Three areas of international law: human rights, environmental protection and economic development, will be the principal sources of normative standards for the ECO. The following section provides an overview of these three areas with particular reference to their convergence under the rubric of sustainable development.

International Human Rights Law

Higgins has aptly characterized human rights as "right[s] held vis-a-vis the state, by virtue of being a human being." The types of rights identified under human rights law are generally divided into three categories: 1) political and civil rights ("1st generation human rights"); 2) social and economic rights ("2nd generation human rights"); and, 3) "solidarity" rights ("3rd generation human rights").

First generation rights refer to traditional civil and political liberties prominent in Western liberal democracies, such as freedom of speech, of religion, and of the press, and freedom from torture, which presuppose a duty of non-interference on the part of government towards individuals. These rights are the "classical" human rights contained in notable instruments such as the Bill of Rights of the United States Constitution. For many years, the dominant position in United States and other western states was that only these rights were genuine human rights. Non-western and socialist perspectives have been highly critical of this outlook, particularly because it ignores alternative conceptions of the meaning and substance of human rights. The leading international instrument codifying what are now known as first generation rights is the United Nations International Covenant on Civil and Political Rights (1966). First generation rights are also contained among the first 21 Articles of the United Nations Universal Declaration of Human Rights (1948).

Second generation rights have generally been considered as rights which require affirmative government action for their realization. Second generation rights are often styled as "group rights" or "collective rights", in that they pertain to the well-being of whole societies. They contrast with first generation rights which have been perceived as "individual entitlements," particularly the prerogatives of individuals contrary to those of collectivities. Principle advocates of collective rights have been developing countries and formerly the Socialist Bloc countries. Some countries supporting second generation rights have argued for their realization first, as a pre-condition for the eventual realization of civil and political rights.

Additionally, some advocates for the pre-eminence of second generation collective or group rights have postulated that contrary to Western conceptions, the substance of human rights is not universal and that economic, social and cultural factors determine the applicability of particular rights in different countries. This has been used as a justification for denying civil and political rights or delaying their protection until group rights have been realized. Religious, cultural or socio-economic factors in a state therefore might be relied upon to preclude recognition of "alien" western ideas such as freedom of conscience or press freedom. Human rights advocates such as Higgins disagree with this line of reasoning:

"It is sometimes suggested that there can be no fully universal concept of human rights, for it is necessary to take into account the diverse cultures and political systems of the world. It is rarely advanced by the oppressed, who are only too anxious to benefit from perceived universal standards. The non-universal, relativist view of human rights is in fact a very state-centered view and loses sight of the fact that human rights are human rights and not dependent on the fact that states, or groupings of states, may behave differently from each other so far as their politics, economic policy, and culture are concerned."

The Vienna Declaration of 1993 disclaimed any priority of rights. It declared that "[w]hile development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights."

Examples of second generation rights include the right to education, to work, to social security, food, to self-determination, and to an adequate standard of living. These rights are codified in the International Covenant on Economic, Social and Cultural Rights (1966), and also in Articles 23-29 of the Universal Declaration of Human Rights (1948). Writers reluctant to recognize second generation rights as human rights have often based their arguments on the assumption that courts are unable to enforce affirmative duties on states and that therefore such rights are mere aspirational statements. Similarly, critics have opined that regardless of the political system or level of economic development, all states are able to comply with civil and political rights, but not all states have the ability to provide the financial and technical resources for the realization of affirmative oblations such as education and an adequate standard of living.

Higgins and others note, however, that both case law and scholarship increasingly recognize that the realization of first generation rights may also require affirmative action on the part of governments, thus blurring the traditional distinction between first and second generation rights based on negative and positive duties in governmental behavior. Additionally, the last two decades have witnessed increasing emphasis on the "indivisibility and interdependence" of all human rights. This position was most recently affirmed in the 1995 Beijing Declaration and Platform for Action of the Fourth World Conference on Women.

Treating all human rights as universal and indivisible responds to the arguments regarding whether economic and social, or political and civil rights are paramount by advocating that all human rights are connected and equally important for their mutual realization. This viewpoint is also supported by advocates of third generation rights, who argue that the realization of third generation rights is dependent on the realization of first and second generation rights and also that the full expression of first and second generation rights is dependent on third generation rights.

