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This chapter is adapted from E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational/United Nations University, 1989) and E. Brown Weiss, "Our Rights and Obligations to Future Generations for the Environment," 84 American Journal of International Law, 198 (1990). The analysis in this chapter also applies to cultural resources. For details, see In Fairness to Future Generations.
1. Charter of Economic Rights and Duties of States, 12 Dec. 1974, 14 I.L.M. 251 (1975); Declaration on the Establishment of a New International Economic Order, I May 1974 13 I.L.M. 715 (1974).
2. See E.G. Bellow, "International Equity and the Law of the Sea," 13 Verfassung und Recht in Übersee, 201-212 (1980); R.J. Dupuy, L'Océan Partagé (A. Pedone, 1979).
3. Island of Palmas Arbitration, 2 R. Int'l Arb. Awards 831 (1928).
4. Id. at 831.
5. Minquiers and Ecrehos Case, 1953 I.C.J. Rep. 47; The Western Sahara Case, 1975 I.C.J. Rep. 39; The North Sea Continental Shelf Case, 1969 I.C.J. Rep. 3; Aegean Sea Continental Shelf Case, 1978 I.C.J. Rep. 1.
6. See T.O. Elias, "The Doctrine of Intertemporal Law,' 74 A.J.I.L. 285 (1980). The late Judge Jessup criticized the second aspect of the doctrine in the Palmas decision as requiring constant vigilance by a state to avoid losing its territory by default. P. Jessup, "The Palmas Island Arbitration," 22 A.J.I.L. 735 (1928). But as Brownlie has noted. intertemporal law is subject to "the effect of recognition. acquiescence. estoppel, prescription. the rule that abandonment is not to be presumed," which counters this possibility. I. Brownlie, Principles of Public International Law, 131-132 (Clarendon Press, 3rd ea., 1980).
7. 56 Annuaire de l'lnstitut de droit international, 536-541 (1975).
8. Namibia Advisory Opinion, 1971 I.C.J. Rep. 16.
9. E. MacWhinney, "The Time Dimension in International Law: Historical Relativism and Intertemporal Law," in Essays in International Law in Honour of Judge Manfred Lachs, 1979 (J. Makarczyk, ea., Martinus Nijhoff, 1984).
10. See Trendtex Trading Corporation v. Central Bank of Nigeria, 2 W.L.R. 356 (1977), reprinted in 16 I.L.M. 471 (1977). Elias, supra note 6 at 293-296.
11. The Grisbadarna Case, 11 R. Int'l Arb. Awards 155 (1909); and the North Atlantic Coast Fisheries Case, 11 R. Int'l Arb. Awards 167 (1910).
12. 1 Y.B. Int'l L. Comm'n, 199-203 (1964); 2 Y.B. Int'l L. Comm'n, 211-222 (1966); Elias, supra note 6 at 302-305.
13. See, e.g., Art. 28 (non-retroactivity of treaties), Art. 31 (general rule of interpretation), Art. 32 (supplementary means of interpretation), and Art. 62 (fundamental change of circumstance), Vienna Convention on the Law of Treaties, 23 May 1969, 8 1. L. M. 679 (1969).
14. The maxim pacta sunt servanda ("treaties must be observed") was tempered by the principle of rebus sic stantibus ("while things remain as they now stand"), which holds that treaty obligations are terminated in the case of a fundamental change in the circumstances existing at the time the treaty was concluded, as long as the consent of the parties was based on the existence of those circumstances. An excellent study of the doctrine, and summary of state practice, is A. Vamvoukos, Termination of Treaties in International Law: The Doctrines of Rebus Sic Stantibus and Desuetude (Oxford, 1985). For the legislative history of Art. 62 of the Vienna Convention on the Law of Treaties, which most writers believe codifies the current practice on the change of circumstances, see 1. Sinclair, The Vienna Convention on the Law of Treaties, 192-196 (2d ea., Manchester, 1984) and the list of references in S. Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention, 324-327 (Oceana, 1970).
15. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, 213 (1983).
16. Id. at 213-249. Cançado Trindade analyses in detail the temporal aspects of the six-month rule of the European Convention on Human Rights.
