International Environmental Law and the Safeguarding of the Rights of Future Generations - Research Paper Example

 Introduction The course of development perpetually requires utilisation of natural resources and as a result makes an effect on the ecology and environment. The overall development of an economy and in particular the industrial growth of a country necessarily contributes to exploiting the natural wealth. This in turn, more often than not, leads to not only mere economic issues but matters pertaining to the environmental security both at the local and more importantly, at the global level. The industrial development and growth of a country is always dependant on the accessibility of sources of energy. It is an established truth that a machine cannot be run without power so also the industrial activity becomes ineffective unless and until proper infrastructure for transportation of raw materials, finished goods etc., are provided. The previous decade has considered countless significant growths in IEL (International Environmental Law) and its assimilation with the more extensive international legal order (Sands, 1999). The expansion of the conception of sustainable development, during the fine-tuning of a number of principles was conceived as a necessity to its accomplishment, and is of particular importance. According to Sands (1995) “The responsibility not to cause transboundary environmental harm, the principle of common but differentiated responsibilities, the principle of preventative action and the polluter-pays principle.” The substance of these rationales is still developing and their position in international law is often debatable. However, their prescriptive significance as managing instruments in the structure of international environmental regimes is undisputable (Dupuy, 1991). According to Brownlie (1998) “Arguably, two of the most important principles are the precautionary principle (‘PP’), a substantive norm, and the principle of cooperation (‘CP’), a procedural norm.” International Covenant on Civil and Political Rights (ICCPR) which is one of the most vital tools in International Law stated in Article 1 that “All peoples have the right of self-determination and by merit of that right; they are at liberty to freely determine their political status and freely pursue their economic, social and cultural development”. The Article further made it apparent that all peoples can, for their own goals, “freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law”. 【where from? There are some sentences in double quotes, they have to be marked the references and page number.】(See this is already referenced. It is taken from International Covenant on Civil and Political Rights (ICCPR) Article 1. since this is an Act you can’t quote page number) Sustainable development The conception of sustainable development has for the years become multi-dimensional. It actually embraces within itself the fears of economic development, social & cultural development, scientific development and most importantly environmental protection. In reality sustainable development represents the balance between the idea of growth and the conception of environmental protection. The construct of growth is a human right. One cannot deny it this legal status. The perception of environmental defence is similarly a very significant basis of a variety of human rights like the right to life, the right to health and the right to a sufficient standard of living. Thus the concept of Sustainable Development on the whole is simply a course of development of the society the force of which can be continued till perpetuity. In order to guarantee this, those absorbed in the project of growth would of course defend against such misuse of resources which might lead to their eternal destruction. In reality Sustainable Development seeks to equalise the scale amongst the amount of development and quality of environment. The effort put should not result in the disturbance of this fragile equilibrium. Therefore it can be said that sustainable development addresses two kinds of equity; 1. The equity for human creations yet to come, whose concerns are not constituted by standard economic investigation or by market drives that ignore the future, and 2. The impartiality for people existing now and thus does not have the same access to natural sources. The disagreement between the two forms of equities has developed the International treaty obligations. According to McGoldrick (1996) “Conceptually, sustainable development can be conceived of as integrating three "pillars": international environmental law, international human rights law and international economic law. The integrated structure of sustainable development is such that it requires support from each of the pillars." Various declarations on sustained development In its budding form, Stockholm Declaration on the Human Environment of 1972, in its First Principle promulgated a general belief of States that man assumes a “solemn responsibility to protect and improve the environment for present and future generations”. The Fifth Principle of the Stockholm Declaration on the Human Environment of 1972, stated that when non-renewal sources are used then they have to be utilised in such a way that the future dangers of these resources becoming exhausted have to be taken into account. The benefits attained from the use of such non-renewal sources should be portioned out to all mankind. The World Charter for Nature of 1982 had strongly appealed for the exploitation of ecosystems, beings and other such sources so as to “achieve and maintain optimum sustainable productivity” but in such a way so as not to “endanger the integrity of the ecosystems” within which their co-existence depends. It prohibited the usage of non-renewable resources over and above their natural capability for renewal, and thus recommended use of nature’s gift “with self-control”. 【sentences in double quotes must be marked reference and page number】(This also is referenced and it is “World Charter for Nature of 1982” so same this is Act so no page number) The Rio Declaration on Environment and Development of 1992 affirmed the Stockholm Declaration and announced through its Fourth Principle that “environmental protection shall constitute an integral part of the development process.” It further stated that environmental protection and development cannot be considered in isolation for the goals of sustainable development to be accomplished. Towards this end the declaration urged that the States shall “reduce and eliminate unsustainable patterns of production and consumption” and, so, commanded that “Environmental Impact Assessment” shall be attempted as a national tool for suggested activities which might most possibly have a significant unfavourable affect on the environment. 