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The status of third-world states in international environmental legislation and its implementation
It can be asserted that nowadays no country can effectively protect its environment and solve its various environmental problems on its own. No matter how advanced its science and technology are or how perfect the means of legislation and implementation of environmental law are, an independent effort to resolve global problems is not enough. Global problems require a global effort. To name a few, the problems include pollution of the atmosphere, of marine life, of coastal and inland waters, and of all areas reached by acid rain.
We can also say with certainty that no country on its own is able to pay the cost of environmental damage, including the ever-increasing cost of the new technologies developed to remedy the damages caused by pollution. Since we have only one earth and given that the international community is an organic whole, it could also be asserted that man's endeavour to solve global environmental problems will not be accomplished and will be of no avail if we fail to bring into play every positive factor and unite all available forces.
Given this situation, contemporary international jurists have clearly realized that the settlement of environmental issues, the drafting of legislation, and the implementation of international environmental law must take into account the contributions and the needs of third-world countries. The participation of third-world countries in international environmental protection, legislation, and implementation of international environmental law is very relevant.
As a matter of fact, although limited by insufficient resources and by unbalanced economies, the third-world countries deserve the following observations regarding the arena of international environmental protection:
1. The rise of the third world has indeed been the greatest event of our times. Ninety newly independent states (including Namibia, which proclaimed its independence recently) were established after the Second World War. Thirty states already threw off the yoke of colonialism before the Second World War.18 These states constitute a majority, since the total number of states in the world is about 167. Third-world countries all share the same historical experience of material and cultural gains under colonialism that are the reason for their current economic underdevelopment and scientific backwardness. They stand for the common historical goals of eliminating North-South disparities, developing their national economies, and consolidating their economic and political independence. Even though these countries are in the category of third world, they are a highly productive force that must not be underestimated if implementation of international environmental law is going to succeed. Fortunately, in the world community, they not only enjoy rights and undertake duties under international law, but they also enjoy the same sovereign rights as the more developed countries. The third world joins with the others in formulating international rules and participating in international legal processes.
It is imperative that the third world make a more appropriate contribution to the formulation of international environmental law. The adoption of the Declaration on the Human Environment in 1972,19 the enactment of the United Nations Convention on the Law of the Sea in 1982,20 the adoption of Resolution 1803 (XVII) by the United Nations General Assembly in 1962,21 and the enactment and the adoption of the United Nations Declaration on the Right to Development in 1986 22 could not have transpired without the great support and efforts by third-world countries.
2. The present economic situation of third-world nations is in part the result of low levels of development, their backward industry, and outdated agricultural methods. It is understandable why their economies have vestiges of colonialism. The third-world nations, with 70 per cent of the world's population, subsist on only 30 per cent of the world's GNP. Their per capita income is only one-twelfth of that of the other countries, and the discrepancy is still rising. At the recent UN conference of the least-developed states, in Paris, the Secretary-General of the United Nations, Javier Pérez de Cuéllar said: "in the past decade, the social and economic situations in the most undeveloped nations worsened, GNP per capita decreased and the amount of foreign trade was only one percent of that of world trade."23 In addition, although these countries contain and produce the main portion of the world's energy and raw materials, three-fourths of the oil supply, one-third to one-half of the world's most important non-ferrous metals and many other minerals, they only utilize a small portion of their wealth for themselves, most of these materials satisfying the needs of the developed countries for energy and raw materials.
It would be very one-sided and would not conform with the actual situation, if we argued that the main difficulties in the legislation and implementation of international environmental law should be attributed to the weak economic bases and low productive levels of third-world states. Even if it were true, developed countries cannot shift all the responsibility and blame to the third-world countries. On the contrary, the developed countries must give more support and cooperation in this joint undertaking of international environmental protection in light of the limited economic and social capacity of third-world nations as well as their inadequate scientific and technological levels. Nevertheless third-world countries should rely on their own resources to overcome the obstacles to environmental improvements.
