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Great progress has been made during the past two decades in collecting and sharing information about environmental conditions and trends worldwide. Experience gained with pollution problems is now being applied to natural-resource issues and new accounting methods are being explored to capture values that escape normal economic analysis. With greater insights now available about anthropogenic inputs to "global change," it is clear that environment and development issues are linked and that global environmental issues cannot be resolved in the long run without major reductions of poverty and wasteful consumption.
As was foreseen by the Brundtland Commission, the breadth of information being sought will be difficult as we move from current experience, in which human activities and their effects were neatly compartmentalized within nations, within sectors (energy, agriculture, trade), and within broad areas of concern (environmental, economic, social). These compartments have begun to dissolve. This applies in particular to the various global "crises" that have seized public concern, particularly over the past decade. These are not separate crises: an environmental crisis, a development crisis, an energy crisis. They are all one.
Further progress in communications and other technical breakthroughs will make the world increasingly "open" to information flows of potentially great value during the transition to sustainable development. And much of this information can reach people at all levels whose day-to-day decisions contribute to global environmental change.
But, despite the unavoidable openness of an "interdependent world," expanding demands for information may prompt resistance by those who are unable themselves to take full advantage of it and are determined to protect state sovereignty in such matters. To the degree that international finance is required for national development, it is normal that the provision of supporting information will be a condition. Here too, great sensitivity is called for, as well as the provision of additional support to enable countries to strengthen internal capabilities to collect and analyse information pertinent to their own development, as well as to global security. While mechanisms are in place that lay down the rules for private finance, whether in the form of loans or investments, the fact that all countries have a voice in multilateral organizations of the UN system gives them the opportunity to use that system to encourage greater transparency and access to information being shared for the common good, and to negotiate the conditions under which this will flourish.
Clearly, a regime encouraging transparency and free movement of information to support sustainable development can be promoted - if governments wish it - by investing in traditional "technical assistance" programmes in which the UN system has extensive experience to strengthen human and institutional capabilities to handle information useful for sustainable development and global-risk reduction. Partnership in this exercise with the non-governmental scientific and other groups is offered, and financial support might be garnered through GEF.
UNCED provides a unique opportunity to agree on steps to strengthen human and institutional capacities to generate information useful for promoting global security and sustainable development.
1. World Commission on Environment and Development, Our Common Future, 46 (Oxford University, 1987) (hereinafter Our Common Future).
2. "Man... bears a solemn responsibility to protect and improve the environment for present and future generations." Stockholm Declaration on the Human Environment of the United Nations Conference on the Human Environment, 16 June 1972, 11 I.L.M. 1416 (1972) (hereinafter Stockholm Declaration), at Principle 1. "Convinced of the need for prompt and effective implementation by governments and the international community of measures designed to safeguard and enhance the environment for the benefit of present and future generations of man." G.A. Res. 2997 (1972).
3. "Development'' is not restricted to so-called "developing countries"; it embraces economic and social growth in all countries, including over development in some, where destructive lifestyles can have more severe global environmental consequences than poverty.
4. Our Common Future, supra note 1.
5. Current calculations suggest that even if all industrialized countries curtailed their CO2 emissions, sheer demographic growth elsewhere - with no change in per-capita energy consumption - would only delay global heating commitments by a few decades.
6. The Stockholm Conference "Pollutants" paper called for research on "stratospheric transport and distribution of ozone... as a result of high flying aircraft" to understand "the influence of human activities on the global climate." United Nations Conference on the Human Environment. Identification and Control of Pollutants of Broad International Significance U.N. Doc. A/Conf. 48/8 at p.71 (7 Jan. 1972).
7. G.A. Res. 441228 (December 1989).
8. For a recent review of background and prospects, see L. Kimball, Southern Exposure: Deciding Antarctica's Future (World Resources Institute, 1990).
9. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 Jan. 1967, 610 U.N.T.S. 205, 18 U.S.T. 2410, T.l.A.S. 6347.
10. These examples are specified in the enabling General Assembly Resolution for UNEP and the Environment Fund, G.A. Res. 2997 (December 1972).
