ULUSLARARASI KAMU HUKUKU II

Ecology, on the other hand, is “the science of the economy of animals and plants; that branch of biology which deals with the relationship of living organisms to their surroundings, their habits and modes of life” (Dobson, 1991: 1). Ecology deals with the relationship of living organisms to their surroundings and environmental problems stemming from the destruction of ecological balance are not novel problems. Environmental problems are as old as human civilization and we could trace ecological disasters in history even without the involvement of humans. Yet again involvement of humans and human societies’ impact on the ecological balance, environmental quality and natural resources are immense. The human activities in the past 300 years have a significant impact on almost all sorts of environmental problems.

Despite the increasing impact of human societies on environmental quality and ecological balance, environmental problems were not at the forefront of societies’, governments and international organizations’ agenda until the second half of the twentieth century. From the 1960s onwards, concerns about pollution intensified and humannature relations were reconstructed into a concept of the environment as being both the complex interrelated reality surrounding us and including us, as an interacting whole and it was threatened by human activities and their organization. A new society-nature relationship was constructed, and it was popularized by means of metaphors and models that illustrated the interdependence and vulnerability of humankind and mother earth and was promoted vigorously in the public debate in all Western European countries (Jansen et.al, 1998: 280; Baker et.al, 1997: 2).

The failure of developmental projects in the less-developed countries and especially the negative impact of development problems on environmental resources forced developed countries to include these issues on the agenda of the international organizations. Indeed, efforts in the field of third world development had to cope with major setbacks. The increasing burdens of international debt, reaching crisis proportions in the early 1980s undermined the hopes and efforts of many developing countries for secure development. For many in Africa and South America, the 1980s were dubbed as ‘the lost decade’. There was also increasing criticism of the environmental impact of many of the grand internationally-funded development projects and growing awareness that the pursuit of commodity export-led growth in developing countries was undermining the environmental and resource base on which they depended (Grubb et al, 1993: 6).

Sustainable development is “development which ensures that it meets the needs of the present without compromising the ability of future generations to meet their own needs”.

Sustainable development is the result of a synthesis between a conservationist environmentalism and pro-growth development discourse. The synthesis came out of a realization and a subsequent fear that, if the non-industrialized world were to develop the way the Western world have had, the environmental stress caused by industrialization would be catastrophic. Hence, there was a need to think about alternative development strategies to ensure that Third World industrialization would not cause deterioration of the environment and further deplete resources. At the same time, as pointed out by Third World leaders, foreign debt, widespread hunger, poverty and endemic disease made it apparent that continued growth was necessary (Bäckstrand et. al, 1996: 212).

The Brundtland Report’s understanding of sustainable development and sustainability focused on two key concepts, which are ‘needs’, particularly the needs of the world’s poor, and ‘limitations’ on the environment’s ability to meet present and future needs. The first and overriding priority is the achievement of basic needs for all humankind - in effect the uplift of the living conditions of the Fourth World, those living in absolute poverty in the Third World (Baker et.al, 1997: 3; Kirkby et.al, 1995: 7). In the Brundtland Report, ‘limits’ to development are seen as technical, cultural and social. Here, there is an implicit rejection of the Club of Rome’s notion that limits to growth are environmental (Kirkby et.al, 1995: 7).

A major development during this first phase of the development of international environmental law was the Trail Smelter Arbitration. This dispute between the United States and Canada emerged out of air pollution stemming from a smelter in Canada with negative consequences on the US state of Washington. Trail Smelter Arbitration reached following verdict; “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence” (Sands, 2003: 30). The Trail Smelter Arbitration was one of the pivotal cases in the emergence of the duty to prevent transboundary environmental harm, which was later largely accepted as a principle of customary international law (Leary and Pisupati 2010: 4).

Second phase of international environmental law starts with the establishment of the UN. In this period, the United Nations Conference on the Conservation and Utilization of Resources. (UNCCUR) laid the foundation of future international environmental action. 

