The North and South Divide: Finding A Nexus Through International Environmental Law Thesis Statement: The worsening

crisis of global climate change should be addressed through cooperative efforts by the industrialized and developing countries through the formulation and implementation of international environmental laws without compromising sustainable development and equity.

I.

Introduction a. The Law and the Environment b. The Environmental Crisis c. How International Environmental Laws developed in its North-South Dimensions

II.

Practice of International Environmental Law for Global Environmental Cooperation: in favor of the North? a. Political Discords in Environmental North-South relations b. Problems of sustainable development for Third World countries

III.

Conclusion

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

Introduction The Law and the Environment For humanity to survive, they had to take a necessary and profound interest on the very planet which they have inhabited for more than a hundred years. Primitive human beings had to acquire an understanding of the environment which provided them of their basic needs such as sustenance for survival, clothing and shelter. This survival which greatly depended on humanitys knowledge of their environment had only heightened over the centuries in proportion to the ever-increasing necessities of the human race. But with this increasing dependence on nature comes the problem of further degradation and depletion of the Earths natural resources. In dealing with this serious crisis, the solution cannot be simply based off on the study of preserving the Earths resources alone. To find the right solutions, the right questions must be asked such as who is responsible for the environment? Humans as stated above have been the main agents responsible for the rapid exhaustion of such resources and thus it is important to take note that the interaction between humans (biotic component) and the environment (abiotic component) holds a great importance to conserving the Earths resources1. This complex interaction between humans and their environment is hence, a crucial point to consider in the study and formulation of such solutions to the increasing environmental crises of the time. Such solutions humans have come up with are in the forms of laws, treaties, conventions and agreements to ensure the regulation of this supposedly symbiotic relationship between humans and nature. For the dynamic balance or equilibrium of the environment to be maintained, humans must regulate as well their use of natural resources. The law and the environment therefore are not only simple matters to be investigated upon for these hold the key to providing the needs of the current times and of the future generations. Everything is connected to everything else.

La Vina, A. (ed.). 1991.Law and Ecology: A compilation of Philippine Laws and International Documents Pertaining to Ecology.The Legal Rights and Natural Resources Center. Cacho Publishing House. Quezon City.

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

The Environmental Crisis The looming threat of environmental crises has plagued the countries of the world for many years now and so the nations have made a concerted effort to avoid such environmentally-damaging activities like wars. It is not a secret to many how the Second World War had brought upon intense environmental destruction. This goes to show how humans in fact, have neglected the symbiotic relationship to be nurtured and instead have become parasitestaking what they need from the environment with almost no concern for its well-being. Natural disasters and global warming/ global climate change therefore, should not come off as a shocking revelation for everyone, since nature is just taking its revenge for the exploitation and manipulation it has experienced. This environmental crisis should be then viewed in an international and domestic, Philippine perspective. These two dimensions of the environmental crisis cannot be separated, for the problem at hand cannot be isolated. The Globalization era has caused environmental problems to be also global in nature. The greenhouse effect and/or ozone depletion, oil spills, trading of endangered species, extinction of species, depletion of water and mineral resources, mining, containing chemical and nuclear wastes as a result of technological needs, nuclear power plant leaks, acid rain, loss of millions of agricultural lands due to commercialization/ industrialization, marine pollution, loss of the worlds remaining tropical rainforests and Global warming are only a few of the other environmental problems which confront not only the Philippines or any of the other Third World countries for that matter. These are First World pains accordingly and these in fact are even of a heavier matter for them considering that some of these problems were indirectly caused by them2. This of course created a schism between the North and South but the more pressing concern is for the creation of a global environmental cooperation between the First World and the Third World 3. Such

There have been issues surrounding carbon emissions and many developing countries hold on to the fact that it was the industrialized countries responsible for the depletion of the ozone layer, causing the greenhouse effect and global warming. To deal with this problem, the Kyoto Protocol was set up. It was an international agreement setting binding limits on emissions of greenhouse gases from industrialized countries. This agreement was adopted in Kyoto Japan in December 1997 and supplements the United Nations Framework Convention on Climate Change adopted in 1992. 3 The terms First World and Third World are loaded and thus could reduce or simplify state issues in an undue manner.

