Contents - Previous - Next
This is the old United Nations University website. Visit the new site at http://unu.edu
1. J.A. Passmore, Man's Responsibility
for Nature, 17 (Scribner, 1976), cited in A.D. Tarlock,
"Earth and Other Ethics: The Institutional Issues," 56 Tennessee Law Review, 45 (1988).
2. Dale and Carter, "Topsoil and Civilization" (quoted in E.F. Schumacher, Small is Beautiful, 84 [Blond and Briggs, 1973]), say: "Civilized man was nearly always able to become master of his environment temporarily. His chief troubles came from his delusion that his temporary mastership was permanent. He thought of himself as 'master of the world, while failing to understand fully the laws of nature."
3. See "Developments in the Law: International Environmental Law," 104 Harvard Law Re view, 1 484, 1 492 (1991).
4. D.A. Kay and H.K. Jacobson, Environmental Protection. The International Dimension, 7,8 (Allanheld, Osmun and Co., 1983).
5. E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity, 297-327 (Transnational/United Nations University, 1989).
6. E. Brown Weiss, '`The Planetary Trust: Conservation and Intergenerational Equity," 11
7. L. K. Caldwell, International Environmental Policy, 16 (Duke University, 1984).
8. M. Cranston, What are Human Rights? (Basic Books. 1963), quoted in P. Alston, "Conjuring Up New Human Rights: A Proposal for Ouality Control," 78 A.J.I.L. 607. 615, n. 30 (1986): 'A human right by definition is a universal moral right, something which all (people) everywhere at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human being simply because he is human."
9. W.P. Gormley, "The Right of Individuals to Be Guaranteed a Pure. Clean and Decent Environment: Future Programs of the Council of Europe," 381975 Legal Issues in European Integration.
10. World Commission on Environment and Development, Our Common Future, 348 (Oxford University, 1987).
11. The National Environmental Policy Act of 1969 (enacted by the United States Congress) Pub. L. No. 91-190, Section 101(a), 83 Stat. 852 (1970), speaks of the need to restore and to maintain environmental quality to aid in the "overall welfare and development of man," and Section 101(c), where Congress recognized that "each person should enjoy a healthful environment. "
12. W.J. Winslade, "Human Needs and Human Rights,'' included in Human Rights - Amintaphil 1, 29, 35 (1971).
13. A. Edel, "Some Reflections on the Concept of Human Rights," included in Human Rights- Amintaphil 1, 2 (1971).
14. Constitution of India, Part 111.
15. L.B. Sohn, 'The New International Law: Protection of the Rights of Individuals Rather than States," 32:1 American University Law Review, 9, 19 (1982).
16./d. at 11,12. 17. Id. at 16, 17.
18. Id. at 48.
19. As quoted by S.P. Marks. "Emerging Human Rights: A New Generation for the 1980's?"
(Stoffer Lectures), 33 Rutgers Law Review, 397, 441 (1981).
20. L.B. Sohn, supra note 15 at 61,
quoting from Unesco Symposium on the Study' of New
Human Rights: The Rights of Solidarity, 30 (Unesco, 1980).
21. L.B. Sohn, supra note 15 at 61. They have also been chromatically classified as blue," "red," and "green" rights. Jan Glazewski, "The Environment, Human Rights and a New South African Constitution," 171 South Africa Journal on Human Rights, 2 (1991).
22. Report of the United Nations Conference on the Human Environment, Stockholm. 1-16 June 1972 (U.N. Publ. Sales No. B.73.II.A. 14. 1973).
23. The Supreme Court of India has developed a respectable volume of jurisprudence in this respect with reference to Part 11, Article 21, Constitution of India.
24. Dr. H.J. Uibopuu, "The Internationally Guaranteed Right of an Individual to a Clean Environment," 1 Comparative Law Year Book, 107 (1977).
25. W.P. Gormley, Human Rights and Environment: The Need for International Co-operation, 34 (Sijthoff, 1976).
26. R.A. Falk, "The Logic of State Sovereignty Versus the Requirements of World Order.'' 27 Year Book of World Affairs, 7, 23 (1973).