17. Most expositions on the temporal dimension of private international law have focused on issues raised by changes in a forum's conflicts rule, changes in substantive law, and changes in the connecting factor. See J.H.C. Morris, The Conflict of Laws, 493-503 (3rd ea., Stevens, 1984); A. Dicey and J.H.C. Morris, The Conflict of Laws, 51-63 (10th ea., Stevens, 1980); J. Grodecki, 3 Int'l Encyclopedia of Comparative Law, ch. 8 (1975). The Institut de Droit International has considered the issue of changes in rules of private international law over time. 59 Annuaire de l'lnstitut de droit international, 246 (1982, Part II) 58 Annuaire de l'Institut de droit international, 77 (1979, Part 1).
18. See "The Problem of Choice of Time in Private International Law,' 58 Annuaire de l'Institut de droit international, 1-96 (1979, Part 1).
19. "The problem of choice of law in private international law," Resolution adopted 29 Aug. 1981, 59 Annuaire de l'Institut de droit international, 246-251 (1982, Part 11). The Commission previously held extensive discussions on the problem. 58 Annuaire de l'Insitut de droit international, 1-96 (1979, Part 1). See also the report prepared for the Commission by M. Max Sorensen, "Le problème du droit intertemporel dans l'ordre international," 55 Annuaire de l'lnstitut de droit international, 4 (1973, Part 1).
20. For cases in the civil law tradition, see J. Grodecki, 3 Inl'l Encyclopedia of Comparative Law, ch. 8 (1975).
21. For the common law tradition, see A. Dicey and J.H.C. Morris, supra note 17.
22. United Nations Charter, 26 June 1945, 59 Stat. 1031, T.S. 993.
23. Sixth proclamation in the preamble, Stockholm Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf. 48/14 (1972).
24. Id. at preamble.
25. Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 15 Feb. 1972, 26 U.S.T. 2403, T.l.A.S. No. 8165; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 Mar. 1973, 27 U.S.T. 1087, T.l.A.S. No. 8249; Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 Nov. 1972, 27 U.S.T. 37, T.l.A.S. No. 8226.
26 See, e.g., the Barcelona Convention, the preamble of which notes that the states are acting because they are "fully aware of their responsibility to preserve this common heritage for the benefit and enjoyment of present and future generations." Convention for the Protection of the Mediterranean Sea Against Pollution, and Protocols. 16 Feb. 1976, 15 I.L.M. 290 (1976).
27. For a review of the extent to which international agreements concerned with conservation of natural and cultural resources contribute to the protection of future generations, see E Brown Weiss, "The Planetary Trust: Conservation and Intergenerational Equity," 11 Ecol. L. Q., 495, 540-563 (1984). For analysis of the common heritage of mankind in relation to future generations, see B. Nagy, "Common Heritage of Mankind: The Status of Future Generations" (mimeo, Budapest, 1988).
28. The World Charter for Nature, adopted by the United Nations General Assembly, 9 Nov. 1982, G.A. Res. 37/7, 37 U.N. GAOR Supp. (No. 51) at 17, U.N. Doc. A/37151 (1982).
29. The Nairobi Declaration, 18 May 1982, U.N.E.P. Report of the Governing Council. 37 U.N. GAOR Annex 2, Supp. (No. 25) at 49, U.N. Doc. A/37/25 (1982).
30. Ministerial Economic Declaration, Group of Seven, N.Y. Times, 12 July 1990, p. A15, cols. 1-5.
31. Bergen Conference, Ministerial Declaration on Sustainable Development, 20 Env,'l Pol'y & L., 100 (1990).
32. For a skeptical analysis of the principle, see D. Bodansky, "The Precautionary Principle: Scientific Uncertainty and International Environmental Law," Proceedings, 199/ Annual Meeting of American Society of International Law (ASIL, 1992).
33. The parties indicated that in implementing the London Dumping Convention they would be guided by a "precautionary approach," in which preventive measures would be taken when there is reason to believe the dumped material is likely to cause harm even where there is no conclusive evidence to prove a causal link to certain effects and agreed that in implementing this approach they would be guided by certain specific measures. LDC 14/ WP.7, Annex (1991).
34. The term "preservation" is traditionally associated with saving nature for its own sake, rather than for its usefulness in fulfilling later human needs, which is associated with "conservation." See J. Passmore, Man's Responsibility to Nature, III (Scribner, 1974). For a critique of "preservation" and "conservation," see B. Norton, "Conservation and Preservation: A Conceptual Rehabilitation," 8 Env. Ethics, 195 (1986).