【the same as above】(The Rio Declaration on Environment and Development of 1992 through its Fourth Principle, is the reference) The UN Commission on sustainable growth which was established by UNESCO in 1993, under Article 68 of the UN Charter, is directed at raising the International support and for justifying the “inter-governmental decision making capacity for the integration of environment and development issues”. The Kyoto Environmental Summit on Global Warming in 1977 surveyed, the improvement made. It then drew out plans for environmental safety in the future, and stated that reduction by eight per cent in the amount of discharges of the Green House gases like carbon dioxide, chlorofluorocarbons (CFCs), nitrous oxides, ozone, methane, etc., has to be followed by every country to protect the environment. 【has been deleted??】 International Court of Justice and environmental law International environmental law has been to a great extent determined by reflections linking to the safeguarding of the rights of future generations. During the past several years, there has been a prototype change from rights-based advancement to focus on duties, touchstones and social controls. Pollution is not always the unavoidable outcome of industrial actions or of activity calling for usage of natural resources is an accepted fact universally. Courts in several jurisdictions have depicted altered tendency to bend in support of the right of the civilisation on the whole as against the untoward encroachment on environment when it comes in dispute with economic welfare of an individual or the State. The case of Lopez Ostra v. Spain (http://www.righttoenvironment.org/default.asp?pid=91#_ftn3) which was resolved by European Court of Human Rights in 1994, probed the challenge on the standard of positive duty by the State. The court stated that the states should take rational and suitable steps to protect the rights of a person against environmental contamination due to intervention by the public agencies. It also held the latter answerable for the collapse in affecting a fair balance. 【where from? If the case in the book or article, it should be marked】 The International Court of Justice in the year 1996, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons distinguished the rationale of State accountability for environment harm, covering “the general obligation of States to ensure that activities within their jurisdiction and control respect the environment” like “part of the corpus of International Law relating to the environment”. 【has been deleted??】 In the case of Gabci´kovo Nagymaros Dam, (http://jel.oxfordjournals.org/cgi/content /abstract/10/1/79) resolved in 1997, the International Court of Justice again stressed on “the need to reconcile economic development with protection of the environment” and required the States to “respect the environment”. 【reference and page number】(http://knol.google.com/k/zia-shah/islamic-contributions-to-medieval-europe/1qhnnhcumbuyp/115) During the process of development of jurisprudence in India the Supreme Court in MC Mehta’s1 case stated that there was a motive to come to a balance amid progress & development and risk to the community. It stated thus: “…..when science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is a certain element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazard or risk altogether. We cannot possibly adopt a policy of not having any chemical or other hazardous industries merely because they pose hazard or risk to the community. If such a policy were adopted, it would mean the end of all progress and development. Such industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well-being of the people. We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner which would pose least risk of danger to the community and maximising safety requirements in such industries. We would therefore like to impress upon the Government of India to evolve a national policy for location of chemical and other hazardous industries in areas where population is scarce and there is little hazard or risk to the community, and when hazardous industries are located in such areas, every care must be taken to see that large human habitation does not grow around them. There should preferably be a green belt of 1 to 5 km width around such hazardous industries.” 【references and page number】(This is a case law which I have fully quoted as foot note. The Supreme Court has passed its judgment in this case and the judgment has been reproduced here in double quotes) The development of judicial bodies The matter of the harmony of jurisprudence is one of the views brought up by the present occurrence of the propagation of a variety of specified, regional and worldwide judicial bodies whose jurisdiction is restrained to issues within a fixed subject area. As a result, the ICJ encounters itself in a legal and virtual situation that is rather unusual from the times in which its inherent power seemed uncontested. According to President Schwebel, it is significant that the Court, bearing the separate position of the only universal court, is susceptible to these reflections and that it attempts to uphold its place at the front of modern legal growth. 【has been deteled??】 Judge Christopher G. Weeramantry also commented that “the Court, situated as it is at the apex of international tribunals, necessarily enjoys a position of special trust and responsibility in relation to the principles of the law of the sea, environmental law and all other branches of international law.”2 This judicial development emphasises a certain pragmatic limitation enforced on the Court in accomplishing its role. The Human Rights Court can, be contacted by an individual only if he/she has first tired all local solutions. The limitations on the locus standi of the offended individuals in the present judicial bodies has contributed to the deliberation of the likelihood of instituting yet another judicature, that is the International Court for the Environment(Rest, 1994). Even though states may naturally constitute as many courts as they hold essential, the choice of launching a new Court for the Environment appears currently as unlikely. Certain projects of such a probable court might on the other hand in the meanwhile be upgraded to some point by the Permanent Court of Arbitration. This court has actually planned to start in 1998 a debate of its part in environmental challenge resolution (Loibl, 1997 and Rest, 1998). The relationship between environmental protection and human rights and the jurisdiction of International Environmental Law When the relationship between environmental protection and human rights is considered; the controversial question according to Shelton (1991) is “whether environmental protection aims at enhancing the quality of human life and is thus a subset of human rights or whether environmental protection and human rights are based on different social values.” (Shelton: 1991 taken from http://hdr.undp.org/en/ reports/global/ hdr2000/ papers/ ayesha%20dias%20.pdf).