3. Generally speaking the environmental problems facing developed countries are caused by their excessive discharge of hazardous substances, which affect not only themselves but also their neighbours, and ultimately threaten other areas of the world. In third-world states, the predominant cause of environmental problems is underdevelopment. The objective facts show that developed countries should bear major responsibility for global environmental degradation: misguided industrial development and overconsumption by developed countries are the main causes of the greenhouse effect, the excessive release of chloro-fluorocarbons (CFCs), causing the ozone depletion, and the excessive diffusion of SO2, causing acid rain.
Although developed countries and third-world nations are both responsible for global environmental degradation, there are profound differences between the way each has contributed to that degradation. Underdevelopment and lack of environmental sensitivity are the main explanations for third-world contribution to environmental problems. The underdevelopment results from the prolonged colonial plunder, control, exploitation, and oppression to which they have been subjected. As a result, their natural resources and environments were seriously harmed and wasted. Today, because of the combined effects of a weak economic base, irrational economic structures, a low level of science and technology, overpopulation with no sign of improvement, as well as heavy domestic and foreign indebtedness, these countries are unable to sustain the financial and technological burdens necessary to substantially improve the environment. Although they have attained independence, in order to survive, some of these countries have no alternatives but to interact with the environment in a destructive manner. This result is inevitable because in balancing the economic viability of a country against the need to protect the environment, the former will invariably win.
Furthermore, as the international environment continues to deteriorate, the third-world states will be less and less able to clean up their own environments. This is further complicated by the indifference of the developed countries toward the developmental problems of third-world countries. For example, several delegations at the ninth session of the Governing Council of the United Nations Environment Programme, in May 1981, called attention to the problem of "hazardous chemicals being exported to developing countries" and "to the need for co-operation with relevant international programmes, particularly the International Programme on Chemical Safety.24
It can be concluded from the above that third-world states are not only the owners of tremendous natural and environmental resources, but they also are the principal victims of environmental pollution. The third-world nations contain the majority of the world's population; they are an indispensable force in the legislation and implementation of international environmental law. They have become promoters and drafters of legislation affecting the international environment.
Some personal views and suggestions to encourage a more positive role of the third world in the legislation and implementation of international environmental law
Firstly, it should be pointed out that, in spite of their low economic and technological levels, the third-world nations have not taken a passive attitude nor have they been indifferent toward international environmental protection. On the contrary, many of them exerted their utmost efforts by taking an active part in international environmental legislation and implementation. Especially since the 1980s, they have made active appeals for the strengthening of international cooperation; the provision of assistance to expand coastal jurisdiction; protection against sea-coast pollution; the control of the export and transport of hazardous products; the control of the processing of solid wastes; and the protection of the soil. Owing to their active initiative, participation, and support, such instruments as the World Soil Charter,25 the World Charter for Nature,26 and the United Nations Convention on the Law of the Sea27 were enacted. Here, it is appropriate to mention that the third-world countries united to ensure the adoption of the United Nations Declaration on the Right to Development (1986),28 whereby the bases and contents of international environmental laws were further expanded.
Secondly, there is no doubt that what the third-world nations urgently need is to develop their national economies, establish their own modernized industries, improve their agricultural methods, obtain their economic independence, as well as to maintain and consolidate their political independence and sovereignty. Then and only then will third-world countries be able to exert their utmost efforts towards improving the environment. Such improvement must come gradually, according to their financial and social capacities. The environmental plight in third-world nations cannot be mentioned in the same breath with that of developed countries. There is a great difference in the damage caused by the latter countries. Even though environmental pollution in some developing states is very serious and affects other states, as well as the world's ecosystem, the attitudes toward such pollution are different. In the United Nations Declaration on the Human Environment of 1972 it was said that "... in developing countries most of the environmental problems are caused by underdevelopment... developing countries should devote themselves to development."29 Experience also shows that only on the basis of self-reliance, after their national economies have been developed, modern industries have been established, and agricultural methods have been improved, can third-world nations gradually achieve effectiveness in maintaining and improving their own environments. Then and only then can they effectively throw themselves into the struggle for international environmental protection. Needless to say, while engaging in domestic production and construction, third-world nations should interact appropriately with the environment and constantly balance parochial and global interests, thereby taking the necessary measures to protect the environment and to control pollution.
