Human Rights, Environment, and Economic Development: Existing and Emerging Standards in International Law and Global Society

IV. Overview of Existing and Emerging Legal Principles

The following principles are prominent in contemporary international legal instruments dealing with environmental protection, human rights and economic development. For some of these principles, such as "common but differentiated responsibilities," there is a significant divergence of opinion regarding the meaning and normative status. Others, by contrast, such as intergenerational equity and the content of Stockholm Principle 21 are already part of customary international law. As a whole, these principles provide valuable perspectives and guidance for addressing controversies embracing human rights, the environment, and economic development.

Intergenerational Equity

There are regular and seemingly obligatory references to the rights and interests of "present and future generations" in contemporary international legal instruments dealing with sustainable development. They indicate that the global society has come to recognize the use of natural resources in an inter-temporal context. These references also demonstrate that intergenerational equity has become integral to international law dealing with environmental protection, resource utilization and socio-economic development.

Intergenerational equity, as employed in current international instruments, contains two distinct components which have inter-temporal implications regarding the utilization of resources. The first calls for fairness in the utilization of resources between human generations past, present and future. This requires that a balance be attained between meeting the consumptive demands of existing societies and ensuring that adequate resources are available for future generations. The inter- temporal aspect of resource distribution and consumption has become an increasingly important issue, especially in view of growing threats of environmental degradation and resource depletion arising out of current consumption patterns.

The second concept is referred to as "intra-generational equity," that is fairness in utilization of resources among human members of present generations, both domestically and globally. Schachter has contended that intra-generational equity as manifest in "distributive justice" has become a de facto legal principle for developing countries and in general by industrialized countries. In his view:

What is striking is not so much its espousal by the large majority of poor and handicapped countries but that the governments on the other side, to whom the demands for resources are addressed, have also by and large agreed that the need is a legitimate and sufficient ground for preferential distribution...It is undeniable that the fulfillment of the needs of the poor and disadvantaged countries has been recognized as a normative principle which is central to the idea of equity and distributive justice."

The legal rights and duties manifest in the international, national and more local aspects of each of the two components are distinct. The fulfilment of either the "inter-" or "intra-" generational component has the possibility of helping or hindering the achievement of the other's objectives. As such, compliance with one standard may generate potential tensions and conflicts. For example, what are considered national needs must take into consideration the interaction between needs of states as collective entities and needs of individual persons.

In both its "intra-" and "inter-"generational dimensions, intergenerational equity also provides a valuable conceptual mechanism for bridging mutual concerns between environmental protection, socio-economic development and human rights law. This evolving complementarity is a new phenomenon, as suggested by proponents of environmental justice in general and indigenous peoples' rights in particular.

The international community agrees that states must pursue development which is environmentally, socially and economically sustainable. Perspectives differ, however, on the most effective means for addressing current needs within this paradigm without also prejudicing future needs. Efforts to promote sustainable development should ideally balance attention to environmental, social and economic needs and aspirations. Viewpoints diverge, however, on the most appropriate ways for balancing this attention.

Law and policy makers still must define appropriate criteria to balance equitable, environmental and economic considerations in an inter-temporal context. As will be discussed below, international instruments to date do not adequately meet this challenge. Also, some have argued that, at least with regard to non-renewable resources, the rights and responsibilities emanating from principles of intergenerational equity can realistically only apply to future generations within one's own nation state and not toward future generations elsewhere. This perspective reflects a narrow statist view that does not accord with the current reality of increasing socio-economic interdependence among states regarding utilization of resources. It holds that any further extension of the concept would be "...politically unmanageable...and insupportable as a practical matter."

Problems Addressed by Intergenerational Equity

The current problems which proponents of intergenerational equity seek to address are two-fold. First, is the serious socio-economic asymmetry in resource access and use within and between societies and nations. This asymmetry, at present, has led to severe environmental degradation and the inability of a large part of humanity to meet its basic needs in an adequate manner. The second is the concern that present resource consumption and production patterns by certain nations or social strata within nations are prejudicing not only environmental quality and socio-economic development prospects for humans alive now, but are also unacceptably narrowing the options that will be available to future generations that will require substantial environmental resources to meet their basic needs.