【page number】 According to Shelton (1991) "On the basis of these concepts, environmental protection can be achieved through the assertion of existing human rights, the development of new human rights relating to the environment, or a general ‘right to environment’. The latter would lift environmental protection from being a subset of other human rights, such as property, and thus endow it with a status that would have to be balanced against human rights.” 【has been deleted??】 In Vellore Citizens Welfare Forum v Union of India3 a prayer was registered under Art 32 (Right to Life) of the Constitution of India. The appeal was aimed against pollution, which was being induced by huge expelling of unprocessed waste matter by the tanneries and other industries in the State of Tamil Nadu. In this case Justice Kuldip Singh equilibrated ecological issues with developmental imperatives. The case was decided in favour of the petitioners and the Court ascertained that “though the leather industry is of vital importance since it generates foreign exchange and provides employment it has no right to destroy the ecology, degrade the environment and pose a health hazard.” 【reference and page number】(Case law as given in the foot note) The court further stated that the conventional conception of development and ecology are opposed to each other was not acceptable any longer. "Sustainable Development" was the answer. It submitted that in the two decades from Stockholm to Rio, "Sustainable Development" has become a feasible notion to eliminate poverty and perk up the quality of human life while existing within the capability of the sustaining eco-systems. The court had no reluctance in agreeing that sustainable development is part of normal international law though its prominent characteristics have to be settled by the international law jurists. Under conventional international environmental law, a depicting of actual or predictable harm was necessitated before environmentally detrimental actions could be governed. The essence of scientific evidence was on the state arrogating transboundary harm internationally. Nevertheless, international environmental law nowadays needs action to check or slack off environmental degradation even when there is a deficiency of scientific certainty. The Ozone Convention is possibly the best instance of the purpose of this approach. A firmer account of the precautionary principle reverses the burden of proof altogether. In this class, it becomes prohibited to carry out an action unless it can be established that it will not induce intolerable injury to the environment. The main consequence of the rationale in these circumstances is to demand states to present suggested actions which might affect the global commons to international examination. 【has been deleted？？】 Conclusion Respecting the environment is a part of the universal customs of humanity. There has to be implemented a formula which will bring together development and protection of the environment. This formula has to be worked out by using all the wisdom that can be found. According to Weeramantry (2009) "Please do not neglect the traditional wisdom of the many rich cultures of our region that we can draw upon for the purpose of developing this very important area of future International Law." 【page number】 Thus it can be concluded by stating that there are two fundamental concepts of environmental human rights in the present human rights system. The right to a healthy or equal environment is itself a human right while the second conception is derived from the idea that environmental human rights can be deduced from other human rights. 【reference】(conclusion is my own opinion so no reference) The onslaught of several environmental consequences, particularly climate change, has produced potential differences between different human rights. Human rights finally need a working ecosystem and sound environment, but the conceding of certain rights to people may impair these. In the field of environmental rights, the obligation of transnational corporations is of predominant consideration. Environmental Rights move largely around the thought of a right to a livable environment not only for the present generations but also for the future generations. 【reference】(conclusion is my own opinion so no reference) Dear Writer, This is the old copy you sent to me and the one I submitted. I read the work you just set right and I can see the parts you have changed which I marked in red font, but the point is that I HAVE TO give an explanation of every single reference used or should used but not . So, if you can indicate that will be very helpful. And also send the websites of the references to me as I cannot find some of these on the internet. All of these are very IMPORTATN to me. I would be very appreciate to you!! Bibliography Brownlie, Ian. 1998. “Principles of International Law (5th ed.) p. 285. Dupuy, P. M. 1991. “Soft Law and the International Law of the Environment.” Michigan Journal of International Law. 12: p. 420. nternational Court of Justice 1996 Loibl, Gerhard and Reiterer, Markus. 1997. “Criminal Law and the Protection of the Environment.” EPL, 27: p. 400 McGoldrick, D. 1996. "Sustainable Development and Human Rights: An Integrated Conception", 45 Int'l and Comp L.Q. Rest, Alfred. 1994. “Need for an International Court for the Environment? Underdeveloped Legal Protection for the Individual in Transnational Litigation”. EPL 24: pp.173–87 Rest, Alfred. 1998. “Which Judicial Institution for the Environmental Cause, If Not an International Court?” EPL 28 Rio Declaration on Environment and Development of 1992 Sands, P., 1999. “International Environmental Law Ten Years On” Review of European Community and International Environmental Law 8 (3): p. 23 Sands, P., 1995. “International Law in the Field of Sustainable Development: Emerging Legal Principles” in W Lang (ed) Sustainable Development and International Law (1995) 62 Sir Jennings, Robert President of the International Court of Justice, 1992. ICJ Yearbook 46: pp. 212–8. Shelton, D., 1991. "Human Rights, Environmental rights and the Right to Environment”, Standard .Journal of .International Law (28) Stockholm Declaration on the Human Environment of 1972, The Kyoto Environmental Summit on Global Warming reviewed, in 1997 UN Commission set up by UNESCO in 1993 Weeramantry, Christopher, G. 2009. “Sustainable Development”: An Ancient Concept Recently Revived. World Charter for Nature. 1982. United Nations General Assembly Resolution 37/7, of 28 October 1982 Read More