Growing international awareness of environmental degradation

Under the auspices of the World Meteorological Organization (WMO), an International Geophysical Year was proclaimed in 1957–8, mainly focusing on meteorological and ozone-layer observations, including atmospheric pollution and climate change. The Year marked the beginning of a broader interest in the state of the world environment. During the 1960s the global extent of resource depletion and environmental degradation came to the fore. A wide variety of environmentally relevant issues came under discussion including: the long-term damaging effects on nature of products containing DDT; excessive economic growth; tanker disasters on the high seas or in territorial waters; contamination of water; harmful chemicals; waste discharge; the testing of nuclear weapons; population growth; wasteful consumption patterns; and unrestricted use of the world's natural resources. Such issues provoked a new debate on traditional international law, including the principles of freedom of action and non-interference in domestic affairs. Previously, if issues of sea and river pollution were addressed at all at the international level, it was not so much because of fear of damage to the human environment and the ecological balance at large, but because of the threat posed to economic interests, for example, to fish stocks and consequently to the fishing industry.

During the 1960s this situation radically changed. It was realized that the ‘human environment’ as such was at stake. People began to see the world as an entity, as ‘spaceship earth’. This affected thinking on State sovereignty.

Permanent sovereignty over natural resources, while a legal concept, is typically a product of the interaction of politics, economics and sociology of international relations. The decolonization process marked its genesis; and the efforts of newly independent States to enhance their opportunities for development had a profound impact on its evolution. Political and academic discussion of permanent sovereignty has focused on rights rather than on obligations. This is due to the fact that the newly independent States have looked upon permanent sovereignty as a counteracting factor, if not as an ‘antidote’ to the more traditional rights connected with resource management, such as the inviolability of contracts, a strict interpretation of pacta sunt servanda and of respect for acquired rights, and the right of home States to grant diplomatic protection to their nationals abroad. Developing countries challenged these rights by invoking ‘permanent sovereignty’ as the basis for claiming, among other things, the right to regain effective control over natural resources, to choose freely their own socio-economic system, the right to use freely their own natural resources and the right to expropriate or nationalize foreign property rights.

Logically, developing States were more interested in formulating rights reinforcing their sovereignty than in obligations restricting it. For a long time they tended to perceive any reference to obligations as a potential encroachment on their ‘permanent’, ‘full’ and ‘inalienable’ natural-resource sovereignly. All of these traditional rights and concepts are currently subject to change and are being replaced or complemented by new, usually more flexible insights.

From the 1960s, developing countries actively pursued the implementation of the principle of permanent sovereignty over natural resources because they perceived this to be a main basis for their economic development and for a redistribution of wealth and power in their relations with the industrialized world. Consequently, during the period 1963–70 emphasis on State control and the actual ways of implementing the principle of permanent sovereignty over natural resources increasingly received attention and the link between permanent sovereignty over natural resources and promoting the development of developing host countries was firmly established. General Assembly Resolution 2158 (XXI), in particular, was instrumental in this, both substantively and politically. The guidelines it entails for the relationship and co-operation between foreign investors and developing host countries contain a relevant and substantive inventory of the problems involved and recommend constructive policies. Politically, it was important that the broad coalition which supported the 1962 Declaration persisted.

Yet, after 1970 the discussion on permanent sovereignty over natural resources changed substantially. Some controversial elements were more vigorously introduced in the discussion on the scope and content of permanent sovereignty, in particular creeping jurisdiction of coastal States over adjacent sea areas and marine resources which often led to fishery disputes, and the issue of economic coercion. Furthermore, in the early 1970s an increasing number of developing countries nationalized certain sectors of their economies, including foreign-owned sectors, and sought international legitimization for these actions through the United Nations leading to a resumption of the ‘nationalization debate’.

This chapter identifies and analyzes emerging international norms which are relevant to nature conservation and environmental protection and which have a bearing on the scope and substance of permanent sovereignty over natural resources. The chapter discusses: the concept of international environmental law; the development of international environmental law and its codification; international case law as far as relevant to the concept of sovereignty and environmental preservation; twelve main principles of international environmental law as they emerge from various sources of international law; and the question whether contradictions and tensions exist between the concept of sovereignty, including sovereignty over natural resources, and international environmental law.

The concept of international environmental law

International environmental law is a relatively young branch of international law. Since the 1970s, in particular, it has developed in response to a mounting concern for the state of the environment. However, this is not to say that before the 1970s environmentally relevant law did not exist. As early as the nineteenth century, marine fisheries agreements were concluded as were treaties containing anti-polluting provisions and treaties regulating fisheries in international rivers. During the first decades of this century treaties relating to the protection of certain species of wildlife (migratory birds and fur seals) and flora and fauna in general were adopted and, since the 1930s, anti-pollution treaties have been concluded.

