Despite almost universal recognition within the international community of the importance of international environmental law, many complex issues continue to elude an appropriate legal response. A particularly controversial issue – and one that is proving increasingly difficult to resolve – is the question of how to reconcile the principle of environmental protection with that of free trade. Moreover, despite such positive platitudes as that contained within the 1992 Rio Declaration on Environment and Development, nation states are quickly discovering that the issue is not simply one of abstract interest, but is actually beginning to influence both their domestic and international regulatory behaviour. This article seeks to present a broad overview of this issue as it relates to the European Union (EU) and the World Trade Organization (WTO). In particular, the article will critically discuss some of the more recent jurisprudence on this issue arising from these two, very different, ‘groupings’ of states. As will be noted, there are important similarities and differences between each ‘grouping’ in terms of its approach. And, of course, whilst it is acknowledged that many of these differences can be resolved by reference to the different aims and objectives of the different ‘groupings’, nevertheless, this article will try to move beyond a strictly comparative approach of the issues, and place them in a broader analytical framework. This is not an attempt to show which approach is ‘best’, but rather, to highlight the tensions between environmental protection and free trade.

The codification of international law concerning the non-self-governing territories has proceeded through three distinct phases in this century. Article 22 of the Covenant of the League of Nations contained the notion that the well-being and the development of dependent peoples was the sacred trust of civilization. This concept legally applied only to the mandated territories, but in fact embodied the then current philosophy of the colonial powers. It implied that the territories should not be exploited for the benefit of the administering authorities; it was, however, a fairly static view, which did not even indicate to what end the “development” was to lead.

The Asser Institute has asked me to speak in English, here in The Hague before a Dutch audience. Permit me to linger for a moment over this phenomenon.

Intervention is an almost daily phenomenon of international politics. Both for practitioners of international law and for students of international relations it is a challenging theoretical problem, since the occurrence of intervention is contrary to a number of hypotheses assumed in the theoretical analysis of international problems. In its broadest sense the concept of intervention refers to any act that invades the theoretical sphere of action of States which — in so far as a spatial conception of things can have any relevance in this context — is confined to relations between States and in no way affects the intra-state territory of other States. The traditional model or paradigm which practitioners of both sciences have long adopted as the starting point of their analysis is derived from an image of international politics as relations between States, whereby each individual State has exclusive competence for the political process within its frontiers. Intervention means externally initiated acts which imply an infringement of that exclusive competence and which are therefore inadmissible from a normative and legal point of view. So interpreted, however, the intervention concept covers a whole range of activities which form a substantial part of the day-to-day practice of international politics and, consequently, also constitute an intellectual challenge for theoreticians. If non-intervention was the norm, interventions would be presumed to be the exception:

“The weight of opinion was that they constituted exceptions to the principle of non-intervention, that they did not preponderate to the extent of converting that principle from the rule to the exception”.

The ILA approach to the progressive structuring of international society, so typical of later 19th Century social optimism, has from the very first found a warm advocate in its oldest national branch, the NVIR. The idea to assemble legal luminaries and captains of industry into a single body might not be quite representative of the Dutch, rather compartmentalized, tradition of legal thinking, but even so, the NVIR, after a first abortive attempt in 1875, from its ‘re-launch’ in 1910 invariably met with a thoroughly welcoming intellectual climate in the Netherlands.

Over the past century, the Society's (board) members have not consistently proved themselves visionaries in their anticipation of, or reaction to, social change, be this in the domestic sphere or the international domain. Symptomatic of this were the fairly conservative views they held on such issues as Neutrality or the League of Nations in the 1920s; on the conflict with Indonesia, also regarding New Guinea, in the post-WWII years; on the Benelux experiment and the Schuman Plan in the 1950s; or on the decolonization process in the 1960s.

Even so, in the final analysis, the views represented by the NVIR have invariably been a welcome, indeed fairly refreshing contribution to the Dutch social debate. Also, and in spite of the progressive institutionalization and codification in the international arena auspicated by a wealth of intergovernmental bodies, ILA and the NVIR never did, nor will they presumably, fail in carving a very respectable niche of their own in aspiring to help the implementation of the Rule of Law in this world drawing nearer.

The international economic order of the late fifties and early sixties was still fascinated by the so-called salt-water colonialism. This appears from international legal attempts at that time to offer more protection to foreign investors than was available to their host countries. The mid-sixties inaugurated a new era by reversing this trend. Legal aspects of the settlement of investment disputes between States and nationals of other States, such as stabilization clauses and the choice of both forum and applicable law, thus in the seventies became subordinate to the discretionary powers of host States, whether or not a party to a contract. A possible consensus regarding the 1974 Charter of Economic Rights and Duties of States (CERDS) was even abandoned because of this prevailing view. The real challenge in this period formed the establishment of a New International Economic Order (NIEO) moulded in a predominantly political blue-print for the development of States as the sole or main actors in international economic relations.