Thirdly, it should also be mentioned that developed countries should continue to keep a high profile on pollution control, especially since they are the main contributors of environmental pollution. The earth is a single entity and global environmental protection is a matter of life and death for all of humanity. As a result, all of its members are jointly liable. Developed countries must utilize their economic and technological advantages to create an international environment favourable to economic development and to improve that which the third-world states are unable to do because of their poverty. Developed countries should also do more to help third-world nations financially and technologically, in addition to encouraging them to become involved in efforts to control the global environment.
Lastly, considering the economic and political features of third world states as well as the cause and nature of their environmental pollution, the incentives adopted to attract them to active participation in the drafting and implementing of international environmental legislation should be based on the principles that all nations, big or small, are equally important and that full consultation in any international cooperation or action is imperative. No country is allowed to encroach on another's sovereignty, interfere with another's internal affairs, or impair another's interests under the pretext of environmental protection. Coercion, sanctions, and conditional investments or technical transfers are all unworkable. Hence I would like to put forward the following propositions:
1. The increased participation by third-world nations in legislating and implementing international environmental law should proceed from the principles listed in the Declaration on the Human Environment of 1972.30 Among those principles the following are especially important: the international cooperation principle; the state equality principle; as well as the principle of special assistance to developing countries in financing and transferring technology. The establishment of a new international economic order as a global means to reverse the course of environmental degradation was put forward in the Nairobi Declaration on the Global Environment of 1982.31 This declaration should also be implemented, in its entirety, as a way of encouraging participation by third-world nations.
2. It is necessary to take into full consideration the conditions and needs of the developing countries and to envisage creative participation of the third-world countries in environment-related cooperative activities.
3. The environmental funds raised by the Governing Council for the United Nations Environment Programme should benefit the third-world states in order to help them protect and improve their environment, as well as to develop their environmental technology, as they see fit.
4. Development banks, which are either global or regional, should provide third-world nations with long-term favourable loans at low interest rates to meet their financial and technological needs as they begin to implement environmental protection programmes.
5. Financial and technological assistance provided by developed countries to third-world nations should be chosen by the recipient countries according to their economic conditions. Moreover, third-world nations should be assured of a good command of the technology, so as to prevent developed countries from manipulating or exploiting third-world countries in order to test their environmental technology.
6. In order to encourage third-world nations to participate in the drafting and implementation of environmental legislation, such incentives as tax exemptions, interest-free or low-interest loans, transfers of environmental technology and information should be adopted. However, these incentives must be provided without strings or discriminatory terms. Furthermore, lessons might be drawn from the UNEP Montreal Protocol to Protect the Ozone Layer, which provided for different standards for controlling CFC use for developed and for developing countries according to their differing situations. This model could help in reaching agreements on the control and use of other pollutants, and finally could improve the management and conservation of the global environment.32
7. In order to advance the development of third-world nations on environmental protection, which is also to the advantage of the world community, developed countries should co-sponsor studies or symposia on environmental protection, cooperate with third-world nations, become involved as environmental monitors, conduct scientific investigations, implement personnel training programmes, and conduct feasibility studies and other pollution control projects.
In conclusion, the formulation of any international environmental legislation by the world community should be based on the principles of the permanent sovereignty over natural resources of states, in addition to the five principles of peaceful coexistence.33 The economic and social capacity of the third world, as well as its special problems and needs, must be considered at all times. We must also respect the sovereignty of third-world states and protect their material interests. Sanctioning third-world nations is undesirable and ineffective. International treaties have been negotiated on the basis of equality and they have established international commitments that must be abided by and implemented at the municipal level. I am convinced that a vast number of third-world nations will play an influential role in the creation of international environmental legislation and its implementation, thereby making an even greater contribution to the protection of the earth.
1. Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972,11 I.L.M. 1416 (1972).