27. W.P. Gormley, supra note 25 at 1.
28. Introduction to the Covenant on Civil and Political Rights 7 (L. Henkin, ea., Columbia University, 1981).
29. T. Iwama, Policies and Laws on Global Warming: International and Comparative Analysis, 11, 12 (T. Iwama, ea., Environmental Research Center, 1991).
30. P. Alston, "Conjuring Up New Human Rights: A Proposal for Quality Control," 78 AJ.I.L. 607 (1984).
31. S.P. Marks, supra note 19 at 442.
32. Dwivedi and Tiwari, "Environmental Protection in the Hindu Religion," in World Religions and the Environment (O.P. Dwivedi, ed.). ''[T]he Hindu Rishis of the Vedic and the Upanishadic era perceived the value of maintaining a harmonious relationship between the needs of man and the spectacular diversity of the universe. To them, nature was not only the mother that sustained their life, it was the abode of divinity. They did not believe that man's role on earth was to exploit nature to his own selfish purpose. Nor did they subscribe to the prevailing western world-view that the true end of man was essentially to dominate and control nature by all possible means. On the contrary, sanctity of life to them included not only the effort to seek salvation, but to seek it by developing a sacred attitude towards the spiritual significance of nature. Man, in Hindu culture, was instructed to maintain harmony with nature and to show reverence for the presence of divinity in nature. Consequently, a Hindu has not been at war with nature. Id. at 182.
Hindu culture, in ancient and medieval times, provided a system of moral guidelines towards environmental preservation and conservation. Environmental ethics, as propounded by ancient Hindu scriptures and the seers, was practiced not only by common man. but even by rulers and kings. They observed these fundamentals sometimes as religious duties, often as rules of administration or obligation for law and order. hut either way, these principles were properly knitted with the Hindu way of life. In Hindu culture, a human being is authorized to use natural resources, but has no divine power of control and dominion over nature and its elements. Hence, from the perspective of Hindu culture, abuse and exploitation of nature for selfish gain is unjust and sacrilegious. Id. at 184.
33. For fuller treatment of the subject, see the Introduction by A.M. Taylor and D.M. Taylor in World Religions and the Environment, supra note 32. See also J. Campbell, The Fligh of the Wild Gander (Viking Press, 1969).
34. A.M. Taylor and D.M. Taylor, supra note 33 at 24.
35. See F. Capra, The Tao of Physics (Shambhala, 1983).
36. To the Burmese "men are men, and animals are animals, and men are far the higher. But he does not deduce from this that man's superiority gives him permission to ill-treat or kill animals. It is just the reverse. It is because man is so much higher than the animal that he can and must observe towards animals the very greatest care, feel for them the very greatest compassion, be good to them in every way he can. The Burmese's motto should be noblesse oblige." H.F. Hall, "The Soul of a People," quoted by E.F. Schumacher in Small is Beautiful, 89 (Rupa and Co., 1990).
37. R.F. Nash, The Rights of Nature: A History of Environmental Ethics, 10 (University of Wisconsin, 1989).
38. C.D. Stone, "The Environment in
Moral Thought," 56 Tennessee Law Review, 3, 5, 6
39. Id. at 11.
40. S. Toulmin, "The Case for Cosmic Prudence," 56 Tennessee Law Review, 29 (19X8).
41. Id. at 35. The two expressions are preferred to "non-homocentric" as more accurate in defining the natural order and man's position therein than homocentric perspective.
42. See Tarlock, supra note 1, for critical comments respecting the views of Professor Stone and Stephen Toulmin.
43. For a detailed and fully reasoned treatment of the subject, see E. Brown Weiss, supra note 5.
44. Id. at 293.
45. E. Brown Weiss, supra note 6 at 540-544.
46. L. Gündling, "Agora: What Obligation Does Our Generation Owe to the Next? An Approach to Global Environmental Responsibility? Do We Owe a Duty to Future Generations to Preserve the Global Environment?" 84 A.J.I.L. 190, 212 (199(1).