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

cooperation would serve as an avenue for the creation of International Environmental Laws which hold the key to continue the existence of the human race. Development of International Environmental Laws Proceeding from the problem of the North-South divide not only in terms of development per se, this is where the role of environmental laws has practically changed over the decades. International Environmental Laws not only refer anymore to the regulation of the Earths resources for conservation but it also overlaps with the global concerns for economic development. With the rapid pace of globalization, the study of environmental law can no longer be considered as affecting only municipal law as essentially, environmental laws have become international in structure.

Environmental crises, as mentioned have become more complex as a result of increased diplomatic relations between and among states; add the fact as well that many international governmental and non-governmental organizations have taken upon themselves to become advocates for the conservation of resources and of biological diversity which in turn influences also, the kinds of environmental policies, agreements or laws states become a party to. Speaking of influences, there have also been some issues on how international environmental laws came to be. Due to the tension created by the North and South gap, it was inevitable also that the international environmental laws were said to be shaped by the interests the North had thereby compromising the interests of the South4. Treatymaking was therefore dominated by the influences of the North and the South had technically, no voice over the formulation of international environmental laws, agreements and conventions. Taking development into account, Third World countries like the Philippines also experienced the problems of conservation without sentencing people to an eternal state of underdevelopment. If the industrialized countries had been able to attain continued development at the expense of nature, third world countries have of course lost that kind of negative option seeing that the degradation and depletion had already taken a

Countries of the Global Souththird world countries were particularly just recently decolonized which had something to do with their difficulty of being able to participate in international conferences as each also had to deal with domestic matters such as inter-state conflicts and formulation/implementation of their own domestic laws for political stability.

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

toll on the environment. It is also no longer an option5 to exploit and manipulate natural resources due to the efforts of nations to save and sustain what is left for the future generations. Such developments in the history of international environmental law had been embodied in the documents of the 1970s which include the Founex Report on Development and Environment of 19716 and the UN conference on the Human Environment in Stockholm of 1972 in Principle 11 of its Declaration7. In reference to the Stockholm Principle, again there was an understandable degree of resistance on the part of Third World countries due to their suspicion that industrialization was the cause of the pollution of the environment. Due to economic problems, developing countries at the time did not so much focus on industrialization as a major concern as they were more likely to deal with inter-state problems. By the mid-1970s however, the tension between the North and South had increased. The Third World countries by 1974 had been able to organize themselves and were called as the Group of 77. As a collective group, they had managed to make the United Nations General Assembly adapt the Declaration on the Establishment of a New International Economic Order8 and the Charter of Economic Rights and Duties of States9. Consequently, Third World states have decided to ask for the support of the industrialized nations in reaching the seven objectives10 vital for increasing the standing of the Third World countries. Unfortunately, these efforts did not have a lasting effect on the Third World states as the Cold War had gotten in the way of a global cooperation for sustainable development. Developing countries had instead, been buried deeper in debt due to the impacts of the marked Cold War attitudes of the superpowers in the 1980s.
5 6

Exploiting and manipulating nature was never supposed to be even an option for the First World countries from the very start. This report stressed the need to incorporate environmental concerns into an expanded understanding of development. The Report was elaborated by a Panel of Experts who convened in June 1971 to set the agenda for the then upcoming Stockholm Conference. See its text in: International Conciliation No. 586, at 7. 7 The environmental policies of all states should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by states and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures. (Beyerlin, 2006) 8 UN General Assemblys Resolution 3201 (S-XV) of 1 May 1974; ILM 13 (1974), 715. 9 UN General Assemblys Resolution 3281 (XXIX) of 12 December 1974; ILM 14 (1975), 251. 10 The Seven objectives include the following: opening their markets for the products of developing countries; acknowledging the developing countries full and permanent sovereignty over natural resources; increasing the official development aid of industrialized states to 0.7 % of the GNP; increasing the developing countries share in the worldwide process of manufacturi ng industrial products; facilitating their access to modern technology and enhancing their infrastructure; solving the debt crisis of developing countries; and increasing their participation in relevant decision-making processes of international financial institutions. (Beyerlin, 2006,p.262)

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

Still, sustainable development was an urgent matter for countries and so by 1992 the Conference on Environment and Development in Rio de Janeiro was initiated by the UN. This conference produced documents such as the Rio Declaration and the Agenda 21 to provide a connection between the North and South gap. Unfortunately again, the Rio Conference was not able to do much to bridge the North and South gap. There was still a clear schism between the North and South in terms of comparing the benefits and costs of environmental interests of the North as opposed to the developmental needs of the South. Hence, the end of the 20th century came with the main objectives of the New International Economic Order coming to a standstill. As recourse to this, the UN decided to adapt the Millennium Declaration11 (2000) and in 2002 the Johannesburg World Summit on Sustainable Development12. Either way, these have done little in improving global environmental cooperation between the North and South. Currently developing countries still view that industrialized states were responsible for climate change. Developing states also contend that industrialized states are still pursuing ecoimperialistic policies which have restrained their sovereignty over their natural resources which is an impediment to industrialization and have also kept third world products from penetrating world markets.

