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АКТУАЛЬНЫЕ ВОПРОСЫ МЕЖДУНАРОДНОГО ПРАВА
STUDY THE PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW
M.A. Kafaei Far
The Department of International Law Peoples' Friendship University of Russia
6, Miklukho-Maklaya st., Moscow, Russia, 117198
Almost all principles of international environmental law are used in order to proof the concept of sustainable development: Sovereignty principle over natural resources, principle of commitment to collaboration, informing and assistance in environmental emergency situations, The principle of protection and preserving of the environment, principle of obligation to pay compensation by polluting the environment, Precautionary principle and the principle of prevention. Although they have different degrees of binding, this principle must be viewed in a single set, because each principle completes the other. The concept of sustainable development is seen, directly and explicitly, among concepts of international environmental law more than the principles. This research examines the principles in addition to the concepts relating to sustainable development in international environmental law.
Key words: principles of international environmental law, sustainable development, environmental protection.
Environmental Law is an important tool for monitoring and management of sustainable development. This law is useful in establishing Policies and environmental protection measures, rational, and sustainable use of natural resources, as it is emphasized in documents and important international declarations about the environment. In the long and difficult processes of human evolution, there is a level of rapid development of science and technology with different methods and systems in an unpredictable scale; this level has reached the point of changing and affecting the environment. These current situations of serious threat is not only faced by current generation of humans, but as a threat to human survival and race
One of the most reliable resources to deal with these risks and threats and to regulate the behavior of international law is International Environmental Law. Today, sustainable development is the key to resolving many environmental issues and is considered as the most fundamental issue in international environmental law, to that extent it could be named as the main goal of development and codification in international environmental law. The importance and realization of sustainable development in international environmental law could lead the world to witness the evolution of this legal branch of sustainable development in international law.
The Rio+20 summit which was organized in Rio de Jeneiro, Brazil, focuses on sustainable development and endorses the outcome document of the United Nations Conference on Sustainable Development, entitled, The future we want?, which annexed to the present resolution. The common vision/declarations which relates most to this article includes the following:
1. We, the Heads of State and Government and high-level representatives, having met at Rio de Janeiro, Brazil, from 20 to 22 June 2012, with the full participation of civil society, renew our commitment to sustainable development and to ensuring the promotion of an economically, socially and environmentally sustainable future for our planet and for present and future generations. We recognize that opportunities for people to influence their lives and future, participate in decision-making and voice their concerns are fundamental for sustainable development. We underscore that sustainable development requires concrete and urgent action. It can only be achieved with a broad alliance of people, governments, civil society and the private sector, all working together to secure the future we want for present and future generations.
Renewing political commitment
A. Reaffirming the Rio Principles and past action plans
2. We recall the Stockholm Declaration of the United Nations Conference on the Human Environment adopted at Stockholm on 16 June 1972.
3. We reaffirm all the principles of the Rio Declaration on Environment and Development, including, inter alia, the principle of common but differentiated responsibilities, as set out in principle 7 of the Rio Declaration.
The integration of these two concepts in addition to the proposal of the Commission on Sustainable Development and the outcome of the Rio+20 summit as mentioned above, demands the orientation of international legal environment in line with the concept of sustainable development. It should be mentioned that the Commission has made a remarkable help to promote the concept of sustainable development.
In this paper, in order to better understand the concept of sustainable development, we need to mentioned the principles and concepts of International Environmental Law and its relation to sustainable development.
A. Principles of International Environmental Law related to sustainable development
1. Principle of sovereignty over natural resources
Governments have exclusive sovereignty over its natural resources, but the exercise of this right shall not cause damage to the environment of other States or areas outside the jurisdiction of state [10. P. 59].
Sovereignty and exclusive jurisdiction of the state over its territory means that only they can expand policies and rights to natural resources and environment of their land. Scope of sovereignty over natural resources is consists of:
1- The land within the borders of the underlying soil
2- Domestic water such as lakes, rivers and streams
3- Space above the territory, internal waters and territorial sea as far as the legal system of the upper atmosphere begins. In addition, states have more limited rule of law, including adjacent areas, close to the territorial sea, bed and under the bed and
Exclusive — economic area. Apart from the above case, there are areas that are not dominated by any country; these areas are sometimes interpreted as a global commons, are included the high seas and the seabed and sub-seabed, outer space and Antarctica. Sovereignty over natural resources has been interpreted as the origin of a series of assignments: such as, prudent and sustainable use of natural resources, Conservation of Biodiversity, and elimination or reduction of soil erosion, Deforestation, overfishing and pollution. The Rio+20 declare in their document the principle of sovereignty which states that:
"We affirm that green economy policies in the context of sustainable development and poverty eradication should:
(a) Be consistent with international law;
(b) Respect each country's national sovereignty over their natural resources taking into account its national circumstances, objectives, responsibilities, priorities and policy space with regard to the three dimensions of sustainable development. In addition the Stockholm Declaration (1972) was among the first documents that declared:
Principle of sovereignty over natural resources must be applied in a responsible credible way and it is explicitly stated in Article 21 of the Stockholm Declaration «States under the Charter of the United Nations and principles of International Law have the sovereign right to exploit their own resources pursuant to their own environmental policies [3. P. 90]. It is added that Article 21 of the Stockholm Declaration come fully in Article 3 of the Convention on Biological Diversity (1992) and the first paragraph of t first article of Forest (1992).