Third Generation or "solidarity" rights is the most recently recognized category of human rights. This grouping has been distinguished from the other two categories of human rights in that its realization is predicated not only upon both the affirmative and negative duties of the state, but also upon the behavior of each individual:

"[Third Generation Rights]...may be both invoked against the State and demanded of it; but above all (and herein lies their essential characteristic) they can be realized only through the concerted efforts of all actors on the social scene: the individual, the State, public and private bodies and the international community."

Rights in this category include self-determination, as well as a host of normative expressions whose status as human rights is controversial at present. These include the right to development, the right to peace, and a right to a healthy environment. Some texts such as the Final Report of the United Nations Commission on Human Rights, Sub-commission on Prevention of Discrimination and Protection of Minorities appear to take it as given that there is already an existing right to environment recognized in international instruments. Others such as Higgins express serious reservations regarding the existence of a right to a healthy environment as well as the viability of other third generation rights. Higgins' main criticism concerns what she observes to be the indeterminacy regarding those who are obliged to effect the realization of these rights as well as the substantive content entailed by such rights. Specifically, regarding the "right to development" she states that

"...[I]t has been much supported by leading writers and there does exist a UN General Assembly Resolution on the subject, and it has been frequently invoked by various international bodies. But it is noticeably absent from the International Covenant on Economic, Social, and Cultural Rights...[F]ormidable problems remain about classifying it as a human right. The right-holders are presumably the peoples of developing territories. But what the right entails is for the moment very unclear. ...[M]uch of the literature that proclaims the existence of the right ignores this question entirely..."

While noting the reservations expressed by commentators such as Higgins regarding the indeterminate content of the right, the "right to development" continues to be affirmed in major contemporary international instruments such as the Rio Declaration of 1992, the Vienna Declaration of 1993, and the Copenhagen Declaration of 1995. Additionally, in its 1994 Report the International Law Association appears to have accepted the validity of the right to development as a human right, and noted that "...[t]he right to development should be elaborated in the context of the other collective human rights and of all individual human rights..." Likewise, in the ILA report and in the UN declarations, the right to development is now linked with environmental protection. Examples of this include the Principle 3 of the Rio Declaration which states that " [t]he right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations." In its affirmation of the right to development , the Vienna Declaration expressly linked human rights to protection of the environment in stating:

"The World Conference on Human Rights recognizes that illicit dumping of toxic and dangerous substances and waste potentially constitutes a serious threat to the human rights to life and health of everyone."

An alternative perspective supported by "deep ecologists" discusses recognition of rights for the environment itself on the basis of the environment's intrinsic value, rather than as a means for promoting existing human rights. This view proposes that

"...to stop seeing nature as some kind of ‘other' with whom we must learn to co-exist, and insteadcome to see gophers, trees and rivers as extensions of ‘us', worthy of the same kind of care that we unreservedly bestow upon ourselves..."

This approach is encapsulated in the phrase "biospherical egalitarianism;" it diverges from labeling a right to a healthy environment as a human rights issue, and instead considers the possibility of environmental rights for the environment itself. Its adherents conclude that the concept of rights as utilized in legal discourse is an inadequate device.

"...[T]he granting of rights to the environment may in fact ‘devalue' it...[because]...[o]nly isolated entities can have rights; relationships cannot. To ascribe rights to the environment is to engage in a project of dividing up nature, rather than respecting its ecological wholeness..."

It advocates an ontological transformation away from what it identifies as the "impoverished language of rights..[and instead toward]...a language of environmental protection that is ‘ecologically conscious.'" Although this approach may appear to be inappropriate for promoting the protection of human rights, its authors suggest that "biospherical egalitarianism" will facilitate overall human welfare by re-defining value priorities. This perspective will not be discussed further but is provided to highlight the existence of divergent methodologies on the use of "rights" in the context of human rights and environmental protection.