Practice of International Environmental Cooperation: in favor of the North? Political Discords in North-South Relations

Law

for

Global

Environmental

For the developing nations like the Philippines, fundamental issues such as development and equity along with the conservation and protection of its resources demand answers. These answers are mainly to address once more the problems of national development at the expense of environmental conservation. It is also a question of whether the environmental agenda would serve as a barrier to the access of natural resources needed by certain sectors of the Philippine society for survival. At this
11

Member States are to take actions at all levels in order to halve the proportion of the worlds people whose income is less than 1 dollar per day, who suffer from hunger, and who are without access to safe drinking water and basic sanitation, by the year 2015. (See UN Doc. 55/2 of 8 September 2000, para. 19.) 12 It has a Plan of Implementation, where it reaffirmed this urgent appeal. Although this plan advanced the Third Worlds developmental concerns more clearly than its predecessors in Stockholm and Rio, it has not brought aboutany substantial progress in bridging the North-South divide. Plan of Implementation, para. 7 (a). See its text in: Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 September 2002, UN Doc. A/CONF.199/20.

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

point, the Philippines is not alone in pondering this issue since even from the time of the Stockholm Conference in 1972, the then acting Indian Prime Minister Indira Gandhi had likewise stated the same concerns that the environment cannot be improved in conditions of poverty13. Unlike the earlier years before though, at present it is not merely the North which is responsible for global climate change and pollution, since some of the developing countries which have become newly-emerging economies have also began to contribute to environmental degradation due to rapid industrialization. But it is also clear that the South had suffered greatly compared to the North, since countries from the global south were in history, colonies of some of the countries in the global north which have extracted resources with less concern over the welfare of the natural resources of these third world states. Due to the diametrically opposed interests14 of the North and South, there seems to be no solution to this environmental dilemma to development. Although this may be the case, suggestions such as the developing states should probably consider policies which are directed to the sustainable use of resources, industrialized countries on the other hand should give their full support to developing states through capacity-building, financing and technological transfer. The North and South should give leeway for global environmental cooperation because the environmental crisis is a crisis of all.

Problems of sustainable development for Third World countries The Philippines, in an effort to achieve development without exhausting its natural resources has entered into some international agreements, conventions and treaties as well. Some of these include the United Nations Convention on the Law of the Sea15, the Vienna Convention for the Protection of the Ozone Layer16, the International
13

We do not want to impoverish environment any further, (but) we cannot forget the grim poverty of large numbers of people. When they themselves feel deprived how can we urge the preservation of animals? How can we speak to those who live in slums about keeping our oceans, rivers and the air clean when their own lives are contaminated at the source? Quoted in R.P. A n a n d . Development and Environment: The Case of the Developing Countries, Indian Journal of International Law 20 (1980), 1, at 10. (As cited in Beyerlin, 2006.) 14 What divides both state groups is firstly that they are unequally susceptible to global environmental degradation, secondly that they differ considerably in weighing environmental interests against competing developmental interests, and thirdly that the extent to which both state groups can afford meaningful environmental action still strongly differs. Ibid, p.266 15 The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which came into force on November 16, 1994, is an international treaty that provides a regulatory framework for the use of the worlds seas and oceans, inter alia, to ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and preservation of the living resources of the sea. UNCLOS also addresses such other matters as sovereignty, rights of usage in maritime zones,

