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HISTORY OF MODERN ENVIRONMENTAL LAW


 

Modern environmental law dates back to industrialization that occurred in the West in the last century.  Internationally, environmental issues were taken up by the United Nations after the 2nd World War.  In the 1960s the General Assembly of the UN thought to organize a conference focusing on the issue of industrial pollution and urban settlement.  The two issues of industrial pollution and urban settlement were the environmental issues affecting western industrialized countries at the time.  The UN General Assembly as an organ brings together both industrialized and non-industrialized countries.  In the 60s non-industrialized were represented by countries that had just emerged from colonialism and whose predominant preoccupation was with economic development which they understood at the time as arising from industrial growth.  The thinking of non-industrialized countries was influenced by the experienced of industrial countries who had achieved economic development through industrialization.  They therefore assumed that the way to develop was to industrialize.  They interpreted efforts by industrialized countries to regulate industry as being an attempt by industrialized countries to limit the prospects for economic development by the non-industrialized countries.

Therefore there was an ideological divide in the UN about the necessity and utility of a conference on industrial pollution and urban settlement.  The West wanted it because they were experiencing the negative of industrial pollution and unplanned urban settlement, the Southern Countries show this as a Neo-imperialist plot to keep them poor and so there was an ideological divide.   The Stockholm Conference on Environment and Human Settlement was held in Stockholm in 1972 against the background of the ideological divisions. 

This conference came up with the Stockholm declaration one of whose principles was that development is the sovereign right of each state and that environmental management is a matter of national jurisdiction.  The focus was at this time to see these as issues of national jurisdiction and not of international concern.  Nevertheless, the Stockholm conference agreed to establish an environmental program within the United Nations in order to gather scientific data and information on the problem of the environment and to put forward proposals on dealing with the environmental problems identified.  That programme initially was located in New York but from 1974 it was located in Nairobi by a General Assembly decision. (UNEP) and has become the main UN institution in the field of environment.

The conference also agreed to establish a centre for Human Settlement also located in Nairobi and now known as HABITAT so that both UNEP and HABITAT became Institutions of UN focussing on issues of environment and urban settlement.

Subsequent to Stockholm in 1993, the UN established a commission to examine the relationship between environment and development in an effort to bridge the ideological divide.  The UN Commission on Environment and development was chaired by the Norwegian Prime Minister known as Gro Harlem Brundtland, the Commission produced its report in 1987 known as Our Common Future: The Report of the UN Commission on Environment and Development – 1987.  Our Common Future has one enduring phrase, it attempted to define the relationship between environment and development and said that “Environmental protection requires that economic development must be sustainable.”  It defined the term “Sustainable Development” it defined sustainable development as development which meets the needs of the present generation without compromising the ability of the future generations to meet their own needs.

The concept of sustainable development was acceptable to both sides of the ideological divide.  For those interested in environmental protection, it recognised the need to regulate economic development and for those interested in economic development it accepted that economic development was a worthwhile and legitimate pursuit.  The link is that economic development must be sustainable and it is sustainable if it allows the present generation to meet their needs but does not compromise the ability of future generations to also meet their needs.

The Commission used the analogy of capital and interest to explain the concept of sustainable development.  Capital represents the stock of natural resources and interest represents the annual growth in the stock of natural resources.  Thought of in environmental terms the commission was saying that assuming we have inherited a stock of natural resources like a forest, if we cut one tree then we plant two.  This is to sustain the resource.  This theory proved attractive to both sides of the divide.

In 1992 the UN General Assembly held a 20th anniversary to the Stockholm conference held in June 1992 in Rio De Janeiro, The Rio Conference – UN Conference on Environment and Development,  this was the first of the series of UN conferences established the nature of Modern international environmental law,  this was because it was attended by the heads of states and governments of all countries of the world who were member states of the UN and the only head of state who did not attend was George Bush since the US had a disagreement with the other countries over the issue of climate change.   The nature and level of attendance is significant because the resolutions that were adopted are believed among international lawyers to have created soft law.  The resolutions created soft law i.e. law that is not outlined in the UN Charter as sources of international law.  soft law is influential although not necessarily binding and their influence comes from the fact that all countries from heads of states and their officials have endorsed them. 

The concept of sustainable development was endorsed as the theoretical underpinning of Modern environmental law at the Rio Conference.  This has began to make its way into sources of hard law through reference in treaties and decisions at the ICJ. 

The document that endorsed the concept of sustainable development is the Rio Declaration on environment and development.  It is not feasible today to say one is an environmental lawyer without the thorough grasp of the concept of sustainable development. 

The Rio Conference also adopted a document known as Agenda 21.  Agenda 21 is a statement of principles on how to achieve sustainable development in the 21st Century.

The Rio Conference also established a UN institution known as the UN Commission on Sustainable Development which is the organ of the UN supposed to monitor progress by the international community towards achieving sustainable development.  It meets at intervals of 5 years to review progress and to set targets.  Its headquarters is in New York.  There is the theory that has emerged that Environmental management is just one pillar of sustainable development, and that there is social equity and economic development in order to really develop sustainability.

There are a few people who think that the concept of sustainable development as defined by the Brundtland Commission is both inappropriate and inadequate.  There are two reasons for this

1.            The argument that the concept of sustainable development is anthropocentric in nature as opposed to being bio-centric.
2.            The argument that the concept of sustainable development focuses on the relationship between present generations and future generations and requires that the future relationship be equitable.  In that sense it is a concept based on inter-generational equity.  It ignores intra-generational equity and is silent and because it is silent on intra-generational equity, the West likes it.

What the concept has done is to direct focus away from the inequities that have taken place.  For example if one takes energy, almost 36% of today’s energy sources are being used by the United States, between Europe and USA they use 80, and Africa about 1%.  This critic is focussing on the need to equitably distribute resources.

Anthropocentricity is the theory that human beings are at the centre of the world and that this theory of sustainable development is centred on human interest.  The Rio declaration Principle 1 says that human beings are at the centre of concerns about sustainable development.  Anthropocentricity focuses on human self interests while bio-centricity focuses on biological organisms.  The criticism is that it has not focused on bio-centricity and therefore legitimises human exploitation of natural resources at the expense of other components of the eco systems.  It also legitimises human tendency to see the world in terms of human self-interest.

Anthropocentricity should not become the focus   you will not end up with the balance but the preponderance of what humans want to create.

Bio-centricity argues that there is no ranking and humans and mosquitoes are equal and that the interest in managing the environment should focus in keeping that balance.  Everyone has its place and everyone’s place is the equal of the other.  The criticism is that it is anthropocentric in focus and therefore legitimates a re-ordering of nature away from natural balance. 

 
 
 

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