35. The Stalinist model of economic development, as epitomized by the Five-Year Plans in the 1930s, required the people to sacrifice the benefits of consumer goods and services in order to further the rapid industrialization of a poor country. The agricultural sector was collectivized and elemental needs of citizens were neglected to achieve the high rate of forced savings and investment necessary to finance heavy industry. See, e.g., D. MacKenzie and M.W. Curran, A History of Russia and the Soviet Union, ch. 34 (2d ea., rev., Dorsey Press, 1982); for a more detailed account of the period, see A. Nove, An Economic History of the U.S.S.R. (Allen Lane, 1969).
36. The Calvinist society put a premium on thrift and sobriety, valued effort and diligence, and encouraged the accumulation of the fruits of one's labour instead of the immediate enjoyment of them. See J. T. McNeill, The History and Character of Calvinism (Oxford, 1954). The theology of Calvin is said to have contributed to the development of Western capitalism. The classic exposition of this idea is Max Weber, The Protestant Ethic and the Spirit of Capitalism (originally appeared in German in 1904, rev. in 1920, English trans. 1930, Scribner, 1958); see also R.H. Tawney, Religion and the Rise of Capitalism (J.M. Murray, 1926). For more current views, see G. Poggi, Calvinism and the Capitalist Spirit (U. Massachusetts, 1983).
37. See H. Barnett and C. Morse, Scarcity and Growth, 11-12 (Johns Hopkins, 1963).
38. J. Simon, The Ultimate Resource (Princeton, 1981).
39. In Fairness to Future Generations, supra unnumbered note on p. 385.
40. The theory also applies to cultural resources, since they form an integral part of the legacy we give to future generations and are linked to our role as a member of the natural system. See id.
41. E. Burke, "Reflections on the Revolution in France," 130-140 (1790), in 2 Works of Edmund Burke, 368 (London, 1854; Reprint Services, 1987).
42. See J. Rawls, A Theory of Justice (Belknap Press, Harvard, 1971).
43. In Fairness to Future Generations, supra unnumbered note on p. 385. at 25-26.
44. See Islamic Principles for the Conservation of the Natural Environment, 13-14 (IUCN and Saudi Arabia, 1983).
45. Id.at 13.
46. See M. Khadduri, The Islamic Conception of Justice, 137-139, 219-220. 233-239 (Johns Hopkins, 1984).
47. Genesis 1:1-31, 17:7-8. "I will maintain my Covenant between Me and you, and your offspring to come, as an everlasting covenant throughout the ages, to be God to you and to your offspring to come. I give the land you sojourn in to you and to your offspring to come, all the land of Canaan, as an everlasting possession. I will be their God." Genesis 17:7-X.
48. J. Locke, "An Essay Concerning the True Original, Extent and End of Civil Government." Second Treatise on Civil Government, pares. 25, 31, 33, 37, in Social Contract (Sir E. Barker, 2nd ea., Oxford, 1979).
49. R. Dolzer, Property and Environment: The Social Obligation Inherent in Ownership (IUCN, 1976).
50. The U.S. Constitution reserves such powers for the states. "The owners not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. Amend. X. See Garton, "Ecology and the Police Power," 16 S. D.L. Rev. 261 (1971).
51. "Selbst eine ganze Gesellschaft, eine Nation, ja alle gleichzeitigen Gesellschaften zusammengenommen sind nicht Eigentuemer der Erde. Sie sind nur ihre Besitzer, ihre Nutzniesser, und haben sie als bond patres familial den nachfolgenden Generationen verbessert zu hinterlassen." Karl Marx, Collected Works (1985).
52. Attributed to Nan Sir Ofori Atta. N.A. Ollennu, Principles of Customary Land Law in Ghana, 4 (Sweet & Maxwell, 1962). For discussion of relationship between generations, see also A. Allott, Essays in African Law, 70 (Greenwood Press, 1975).
53. See, e.g., 1. Schapera, A Handbook of Tswana Law and Custom (F. Cass, 1970); X. Vlanc Jouvan, "Problems of Harmonization of Traditional and Modern Concepts in the Land Law of French-Speaking Africa and Madagascar," Integration of Customary and Modern Legal Systems in Africa (Africana, 1971). L. Obeng, "Benevolent Yokes in Different Worlds," in (Global Resources: Perspectives and Alternatives, 21-32 (C.N. McRostie, ea., University Park Press, 19%0). Obeng notes that such observances are found among peoples in Afria, Asia, the Pacific, Papua New Guinea, and the American Indians.
