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2.3 The period 1972-1992

General development

During the 20 years following UNCHE, the increasing awareness and concerns for the diverse environmental issues led to a corresponding proliferation of international non-governmental organisations as well as international and regional treaties on the environment. Important treaties concluded after the conference include:

The amount of work undertaken by the UN, specifically by UNEP, increased substantially and new techniques for monitoring and implementing technical environmental standards developed. Furthermore, various influential non-binding instruments were adopted by international organisations.

  1. UNEP adopted in 1978 the Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States (UNEP 1978).
  2. The IUCN, UNEP, WWF, UNESCO and the FAO introduced the World Conservation Strategy in 1980 (IUCN 1980). This strategy proposed the notion of sustainable development by emphasising the interdependence of conservation and development and was subsequently manifested in many nations' conservation strategies. In 1991, these organisations launched the Caring for the Earth Strategy that refined sustainable development and proposed guidelines for its practical implementation in the legal systems of states and to strengthen international law. As the Foreword to the World Conservation Strategy affirms:

'Human beings, in their quest for economic development and enjoyment of the riches of nature, must come to terms with the reality of resource limitation and the carrying capacities of ecosystems, and must take account of the needs of future generations. This is the message of conservation. For if the object of development is to provide for social and economic welfare, the object of conservation is to ensure Earth's capacity to sustain development and to support life.'

Source: IUCN-UNEP-WWF (1980) p. I.

  1. In 1982, the UNEP Governing Council adopted the Montevideo Programme (UNEP 1982) for the Development and Periodic Review of Environmental Law. Under this programme, several international legal instruments were developed and adopted. These included international conventions on the protection of the ozone layer, control of transboundary shipments of hazardous wastes, marine pollution from land-based sources and environmental impact assessment. The UNEP Governing Council adopted an elaborated version of the Programme in 1993.
  2. In 1982 the UN General Assembly adopted the World Charter for Nature (UN 1982b). The Charter sets out principles of conservation on the basis that nature should be respected. It states that unique areas should have special protection. The charter emphasises that nature conservation should be integrated into social and economic planning. Although it does not have legal force, the Charter has standing due to strong support by developing countries, in contrast to the Stockholm Declaration that was mostly supported by developed countries. Despite being admonitory, it has some moral and political force. Hence, Sands concludes that the Charter is 'a standard of ethical conduct' that strongly influenced subsequent treaty law (Sands 2003 p. 45).
  3. The UN General Assembly in 1983 voted to establish the World Commission on Environment and Development (WCED) to provide a critical analysis of the relationship between environmental objectives and development. The Commission published a highly influential report in 1987, the Brundtland Report, after its Norwegian Chairwoman, Gro Harlem Brundtland, see 2.3.1. This report defined Sustainable Development as 'development that meets the needs of the present without compromising the ability of future generations to meet their own needs.' (WCED 1987 p. 43). It contains two key concepts:
  4. the concept of 'needs', in particular, the essential needs of the world's poor, to which overriding priority should be given
  5. the idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs

This seminal document was instrumental in prompting the United Nations to convene the second global conference on the environment. This was held in Rio de Janeiro in 1992 under the title of the United Nations Conference on Environment and Development (UNCED).

2.3.1 Dr Gro Harlem Brundtland

Source: GAD (2009)

  1. This period is also characterised by increased emphasis on the interaction between the environment, development and international trade and financial activities. For example, the GATT established a Group on Environmental Measures and International Trade; the World Bank formed an environmental department due to pressure to integrate environmental and developmental considerations into the processes and decisions regarding its loan-making. On a regional level, the OECD established the Environmental Committee. In 1991, the World Bank, UNEP and the UNDP established the Global Environmental Facility (GEF) to provide financial assistance to environmental beneficial programmes.
  2. In addition, during this period leading up to the Rio conference, international non-governmental organisations (NGOs) steadily gained more influence. Examples of effective results of NGOs are the moratorium that the International Whaling Commission in 1982 placed on commercial whaling; the moratorium that was introduced in 1983 on commercial whaling in terms of the 1972 London Convention; and the decision in 1982 by CITES to ban trade in elephant ivory.

1992 Rio Conference

The two-week United Nations Conference on Environment and Development (UNCED) was held in Rio de Janeiro, Brazil from 3-14 June 1992 with participation by 172 states with 108 represented by their Heads of State or Government. There were also more than 50 international organisations and 2400 representatives of NGOs. Informally named the 'Earth Summit', the UNCED represents a major development in international environmental law.

The influential Brundtland report, as an input to the Conference, might have been regarded as a guide to a more cohesive conceptual framework for international environmental law. The concept of sustainable development unites economic and environmental considerations. However, some developing countries were not persuaded by the concept. They were suspicious about potential constraints on their economic development interests, despite shared enthusiasm for the Conference. Organisers of the Conference had hoped it would lead to major environmental treaties. In this ambition they had to accept less. The Conference instead adopted three influential but non-binding instruments.

  1. Rio Declaration on Environment and Development (Rio Declaration) (UNEP 1992a)
  2. Agenda 21 (UN 1992a)
  3. Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forest (UNCED Forest Principles) (UN 1992b)

It also opened for signature two important binding conventions.