Natural resources are now exploited in unprecedented quantities and rates of consumption are continuing to increase. In relation to their population sizes, the "Northern" industrialized countries are responsible for a vastly disproportionate amount of the natural resources being consumed or adversely impacted. Issues concerning the access to and consumption of global resources, and responsibility for the resulting environmental degradation and depletion, have become focal points for much current thinking on intergenerational equity and have taken on a distinctly "North" v. "South" dimension.

"A great deal of environmental debate on issues of global scale damage -ozone depletion, global warming, biodiversity, rain forests- have taken on a North-South polarization. Some developing countries have coined the term 'green imperialism' to refer to efforts of outside countries to limit the use of their native rain forests, or to ask the countries to forego the advantages of using CFCs when the rest of the world has taken advantage of these for decades."

Developing countries have sought to rectify perceived asymmetries in international law regarding resource access, distribution and consumption. This goal has been a major feature of the international legal and politico-economic agenda of developing countries since at least the early 1970s, as evidenced by the adoption of resolutions in the U.N. General Assembly calling for the creation of a "New International Economic Order", as well as efforts to obtain greater control over natural resources.

The Founex Report of 1971 highlighted one of the primary, long standing contentions of many developing countries. This view holds that the key environmental problems in the South are poverty and underdevelopment and other issues directly related to these two phenomena. More recently, developing countries have emphasized the link between Third World poverty, environmental degradation and Northern consumption. For developing countries, resource control and maldistribution through financial and other structural levers by the "North" to maintain industrialized countries' lifestyles are the major sources of the widespread poverty and underdevelopment in the "South, as well as major contributors to environmental degradation. An Indian environmentalist commented

"Which questions should [the world] try to solve first. Why ozone layer depletion or climate change or biodiversity conservation? Why not the international financial system, terms of trade or poverty, all of which have deep ecological linkages with the environmental problems of the South ?"

The high level of consumption in industrialized countries continues to be a major issue as international fora and their resulting instruments dealing with socio-economic development and environmental protection. It is the subject of Principle 8 of the Rio Declaration: "To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption...."

Agenda 21 devotes an entire chapter to "changing consumption patterns." Section 4.3 of Chapter 4 affirms the perspective of developing countries on the link between environmental degradation, poverty in developing countries and unsustainable consumption in developed countries:

"Poverty and environmental degradation are closely interrelated. While poverty results in certain kinds of environmental stress, the major cause of the continued deterioration of the global environment is the unsustainable pattern of consumption and production, particularly in industrialized countries, which is a matter of grave concern, aggravating poverty and imbalances."

Despite apparent natural resource wealth, material living standards for the vast majority of people in developing countries continue to be inadequate to meet basic human needs. Part of this inadequacy is related to and exacerbated by shifts in resource demand by Northern consumer nations and to international pricing and market controls on refining and distribution inherent in traditional North-South trading relationships.

Unsustainable exploitation of environmental resources is undertaken by governments as well as members of the general population. Citizens of wealthy, northern, industrialized countries arguably contribute to more natural resource degradation per capita, than do citizens of poorer, southern nations. But even politically and economically marginalized groups, such as tribals and other minorities, who often have no other livelihood alternatives, sometimes exploit natural resources unsustainably. Such resource "mining" patterns by rich and poor people not only undermine ability of poor populations to meet their nutritional and other needs, but also vitiate resource availability for future generations. These activities are often encouraged by perverse fiscal and regulatory incentives which accelerate degradation of biological and other natural resources, and foster greed, corruption and indifference by governments and their agents.

Inter-Generational Dimension

When referring to "intergenerational equity," most international legal instruments use the phrase "for the benefit of present and future generations" or "equitable sharing of benefits" or similar language. Existing instruments, however, generally fail to differentiate between the particular interests of future generations as opposed to those of the present generation, or to specify which groups, either in the present or future, will actually be "equitably sharing" the benefits.

Inter-generational equity is included in the substantive part, rather than just the preamble, of one enforceable text, in Article 3 of the CCC. That section, however, merely states that: "Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities." It offers no assistance in determining how Parties should behave to protect the interests of future generations in any manner differently from those of present humankind. No legally binding international instruments suggest how the interests of future generations should be considered, or how the interests of future generations may differ from those of present generations with regard to access and utilization of natural resources.

