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2.2 1945-1972

General developments

An outcome of revulsion to the Second World War was the creation of the United Nations. President Roosevelt first proposed the name expressed in the 'Declaration by United Nations' in 1942 when 26 nations pledged to fight together against the Axis Powers. In 1945, representatives of 50 nations met in San Francisco to draft the Charter of the United Nations. All representatives signed the Charter on 26 June 1945 (UN 1945). By October, a majority of the countries ratified the Charter and the United Nations came into existence on the 24th of that month. This landmark event did not then recognise the issues to which international environmental law apply. However, a closely related issue was explicitly recognised by the UN General Assembly's adoption and proclamation of the Universal Declaration of Human Rights on 10 December 1948 (UN 1948). In subsequent years, human and environmental rights have increasingly been regarded as being integral to one another. It is fitting to note that President Roosevelt's then widow, Elinor, played a leadership role in the drafting of the Declaration.

Although the UN Charter did not address environmental protection or the conservation of natural resources, various specialised agencies were established under the auspices of the UN with functions that concerned environmental matters, for example, the Food and Agriculture Organization (FAO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). Although not within the UN sphere, 23 countries concluded the General Agreement of Tariffs and Trade (GATT) in Geneva in 1947 (UN 1947). The underlying purpose, as proposed by the United States, was to conclude a multilateral agreement to institute a reciprocal reduction in tariffs. This economic goal merged with environmental interests in subsequent years.

In 1949, the UN held the United Nations Conference on the Conservation and Utilization of Resources (UNCCUR) to promote awareness and need for international action to ensure a balanced management and conservation of natural resources. However, the success of the UNCCUR was limited due to a lack of international political will to meet this ambitious objective.

During the 1950s, the effects of post-war industrialisation and economic development on water resources were increasingly being recognised. Belgium, France and Luxemburg concluded a first treaty devoted entirely to controlling water pollution (Protocol to Establish a Tripartite Standing Committee on Polluted Waters, Brussels 8 April 1950). Multiple similar agreements were concluded for many European freshwater resources over the following years.

In the later 1950s, people became aware of the disaster experienced by residents of the small Japanese town of Minamata. Over three decades, the Chisso Corporation had dumped an estimated 26 tons of mercury compounds into Minamata Bay (see 2.2.1). In consequence, an estimated 3000 persons succumbed to poisoning from the mercury. Many died and those that lived suffered appalling degenerative diseases. This disaster was a horrific demonstration of the possible consequences of industrial pollution.

2.2.1 Map of Minamata, illustrating the Chisso factory and its effluent routes

Source: Bobo12345 (unknown)

A modest step towards dealing with pollution in marine waters was also taken in the 1950s. The UK Government convened an International Conference on Pollution of the Sea by Oil in London from 26 April to 12 May 1954, The aim was 'to take action by common agreement to prevent pollution of the sea by oil discharged from ships, and considering that this end may best be achieved by the conclusion of a Convention'. (UN 1954). This came into force on 26 July 1958. This was the first of a series of global conventions for the prevention of oil pollution.

Three Conventions regarding marine pollution and conservation were adopted on 29 April 1958 in Geneva: the Convention on the High Seas to Prevent Oil Pollution and Dumping of Radioactive Waste on the High Seas (UN 1958a); the Convention on Fishing and Conservation of Living Resources of the High Seas to Protect Marine Living Resources (UN 1958b); and the Convention on the Continental Shelf to Regulate Jurisdiction to Exploit the Natural Resources of the Continental Shelf (UN 1958c).

The Nuclear Arms race in this period greatly heightened public anxieties and focused attention on the threats to life on earth. In 1959, a newly agreed Antarctic Treaty prohibited any nuclear activity on that continent. Twelve nations agreed 'that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord' (ATS 1959).

African nations also achieved ground breaking agreement in 1968 by concluding the African Convention on the Conservation of Nature and Natural Resources (OAU 1968). This agreement innovatively recognised the vital importance to humanity of the capital of soil, water, flora, and faunal resources. The several states declared it to be their duty 'to harness the natural and human resources of our continent for the total advancement of our peoples in spheres of human endeavour'.

Also of crucial importance is the Ramsar Convention on Wetlands of International Importance. This was adopted in the Iranian city of Ramsar in 1971 (Ramsar 1971). Its mission in seeking the conservation and 'wise use' of wetlands is to repair a previously neglected and wasted vital component of the biosphere. Wetlands play a key role biologically and hydrologically. They provide vital ecological functions that include sustaining biodiversity.

In the post-war period, there were two judicial cases of relevant importance for international environmental law. In 1946, tension between the British government and Albania over the safe passage of ships in the Corfu Channel culminated in two British warships being seriously damaged by mines in the Channel. Forty-two men were killed and as many injured. To resolve the dispute the two governments submitted the case to the International Court of Justice (ICJ). The ICJ declared in its findings certain and now well-recognised principles including 'every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States' (ICJ 1949).

