The Influence of Environmental Protection on the Fabric of International Law

Abstract

The protection of the “environment” as a goal of international law came much later than that of many other goals, which international law set to pursue in the second half of the twentieth century. The two most important attempts at defining the overarching principles of international law guiding the protection of the environment are the 1972 Stockholm Declaration on the Human Environment and, even more importantly, the 1992 Rio Declaration on Environment and Development. These instruments have been very influential in international law, shaping a wide number of treaty-regimes, prompting an important body of jurisprudence, and changing the way in which apparently unrelated instruments must be interpreted. Several principles stated in these instruments are the expression in general international law of two ideas, prevention and balance, which are further fleshed out by other principles grounded, essentially, in treaty law, such as the precautionary approach, the prior informed consent requirement, the polluter-pays principle, the principle of inter-generational equity, the principle of common but differentiated responsibilities, the public participation principle, and a number of concepts such as those of sustainable development, common areas, common heritage and common concern of humankind. All these principles have shaped a substantial body of treaties focusing on different environmental problems, but they have also had a wider influence. This is why the international law of environmental protection should not be considered as a mere ‘branch’ of international law that would take its place alongside other “branches”, but as a “perspective” calling for the reconsideration of international law in its entirety in the light of environmental considerations. This is so not only because the “environment” is concerned by all human activities, from trade and investment to transportation and warfare, but also because international environmental law had to compose with the law of development to a degree that they both merged into what came to be called the international law of sustainable development. The current attempts to re-define international law from a sustainability perspective have the advantage of emphasising the importance of environmental protection as a goal but they also have the disadvantage of preserving a smokescreen behind which much has remained the same.