Environmental degradation is increasingly receiving international coverage within the context of human rights issues. A recent example of this is the execution by the Nigerian Government of the human rights activist Ken Saro-Wiwa, who had protested against serious environmental damage to the Ogoni homeland of his people that resulted from the petroleum extraction activities of the Shell Petroleum Development Company. Other recent examples demonstrating the relationship between human rights abuses and environmental degradation are the sterilization and other pesticide- related health and environmental consequences suffered by workers on banana plantations owned by transnational enterprises in Central America, and the industrial contamination of the fishing grounds and other resources of Iroquois communities along the St. Lawrence River in New York State and Quebec Province.

Recognition of the link between abuse of human rights of various vulnerable communities and related damage to their environment is expressed under the term "eco-justice" or "environmental justice." This issue was previously discussed in this paper the section on Intergenerational Equity. In both the industrialized and developing parts of the world a growing body of evidence demonstrates that poor and other disenfranchised groups have been the greatest victims of environmental degradation. The types of abuses documented include the location of toxic waste sites in areas primarily occupied by communities of color in the United States, the forced relocation of marginalized and aboriginal populations in India, China and elsewhere in order to build infrastructure projects and undertake other development activities, and the refusal of governments to recognize indigenous territorial rights as in the case of Amazonian Brazil and various Asian nations.

The concept of eco-justice embraces two objectives. The first is to ensure that rights and responsibilities regarding the utilization of environmental resources are distributed with greater fairness among communities both globally and domestically. This entails ensuring that poor and marginalized communities do not suffer a disproportionate burden of the costs of development of resources, while not enjoying equivalent benefits from their utilization. The second is to reduce the overall amount of environmental damage both domestically and globally. This latter aspect of eco- justice has been included in various international instruments including principle 7 of the Rio Declaration. It holds that: "To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption..." This proposition has been affirmed most recently in the Beijing Declaration which asserted that

"...[T]he major cause of the environmental 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..."

International Environmental Law

Modern environmental law has its origins in three primary areas: 1) national and international wildlife conservation regimes during the past century; 2) fisheries management regulations arising out of international law relating to the sea; and, 3) customary international law developed out of several international judicial and arbitration decisions dealing with state responsibility for transboundary activities.

The first treaty to address issues that now would fall under the rubric of "environmental law" was a multilateral convention of 1886 regulating fishing in the Rhine River Basin. Likewise perhaps the most progressive (in terms of addressing cross-sectoral issues such as human equity objectives and economic development) of the early regimes directed at environmental considerations also concerned wildlife, namely the Bering fur seal populations. Unlike many later conservation regimes, the Bering fur seal treaties sought to ensure what today would be characterized as "sustainable" benefits from the utilization of a living resources through integrating economic, conservation and social equity concerns. For example, as a means for sharing the benefits from utilization of the resource, the treaties provided compensation for those state Parties which abandoned unsustainable harvesting methods. They also provided exemptions for traditional subsistence use by local aboriginal communities.

Historically, wildlife conservation approaches have fallen into two major regime types:

1) "Preservationism": separating "pristine nature" from man thereby approximating a mythical "state of nature"; such schemes have proven largely ineffective especially in developing countries where conservation laws were imposed by colonial governments or other elites on disenfranchised local populations; or 2) treating living resources as if they were the products of a factory assembly line or crops in a garden, without properly considering the complex relationships between living resources, and the impacts of harvesting one resource on the viability of other resources. See preamble, Convention for the Preservation of Wild Animals, Birds and Fish in Africa of 19 May 1900, 94 BFSP. 715.

Another manifestation of this one-dimensional approach is typified by a number of fisheries treaties relying upon the concept of "maximum sustainable yield" ("MSY")

"...the level at which the greatest quantity of fish can be caught year after year without the total size of the stock being adversely affected [assuming no environmental factors upset the balance], from R. R. Churchill and A.V. Lowe, The Law of the Sea, Manchester University Press, 1988, p. 226. See R.D. Munro and J.G. Lammers (eds.), Environmental Protection and Sustainable Development. Legal Principles and Recommendations, Graham & Trotman/Martinus Nijhoff, London, 1986, p.47.

. For example, most fisheries agreements, such as the Convention for the Establishment of the Inter- American Tropical Tuna Commission of 1949, as well as the Convention on the Conservation of the Living Resources of the High Seas of 1958, stressed conservation only in so far as it related to obtaining the maximum catch possible of particular target species. They did not consider other social or ecological impacts of the harvesting of that resource.