54. J. Stewart-Smith, In the Shadow of Fujisan (Viking Penguin, 1987). The reverence for nature in Japan, for example, is transformed into important symbolic representations, such as flying cranes on wedding kimonos. See also F.S.C. Northrup, The Meeting of East and West (Oxford, 1949).
55. See F.S.C. Northrop, id. at 415-470.
56. See. A. Scott, 3 The Law of Trusts, 228 (3rd ea., 1967, and Supp., Little Brown, 1982).
57. See T. Page, "Intergenerational Justice as Opportunity,' Energy and the Future (D. Mac Lean and P. Brown eds., Rowman and Littlefield, 1982). Page has independently proposed that intergenerational justice have as its object the preservation of opportunities for future generations, which means preserving the "valuable parts." See also T. Page, Conservation and Economic Efficiency (Johns Hopkins, 1977).
58. See, e.g., Diversity and Stability in Ecological Systems (G. Woodwell and H. Smith, eds.. Clearinghouse for Federal Scientific and Technical Information, Springfield, Va., 1969).
59. R. May, a Princeton University biologist, questions the generally accepted assertion that complexity always implies stability, a concept that is sometimes used interchangeably with robustness. R. May, Stability and Complexity in Model Ecosystems (Princeton, 1975); R. May, Theoretical Ecology: Principles and Applications (Blackwell Scientific, 1981).
60. See B. Norton, Why Preserve Natural Variety?, 73-97 (Princeton, 1987).
61. Conversation withPablo Guttman an economist, Buenos Aires, Argentina, 11 June I 1986.
62. Discussion with G. Gallopin, President, Fundación Bariloche, June 1986. This is consistent with the theories of catastrophe and of complex systems far from equilibrium. For catastrophe theory, see R. Thom, Mathematical Models of Morphogenesis (Halsted Press, 1983); for complex systems, see 1. Prigogine and 1. Stengers. Order Out of Chaos: Man's New Dialogue With Nature (Bantam, 1984).
63. J. Lovelock, Gaia, A New Look at Life on Earth (Oxford, 1979).
64. For a thoughtful analysis of group rights in relation to goods that are enjoyed together, see J. Waldron, "Can Communal Goods Be Human Rights?" (paper delivered at Conference on Development, Environment and Peace as New Human Rights, Oxford University, Ox. ford. England. 28 31 Mav 1987).
65. This has been referred to as Parfit's paradox and was developed in D. Parfit, "On Doing the Best for Our Children," in Ethics and Population, 100 (M. Bayles, ea., Schenkman. 1976) and D. Parfit, "Future Generations, Further Problems," 11 Phil. & Pub. Aff, 113 (1982),
66. M. Khaduri, supra note 46 at 233 (1984).
67. It has been argued that if one accepts the model of rights as limited to individual rights, it is preferable to recognize general obligations toward the integrity of environmental systems rather than to discuss environmental protection in the framework of rights, since this framework cannot encompass such categories as future generations, whose individual members are still contingent. B. Norton, "Environmental Ethics and the Rights of Future Generations," 7 Soc. Theory & Prac., 319, 337 (1981).
68. The Cousteau Society has drained a Petition for the Rights of Future Generations, for which it is soliciting signatures around the world See 19 Calypso Log, 7 (February 1992)
69. See In Fairness to future Generations, supra unnumbered note on p. 385
70. See R. Norgaard," Sustainability as Intergenerational Equity: The Challenge to Economic Thought and Practice (World Bank Report No. IDP 97, 1991) for discussion of methods for accomplishing this
71. World Commission on Environment and Development, Our Common Future, 332 (Oxford, 1987)
13. Ecological security: response to global challenges
II. Legal regime
Alexandre S. Timoshenko
The environmental problem has already acquired global parameters. Environmental challenges are on a global scale, have global implications, and are becoming increasingly significant to all nations. Ozone-layer decay, climate change, biological diversity depletion, and chemical pollution are just a few but the most illustrative examples of how badly the international community needs a new global approach to ecological issues.
For decades the world has been living in a paradoxical situation. On the one hand, the activities to protect the environment have been mushrooming locally, nationally, regionally, and internationally. On the other hand, the environment has been deteriorating more and more. In spite of all efforts, this negative process cannot even be stopped. Such a widening gap between scope and result inevitably leads to a conclusion that there is something substantially wrong with the very approach to the ecological problem. A conceptual breakthrough is essential.
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