  1. Convention on Biological Diversity (Rio de Janeiro 1992) (Biodiversity Protocol) (UNEP 1992b)
  2. United Nations Framework Convention on Climate Change (New York 1992) (UNFCCC 1992)

The Rio Declaration and Agenda 21 will be introduced in this section, whereas the Biodiversity Protocol and UNFCCC will be discussed under the relevant topical chapters in forthcoming sections.

  1. Rio Declaration

Although the Rio Declaration does not create binding law per se, its 27 Principles are a benchmark for the international law of sustainable development. It balances the potentially competing interests of developed and developing nations with respect to environmental and developmental goals and actions (UNEP 1992a).

  1. Principle 1 confirms the central role of humans in achieving sustainable development and that humans have right to a healthy and productive environment.
  2. Principle 2 acknowledges the sovereignty of states to follow their own environmental and developmental policies, while recognising a duty of care to prevent trans-national environmental damage. This Principle reflects the rule of customary international law in Section 21 of the Stockholm Declaration with the addition of the word developmental.
  3. Principles 3 and 4 are salient provisions of the Rio Declaration representing a trade-off between the developed and developing nations. Principle 3 declares the right to development must equitably meet the developmental and environmental needs of future generations. This is the first time that the right to development is generally recognised in a formally adopted international legal instrument.
  4. Principle 4 provides that sustainable development can only be met through the integration of environmental protection as an inherent part of development. This implies, for example, that international agreements to finance development programmes should incorporate environmental provisions as part of lending conditions.
  5. Principle 6 recognises the special needs of developing and least developed countries that are environmentally most vulnerable and should be accorded special priority.
  6. Principle 7 recognises the principle of common but differentiated environmental responsibility. Developed countries have a special obligation to promote international sustainable development due to the negative environmental impacts caused by their economies and the greater technological and financial resources they command.
  7. Principle 11 requires states to enact effective environmental legislation, although the standard, management objectives and priorities of environmental legislation can vary according to a state's development status. High standards of environmental legislation may be less appropriate for developing nations compared with the developed.
  8. Principle 15 confirms the precautionary principle of international environmental law by requiring spatial development planning to avoid adverse effects to the environment. '[F]ull scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.'
  9. Other Principles recognise the provision of and access to environmental information and environmental education, the right of citizens to participate in environmental decision-making, the importance of environmental impact assessments, the relationship between free trade and environmental protection, liability and compensation of victims of pollution etc.

Of particular note is Principle 7 that explicitly affirms: 'In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities.' This is a principle of equity in international law. It plainly recognises the disparate views and economic circumstances of developing versus developed countries in the concluding sentence of Principle 7: 'The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.'

This principle is illustrated by 2.3.2 and 2.3.3 below. In relation to the first, all countries can claim 'climate credits' by their phasing out of ozone depleting substances (ODS) under the Montreal Protocol, and some are beginning to document this contribution. However, Article 5 countries are those listed as developing and these do not have the same goals as industrialised nations.

2.3.2 Common but differentiated responsibilities (click to enlarge)

Source: UNEP/GRID-Arendal (2007)

Figure 2.3.2 shows that Africa represents only a small fraction, 3.6%, out of the total carbon dioxide (CO2) emissions per year, yet 14% of the population of the world lives here. The emissions per inhabitant in Libya, the Seychelles and South Africa compare to the lowest among OECD countries with the other African countries below this. Regionally, emissions (both per capita and in total) are at their highest in North Africa and in South Africa.

2.3.3 Emissions of carbon dioxide, in Africa and selected OECD countries (click to enlarge)

Source: UNEP/GRID-Arendal (2006)

  1. Agenda 21

As its Preface states, Agenda 21 is a blueprint (UN 1992a). It is a non-binding comprehensive plan to promote and achieve ecological sustainable development through the implementation of national strategies, plans, policies, programmes and processes with international support. Section I covers social and economic development and focuses on topics such as international co-operation, poverty alleviation, consumption patterns, population, human health, human settlement, integration of the environment and development in decision-making. Section II focuses on conservation and resource management for development and covers issues such as atmospheric protection, planning and management of land resources, deforestation, desertification and drought, sustainable development of fragile environments such as mountains, sustainable agricultural and rural development, biodiversity protection, biotechnology, conservation of the oceans, seas, coastal areas and marine living resources, protection of the quality and supply of freshwater resources, and the management of toxic chemical, hazardous wastes, of solid and sewage wastes and of radioactive wastes. Section III focuses on the strengthening of important interest groups, for example, women, children, indigenous peoples, and NGOs and public participation in decision-making.

It also covers financial resources, technology transfer, institutions and legal instruments and mechanisms.

Parts of Agenda 21 reflect emerging rules of customary law, for example, the limitation on storage of radioactive waste near the sea. Otherwise it reflects an international consensus on principles, practices and rules which may contribute to the development of new rules of conventional and customary law.

In a follow-up to the Conference, the UN created, in December 1992, the Commission on Sustainable Development (CSD). A principal mission of CSD is to provide leadership and to be an authoritative source of expertise on sustainable development particularly in the context of the implementation of Agenda 21.