Thursday, December 20, 2007

'Soft law' vs. 'Hard law'

The development of international law responses to the environmental crisis has come in stages. In June of 1972 the UN Conference on the Human Environment meeting in Stockholm declared (here):

Principle 1

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations...

Principle 21

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

In the same spirit, it promulgated the Rio Declaration in 1992, where it stated here:

Principle 7

States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. 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.

Principle 14

States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.

As legal scholars sometimes posit, these declarations can be viewed as 'soft law' as opposed to 'hard law'. But of course, even 'soft law' can turn into 'hard law' very quickly once it is expressed and creates a sense of legal obligation in the international community. Customary international law and its enforcement comes as a result of obedience by the world of certain promulgations manifested in their daily practice out of sense of legal obligation. Insofar as the UN declarations contribute to the development of the treaty law and customary international law, they turn into 'hard law.' So, the protection of the environment has definitely become obligatory in the world. The question is only how to define the 'damage' to the environment and how to create a two-tiered system for developing and developed countries. As Principle 7 of the Rio Declaration states, the developed countries bear a heightened responsibility in view of their contributions to the ecological crisis in the world.

This would engender development of some 'double standards'. Well, international law practice has been attacked for that for a long time. Some people think, it is 'one size fits all.' Just because we have 'universal' rules and obligations common to all humankind, some people think their application is 'color-blind'. Not necessarily. Especially, in the area of environmental law, the response should be symmetrical to the degree and severity of the damage. So, the developed countries should really be the target here...

The recent Climate Change conference in Bali has really continued the step-by-step development of international policy on environment. It is by no means the final step necessary in effectuating strong response to the global catastrophe.

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