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Myriad interrelated forces are at work. We identify four as especially significant. We discuss these in more detail below. We have encapsulated those four trends above, and here we seek to examine them in a little more detail.
Day to day the news, articles and reports of different tiers presenting the gravity of the planetary conditions are abundant.
There is a growing threat to the possibility of existence of human beings.
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Indeed, anyone who has read the preambles to the numerous multilateral environmental agreements concluded over the last three decades, and who also reads the news, cannot fail to experience a strange kind of cognitive dissonance. In the preambles, one reads that states have spotted some potential problems on the horizon and decided to take early, principled, equitable action to ensure that such unpleasant visions never come to pass. The international community speaks with negotiated unanimity of its own prudence, wisdom and stewardship, of balance, of sustainable development, of its willingness to moderate growth and consumption in the interests of environmental quality for this and future generations.
Look anywhere else, though, and evidence for the existence of any such prudence, long-term thinking, stewardship, or inter-generational equity is vanishingly rare.
Just for instance, one may consider how the declared intentions of the three major multilateral legal instruments negotiated at the un Conference on the Environment and Development at Rio de Janeiro stand up when measured against reality: i. According to the synthesis report of the International Panel on Climate Change an intergovernmental scientific organisation : Throughout the 21st century, climate change is expected to lead to increases in ill-health in many regions and especially in developing countries with low income, as compared to a baseline without climate change high confidence.
By […] the combination of high temperature and humidity in some areas for parts of the year is expected to compromise common human activities, including growing food and working outdoors high confidence. In urban areas climate change is projected to increase risks for people, assets, economies and ecosystems, including risks from heat stress, storms and extreme precipitation, inland and coastal flooding, landslides, air pollution, drought, water scarcity, sea level rise and storm surges very high confidence.
These risks are amplified for those lacking essential infrastructure and services or living in exposed areas.
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Populations that lack the resources for planned migration experience higher exposure to extreme weather events, particularly in developing countries with low income.
Climate change can indirectly increase risks of violent conflicts by amplifying well-documented drivers of these conflicts such as poverty and economic shocks medium confidence. That and the fact that ocean acidification caused by carbon dioxide being absorbed from the atmosphere by the seas appears set to wipe out the krill, the basis of many marine food chains.
Meanwhile, back in the real world, the sixth great extinction event in the history of the planet is getting underway. Yet it would be hard to argue that the vast gulf between intention and actual performance results from any actual breach of obligations owed under any of these treaties by the states parties.
The central problem is the absence —not the breach— of working-level norms capable of translating declarations of principle into effects which the atmosphere and biosphere can actually feel. And so it goes on.
Far from it. In our assessment, the reality of looming planetary boundaries is slowly gaining recognition among judges domestic and international , as well as other key stakeholders in the development of international environmental law, increasing their receptiveness to more innovative and radical measures.
Numerous examples could be given. They do not lend themselves to generalizations. The relationship between developing countries and the evolution of international environmental law has never been straightforward. Those struggles left a profound mark on the Stockholm and Rio Declarations. Today, international environmental law has certainly not escaped this dynamic. But other dynamics have also entered the equation. Overall, the global South is today far from sceptical about the need for international environmental law.
At government level, developing countries have played a key role in pressing for more effective legal regimes: examples include the trade in toxic chemicals, 91 and moves towards regulating the human rights impact of business. This shift is both real and rational. The Stockholm Declaration was accurate, in , when it said that most of the environmental problems then facing poorer countries were caused by under-development and could be solved by increased wealth.
Southern countries now experience environmental problems that are side effects of development, not only effects of under-development. Agricultural products and extracted raw materials coal, crude oil, metal ores, etc. Attitudes in the South towards global environmental problems have changed as Southern countries began to feel the local impacts of global problems.
Postcolonial states experimenting with socialism, and various forms of corporatism, often lacked the resources to extract and monetize those resources at any great speed. Neoliberal fiscal and economic policies from onwards changed this picture. Enforcement of environmental law could mean the difference between life and death. In this context, the pressure for more effective environmental law and accountability for transnational corporations is only to be expected. Some of the most paradigmatic environmental disasters of our time have occurred as a consequence of the non-observance of basic due diligence standards.
Argentina 96 a Mapuche community exposed to consumption of water contaminated with lead and mercury and Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria 97 concerning failure of Nigeria to prevent pollution and ecological degradation to the detriment of the Ogoni people. The scientific community has already warned that the canal project is subjecting it to severe threats of contamination by hydrocarbons, risks of salinization, sedimentation, water turbidity and invasion from alien species, the outcomes of which would be truly catastrophic.
We do not wish to exaggerate this phenomenon, and certainly we do not suggest it is a necessary or permanent feature of international law. As set out below, our view is that international law is a system. Today, most developing countries are members of the wto and many are party to numerous bilateral and in some cases multilateral investment treaties, whose obligations have proven something of a straitjacket against environmental measures.
Uruguay, and Eco Oro Mining v. This phenomenon creates an impetus to reorient international law so as to reduce conflicts of norms.
A Period of Change and Reorientation in International Environmental Law The abovementioned forces do not preordain any particular outcome, but in our view a these trends are conducive to reorienting international environmental law in the directions outlined below, and b this would be a positive development. The urgently needed rebalancing of international environmental law will involve 1 Integration of international environmental law and human rights with other fields of international law; 2 Operationalization of principles through working-level binding norms; and 3 The fashioning of practical remedies to give force to legal norms.
On each of those aspects, the Advisory Opinion on Environment and Human Rights has made a meaningful contribution. To some, the system appears intrinsically unbalanced and unfavourable to developing countries, despite valid and understandable motives for concluding bits. El Salvador. Purposeful integration is the route to achieving this.
The task ahead is to mediate between the Heaviside Layer of multilaterally agreed principles and the branches of law that actually exert a direct influence over human activities. This means ensuring that working-level norms reflect and serve those principles. Human rights law has grown, slowly but steadily, into a significant source of legal obligations on states.
As the Advisory Opinion makes clear, the environment and human rights are indivisibly interrelated. Moreover, the Advisory Opinion shows how existing norms can be made more effective by proper judicial explication. Difficult as it may be for the international community to negotiate new multilateral rules to avert environmental harms, the rights and obligations that exist already cannot simply be ignored.
By the same token, fashioning principles into working-level law means fashioning remedies.
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Postcolonial states experimenting with socialism, and various forms of corporatism, often lacked the resources to extract and monetize those resources at any great speed. The central problem is the absence —not the breach— of working-level norms capable of translating declarations of principle into effects which the atmosphere and biosphere can actually feel.
Villa, L. Keep on posting! Day to day the news, articles and reports of different tiers presenting the gravity of the planetary conditions are abundant.
It is argued that as the world experiences the pressure for more effective environmental law and accountability, some of the most sophisticated and innovative thinking on international environmental law today, is emanating from countries in the Southern hemisphere, as attested to by the Advisory Opinion.
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