47. A.D. Tarlock, supra note I at 96; D.A. Kay and H.K. Jacobson. supra note 4 at 205.
48. D.A. Kay and H.K. Jacobson, supra note 4 at 203.
49. H. Kelsen, Pure Theory of Law, 62 (University of California, 1967).
50. J. Austin, Austin's Jurisprudence, Lectures on Jurisprudence. 413-415 (1973).
51. Policies and Laws on Global Warming, supra note 29 at 8, 9.
52. K. M'Baye, "Le droit au développement comme un droit de l'homme." 5 Revue des droits de l'homme, 503, 522 (1972).
53. G.A. Res. 3201, 29 U.N. GAOR, Sixth Special Sess. Suppl. No. 1, at 3, U.N. Doc. A/9559 (1974)
54. See R.Y. Rich, "The Right to Development as an Emerging Human Right," 23 Virginia Journal of International Law, 292 (1983).
55. North Sea Continental Shelf Cases, 19691. C.J. 47.
56. United Nations Charter, Preamble and Article 1.
57. Declaration of the Hague, 11 Mar. 1989, 28 I.L.M. 1308-10.
58. Joint Committee by Industrialized Nations at Paris Economic Summit, 16 July 1989, Sections 33-50, 28 I.L.M. 1296-98.
59. R. Dohse. Comment, "Global Air Pollution and the Greenhouse Effect: Can International Legal Structures Meet the Challenge?", 13 Houston Journal of International Law, 179, 204 (1990).
60. P. Alston as Member of the Panel on "Environment, Economic Development and Human Rights: A Triangular Relationship," Proceedings of the 82nd Annual Meeting, 51 (American Society of International Law, 1988).
61. P. Ellyard, "Creating an Ecologically and Economically Sustainable 21st Century," address at Australian Legal Convention, Adelaide, 9 Sept. 1991.
62. Address by Barber B. Conable, President, World Bank, on 11 Sept. 1989 in Tokyo, Japan, at the Tokyo Conference on the Global Environment and Human Response towards Sustainable Development.
63. United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Population, 28, U.N. Doc. E/CN.4/ Sub.2/1986/7 and Adds. 1-4 (1986).
64. Our Common Future, supra note 10 at 12.
65. See Constitution of India. Part IV, Article 46 and the Fifth Schedule.
66. Convention Relating to the Status of Refugees, 28 July 1951. 189 U.N.T.S. 150.
67. Convention Relating to the Status of Refugees, 31 Jan. 1967. 606 U.N.T.S. 267.
68. The definition of "refugee" in the Convention as adopted was: "For the purposes of the present Convention the term 'refugee' shall apply to any person who. . . as a result of events occurring before I January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.... " The temporal limitation of the Convention was removed by the Protocol, so that the restrictive condition that the event that gave rise to fear of persecution should have occurred before I January 1951 was deleted.
69. For an analysis of the present state of international refugee law. see J.C. Hathaway, " A Reconsideration of the Underlying Premise of Refugee Law." 31 Harvard International Law Journal, 129(1990).
70. Id at 175
71. Cited in J.C. Hathaway, id. at 176, n.271.
72. Cited in J.C. Hathaway, id. at 176, n.275.
73. U. N. Environment Program: Report of the Governing Council. 42 U. N. GAOR Supp. (No. 25), U.N. Doc. A/44/25 (1989).
74. P.M. Dupuy, "Soft Law and the
International Law of the Environment." 12 Michigan
International Law, 420 (1991).
75. B. Conable, supra note 62 at 245, 246.
76. D. Joannides, "Restructuring the
World Bank: The Environmental Light Shines on the
Funding of Development Projects," 2 Georgetown International Environmental Law Review, 161
77. W.P. Gormley, supra note 9 at 56,
78. G.P. Smith, "The United Nations and the Environment: Sometimes a Great Notion," 19 Texas International Law Journal, 335, 339 (1984).