Furthermore, legal arrangements came into being which are environmentally relevant even though inspired by other objectives.

In the period since the establishment of the United Nations the regulation of foreign investment has become a major bone of contention between industrialized and developing countries. While the former have emphasized the duty of all States to respect international law, including the fair treatment of foreign investors and the payment of prompt, adequate and effective compensation in the case of expropriation and nationalization, the latter claim free disposal of their natural resources and the right to take over foreign property when they see fit. These issues were, as we noted in Part I, at the centre of the debate on permanent sovereignty over natural resources. This chapter reviews the main developments in international investment law starting with a discussion of the contents and evolution of the two main opposing doctrines (the international and the national standards), focuses on multilateral efforts to draft codes of conduct relating to foreign investment, and then reviews multilateral instruments for promotion, protection and insurance of foreign investment. One of the most striking phenomena in the field of international investment law is the increasing popularity of bilateral investment treaties which is also dealt with. Finally, the chapter discusses some trends in the international settlement of investment disputes.

‘National standard’ versus ‘international minimum standard’

Historical background

Rules of law on foreign investment can be traced back to the early days of colonization and European domination.

This chapter analyzes the development of the principle of permanent sovereignty over natural resources through the political organs of the United Nations in the period up to 1963. The chapter first discusses the concerns during the immediate post-war years regarding the scarcity, optimum utilization and conservation of natural resources, which led to a number of initiatives in the UN. Part of the discussion relates to the question whether a State has the right to dispose freely of its own natural resources or that, in the management of its natural resources, it should take into account the overall needs of the world economy as well.

Latin American countries, especially Chile, took the initiative of introducing the principle of permanent sovereignty in the UN. They used the United Nations as the main forum to express their uneasiness about their relationship with the United States, which they perceived as very unequal. Consequently, they consistently emphasized principles such as national sovereignty, sovereign equality and non-intervention as well as the primacy of national law and domestic courts. Their initiatives resulted, first, in General Assembly Resolution 626 (VII), often perceived as the genesis of the principle of permanent sovereignty but which became branded as ‘the nationalization resolution of the Seventh General Assembly session’.

Part IV examines four treaties which form the centrepiece of international wildlife law and are the most important agreements considered in this book. They were all concluded in the 1970s and, in contrast to the treaties discussed in earlier chapters, they are neither restricted to a few individual species nor to certain geographical regions. They are the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (generally known as “Ramsar”, the name of the Iranian town where it was signed), the Convention Concerning the Protection of the World Cultural and Natural Heritage (the “World Heritage Convention”), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), and the Convention on the Conservation of Migratory Species of Wild Animals (generally known as the “Bonn Convention” because it was signed in the West German capital city).

Each of the four has its limitations as a legal conservation instrument. Ramsar is limited to wetlands, the World Heritage Convention is concerned with a few select areas of “outstanding universal value”, CITES is restricted to the regulation of international trade, and the Bonn Convention covers only migratory species. Together, however, the four treaties comprise a powerful body of international law affecting the conservation of an immense number and variety of wild animals and plants. Ramsar's broad definition of wetlands includes a wide diversity of important wildlife habitats. CITES is vitally important for parrots, crocodiles, cacti, sea turtles, cats, rhinos and dozens of other groups of species whose survival is threatened, or potentially threatened, by international trade.

Background

Few species are as well covered by international law as the vicuna (Vicugna vicugna), a South American cameloid closely related to the llama and reputed to have the finest and most expensive wool in the world. Three international conventions have been concluded in the last fifteen years specifically to promote its conservation. They are the Convention for the Conservation of Vicuna (concluded in La Paz in October 1969 and hereinafter called the “La Paz Agreement”) to which Argentina, Bolivia, Chile, Peru and Ecuador are Parties, the Convention for the Conservation and Management of Vicuna (signed in Lima on 16 October 1979 and hereinafter called the “Lima Convention”) to which Bolivia, Chile, Ecuador and Peru are Parties, and the bilateral Agreement Between the Bolivian and Argentinian Governments for the Protection and Conservation of Vicuna (signed in Buenos Aires on 16 February 1981 and hereinafter called the “Buenos Aires Agreement”). In addition, vicuna are listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).

The extraordinary attention lavished on vicuna by lawmakers reflects the heated debate which has raged in recent years as to whether or not controlled exploitation of the species should be allowed.