2. General peace treaty between Austria, France, Great Britain, Russia, Sardinia, Prussia, and Turkey, Paris. 30 Mar. 1856. 6 International Protection of the Environment, 5388
3. Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 12 Oct. 1940, 161 U.N.T.S. 228, 38 A.J.I.L. Supp. 193 (1940); Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, reprinted in 19 I.L.M. (1980).
4. United Nations Conference on the Human Environment, supra note 1.
5. Convention for the Prevention of Pollution from Ships, 2 Nov. 1973, supra note 2, II, 552.
6. Convention on International Trade in Endangered Species of Wild Fauna and Flora. Washington, 3 Mar. 1973. Id. V, 2228.
7. Convention for the Prevention of Marine Pollution from Land-Based Sources, Paris, 4 June 1974. Id. 11, 748.
8. Convention Concerning the Protection of the Rhine against Pollution by Chlorides, 3 Dec. 1976. Id. XXV, 440
9. Convention on Conservation of Nature in the South Pacific, Apia, 12 June 1976. Id. XX, 10.359.
10. Recommendations IX-2 and IX-6 Adopted at the Ninth Consultative Meeting under Article IX of the Antarctic Treaty, London, 19 Sept. 7 Oct. 1977. Id. XXIV, 119.
11. Convention on the Conservation of Migratory Species of Wild Animals, with Final Act of the conference, Bonn, 23 June 1979. Id. XXIII, 1.
12. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, New York, 18 Dec. 1979. Id. XXIX, 267.
13. European Water Charter, Strasbourg, 1967, proclaimed 6 May 1968.
14. World Soil Charter, Principle 2,1981, FAO Doc. C/81127 (191).
15. United Nations Convention on the Law of the Sea, 10 Dec. 1982, 21 I.L.M. 1261 (1982).
16. African Convention on the Conservation of Nature and Natural Resources, 15 Sept. 1968. 1001 U.N.T.S. 3 (1968). Zaire proposed the World Charter for Nature. which was adopted by the United Nations General Assembly. infra note 17.
17. People's Daily (overseas edition) Sect. 6, 7 Sept. 1990.
18. Wang TieYak, "The Third World and International Law," Chinese Yearbook of International Law, 9-36 (1982).
19. United Nations Convention on the Human Environment, supra note 1.
20. Law of the Sea, supra note 7.
21. Resolution on "Permanent Sovereignty over Natural Resources, G.A. Res. 317, 28 U.N. GAOR Supp. 30, at 52, U.N. Doc. A/9030 (1974).
22. U.N.G.A. res 41/128 of Dec. 1986. General Assembly Official Records: Forty-first Session Supplement No. 53 (A/41/53) at 186.
23. People's Daily (overseas edition) 5 Sept. 1990.
24. United Nations Environment Programme, Report of the Governing Council on the work of its ninth session, 13-26 May 1981, General Assembly Official Records, page 45. Thirty sixth Session Supplement No. 25 (A/36125).
25. World Soil Charter, supra note 6.
26. World Chatter 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/37/51 (1982).
27. Law of the Sea, supra note 7.
28. The United Nations Declaration on the Right to Development was adopted by 146 votes to I (US) with 8 abstentions (Denmark, FRG, Finland, Iceland, Israel, Japan. Sweden. and the UK). U.N.G.A. Res. 41/128 of 4 Dec. 1986, supra note 23.
29. United Nations Conference on the Human Environment, supra note 1.
30. Id. at Recital 7, Principle 24, 1420.
31. Id. at Recital 7, Principles 12, 20-22, and 24,1419,1420.
32. I. Tripp, "The UNEP Montreal Protocol: Industrialized and Developing Countries Sharing the Responsibility for Protecting the Stratospheric Ozone Layer." 20 N. Y. U. J. Int'l L. & Pol'y, 733 (1 988).