A few hortatory soft-law texts such as the Goa Guidelines on Intergenerational Equity and the Declaration Universelle Des Droits De L'Homme Des Generations Futures adopted at Laguna, Canary Islands, February 1994, seek to develop a normative framework for protecting the interests future generations. Our Common Future ("OCF") expressly recognizes that successfully promoting intra-generational equity may have adverse implications for inter-generational equity. OCF characterizes "sustainable development" in terms of meeting present needs without compromising the ability of future generations to meet their needs. It therefore recognizes that there must be limits on how present needs are met in order to fulfill the parallel objective of leaving sufficient resources for future generations to meet their needs.

Article 5 of the IUCN Draft Covenant, further articulates the potential conflicts between "intra-" and "inter-" generational equity. It "qualifies" present generations' use of the environment with the needs of future generations and provides that: "The freedom of action of each generation in regard to the environment is qualified by the needs of future generations." This statement implicitly acknowledges that intra- and inter- generational equity may not be inherently compatible.

Brown Weiss offers a framework for addressing protection of interests of future generations through her tripartite principles of "conservation of options", "conservation of quality" and "conservation of access". In the context of conserving use options, she proposes the reorientation of legal structures which currently encourage unsustainable resource conversion. For example, regarding logging of biologically valuable tropical forests, the re-orientation would entail "shifting the burden of justification" upon those who seek to deplete the resource by requiring them to "define criteria to justify transformation of forests to other uses, so that areas of rich biological wealth remain and other areas are put to productive, sustainable uses."

Inter-Generational Equity in Case Law

The intergenerational aspects of state activities have also recently been addressed in opinions of the International Court of Justice and in at least one domestic court case. At the ICJ, the implications of inter-generational equity were discussed in Judge Weeramantry's lengthy separate opinion exposť on "equity" in the Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), and in his dissent in Nuclear Tests (New Zealand v. France) 1995.

In Denmark v. Norway, Judge Weeramantry's comments referred to intergenerational equity and specifically to "...the concept of wise stewardship [of natural resources]...and their conservation for the benefit of future generations..." These statements were included in his separate concurring opinion as dicta, and were not decisive in the Court's decision regarding delimitation of a maritime boundary. In his dissenting opinion in Nuclear Tests 1995, Judge Weeramantry stated that:

"The case before the court raises, as no case before the court has done, the principle of intergenerational equity - an important and rapidly developing principle of contemporary environmental law...The court has not thus far had occasion to make any pronouncement on this rapidly developing field...[The case]...raises in pointed form the possibility of damage to generations yet unborn."

The Court in Nuclear Tests 1995, rendered its decision on other grounds before it had the opportunity to address the normative status of intergenerational equity. It is nevertheless noteworthy that the concept has been included in the case law of the International Court, albeit in separate opinions. Separate and dissenting opinions such as those provided by Weeramantry in the above cases are useful in offering alternative interpretations on the subject matter and contribute to what many regard as the ICJ's role in developing and clarifying international law on controversial issues. It is likely that a future case before the ICJ involving international environmental issues will directly address the status of intergenerational equity in international law.

An innovative domestic court decision on intergenerational equity, in both its "intra-" and "inter-" dimensions, is a 1993 Philippine Supreme Court case, Minors Oposa v. Secretary of the Department of Environment and Natural Resources ("DENR"). The case addressed intergenerational equity in the context of state management of public forest land. In a novel situation under Philippine law, the Philippine Supreme Court permitted a class action -- although it has yet to issue a decision -- brought by Filipino children acting as representatives for themselves and future generations. The petitioners wanted to halt timber cutting by government licensees of the remaining national forests. Plaintiffs alleged that present and continued logging violated their right to a healthy environment under the Philippine Constitution and would entail irreparable harm to them and future generations of the nation. The Court considered the issue of intergenerational responsibility and decided that the petitioners had locus standi, i.e., were qualified to sue, on behalf of present and future generations in the Philippines. In rendering its decision, the Court accepted petitioners' statistical evidence regarding the amount of forest cover required to maintain a healthy environment for present and future generations.