The second case concerned a dispute between Spain and France over the latter diverting waters that Spain considered damaging to its downstream use of those waters (UN 1957). This dispute led to an important arbitration. The Lake Lanoux arbitration held that downstream states, such as Spain did not have a right to veto decisions over its use of water made by the upstream state. However, the upstream state did have an obligation to consider the position of the downstream state in reaching its decision. Together with the Trail Smelter case (UN 1938), this case is regarded as contributing to the formulation of Principle 21 of the Stockholm Declaration (UNEP 1972) and Principle 2 of the Rio Declaration (UNEP 1992a) that recognise the international obligation of states not to allow trans-national pollution from their territory that will affect the rights of other states. In addition, the 1957 Lac Lanoux case recognised the duty on states not to abuse their shared river water sources to the detriment of riparian owners.

During the 1960s, especially in the developed world, there was increased awareness about the status of the environment at both national and international levels that elevated public concerns. In April 1968, an international group representing fields across the professions established the Club of Rome. Four years later, the Club of Rome published the highly influential 'The Limits to Growth' (Meadows et al 1972). In 1969, the US Senator Gaylord Nelson was moved to propose a 'national teach-in on the environment'. As a result 'Earth Day' was born on 22 April 1970. In this period Sweden increasingly objected to acid rain. In 1968, the Swedish ambassador to the UN placed on the agenda of the UN Economic and Social Council the topic 'the Human Environment'. This led to the UN-convened Conference on the Human Environment (UNCHE).

1972 Stockholm Conference on the human environment

As part of the preparations for the United Nations conference, Maurice F Strong, the Secretary General of the United Nations, commissioned Dr René Dubos to serve as the Chairman of a group of experts charged with preparing an unofficial report. The result was the book 'Only One Earth: The Care and Maintenance of a Small Planet' by Barbara Ward and René Dubos (1972). This book was a first authoritative attempt to assess environmental concerns in the economic context of development and, as such, anticipated the post-Stockholm report 'Our Common Future' (WCED 1987). The conference was held from 5-16 June 1972 in Stockholm and was attended by 113 states and international non-governmental organisations (NGOs). This was the first such international conference and it was the foundation for international actions addressing the environment.

Major outcomes of UNCHE were the Stockholm Declaration and Action Plan. These defined principles for the preservation and enhancement of the environment and represent important expressions of 'soft' law (norms of international environmental law which are not legally binding). The Conference recognised that problems such as habitat degradation, toxicity and pollution of the air, were not necessarily of highest importance for all countries. Development strategies place a responsibility on industrialised countries to recognise the gap between them and underdeveloped countries. UNCHE developed a comprehensive set of recommendations.

Stockholm Declaration of Principles (1972)

The Stockholm Declaration of Principles for the Preservation and Enhancement of Human Development contains 26 non-binding statements of principles for international actions. As stated above, these represent important principles of international environmental soft law. Although the Declaration affirms that the foremost responsibility for environmental responsibility lies with national and local governments, it also recognises the necessity for international co-operation. 'Local and national governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. International co-operation is also needed in order to raise resources to support the developing countries in carrying out their responsibilities in this field' (UNEP 1972). The most important principles with legal effect can be summarised as follows:

Principle 1 firmly states that:

'Man[kind] has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.'

Principle 21 is an especially important affirmation of international environmental law doctrine:

'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.'

While thus confirming the position especially important to the developing world that a state has the right to develop its natural resources according to its own interests, it also has a duty to ensure that activities within its jurisdiction or control, do not harm other states or of areas beyond the limits of that state's jurisdiction. Principle 21 therefore explicitly affirms the 'good-neighbour' duty to prevent and address atmospheric pollution, dumping of hazardous material and hazardous (nuclear) waste, climate change etc. In other words, it is a balance between national sovereignty and international environmental responsibility.

Principle 21 also implicitly expresses the conflict between developed and developing nations (a North-South dichotomy). Through the Principle, developing nations assert their sovereignty over development and exploitation of their natural resources, whilst developed nations emphasise the limitation of such sovereign rights with the duty to prevent and address the negative environmental impacts caused by such development actions. Principle 21 has sufficiently gained acceptance as state practice that it is now regarded as a principle of customary international law.

As a significant aspiration, under Principle 22:

'States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.'

Deferring to the interests of developing nations, Principle 23 acknowledges differentiated treatment.

'Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.'

A most significant outcome of UNCHE was the United Nations Environment Programme (UNEP) based in Nairobi, Kenya. UNEP is a global catalyst for the protection of the environment. The mission of UNEP is: 'To provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations.' (UN undated)

UNEP now works toward this mission by:

It is generally accepted that modern international environmental law originates from this period around 1972, when countries gathered for the United Nations Stockholm conference on the Human Environment, and the United Nations Environment Programme (UNEP) was established.