79. Statute of the International Court of Justice, Article 34(1).
80. Statute of the International Court of Justice, Article 26.
81. A. Postiglione, "A More Efficient International Law on the Environment and Setting Up an International Court for the Environment within the United Nations," 20 Environmental Law, 321 (1990).
82. Declaration of the Hague, supra note 57 at 1309.
83. C. Tinker, "Environmental Planet Management by the United Nations: An Idea Whose Time Has Not Yet Come?", 22 International Law and Politics. 793, 821 (1989).
84. I. Prigogine and I. Stengers. Order Out of Chaos: Man's New Dialogue with Nature, 22. 23 (Bantam Books, 1984).
9. The contribution of international human rights law to environmental protection, with special reference to global environmental change
I. The growth of human rights protection and environmental protection: from internationalization to globalization
II. The incidence of the temporal dimension in environmental protection and in human rights protection
III. The fundamental right to life at the basis of the ratio legis of international human rights law and environmental law
IV. The right to health as the starting-point towards the right to a healthy environment
V. The right to a healthy environment as an extension of the right to health
VI. The protection of vulnerable groups at the confluence of international human rights law and international environmental law
VII. The recognition of the right to a healthy environment: The concern for environmental protection in international human rights instruments
VIII. Concern for the protection of human rights in the realm of international environmental law
IX. Concern for the protection of the environment in the realm of international humanitarian law
X. Protection of the environment and international refugee law
XI. The question of the implementation (mise en oeuvre) of the right to a healthy environment
XII. The right to a healthy environment and the absence of restrictions in the expansion of human rights protection and environmental protection
A.A. Cançado Trindade
I. The Growth of Human Rights Protection and Environmental Protection: From Internationalization to Globalization.
II. The Incidence of the Temporal Dimension in Environmental Protection and in Human Rights Protection.
III. The Fundamental Right to Life at the Basis of the Ratio Legis of International Human Rights Law and Environmental Law.
IV. The Right to Health as the Starting-Point towards the Right to a Healthy Environment.
V. The Right to a Healthy Environment as an Extension of the Right to Health.
VI. The Protection of Vulnerable Groups at the Confluence of International Human Rights Law and International Environmental Law.
VII. The Recognition of the Right to a Healthy Environment: The Concern for Environmental Protection in International Human Rights Instruments.
VIII. Concern for the Protection of Human Rights in the Realm of International Environmental Law.
IX. Concern for the Protection of the Environment in the Realm of International Humanitarian Law.
X. Protection of the Environment and International Refugee Law
XI. The Question of the Implementation (Mise en Oeurre) of the Right to a Healthy Environment.
XII. The Right to a Healthy Environment and the Absence of Restrictions in the Expansion of Human Rights Protection and Environmental Protection.
I. The growth of human rights protection and environmental protection: from internationalization to globalization
1. The internationalization of human rights protection and of environmental protection
The parallel evolutions of human rights protection and environmental protection disclose some affinities that should not pass unnoticed. They both witness, and precipitate, the gradual erosion of so-called domestic jurisdiction. The treatment by the state of its own nationals becomes a matter of international concern. Conservation of the environment and control of pollution become likewise a matter of international concern. There occurs a process of internationalization of both human rights protection and environmental protection, the former as from the 1948 Universal Declaration on Human Rights, the latter - years later- as from the 1972 Stockholm Declaration on the Human Environment.
With regard to human rights protection, 18 years after the adoption of the 1948 Universal Declaration, the International Bill of Human Rights was completed with the adoption of the two UN Covenants, on Civil and Political Rights (and Optional Protocol), and on Economic, Social, and Cultural Rights (1966), respectively. The normative corpus of international human rights law is today a vast one, comprising a multiplicity of treaties and instruments, at both global and regional levels, with varying ambits of application and covering the protection of human rights of various kinds and in distinct domains of human activity.