The International Covenant on Civil and Political Rights provides for a modicum of international supervision of its States parties through the scrutiny of their periodic reports by the Human Rights Committee. This measure, which may be described as one of ‘international implementation’, operates in concert with the ‘domestic implementation’ requirement included in Article 2 of the Covenant. The ‘international implementation’ aspect entails some abridgement of the sovereignty of States parties and thus represents a noteworthy development in international politics. The companion aspect of ‘domestic implementation’ is, however, it is submitted, of far greater and more enduring significance for the promotion and protection of human rights. For, the availability and the exercise of the rights of the Covenant depend, as a matter of practical fact, upon their incorporation into the domestic system and the constraints — legal and social — that that system may place upon their exercise. The Covenant's rights are intended to be legal rights implemented by States parties and exercised by individuals within domestic legal systems. In addition:

‘Not only are the domestic remedies likely to be speedier and perhaps less expensive; in many cases they may be more effective, because a national court of appeal or Supreme Court can usually reverse the decision of a lower court, whereas the decision of an international organ does not have that effect, even though it will engage the international responsibility of the State concerned.’

The above quoted wishes, written in 1973 by the British official who was chief-delegate of the United Kingdom at the revision-conferences of CIM/CIV//CAV held in the years 1966 – 1972, have finally all been fullfilled by the CONVENTION OF INTERNATIONAL RAILWAY TRANSPORT (C O T I F), signed at Berne on the 9th of May 1980. But the preceding struggle has been long and protracted, as this paper will indicate.

The importance of a scholar like Hugo de Groot can be viewed in different ways. A systematic analysis of his works would clarify the coherence and depth, an historical approach would do the same for his sources and the extent of his originality. Other possibilities would be to trace the further development of his (legal and political) thinking or to ask what inspiration his works can still give towards the solution of problems today. Another approach has been adopted in the present contribution, viz., a discussion of Grotius' influence on a particular thinker of a later period, the Neapolitan lawyer and philosopher Giambattista Vico(1668–1744). Two aspects of his influence will be considered. In the first place, the question why Vico himself attributed such particular importance to Grotius. Vico even named Grotius as one of his “authors”. Vico employs the term “author” as a title of honour for his mentors in literature whom he considers especially important and in whose work he recognizes aspects of his pwn thinking which are of exceptional importance. However, Vico's attitude to Grotius does not consist solely of grateful admiration. In his principal work, the New Science, of which the first edition was published in 1725, and the last, totally rewritten, posthumous edition appeared in 1744, Vico's recognition of Grotius' merits is certainly still apparent, although his criticism has, by this stage, taken a dominant role. Vico's opposition to the predominant Cartesian rationalism, which he had already expressed in his De nostri temporis studiorum ratione of 1709 and in his De antiquissima italorum sapientia ex linguae latinae originibus eruenda, liber primus sive metaphysicus of 1710, also extends to the rationalist school of natural law of which he considers Grotius, Selden and Pufendorf to be the main representatives.

Of the more than 140 major cases of armed violence recorded since World War II, which have claimed more victims than that war itself, only relatively few have been ended through the mediation of the United Nations. Moreover, there is no single case in which the United Nations were absolutely instrumental in the prevention of an armed conflict, though in some cases aggression may have been averted in the face of international pressure. This is a disappointing state of affairs for an organisation whose task, according to the Preamble of its Charter, is to ‘save succeeding generations from the scourge of war’. But even if we disregard the lofty wording of the Preamble, the Charter itself in Article 1 places the maintenance of international peace and security first among the aims of the organisation.

Outline:***

1. Some indications on the research project of the Universities of Utrecht and Leyden on international economic organisations and legal issues of a new international economic order

2. Some legal characteristics of the existing international economic order

3. What should be new in a new international economic order?

4. The impact of the principle of State sovereignty on a new international economic order

5. Three final remarks

Whenever the use of comparative law is discussed, the question arises as to whether the phrase encompasses the use of foreign law. In this report comparative law will be taken in a broad sense, to include foreign law. For practical reasons subjects which are not confined to the boundaries of a single system – such as European law, international law and the law of international organisations – will not be covered in this report. For the same reasons no attention will be paid to those branches of legal science, which do not primarily deal with positive law, such as jurisprudence, legal methodology, sociology of the law and criminology.