The Present State of International Environmental Law – Some Cautionary Observations

M. le Recteur, Dean Bocken, Ladies and Gentlemen: It is a great pleasure and honour to be here today to receive the Elisabeth Haub Prize, an award for which I am extremely grateful as I am well aware of the many distinguished scholars and practitioners who have preceded me in this position of honoured guest. So, let me first of all thank the Haub family whose generosity made this award possible, the International Council of Environmental Law and the members of the jury for their confidence in me, as well as the persons responsible for arranging this ceremony. Occasions such as these, are not only joyous and festive events for the honouree and other participants. They also offer an opportunity for general reflection and analysis. With the United Nations General Assembly’s Special Session, “Rio + 5”1 just behind us and the turn of the century just ahead, it seems particularly appropriate today to reflect upon the present state of international environmental law and offer some remarks on the possible future course of legal developments. Most of us are likely to agree that over the last few years international environmental law has experienced a quantum leap, both in terms of the scope and the depth of the normative prescriptions involved. Thus, as a system of international legal principles and concepts bearing on the protection and conservation of the environment, international “environmental law”2 has undeniably come into its own right. With the concept of “sustainable development”3 increasingly evolving into the operationally significant global paradigm it was designed to be, international environmental law has not only come to cover an ever wider spectrum of previously unregulated or under-regulated environmentally sensitive human activities. It has also generally benefited from a progressive integration of environmental concerns into political and economic decision-making, the “mainstreaming of the environment”. Notwithstanding such progress, “environmental trends continue to deteriorate.” This finding regarding the global situation by last year’s UN General Assembly Special Session4, has been followed by similarly disappointing conclusions in 1998 by the European Environment Agency for the European region.5 A new WRI/ UNEP/UNDP and World Bank report highlights that one in five children will not live to the age of five primarily because of environment-related diseases.6 Most recently, UNDP’s Human Development Report 1998 concludes that today consumption continues to undermine the environmental resource base and to exacerbate existing social and economic inequalities worldwide.7 Add to this the highest ever recorded global temperatures during the first five months of 1998, devastating forest fires, first in Southeast Asia in 1997, now in Central and South America, and record floods in China, due in part at least to severe deforestation in the middle and upper regions of the Yangzi river, and the global environmental picture looks hardly reassuring. It is against this background, however, against these factual indicia of environmental and social stability or true ecological sustainability of the human enterprise, that international environmental law – its accomplishments and promises – ultimately have to be evaluated. Seen in this light, much of the success we have undoubtedly achieved legally and institutionally, may well be perceived as paltry. For much like an air quality regulator’s Pyrrhic victory in reducing individual automobile emissions in an explosively motorizing society, international legal and political solutions and strategies devised thus far, are being dwarfed by the sheer size of the global environmental challenges and problems in the aggregate. Inexorably growing pressure on scarce environmental resources – fueled by an expanding global population, expanding economies and thus expanding demand for access to and the use of natural resources – raises the spectre of a rate of resource utilization that threatens the earth’s carrying capacity. This risk of destabilizing the balance between human enterprise and environmental resource base is, if not epitomized, certainly accentuated by the process of “globalization” – “the extension and accelerator” of the process of transnationalization as it has been called,8 a process which has brought about major socio-economic and political changes that are now beginning to affect radically traditional core areas of the legal systems involved. Key defining aspects – both causative and consequential – of the transformation of national and international societies are the integration of markets (through the liberalization of trade in goods, services, and through direct foreign investment) as well as privatization of many national governmental functions. It is a process in which the role of the State is being reduced to that of mere facilitator of the market and in which the efficiency of the market system tends to become the overriding public policy concern. In other words, the increasing societal concern with the smooth functioning of the market has also come to imply the subordination of other social objectives to macro-economic efficiency criteria. Thus, Philippe Alston recently noted with alarm that “even some human rights norms are increasingly subject to an assessment of their market-friendliness in order to deter* Speech on the occasion of the award of the Elizabeth Haub Prize to the author on 22 June 1998 in Brussels. See last issue at page 279. The author has the Eberhard P. Deutsch chair in Public International Law at Tulane University School of Law.