As for environmental protection, the years following the Stockholm Declaration likewise witnessed a multiplicity of international instruments on the matter, equally at both global and regional levels. It is estimated that nowadays there are more than 300 multilateral treaties and around 900 bilateral treaties providing for the protection and conservation of the biosphere, to which over 200 texts from international organizations can be added.1 This considerable growth of international regulation in the present domain has, by and large, followed a "sectorial" approach, leading to the celebration of conventions turned to certain sectors or areas, or concrete situations (e.g., oceans, continental waters, atmosphere, wildlife). In sum, international regulation in the domain of environmental protection has taken place in the form of responses to specific challenges.
The same appears to have taken place in the field of human rights protection, where we witness a multiplicity of international instruments: parallel to general human rights treaties (such as the two UN covenants of human rights and the three regional - European, American, and African conventions), there are conventions turned to concrete situations (e.g., prevention of discrimination, prevention and punishment of torture and ill-treatment), to specific human conditions (e.g., refugee status, nationality and statelessness), and to certain groups in special need of protection (e.g., workers' rights, women's rights, protection of the child, protection of the elderly, protection of the disadvantaged). In sum, human rights instruments have grown, at normative and procedural levels, likewise as responses to violations of human rights of various kinds.
This being so, it is not surprising that certain gaps may appear, as awareness grows as to the increasing needs of protection. An example of such gaps, in the field of human rights protection, can be found in our days, e.g., in the protection to be extended to certain vulnerable groups, in particular indigenous populations. Another example, in the area of environmental protection, can nowadays be found, e.g., in the needed enhancement of international regulation on climate change and protection of the atmosphere.
A significant task for the near future - if not for the present - will precisely consist in ensuring the proper coordination of multiple instruments that have grown in the last decades, at global and regional levels, pursuant to the "sectorial" approach (supra), in the domains of human rights protections as well as environmental protection.2 Beyond the internationalization of human rights protection and of environmental protection in the pattern referred to above, it was soon realized that, in each of the two domains of protection, there existed an interrelatedness among the distinct sectors that were the object of regulation.
2. The globalization of human rights protection and of environmental protection
The awareness of this interrelatedness has decisively contributed to the evolution, in recent years, from the internationalization to the globalization of human rights protection as well as of environmental protection. As far as human rights protection is concerned, two decades after the adoption of the 1948 Universal Declaration of Human Rights, the 1968 Teheran Conference on Human Rights, in a global reassessment of the matter, proclaimed the indivisibility of all human rights (civil and political, as well as economic, social, and cultural rights). This was followed by the landmark resolution 32/130, adopted by the UN General Assembly in 1977, where it stated that human rights questions were to be examined globally.
That resolution endorsed the assertion of the 1968 Teheran Proclamation of the indivisibility and interdependence of all human rights, from a globalist perspective, and drew attention to the priority to be accorded to the search for solutions to massive and flagrant violations of human rights.3 Three decades after the adoption of the 1948 Universal Declaration, the UN General Assembly, bearing in mind the fundamental changes undergone by so-called international society - decolonization, capacity of massive destruction, population growth, environmental conditions, energy consumption, amongst others - by its resolution 32/130 endeavoured to overcome the old categorizations of rights and to proceed to a needed global analysis of existing problems in the field of human rights.
Such a new global outlook and conception of the indivisibility of human rights, rendered possible by the UN Charter itself, and externalized in GA resolution 32/130 of 1977, contributed to drawing closer attention in particular to the rights pertaining to human collectivities and the measures of their implementation. The matter was retaken by GA resolution 39/145, of 1984, and 41/117, of 1986, which reiterated the interrelatedness of all human rights, whereby the pro section of one category of rights should not exempt states from safeguarding the other rights. Thus, human rights instruments turned to the protection of certain categories of rights, or of certain rights in given situations, or of rights of certain groups in special need of protection, are to be properly approached on the understanding that they are complementary to general human rights treaties. Multiple human rights instruments reinforce each other, enhance the degree of the protection due, and disclose an overwhelming identity of purpose.