11. Although the bulk of UNEP's "catalytic" funding stimulates action in developing countries, it also supports activities in industrialized countries. An example was the assistance provided to laboratories in western Europe under the 1977 Cooperative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe (EMEP) as a joint ECE/WMO/UNEP venture that prepared the way for the 1979 Convention on Long-Range Transboundary Air Pollution, which was followed by protocols on EMEP (in 1984) as well as on specific atmospheric pollutants.
12. In 1988 the UN General Assembly commended UNSCEAR for its three-decade contribution to "wider knowledge and understanding of the levels, effects and risks of atomic radiation and for fulfilling its original mandate with scientific authority and independence of judgement." G.A. Res. 43/55 (1988).
13. Radiation: Doses, Effects, Risks, tables 4.1, 4.7 (UNEP, 1985).
14. Group of Experts on Scientific Effects of Marine Pollution, The State of the Marine Environment (UNEP, 1990). This document was drawn on extensively in World Resources 1990-91 (World Resources Institute, 1991).
15. An Assessment of the Role of Carbon Dioxide and of Other Greenhouse Gases in Climate Variations and Associated Impacts (statement issued at the Villach Conference) (WMO, October 1985).
16. Consensus on "current basic scientific understanding" was reached at Villach on estimated rates of global warming and its consequences. Also included were recommendations that governments "should take into account the results of this assessment in their policies on social and economic development" and that "support for the analysis of policy and economic options should be increased," including the "widest possible range of social responses aimed at preventing or adapting to climate change should be identified, analyzed, and evaluated.... "Id.
17. The UN system and associated scientific institutions can
draw on more extensive experience than most governments in fields
such as epidemiology and toxicity studies. yet their experts
are constantly pressured by "instructed" experts on
such topics as safe levels of pesticides, and information that
might be politically or economically distasteful is sometimes
withheld by states, just as is information about communicable
diseases that can affect tourist revenues. This can lead to
tension between international civil servants and the governments
they serve, as well as with experts representing special-interest
groups.
18. For an early review see ICSU/SCOPE, Environmental Impact Assessment: Principles and Procedures (SCOPE, Report No. 5, 2nd ed. 1979).
19. Our Common Future, supra note 1 at 8 (Overview: "From One Earth to One World"). See also the earlier definition of "conservation" in International Union for the Conservation of Nature and Natural Resources (IUCN), United Nations Environment Programme (UNEP), World Wildlife Fund (WWF), World Conservation Strategy: Living Resource Conservation for Sustainable Development (1980) (hereinafter World Conservation Strategy).
20. Note that comparable procedures, and the information to support them, have not yet been developed to apply at the policy level.
21. Stockholm Declaration, supra note 2 at Principle 21. 22./d. at Principle 20.
23. Report of the Stockholm Conference, UN Doc. A/CONF.48/14/Rev. I. paragraph 331. Note also unresolved amendments by Brazil and by IX other developing countries. Earlier negotiation of General Assembly resolution language having to do with "freedom of scientific research" had shown growing awareness by developing countries that they were not benefiting as much from equal access to such information as were better-organized corporations interested, for example, in negotiating for mineral-exploration rights.
24. Kuwait Regional Convention for Co-operation on the
Protection of the Marine Environment from
Pollution, 24 April 1978, 171. L.M. 511 (1978), at Article
Xl. 25. Id.
26. Abidjan Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, 23 March 1981, 20 I.L.M. 746 (1981), at Article 13.
27. This request was based on recommendations of a meeting of Senior Government Officials Expert in Environmental Law in Montevideo in November 1981. 28. UNEP G.C. Decision 14/25 (June 1987).
29. Id. at Principles 6, 7, 8, 9, 12; "Environmental Impact Assessment" (UNEP Report No. 9, 1987).
30. UNEP G.C. Decision 15/2, Annex 11 (May 1989). Note that the Ministerial Declaration adopted at the Second World Climate Conference, Geneva, November 1990, could not refer to the desirability of "sustainable development" as part of the approved global strategy without a footnoted reference to this definition. U.N. Doc. A/45/696/Add 1, pare 5.
31. The issue of coastal-state sensitivity arises particularly in relation to land-based sources of marine pollution. For a detailed review of early experience, and the way in which information was generated to support negotiations, see S. Kuwabara, The Legal Regime of the Protection of the Mediterranean against Pollution from Land-Based Sources (Tycooly International, 1984).
