means of delivering traditional and other more modern forms of renewable energy to the homes of the poor and to rural industry. A Gas Development Unit promoting the economic production, consumption, and export of natural gas was also envisaged.75

The World Bank has laid great emphasis on success for family planning programmes in developing countries and has also under taken studies for determining the legal status of women in the context of resource-management problems and also in relation to family-planning programmes.76 The norm of "sustainable development" has been consistently in the forefront of the World Bank's consideration of development projects, and it has focused upon incorporating environmental considerations into each stage of the project cycle of development funding. In acting as a leader in adopting and establishing sound environmental practices, the World Bank has set an example for other lending institutions.

3. The United Nations

Violations of the right to a healthful environment? like violations of some other human rights, will not easily gain consideration in the international plane having regard to the present constitution of international institutions. A member state of the United Nations may have the issue debated in the General Assembly, but there is considerable controversy on whether resolutions of the General Assembly have binding force77 or are merely recommendations.78

The United Nations Commission on Human Rights is empowered to consider violations of human rights by governments. The Commission assigns the matter to working groups or sub-rapporteurs, whose reports are debated and considered for adoption. Discussion in those proceedings of a violation of human rights committed by a government publicizes its conduct. The procedure is based on the expectation that there are few governments that are insensitive to condemnation by the international community. Besides, such public discussion results in the prescription of standards of conduct expected of governments and provides rules of guidance for future action. The resulting information is employed by individuals or groups within their own countries for the formulation of norms and their compliance by domestic administrative and judicial agencies, and for the purpose of securing reforms by law-making agencies. That information also enables non-governmental organizations to play a significant role in their contribution to the investigation and reporting of human rights violations. While violations of environmental rights by governments may effectively be the subject of complaint before the United Nations Commission on Human Rights, the problem enters a more difficult dimension when the complaint is addressed by an individual. The Sub-Commission of the Human Rights Commission has been empowered to permit individuals to petition it against violations of human rights. In the case of environmental rights violations, it is appropriate, in view of their individual and collective character, that standing be recognized in individuals as well as groups.

The International Court of Justice, as presently constituted by its Statute, is competent to entertain disputes between states only, and cannot take cognizance of a petition addressed by an individual to it.79 This inhibition may be removed by an appropriate amendment of its Statute. In the event of the competence of the Court being enlarged, an appreciable volume of environmental rights litigation can be expected to enter its doors. To cope with it, it may be necessary to consider the constitution of specialized chambers for environmental cases.80

In recent years, with the increasing prospect of international environmental law disputes, profound interest has been shown in suggesting other procedures and dispute-settlement fore. The Report and Final Recommendations of the International Congress on a More Efficient International Law on the Environment and Setting Up an International Court for the Environment within the United Nations81 has recommended the drafting of a Universal International Convention proclaiming the duty of all states to conserve and protect the environment; the creation of an international body within the United Nations system to guarantee the supervision, planning, and management of the world environment; the appointment of a United Nations High Commissioner for the Environment with adequate support facilities; and the creation of an International Court for the Environment, which should be accessible to states, United Nations organs, and private citizens.

Other recommendations include one mentioned in the Report of the Legal Experts Group of the World Commission on Environment in the form of a draft convention as well as General Principles on Environmental Protection and Sustainable Development. These recommendations envisage also the appointment of a United Nations High Commissioner for the Environment, who would hear individual complaints and issue reports, and a Commission for the Environment that would hear complaints from states and issue reports.

Another recommendation was made in the Hague Declaration82 on the Environment, which calls upon the United Nations to establish a new institutional authority "to monitor and enforce measures to reverse global warming and climate change." The proposal, however, does not go into a detailed consideration of the recommendation. Instead of a new centralized authority within the United Nations, one writer83 suggests the strengthening of the existing organs of the United Nations, such as the Security Council, the Trusteeship Council, and the Economic and Social Council, and an enlargement of the powers of the Secretary-General with a view to more effectively dealing with environmental problems and disputes.

4. Treaties

Bilateral or multilateral treaties may provide for remedies for violations of environmental rights. A time-honoured mode of providing relief, they will be binding as between the states parties thereto.


There is clear evidence that the approach adopted by the international community to environmental rights corresponds to that applied to human rights generally. That is to be expected since the right to a healthful environment proceeds out of the international law of human rights itself. The international law system took a major turn when the human rights philosophy was made part of international jurisprudence. The sanctity attached to the doctrine of state sovereignty was diluted and human rights were accorded a super-eminent status in the international system. The right of an individual to conditions conducive to his development was recognized generally, and significant areas of the human rights law became accessible to intervention by foreign states.

The development of environmental law provides the second major turning point in the progress of international law. The international community has reached a stage where the individual is held entitled specifically to a natural and cultural environment ensuring the development of the different dimensions of his personality. Indeed, environmental law proceeds beyond the individual to the local or national community and even beyond, to the global community, having regard to the nature and character of the environmental phenomenon. The world has entered an era in which the fundamental relationship of man to the natural order is also beginning to dawn on him. Moreover, while the achievements of science and technology have been great and their influence far-reaching, man is becoming increasingly aware that the choice in employing that unprecedented power turns ultimately on his sense of moral responsibility towards his fellow men and to the planet itself. The significance of moral values has never been so important. In this ethos of morality and power there is something both of the West and the East, and one may conclude with what the Nobel Laureate Ilya Prigogine said:

We believe that we are heading toward a new synthesis, a new naturalism. Perhaps we will eventually be able to combine the Western tradition, with its emphasis upon experimentation and quantitative formulations, with a tradition such as the Chinese one, with its view of a spontaneous, self-organizing world.... Each great period of science has led to some model of nature. For classical science it was the clock; for nineteenth century science, the period of the Industrial Revolution, it was an engine running down. What will be the symbol for us? What we have in mind may perhaps be expressed best by a reference to sculpture, from Indian or pre-Columbian art to our time. In some of the most beautiful manifestations of sculpture, be it in the dancing Shiva or in the miniature temples of Guerrero, there appears very clearly the search for a junction between stillness and motion, time arrested and time passing. We believe that this confrontation will give our period its uniqueness.84

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