33. B.A. Ramundo, Peaceful Coexistence, International Law in the Building of Communism, 14-15 (Johns Hopkins, 1967).
Appendix: a case-study: China's positive attitude toward the adoption and implementation of international environmental legislation
China is a third-world country, a vast territory with a large population. In the process of economic growth, pollution has posed a major threat to the human environment. We need more consensual arrangements and a more specialized legal domain on the planning of environmental behaviour to bring about a positive environmental culture. That is why we have insisted that maintaining and improving the human environment has a role in humanity's well-being and economic development, not to mention the aspirations of the world's people. As a long-standing practice, the Chinese government has regarded environmental protection and improvement as a national policy and one of the necessary ingredients in the formulation and implementation of a national economic plan. The Constitution of the People's Republic of China states that "the state must protect and improve the environment in which people live. It must prevent and control pollution and other public hazards."1
Apart from the Constitution, dozens of laws and regulations to protect the environment have been enacted. Such legislation includes, for example, the Environmental Protection Law of the PRC (for trial implementation) (1979),2 the law of the PRC on the Prevention and Control of Water Pollution (1984),3 the law of the PRC on the Prevention and Control of Atmospheric Pollution (1987),4 and the Marine Environment Protection Law of the PRC (1982).5 The important laws and regulations on the preservation of natural resources and the environment are: the Forestry Law (1984),6 the Grassland Law (1985),7 the Fisheries Law (1986),8 and the Water Law (1988).9 The Regulation on Environmental Protection of Construction Projects (1986),10 the Interim Regulation on the Control of Environment of the Economic Open Area (1986),11 and the Interim Procedure on the Collection of Drainage Dues (1982)12 are the major laws concerning environmental management. In addition, China has also promulgated more than 100 normative environmental standards, including an environment quality standard,13 a pollutant-discharge standard,14 and an environmental base standard.15 All these make up the framework of Chinese environmental law.
Knowing the seriousness of the deterioration of the human environment and awaking to planetary obligations, China persistently holds a positive attitude about the implementation of international environment protection. As a member of the Governing Council of UNEP, China has attended Council meetings every year since 1973 in order to consult with other countries about global environmental protection. China has also been a member of the International Union for Conservation of Nature and Natural Resources (IUCN) since the Twelfth Council session held in Sweden in 1982. In addition, China joined the World Wildlife Fund, signed the agreements on the Protection of Wildlife Resources16 and the Establishment of a Research Centre for Panda Protection.17 Furthermore, China has acceded to 10 international conventions and treaties relating to environment protection, such as the Antarctic Treaty,18 the provisions of the International Convention on Civil Liability for Oil Pollution Damages,19 the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor,20 and the United Nations Convention on the Law of the Sea.21
In recent years, cooperation by China, international organizations, and foreign governments has been successful in its efforts to protect the Chinese environment. China has not only established sound cooperative relations with UNDP, FAO, Unesco, and WHO, but it has also held a series of meaningful symposia.
Sino-American environmental protection is an example of cooperation with foreign governments. To illustrate, in 1984, the two countries signed a protocol on Scientific and Technological Cooperation.22 In 1981, a co-sponsored symposium on environmental science was held in Beijing, at which research reports on land use, comprehensive planning of the regional environment, atmospheric environmental quality, as well as underground water were presented by both parties. The Institute of Environmental Hygienic Engineering of the Chinese Academy of Preventive Medical Science, in cooperation with the Institute of Health Impact of the American Environmental Protection Agency, made a pathogenic research of lung cancer in Yunnan Province of China; the initial results have already been attained. Meanwhile, the State Environmental Protection Bureau of China established a long-term cooperation with the American Center for East-West Cultural Exchange, and the two parties decided to conduct a joint research project focused on environmental management, environmental impact evaluation, human ecology, and agricultural ecology, etc. Of course, exchanges with other foreign countries and non-governmental organizations are also quite frequent. For instance, China attended a series of international conferences on environmental protection, which included the World Environmental Tribunal Conference of 1984 held in San Francisco, the Energy Evironment Conference of 1984, and the Asian-Pacific Conference on Urban Environmental Pollution.