32. Montreal Protocol on Substances that Deplete the Ozone Layer, 16 Sept. 1987, 26 I.L.M. 1550 (1987) (hereinafter Montreal Protocol). Annex A lists "Controlled Substances" and their "Ozone Depleting Potential," which are "estimates based on existing knowledge and will be reviewed and revised periodically.''
33. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 Mar. 1989, 28 I.L.M. 657 (1989) (hereinafter Basel Convention). Article 18 sets up the procedure for additional annexes or amendments that "shall take due account, inter alia, of relevant scientific and technical considerations." Such annexes are, by definition, "restricted to scientific, technical and administrative matters." Article 17 spells out the voting procedures for amendments to the Convention, and under Article 18, amendments to them become effective six months from the date of circulation of communication by the Depositary for all Parties that have not submitted a notification of inability to accept them.
34. Montreal Protocol, supra note 32 at Article 7.
35. Id. at Article 9
36. Basel Convention, supra note 33 at Article 10.
37. World Conservation Strategy, supra note 19 at Section 1, Introduction, pare 4.
38. A current ICSU/SCOPE project addresses the need to shape information in terms useful for development planning; "Scientific Information for Sustainable Development."
39. Bergen Ministerial Declaration on Sustainable Development in the ECE Region, in Action for a Common Future, Report on the Regional Conference at Ministerial Level on the Follow-up to the Report of the World Commission on Environment and Development in the ECE Region (Norway Ministry of Environment, 1990), reprinted in 20 Envt'l Pol'y & L. 100 (1990), at pare. 7. 40. Id. at Section 11, pare. (b) (The Economics of Sustainability). 41. Stockholm Declaration, supra note 2 at Principle 19.
42. Bergen Declaration, supra note 39 at Section V (Awareness Raising and Public Participation).
43. A similar conclusion was reached at about the same time by international jurists meeting in Italy who agreed that gaps in international conventions can often be explained as a consequence of inadequate knowledge, and that "the 'react and correct' model should be complemented by a 'forecast and prevent' approach; this would enhance security in global environmental matters." Report of the Siena Forum on International Law of the Environment, 17-21 April 1990.
44. EEC Council Regulation: Establishment of the European Environment Agency and the European Environment Information and Observation Network. 7 May 1990, EEC Reg. No. 1210/90 at Article 1, pare, 2.
45. Id. at Article 3.
46. Our Common Future, supra note I at Annex 1, Principles 15-19.
47. Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development- Legal Principles and Recommendations (Graham & Trotman/Martinus Nijhoff, 1987).
48. See World Bank/UNDP/UNEP Press Release issued at the conclusion of the 27-28 Nov. 1990 meeting.
49. Id. and working papers for the Paris meeting; see also World Bank. The World Bank and the Environment: First Annual Report (World Bank. 1990).
50. This objective is described in greater detail in A Study of Global Change (ICSU Secretariat). See also Global Change Report No. 12 (1990) for descriptions of the initial core projects, including remote-sensing data requirements for the 1990s and beyond. Id. at chapter 10.
51. Global Change System for Analysis, Research and Training (START). Report of a Meeting at Bellagio, 3-7 Dec. 1990, IGBP Report No. 15 (Boulder, 1991).
4. Emerging principles and rules for the prevention and mitigation of environmental harm
Introduction
1. Significance and role of principles and
rules of prevention and mitigation
2. Traditional norms, principles, and rules
3. Characteristics of global environmental
change
4. Double-track approach as a treaty-making
technique
5. Emerging principles and rules of
prevention and mitigation
6. Toward an international management of
global environmental change
Notes
Toru Iwama
Traditional norms, principles, and rules of international environmental law, as typically shown in the transfrontier pollution context, centre mainly on how to reconcile the conflicting interests of the concerned states in order to reach an equitable solution. Presumptions inherent in traditional international environmental law are that the concerned states are identifiable and geographically adjacent (i.e., "acting" and "affected" states, upstream and downstream states, etc.); that the effect of pollution is of limited geographical expansion; that it is relatively easy to identify causation between polluting states and victim states; and that damage can be calculated and compensated.