In the domain of environmental protection, the presence - despite the "sector-by-sector" regulation - of "transversal" issues and rules contributed to the globalist approach. It was reckoned, e.g., that more and more often certain activities and products may cause harmful effects in any environment (e.g., toxic or dangerous substances, toxic or dangerous wastes, ionizing radiations, and radioactive wastes); in fact, the problem of dangerous substances is present in the whole of "sectorial" regulation, thus pointing to globalization and generating a "reglementation se superposant aux differents secteurs."4
Already in 1974, two years after the adoption of the Stockholm Declaration, the UN Charter on Economic Rights and Duties of States warned that the protection and preservation of the environment for present and future generations were the responsibility of all states (Article 30). And in 1980 the UN General Assembly proclaimed the historical responsibility of states for the preservation of nature on behalf of present and future generations.5 While in the past states tended to regard the regulation of pollution by sectors as a national or local issue, more recently they have realized that some environmental problems and concerns are essentially global in scope6 In its resolution 44/228, of 22 December 1989, whereby it decided to convene a UN Conference on Environment and Development in 1992, the UN General Assembly recognized that the global character of environmental problems required action at all levels (global, regional, and national), involving the commitment and participation of all countries; the resolution further affirmed that the pro section and enhancement of environment were major issues that affected the well-being of peoples, and singled out, as one of the environmental issues of major concern, the "protection of human health conditions and improvement of the quality of life" (§12 (i)).
The global character of environmental issues is reflected in the question, e.g., of conservation of biological diversity; it is further illustrated, in particular, by the problems linked to atmospheric pollution (such as depletion of the ozone layer and global-climate change). Those problems, initially thought of as being essentially local or even transboundary, were to disclose "une portée pratiquement illimitée dans l'espace."7 The threat of damage to many nations resulting from global warming, for example, is a major problem, the cause of which would hardly be traceable to a single state or group of states, thus calling for a new approach on the basis of strategies of prevention and adaptation and considerable international cooperation.8 Thus, the UN General Assembly, by resolution 43153, of 6 December 1988, recognized that climate change is a common concern of mankind, and determined that action should be promptly taken to deal with it within a global framework.
Likewise, the Intergovernmental Panel on Climate Change (IPCC), set up by WMO and UNEP, has indicated, as one of the possible elements for inclusion in a future framework convention on climate change,9 the recognition that climate change is a common concern of mankind, affecting humanity as a whole, and to be thus approached within a global framework.10 The 1989 Hague Declaration on the Atmosphere insists on the search for urgent and global solutions to the problems of the warming of the atmosphere and the deterioration of the ozone layer. In the same line, the 1989 International Meeting of Legal and Policy Experts, held in Ottawa, in its report stated inter alia that the atmosphere constitutes a "common resource of vital interest to mankind.11
And still in 1989 (November), the Ministerial Conference on Atmospheric Pollution and Climatic Change, held in Noordwijk, Netherlands, with the participation of 67 countries, considered the elements of a future framework climate-change convention (to be further elaborated by the IPCC) and reasserted the principle of shared responsibility of all states. The 1989 Noordwijk Declaration on Climate Change pursued a globalist approach (see §§8-9) and expressly stated that "climate change is a common concern of mankind" (§7).12 In sum, recent trends in environmental protection as well as in human rights protection (supra) disclose a clear and progressive tendency from internationalization towards globalization.
3. The globalization of protection and erga omnes obligations
The globalization of human rights protection and of environmental protection can also be attested from a distinct approach, namely, that of emergence of erga omnes obligations and the consequent decline and end of reciprocity. In the field of human rights protection, reciprocity is overcome and overwhelmed by the notion of collective guarantee and considerations of ordre public. This operates a revolution in the postulates of traditional international law. Human rights treaties incorporate obligations of an objective character, turned to the safeguard of the rights of human beings and not of states, on the basis of a superior general public interest (or ordre public). Hence the specificity of human rights treaties.