According to incomplete statistics, China, in recent years, has sent hundreds of experts, scholars, and students to dozens of countries for advanced research and additional study. Meanwhile, more than 380 foreign environmental experts have visited China. Furthermore, Chinese research institutes have initiated more than 10 projects to research, monitor, investigate, train, and evaluate regarding the adequacy of environmental protection, in cooperation with various international organizations and foreign governments. It should be mentioned that Vice-Premier Li Peng and Qu Ge-ping, the head of the State Environmental Protection Bureau, were awarded gold medals and certificates of merit issued by UNEP because Chinese environmental policy and its achievements were recognized and admired by the international community. Both Chinese Environment News and the San-Bei Shelter Forest Office were listed in the UNEP "Global 500" honour roll of 1986.23
In short, despite problems mentioned at the beginning of this chapter, China's achievements in environmental protection, especially in the legislation and implementation of international environmental law, not only demonstrates China's positive function in international environmental endeavours, but also shows other third-world nations that they too can contribute to the drafting and implementation of international environmental legislation.
1. People's Republic of China Const., Art. 26.
2. Environment Protection Laws of the People's Republic of China, 17 Sept. 1979, Renmin Ribao (People's Daily), 2 (1979).
3. The Water Pollution Prevention and Control Law of the People's Republic of China, 13 May 1984, Renmin Ribao, 3; Xinhua Yuebuo (Wenxian Ban), No. 5, 63; Zhonghua Renmin Gongheguo Yuan Congboo (Gazette of the State Council of the People's Republic of China), No. 10, 307 (1984).
4. The Law of the People's Republic of China on the Prevention and Control of Atmospheric Pollution was passed by the Standing Committee of the National People's Congress on 5 Sept. 1987 (1987).
5. Marine Environment Protection Law of the People's Republic of China' 23 Aug. 1982, Renmin Ribao, 3 (1982).
6. Forestry Law of the People's Republic of China (amended), 23 Sept. 1984, Renmin Ribao (1984).
7. Grasslands Law of the People's Republic of China, 18 June 1985, Renmin Ribuo, 2 (1985).
8. Fisheries Law of the People's Republic of China, 20 Jan. 1986, Zhongguo Fazhi Bao (China Legal System Newspaper), 22 Jan. 1986, 2 (1986).
9. Water Law of the People's Republic of China (1988), 21 Jan. 1988, Renmin Riboo.
10. Regulation on Environmental Protection of Construction Projects (1986). 26 Mar. 1986, Renmin Riboo.
11. Interim Regulation on the Control of the Environment of the Economic Open Area (1986), 4 Mar. 1986, Renmin Ribao.
12. Interim Procedure on the Collection of Drainage Dues (1982), 4 Zhonghua Renmin Gongheguo Yuan Gongbao, 121.
13. Notes 12, 13, and 14 refer to the administrative regulations and norms promulgated by the State Council prior to Sept. 1986: environmental quality standard, pollution discharge standard, and environmental base standard, respectively.
14. See supra note 12.
15. See supra note 12.
16. World Wildlife Fund Agreement on the Protection of Wildlife Resources. Xiahua General Overseas News Service, I July 1980.
17. World Wildlife Fund Agreement on the Establishment of a Research Centre for Panda Protection. Geneva, 30 June 1980. Item No. 070103.
18. The Antarctic Treaty, I Dec. 1959, 12 U.S.T. 794 T.l.A.S. No. 4780, 402 U.N.T.S. 71 (1959).
19. International Convention on Civil Liability for Oil Pollution Damage, 29 Nov. 1969, U.N. Jurid. Y.B. 174, 9 I.L.M. 45, 973 U.N.T.S. 3 (1969).
20. 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. 11 Feb. 1971, 23 U.S.T. 701, T.l.A.S. No. 7337, 2 Ruster 498 (1971). 21. Law of the Sea, supra note 7.
22. People's Republic of China-United States Agreement on Scientific and Technological Cooperation T.l.A.S. No. 10921, 12 Jan. 1984. The Agreement covers environmental protection.
23. (The Magazine) 5 Chinese Environmental Management, 29 (1988).
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