It may be correct to say that in the case of transfrontier pollution, traditional norms, principles, and rules have functioned in an effective way to prevent or mitigate environmental harm and to provide relief through damages. However, traditional norms, principles, and rules will prove to be ineffective in responding to global environmental change. Global environmental change entails a transformation and new formulation of the norms, principles, and rules of international environmental law. In this chapter, an attempt is made to review the traditional principles and rules of prevention and mitigation of pollution or environmental harm, to identify the major characteris tics of global environmental change, and to analyse the principles and rules newly emerging in response to such change.
1. Significance and role of principles and rules of prevention and mitigation
Prevention and mitigation are two tools used for the protection of the environment. The principle of prevention purports to prevent specific harms from arising, e.g., alteration of the environment, damage to people or the environment, interference with legitimate and legal uses of the environment, and overload of the assimilative capacity of the environment.1 The principle of mitigation, on the other hand, purports to minimize the occurrence of such specific harms. Principles of prevention and mitigation work together in the international regulation of pollution or environmental harm.
Prevention is less costly than reparation both in economic and social terms because of the intrinsic nature of pollution or environmental harm - i.e., their long-lasting and irreversible detrimental effects upon people and the environment. Consequently, more importance has been given in international environmental law to the principles of prevention and mitigation than to reparation. While the principle of liability does have a deterrent effect on environmental harm, preventive and mitigative measures have an even more direct and effective deterrent effect.
2. Traditional norms, principles, and rules
The fundamental norms and principles of international environmental law are embodied in customary law regarding the use of a state's territory. The principle of limited territorial sovereignty as expressed in the Roman law "maxim sic utere tuo ut alienum non laedas" means that states cannot use or permit the use of their territories to the detriment of the rights and legitimate interests of other states. This principle is intrinsically related to that of state responsibility: states are responsible for the damage that they cause to other states. The principle of limited territorial sovereignty has been invoked in the transfrontier pollution context by international tribunals, e.g., the Trail Smelter arbitration.2 It was also incorporated in Principle 21 of the Stockholm Declaration on Human Environment:
States have, in accordance with the Charter of the United Nations and the principle of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.3
The principle has also been codified into positive principles and rules in various treaty-making processes.
(A) Substantive principles and rules
Substantive principles and rules have been developed in the process of treaty-making on marine pollution, pollution of international rivers and lakes, atmospheric pollution, and the protection and conservation of fauna and flora. The international regulation of these problems has placed emphasis upon prevention rather than upon ex post facto remedies. Common legal techniques that are used include the identification of regulated activities and pollutants, the demarcation of the extent of jurisdiction, and the establishment of a regulating method, e.g., total prohibitions or restrictions on the production, trade, consumption, disposal, or emission of certain substances or pollutants, and standard-setting for those purposes.4
In contrast, principles and rules of state responsibility have not emerged in environmental treaty law. They are thought to be one of the problems that can be dealt with within the framework of general international law. However, certain treaties on marine pollution and nuclear hazards have established strict civil liability for the ship owner or the operator.5
(B) Procedural principles and rules
Procedural principles and rules have emerged simultaneous to the development of the substantive principles and rules. These procedural principles and rules, both customary and conventional, clarify and/or elaborate upon the procedural duties of due care or diligence of the states to protect the environment. They also supplement the implementation of the objectives of the substantive principles and rules. Examples include the principle of information exchange, the principle of environmental impact assessment, the principle of prior notification, the principle of warning, and the principle of consultation.6
3. Characteristics of global environmental change
1. Global environmental change, e.g., rain-forest deforestation, desertification, long-range transfrontier air pollution, including acid rain, marine pollution, destruction of the ozone layer, global climate change, and the endangerment of species, is a common concern of humankind7 because it will imperil the sustainable basis for human life by threatening the security of the biosphere. Global environmental change is a common concern of present and future generations.8
2. Global environmental changes are complex and intrinsically related to each other. For example, global climate change is related to rain-forest deforestation, desertification, ozone-layer depletion, and the extinction of certain species of fauna and flora upon which human survival depends. It is therefore necessary to take a systemic and comprehensive approach to the problems of global environmental change.9
3. One aspect of global environmental change, global climate change, is particularly closely related to human activities, i.e., energy consumption and industrial and agricultural production. Hence, it becomes extremely difficult to postulate a trade-off between economic development and environmental protection.