Over this period, a range of international organizations with competence in environmental matters were created, and legal instruments were adopted at both the regional and global level, which addressed particular sources of pollution and the conservation of general and particular environmental resources, such as oil pollution, nuclear testing, wetlands, the marine environment and its living resources, the quality of freshwaters, and the dumping of waste at sea.

Article 2(1) (a) of the 1969 Vienna Convention defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” The term “treaty” encompasses, among others, the terms convention, agreement, pact, protocol, charter, statute, covenant, engagement, accord, exchange of notes, modus vivendi, and Memorandum of Understanding. As long as an instrument falls under the above definition, it would be considered a treaty and, therefore, binding under international law (Robinson and Kurukulasuriya, 2006:2).

Soft law refers to “non-binding instruments or documents which have the appearance of law...While not legally binding, soft law can be politically influential in setting down objectives and aspirations”. Soft law arrangements are available in international environmental law. International soft law refers to those norms of international environmental law, which are not binding, but play an important interpretive role in the construction and interpretation of principles and rules of formal international environmental law. Although the concept of soft law as a legal rule is not strictly binding, it has some legal significance. Thus, certain forms of soft law, like guidelines, codes of conduct, programs of action and declarations are not binding but, nevertheless, may gain some effect and over time merge into hard law. (Porter et al, 2019).

Precautionary Principle is a controversial principle in international environmental law since it represents an attempt to reverse burden of proof in unknown, potentially risky and unclear endeavors. The historical roots of the precautionary principle traced back to German environmental discourse of the early 1970s. Dying trees signaled severe environmental stress on German forests. At that time, however, no proof was available that acid rain caused this unfortunate state of affairs. The government nevertheless acted firmly and imposed several restrictive measures on fossil power plants out of precaution. This was the birth of the so-called Vorsorgeprinzip – or precautionary principle – one the key constituents of prospective environmental politics in Germany. It was later developed in North Sea Conferences of the 1980s and then became a part of the sustainability discourses (Van der Roest et al, 2003: 6).

According to Atapattu “It was used for the first time in the legal regime governing ozone depletion and was included in the Rio Declaration as an approach. Moreover, it was included as a principle in the UNFCCC, and it has since been included in the Biosafety Protocol. Principle 15 of the Rio Declaration embodies the precautionary approach: “to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (Atapattu, 2017: 258).

Environment is described as “the complex of physical, chemical, and biotic factors (such as climate, soil, and living things) that act upon an organism or an ecological community and ultimately determine its form and survival” in the dictionary.

Ecology  is “the science of the economy of animals and plants; that branch of
biology which deals with the relationship of living organisms to their surroundings, their habits and modes of life” (Dobson, 1991: 1).

Sustainable development is “development which ensures that it meets the needs of the present without compromising the ability of future generations to meet their own needs”.

The terms “sustainability” and “sustainable development” became the focal points of discussions on the environment and development problems following the work of the WCED and the publishing of the concluding document of the Commission’s work, Our Common Future (WCED, 1987).

The original concept of sustainability refers to ecological sustainability and it is about the harvesting and managing renewable resources in such a way as not to damage future supplies.

The original concept of sustainability refers to ecological sustainability and it is about the
harvesting and managing renewable resources in such a way as not to damage future supplies.
Although the definition of the Brundtland Report looks in line with the original meaning of the
concept, it was not only applied to the use of nonrenewable resources, but also linked to economic
development and growth.

First phase of international environmental law dates back to earlier centuries.  This phase
witnessed the proliferation of treaties on the protection of wildlife from overexploitation.

In the fourth and last phase, starting with the Rio Earth Summit and the UNCED, Rio Declaration on Environment and Development and Agenda 21 introduced sustainable development discourse as a bridge between the developed and developing countries.

The term protocol corresponds to agreements less formal than those entitled “treaty” or “convention”,
but they also possess the same legal force. A protocol signifies an instrument that creates legally
binding obligations at international law. In most cases, this term encompasses an instrument, which
is subsidiary to a treaty.

If a convention is negotiated in anticipation that parties will negotiate one or more subsequent
elaborating texts, it takes the form of a framework convention.