One consequence of these earlier preservationist approaches was that the legal structures and accessibility restrictions created to realize these goals often had dramatic negative consequences for local communities, many of which had previously utilized the now "protected" floral and faunal resources for their livelihood.

During the past twenty years, scientists and policy-makers have been confronted with the fact that throughout much of the world the preservationist "state of nature" model for the protection of forests and other biological resources has become increasingly ineffective and inappropriate. Additionally, focusing exclusively on economic productivity without considering ecosystem and social impacts has all-too-often proven to be counter-productive. In the light of this, environmental organizations have shifted their focus concerning the conservation. This new attitude has been molded by increasingly severe environmental problems and socio-economic inequities, especially between developing countries and industrialized countries.

A growing body of field research indicates that the conservation and sustainable utilization of biodiversity, including forests both within and outside protected areas, cannot be effectively promoted unless the concerns, aspirations, and rights of local, natural resource-dependent populations are addressed. This observation has been confirmed by studies recommending diversification of local economies, improving access of communities to markets, investing in profitable and sustainable uses of natural resources and ensuring local access to economic and political decision-making processes.

There is now increased attention to the human component of conservation of biological resources. This new focus becomes evident when the Convention on International Trade in Endangered Species of Fauna and Flora (CITES) of 1973 is compared with the 1992 Convention on Biological Diversity, and the 1995 Straddling and Highly Migratory Fish Stocks Agreement (Straddling Fish Stocks Agreement").

The CITES contains no provisions concerning the rights and interests of local resource-dependent communities, despite the fact that a significant amount of the harvesting of species covered under the convention is traditionally conducted by local communities both for personal consumption as well as domestic and foreign markets. The CBD, by contrast, expressly mentions the important relationship between indigenous and other local communities, and sustainable utilization of biodiversity; it also suggests (but does not require) that these communities should share equitably in benefits derived from these resources. Likewise, although its subject matter is fish species that inhabit areas far from coastal waters and which are exploited primarily by industrial harvesting enterprises, the Straddling Fish Stocks Agreement contains provisions for the state Parties to: "take into account the interests of artisanal and subsistence fisheries..." as part of the duty to cooperate under the agreement to conserve and manage fish populations.

At the regional level, the recently drafted Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora, in Eastern and Southern Africa refers to participation of local communities as means for implementing its objectives:

" ...Each Party shall encourage public awareness campaigns aimed at enlisting public support for the objective of this Agreement, and said campaigns shall be so designed as to encourage public reporting of illegal trade."

Thus, international conservation regimes now recognize the need to address the rights and interests of local communities, which includes human development objectives in general, for facilitating conservation. This perspective is further supported in the Convention on Biological Diversity, which highlights the key roles played by women, and indigenous and other local communities in the conservation of biodiversity. The CBD's preamble makes clear that the convention "....[r]ecogniz[es]...that economic and social development and poverty eradication are the first and overriding priorities of developing countries." Conservation of resources of biological diversity is therefore now viewed holistically through the consideration of human needs as a vital part of conservation.

The other major source of material in the development of international environmental law is state practice recognizing legal principles articulated in several famous international arbitration and judicial decisions. These include the Trail Smelter arbitration, the Corfu Channel case and the Lake Lanoux arbitration.

The most widely accepted norm of international environmental law is principle 21 of the Stockholm Declaration of 1972. It provides that

"States have, in accordance with the Charter of the United Nations and the principles 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."

The two-pronged principle set out in Stockholm Principle 21 (and discussed in the previous section) is probably both the most generally accepted component in international law relating to environmental protection, and widely considered a fully-fledged rule of customary international law.

Stockholm Principle 21 has been the most recognizable international environmental legal standard, although at present other normative standards such as inter-generational equity, public participation in decision-making and the precautionary principle have emerged in wide variety of contexts as recognized international legal norms of varying content. The language of Stockholm Principle 21 reflects a truly multinational input to the development of international law. It combines the perspectives of both the South and the North. This synergism symbolizes a new type of arrangement between developing and industrialized countries for agreeing on ccommon norms and strategies for conserving and utilizing environmental resources.

Continued

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