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

Tropical Timber Agreement17, the Kyoto Protocol, Montreal Protocol18, the United Nations Framework Convention on Climate Change19 and many others. Aside from these international environmental agreements which sadly did not all succeed, the Philippines like other third world countries also find it difficult to implement international and domestic environmental laws. The problem is that many of these environmental laws are no longer able to meet the demands of the present environmental crisis . Another source of the problem is that these environmental laws are not scientifically accurate as they need to be. Implementation of course is another problem to consider. While this is the case, third world states also find some contradictions between their domestic environmental laws and the international environmental laws. Generally, this is due to the Norths domineering position over the multilateral agreem ents in which the dependence of the South on the North is greatly magnified and in turn, these developing states have less bargaining power. After all, inequality is still ever-present not only domestically but internationally as well, thereby forging cooperation through international environmental laws would definitely be a long-shot as long as there is a divergence of interests among the rich and poor states.

and navigational rights. (Retrieved from the Permanent Court of Arbitration; DOI: http://www.pca cpa.org/showpage.asp?pag_id=1288) 16 The Vienna Convention, concluded in 1985, is a framework agreement in which States agree to cooperate in relevant research and scientific assessments of the ozone problem, to exchange information, and to adopt appropriate measures to prevent activities that harm the ozone layer. The obligations are general and contain no specific limits on chemicals that deplete the ozone layer. (Retrieved from the Audio Visual Library of International Law; DOI: http://untreaty.un.org/cod/avl/ha/vcpol/vcpol.html) 17 The International Tropical Timber Agreement, 1994 (ITTA, 1994) was drafted to ensure that by the year 2000 exports of tropical timber originated from sustainably managed sources and to establish a fund to assist tropical timber producers in obtaining the resources necessary to reach this objective. It defined the mandate of the International Tropical Timber Organization. The agreement was opened for signature on January 26, 1994, and entered into force on January 1, 1997. It replaced the International Tropical Timber Agreement, 1983, and was superseded by the International Tropical Timber Agreement, 2006. (Retrieved directly from http://en.wikipedia.org/wiki/International_Tropical_Timber_Agreement,_1994). 18 The Montreal Protocol reflects a convergence of interest of scientists who w arned of growing threats to the ozone layer, private industry that wanted a level playing field as companies responded to new national legislation controlling the harmful chemicals, nongovernmental organizations advocating environmental protection, and national governments that increasingly saw an international agreement as in their own best interests. (Ibid., para 5). 19 The Montreal Protocol controls the production and consumption of specific chemicals, none of which occur naturally: CFCs, halons, fully Halogenated CFCs (HCFCs), methyl bromide, and similar chemicals. It sets specific targets for reduction and a timetable for doing so. The Protocol originally required parties other than developing countries to freeze consumption and production of CFCs at 1986 levels (the base year), to reduce them by 20 percent and then an additional 30 percent by 1999, and to freeze consumption of halons at 1986 levels. The formula of targets and timetables has been subsequently employed in other international agreements controlling air pollutants and in the Kyoto Protocol to the UN Framework Convention on Climate Change. (Ibid.,para 6).

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW

Conclusion In the final analysis, for the global environmental crisis to be resolved accordingly, there is a need first to provide a bridge between the North and South schism. It should also be noted that the conservation of natural resources should never be sacrificed for development and instead countries-- in particular the Third World countries, should turn to sustainable development20 policies. As for the relationship between the North and South, each could help one another through the concepts emanating from international solidarity and international justice. Such concepts give birth to other ideas like common but differentiated responsibilities21, equitable participation in decision-making and equitable sharing of benefits. These concepts, if combined can provide a solution to address the problem of global climate change along with the other disasters it brings along with it. These concepts emanating from international solidarity and international justice can help in the construction of a global framework for international environmental law that would seek to protect what is left of the earths natural resources. These concepts could also bridge the widening gap as of today, between the industrialized and poor nations; with this, the goal of becoming a one world addressing an ultimate environmental crisis can help both state groupsthe North and the South understand the indivisibility of the Earths natural system and that each peoples of the worlds nation depend only on one biosphere for existence.

20

Although a mere political ideal, rather than a legal principle, sustainable development has proven to be an important catalyst in the process of further developing international environmental law. (Ibid,p.294) 21 The concept of common but differentiated responsibilities reflects the idea of international distributive justice that legitimizes various forms of differentiation between the North and South. As applied to the Kyoto Protocol, it results in asymmetric substantive environmental obligations of the state parties concerned and a mechanism of compliance assistance in favor of those parties unable to bear alone the costs of fulfilling their procedural obligations. (Ibid,p.294)

RAMIREZ YURI RIO S. | POLSCI 185PUBLIC INTERNATIONAL LAW