The Contracting Parties,

RECALLING the Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted under the Antarctic Treaty signed at Washington on 1 December 1959;

RECOGNIZING the general concern about the vulnerability of Antarctic seals to commercial exploitation and the consequent need for effective conservation measures;

RECOGNIZING that the stocks of Antarctic seals are an important living resource in the marine environment which requires an international agreement for its effective conservation;

RECOGNIZING that this resource should not be depleted by over-exploitation, and hence that any harvesting should be regulated so as not to exceed the levels of the optimum sustainable yield;

RECOGNIZING that in order to improve scientific knowledge and so place exploitation on a rational basis, every effort should be made both to encourage biological and other research on Antarctic seal populations and to gain information from such research and from the statistics of future sealing operations, so that further suitable regulations may be formulated;

NOTING that the Scientific Committee on Antarctic Research of the International Council of Scientific Unions (SCAR) is willing to carry out the tasks requested of it in this Convention;

DESIRING to promote and achieve the objectives of protection, scientific study and rational use of Antarctic seals, and to maintain a satisfactory balance within the ecological system,

HAVE AGREED as follows:

Article 1

SCOPE

1. This Convention applies to the seas south of 60° South Latitude, in respect of which the Contracting Parties affirm the provisions of Article IV of the Antarctic Treaty.

Background

The first international agreement to conserve African wildlife was signed in London on 19 May 1900. It was called the Convention for the Preservation of Wild Animals, Birds and Fish in Africa. It was signed by the colonial powers then governing much of Africa – France, Germany, Great Britain, Italy, Portugal and Spain – and its objective was “to prevent the uncontrolled massacre and to ensure the conservation of diverse wild animal species in their African possessions which are useful to man or inoffensive.” As long ago as 1900 the teeming herds of African wild animals were starting to diminish, and the primary goal of the Convention was to preserve a good supply of game for trophy hunters, ivory traders and skin dealers.

The 1900 Convention prohibited the killing of all specimens of species listed in Table 1 of the Convention and “all other animals which each local government judges necessary to protect, either because of their usefulness or because of their rarity and danger of disappearance.” Table 1 was divided into Series A (“useful animals”) and Series B (“animals that are rare and in danger of disappearance”). Series A contained the secretary bird and all vultures, owls and oxpeckers. Series B consisted of “giraffe, gorillas, chimpanzee, mountain zebra, wild asses, white tailed gnu and pygmy hippopotamus.”

Introduction

The origins of the Convention on the Conservation of Antarctic Marine Living Resources (“CCAMLR”) can be traced back to the Antarctic Treaty, which was signed in 1959, came into force in June 1961 and established the legal framework for dealing with a wide variety of issues involving Antarctica. The Antarctic Treaty applies to the entire area south of 60° South latitude except for the high seas and is a kind of self-denying ordinance under which the twelve “Consultative Parties” agreed to use Antarctica for peaceful purposes only, to prohibit the disposal of nuclear waste there, to freeze the legal status quo with respect to territorial claims and to promote free scientific research in the continent. The twelve Consultative Parties are Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, U.K., U.S.A., and U.S.S.R. They have since been joined by Brazil, Poland, the Federal Republic of Germany and India.

The Antarctic Treaty does not address the exploitation, ownership or management of living or non-living resources, although it does authorise the Consultative Parties to recommend measures with respect to the “preservation and conservation of living resources in Antarctica”. Pursuant to this authority, the Consultative Parties adopted several conservation measures in the early 1960s, and when Japan and the U.S.S.R. began fishing for krill (Euphausia superba) in the late 1960s and early 1970s the Consultative Parties decided to take it upon themselves to develop a legal regime to control the emerging fishery.

The Governments whose duly authorized representatives have subscribed hereto,

RECOGNIZING the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks;

CONSIDERING that the history of whaling has seen over-fishing of one area after another and of one species of whale after another to such a degree that it is essential to protect all species of whales from further over-fishing;

RECOGNIZING that the whale stocks are susceptible of natural increases if whaling is properly regulated, and that increases in the size of whale stocks will permit increases in the numbers of whales which may be captured without endangering these natural resources;

RECOGNIZING that it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress;

RECOGNIZING that in the course of achieving these objectives, whaling operations should be confined to those species best able to sustain exploitation in order to give an interval for recovery to certain species of whales now depleted in numbers;

DESIRING to establish a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks on the basis of the principles embodied in the provisions of the International Agreement for the Regulation of Whaling signed in London on 8 June 1937, and the protocols to that Agreement signed in London on 24 June 1938, and 26 November 1945; and

HAVING decided to conclude a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry;

HAVE AGREED as follows:

Article I

1. This Convention includes the Schedule attached thereto which forms an integral part thereof.