Intra-generational Dimension / Environmental Justice

In addition to the inter-state dimension, intra-generational equity also encompasses what is now referred to as "environmental justice" or "intra-generational justice". Generally speaking this concept refers to fairness among all persons and groups both domestically and internationally. The stress on justice and fairness is the language of "principle" rather than policy as outlined by the publicist Dworkin in his normative hierarchy. It has received widespread attention only since the years leading up to the UNCED.

"Environmental Justice" has become a significant legal issue in the United States as a result of complaints made by Native Americans, African Americans, and other socio-economically marginalized groups that a disproportionate amount of the nation's pollution disposal facilities and other environmentally dangerous activities are situated or conducted in areas that they inhabit. In response, U.S. President William J. Clinton issued Executive Order 12898 of 11 February 1994. It requires that

"...each Federal Agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories..."

An Executive Order has the force of law in the United States. The impact of Executive Order 12898 could have wider transnational ramifications if it is applied in the future to United States Government activities, including foreign assistance programs in other countries.

Calls for environmental justice are not limited to the United States. Other expressions of this phenomenon include the Penang Charter of the Indigenous-Tribal Peoples of the Tropical Forests, and the Baguio Declaration. Additionally, a major component of the dispute between Nauru and Australia regarding despoliation of the small island state's environment through lucrative, commercial phosphate mining involved what could be styled as a question of "environmental justice." Nauruans received a substantial financial return resulting from the mining, much of which was conducted by Australia pursuant to a U.N. trusteeship. The island's unique ecosystem, however, has been devastated and more than seventy five percent of Nauru is now uninhabitable. The Nauruan Government alleged, inter alia, that Australia, the United Kingdom and other governments received tremendous agricultural benefits from cheap fertiliser obtained through Nauru's destruction, and that these states have a duty to pay for Nauru's environmental rehabilitation and other compensation.

As the above discussion suggests, intergenerational equity already is an integral feature in many international legal materials dealing with sustainable development. Recent statements by Judge Weeramantry arguing in favour of the customary international law status of intergenerational equity, in Denmark v. Norway and in Nuclear Tests 1995, suggest that this concept is already arguably a norm of customary international law.

But beyond mere pronouncements in the preambles of treaties and other documents, international law to date has achieved little to facilitate the realization of inter-generational equity. In discussing the status of intergenerational equity as a "rapidly developing principle of contemporary environmental law", in Nuclear Tests 1995, Judge Weeramantry referred to the "possibility of damage to generations yet unborn..." Additionally, the bold step by the Philippine Supreme Court in Oposa, by using intergenerational considerations as a basis for its decision regarding national resource exploitation indicates that rights and interests of future generations are being treated as a legal issue in some national jurisdictions, including developing countries.

With regard to the specific dimensions of "intra-"generational equity, much more has been put into practice, largely as a result of the interests of developing countries in pursuing their long-term objectives for a new international economic order. The Rio Declaration, Agenda 21 as well as the CBD and DC, embody major normative expressions of support for intra-generational equity, such as CDR, "equitable sharing" and "environmental justice." Additionally, the ICJ's determinations regarding arguments for access to natural resources based on national demographic pressures and use needs, put forth by Tunisia (Tunisia v Libya) and El Salvador (El Salvador v. Honduras), indicate the expanding parameters of the ICJ's willingness to consider legal demands for greater access to natural resources in an intra-generational context.

In conclusion, the international community has in general acknowledged that socio-economic development and environmental protection endeavours must take into consideration the interests of present and future generations. This is readily apparent upon review of the large number of treaties, declarations, resolutions and other legal and quasi-legal instruments dealing with the environment and development throughout this century. State arguments for "intra-generational" equity can be traced as far back as the end of the last century in the United States Government's pleadings in the Bering Fur Seal arbitrations. Considerations of intergenerational equity, in either its "intra-" or "inter-" generational dimensions are not represented as mere "nice idea" policy expressions in the international instruments. Instead, they are phrased in high level normative terms- suggesting notions of justice and fairness despite the ambiguities in actually operationalizing them. The difficult challenge for states, international organizations and international fora such as the ICJ, as well as populations, remains the determination of avenues for realizing the objective of effectively protecting interests of future generations while also meeting present resource use needs.

Continued

For more information, contact: Owen J. Lynch (olynch@ciel.org).