4. Global environmental change is a good example of the fallacy of composition. For example, while rain-forest deforestation is beneficial to the economy of a certain sector of people or to a certain country, its overall effect is a threat to the entire earth and to humankind because it leads to global warming and it endangers ecosystems.
5. Because of complex interactional processes among natural environmental factors, there is a prolonged time-lapse between causes and their effects, e.g., between CFC emissions and the destruction of the ozone layer; between reduction of CFC emissions and its positive effect; between emission of greenhouse gases and global warming; and between reduction of greenhouse gases and its positive effect. Therefore, problems of global environmental change are also matters of intergenerational equity (see, e.g., Brown Weiss's chapter in part IV).
6. The effects of global environmental change are irreversible. It is virtually impossible to remedy injuries to the environment, e.g., extinction of species, destruction of the ozone layer, and climate change. Even if successful remediation is possible, it takes time and can entail staggering costs.
7. The effects of global environmental change, e.g., ozone-layer destruction and climate change, extend worldwide. All people and all states are polluters and victims simultaneously. It is therefore impossible to apply traditional principles of state liability. More importance needs to be given to the principles of prevention and mitigation.
8. The effects of global environmental change threaten to widen the gap between wealthy industrialized states and developing states. While the former may afford to adapt to the changes with their technical and economic capacities, the latter cannot rely on such resources. Thus a need arises for giving both technical and economic assistance to developing countries.
9. Scientific uncertainty is a significant factor in global environmental change. For example, in the case of climate change, the actual degree of contribution by greenhouse gases to the increase of atmospheric temperature and the extent and impacts of the greenhouse effect are not yet precisely known. Yet we cannot wait until a perceived environmental threat becomes an actual harm.
10. In view of the effects of global environmental change, it is necessary to take an anticipatory approach to solving these problems. An emphasis must be placed upon the need for carefully designed and sufficiently organized techniques of prevention and mitigation.10
4. Double-track approach as a treaty-making technique
Because of underlying scientific uncertainty regarding the problems of global environmental change, and because there is an urgency to take anticipatory actions to prevent or abate a future environmental harm or risk, it becomes imperative for the Contracting Parties to take all possible preventative actions. To wait for the threat to become an actual problem would be to wait until it is too late.11
One treaty-making device commonly used to cope with this situation is called a "double-track" approach. This approach utilizes a framework convention and annexes and/or protocols. The framework convention sets out the general obligations of the Contracting Parties; annexes and protocols are then formulated to the general obligations set by the framework convention. New multilateral treaties on global environmental change follow this approach.
The 1985 Vienna Convention for the Protection of the Ozone Layer provides in Article 2 that:
The Contracting Parties are, in accordance with the means at their disposal and their capabilities, under obligations to:
(a) cooperate by means of systematic observations, research and information exchange in order to better understand and assess the effects of human activities on the ozone layer and human health and the environment from modification of the ozone layer;
(b) adopt appropriate legislative or administrative measures and cooperate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer;
(c) cooperate in the formulation of agreed measures, procedures and standards for the implementation of this Convention, with a view to the adoption of protocols and annexes;
(d) cooperate with competent international bodies to implement effectively this Convention and protocols to which they are party.
Scientific knowledge on the physical and chemical processes that may modify the ozone layer and affect human health and other biological systems were not evident during the adoption of the Vienna Convention. The Contracting Parties therefore agreed to cooperate under the general terms as stated supra. In contrast, the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer set out concrete control measures by which the Parties agreed to reduce the calculated amount of consumption of the controlled substances.
Another example is the 1979 ECE Convention on Long-Range Transfrontier Air Pollution. In Articles 2-5, the Contracting Parties agreed in general terms to protect humans and their environment and to cooperate in information exchange, consultation, research, and monitoring. Article 9 in particular stresses the need for the implementation of the existing "Cooperative Programme for the Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe" (EMEP). In 1984, the Protocol was adopted for the long-term financing of EMEP. And in 1985 and 1989, protocols were adopted respectively for the reduction of sulphur emissions or their transboundary fluxes by at least 30 per cent, and for the control of emissions of nitrogen oxides or their transboundary fluxes. Many support the argument that the Vienna Convention and the Montreal Protocol are a paradigm for international cooperation to challenge global climate change.12