Traces of this new philosophy are found in international humanitarian law: pursuant to common Article 1 of the 1949 Geneva Conventions, Contracting Parties are bound "to respect and to ensure respect" to the four Conventions "in all circumstances," i.e., irrespective of considerations of reciprocity. Provisions with analogous effects can be found in human rights treaties (e.g., UN Covenant on Civil and Political Rights, Article 2; European Convention on Human Rights, Article 1; American Convention on Human Rights, Article 1). Those humanitarian instruments have transcended the purely inter-state level in search of a higher degree of protection of the human person, so as to ensure the safeguard of common superior interests protected by them. Hence the universal character of the system of protection of international humanitarian law, which creates for states obligations erga omnes.
The evolution of environmental protection likewise bears witness of the emergence of obligations of an objective character without reciprocal advantages for states. The 1972 Stockholm Declaration on the Human Environment refers expressly to the "common good of mankind" (Principle 18). Rules on the protection of the environment are adopted, and obligations to that effect are undertaken, in the common superior interest of mankind. This has been expressly acknowledged in some treaties in the field of the environment (e.g., preambles of the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof; the 1972 Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction; the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques; the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources; the 1972 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft; the 1972 Unesco Convention for the Protection of the World Cultural and Natural Heritage); it is further implicit in references to "human health" in some environmental law treaties (e.g., the 1985 Vienna Convention for the Protection of the Ozone Layer, preamble and Article 2; the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer, preamble; Article 1 of the three marine pollution conventions quoted above).
The evolution, from internationalization to globalization, of environmental protection can also be detected in its spatial dimension. In the beginnings of international environmental regulation, attention was turned to environmental protection in zones under the competence of states of the territorial type. One thus spoke of control of transboundary or transfrontier pollution (a terminology reminiscent of that employed in the OECD), with an underlying emphasis on the relations between neighbouring countries or on contacts or conflicts between state sovereignties. Soon it became evident that, to face wider threats to the environment- as in, e.g., marine pollution and atmospheric pollution (acid rain, depletion of the ozone layer, global warming) - it was necessary to consider also principles applicable, "urbi et orbi," on a global scale, not only in zones where state interests were immediately affected (transboundary pollution) but also in other areas where state interests appeared not so visibly affected
(e.g., protection of the atmosphere and of the marine environment). In this common international law of the environment, principles of a global character are to apply on the territory of states irrespective of any transboundary or transfrontier effect, and are to govern zones that are not under any national territorial competence.13
In this connection, the Brundtland Commission, reporting to the UN General Assembly in 1987, dedicated a whole chapter to the management, in the "common interest," of the so-called "global commons," i.e., those zones falling outside or beyond national jurisdictions.14 Likewise, the Centre for Studies and Research in International Law and Relations of the Hague Academy of International Law, dwelling upon the issue of transfrontier pollution and international law in its 1985 session, singled out the gradual evolution from a transboundary or "transterritorial" to a global perspective of the preservation of the environment (and action in favour of resources of the common heritage of mankind).15
That international law is no longer exclusively state-oriented can be seen from reiterated references to "mankind," not only in doctrinal writings,16 but also and significantly in various international instruments, possibly pointing towards an international law of mankind, pursuing preservation of the environment and sustainable development on behalf of present and future generations. Thus, the notion of cultural heritage of mankind can be found, e.g., in the Unesco conventions for the Protection of Cultural Property in the Event of Armed Conflict (1954) and for the Protection of the World Cultural and Natural Heritage (1974). The legal principle of the common heritage of mankind has found expression in the realms of the law of the sea (1982 UN Convention on the Law of the Sea, Part XI, especially Articles 136-145 and 311 (6); 1970 UN Declaration of Principles Governing the Sea-bed and the Ocean Floor, and the Subsoil There of, Beyond the Limits of National Jurisdiction) and of the law of outer space (1979 Treaty Governing the Activities of the States on the Moon and Other Celestial Bodies, Article 11; and see the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Article I).17 The reconsideration of the basic postulates of international law bearing in mind the superior common interests of mankind has been the object of attention of general works on the subject at doctrinal level (e.g., Jenks, Dupuy).18
Despite semantic variations in international instruments on environmental protection when referring to mankind, a common denominator underlying them all appears to be the common interest of mankind. There seems to be occurring lately an evolution from the notion of common heritage of mankind (as emerged in the contexts of the law of the sea and space law) to that of common concern of mankind. The latter has been the object of consideration by the UNEP Group of Legal Experts, which convened in Malta on 13-15 December 1990, in order to examine the implications of the concept of "common concern of mankind" on global environmental issues. In fact, it is not at all casual that the UN General Assembly resolution 43/53, of 6 December 1988, introduced the recognition that climate change was a "common concern" of mankind, since, in the wording of its first operative paragraph, climate was "an essential condition which sustains life on earth."
Such an essential or fundamental condition is inextricably linked to the new idea of "commonness." The newly proposed notion is inspired in considerations of international ordre public. It appears as a derivative of the earlier "common heritage" approach, meant to shift emphasis from the sharing of benefits from exploitation of environmental wealths to fair or equitable sharing of burdens in environmental protection, and the needed concerted actions to that effect with a social and temporal dimensions.19 It could hardly be doubted, as UNEP itself has acknowledged, that environmental protection is "decisively linked" to the "human rights issue,"20 to the very fulfillment of the fundamental right to life in its wide dimension (right to live-see section III, infra).
Resort to the very notion of mankind, humankind, immediately brings into the fore, or places the whole discussion within, the human rights framework and this should be properly emphasized; it should not be left implicit or neglected as allegedly redundant. Just as law, or the rule of law itself, does not operate in a vacuum, mankind, humankind, is neither a social nor a legal abstraction: it is composed of human collectives, of all human beings of flesh and bone, living in human societies.
If it is conceded that, if and once the concept of common concern of mankind becomes widely and unequivocally accepted, rights and obligations are bound to flow from it, then one is led to consider as its manifestation or even materialization the right to a healthy environment: within the ambit of the droit de l'humanité, the common concern of humankind finds expression in the exercise of the recognized right to a healthy environment, in all its dimensions (individual, group, social, or collective, and intergenerational - see section XI infra), precisely as mankind is not a social or legal abstraction and is formed by a multitude of human beings living in societies and extended in time. The human rights framework is ineluctably present in the consideration of the regime of protection of the human environment in all its aspects; we are here ultimately confronted with the crucial question of survival of humankind, with the assertion - in the face of the threats to the human environment - of the fundamental human right to live.
Just as a couple of decades ago there were questions that were "withdrawn" from the domestic jurisdiction of states to become matters of international concern (essentially, in cases pertaining to human rights protection and self-determination of peoples),21 there are nowadays global issues such as climate change that are being erected as a common concern of mankind. Here, again, the contribution of human rights protection in piercing the so-called reserved domain of states can be perceived in historical perspective. The globalization of the regimes of human rights protection and environmental protection heralds the end of reciprocity and the emergence of erga omnes obligations.
The prohibition of the invocation of reciprocity as an excuse for non-compliance of erga omnes obligations is confirmed in unequivocal terms by the 1969 Vienna Convention on the Law of Treaties: in providing for the conditions in which a breach of a treaty may bring about its suspension or termination, the Vienna Convention (Article 60 ) expressly excepts "provisions relating to the protection of the human person contained in treaties of a humanitarian character." This provision pierces a domain of international law - the law of treaties - traditionally so markedly infiltrated by the voluntarism of states, and constitutes a clause of safeguard or defence of human beings. Thus, the contemporary law of treaties itself, as attested by Article 60 (5) of the Vienna Convention, discards the principle of reciprocity in the implementation of treaties of a humanitarian character. The obligations enshrined therein generate effects erga omnes. The overcoming of reciprocity in human rights protection and in environmental protection has taken place in the constant search for an expansion of the ambit of protection (for the safeguard of an increasingly wider circle of beneficiaries, human beings and ultimately mankind), for a higher degree of the protection due, and for the gradual strengthening of the mechanisms of supervision, in the defence of common superior interests. Yet another affinity in the recent developments of human rights protection and environmental protection that has not been sufficiently examined so far, and to which we shall now turn, lies in the incidence of the temporal dimension in both domains of protection.
Contents - Previous - Next