Then, the second principle of the Rio Declaration (1992), with minor but useful changes, will repeat this subject and adds the terms «environmental policy and «environmental and development». This article has also come in the introductory of the Climate Change Convention (1992).
After mentioning Article 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration as a as evidence used at the international level, Court of Justice's introduce the commitment to the principles as part of international environmental law [6. P. 261].
The fact is that environmental degradation, even when it occurs completely outside the borders of country may cause global damage. Such damage consists of (Destruction of the ozone layer, global warming, climate change, Soil erosion, and desertification).
Using article 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration that has common root, States can be led toward accepting total commitment for environmental protection and eventually implementing sustainable development. Declaration New Delhi, India, (2 to 6 April 2002), also in the second paragraph of first article requires governments to manage natural resources under the jurisdiction of the territorial or national in a wisely and sustainable manner, With regard to development of nations, and by special attention to the rights of indigenous people, and conservation and sustainable use of natural resources and protection of the environment, including ecosystems. In continue, it states that governments should consider the whishes and needs of future generations. All related factors (including govern-
ments, related industries, and other components of civil society) are required to prevent wasteful use of natural resources.
In addition, the third paragraph of Article I of the Declaration states that:
Preserving, Protection and Reinforcement of the natural environment, especially correct management of climate system, biodiversity, fauna and flora, are common issues for humanity. Outer sources and outer celestial and resources in seas and ocean floor and subsoil that are under the limits of national jurisdiction are common heritage of humanity [1. P. 22].
2- Principle of commitment to cooperation, informing and assistance in environmental emergency
In the field of environmental protection, international Cooperation for Environmental Protection is an essential principle, especially for governments to exercise territorial jurisdiction in outer space of their territories and borders such as High seas, Antarctic region or elsewhere, this cooperation is essential.
According to this principle, governments are obliged that in all conditions they should cooperate with each other. In this regard, they should inform other countries about the probability of environmental risks before environmental disaster and cooperate with them with the aim of preventing its expansion and reducing the destructive impact of these events on the environment and to offer assistance to countries at risk. Principle of commitment to cooperation with all countries about environmental protection was cited in many international documents, including the Rio+20 (2012, Outcome 55) Stockholm Declaration (1972 Principle 22), the Rio Declaration (1992 Principle 5), the General Assembly of the United Nations resolutions and international judicial tribunals. So based on this principle, the court reviewed the case of Hungary and Slovakia announce that Slovakia due to «lack of cooperation of Goodwill» violated his obligations under international rights: which consist of, commitment to cooperation, extensive range of partnerships, form supplies of resources and technology and holding training courses to exchange information and advice and assistance during an environmental emergencies [7]. Rio+20 in Outcome 55 declares "We commit ourselves to reinvigorating the global partnership for sustainable development that we launched in Rio de Janeiro in 1992. We recognize the need to impart new momentum to our cooperative pursuit of sustainable development, and commit to work together with major groups and other stakeholders in addressing implementation gaps". Principle 22 of the Stockholm Declaration, determine scope and cooperation issues and after that, poses Government commitment to enable international organizations as the greatest symbol of cooperation between governments on environmental matters. In addition, article 24 of the Declaration proposed guidelines for international cooperation such as: (Concluding bilateral or multilateral contracts), However, cooperation is not confined only to this unique ways.
In this context, Stockholm Declaration merely stated some general rules related to the trends of international cooperation with limited titles, and do not have any arrangement about international cooperation in order to exchange information about new activities or events within the limits of national jurisdiction which dangerous for the environmental outside these scopes.
However, the Rio Declaration fills the gap and provides principles for the government's commitment to give information, and public commitment for cooperation was a basis for many other obligations, including the obligation to exchange information, consultation, negotiation and informing. In the following, we mention some of the principles of the Rio Declaration in this article.
Principle 5 of the Declaration of Rio, require all the States and all people to cooperate with each other to eliminate exclusions and it is known as a Binding condition for sustainable development. principle 9 of the Declaration of Rio asked for Sustainable development or modification and improving the understanding or exchange of scientific information and accurate knowledge of technology and development (Consistent with each other) to develop and to inform it .Also, the International Court of Justice has announced In the Corfu Channel that, Governments are required to inform other states about risk in their lands. Paragraph 1 of Article 4 of the Convention on Climate Change is also a good example in this regard. «All countries should cooperate completely, openly in exchange of information on scientific, technical, economic, social and related rights. And accordance with paragraph 4 of this convention, Developed countries should take all necessary measures to promote, facilitate and finance, transfer, or access to knowledge and complete and reasonable environmental technology to other Members, especially the developing countries to improve their capability. We must also support from development and promotion of technology and capabilities of the developing countries.
In line with international investment and financial aid in relations between developed countries with developing countries, Paragraph 20 of the Convention on Biological Diversity is a good example, according which, the developed countries should provide new and additional financial resources, and developing countries can provide total cost in addition to agreed ones in case of necessary measures, in accordance with obligations under this Convention [2. P. 40].
Therefore, cooperation principle is one of the most important principles of international environmental law and most of the principles and rules of international environmental law cannot be enforced without the cooperation among governments.
3- The principle of the protection and preserving of the environment
However, in all international instruments on the protection of the environment, the purpose revolve on section and Sector specific issues, But certain general principle based on existence of all the requirements in a general principle, is an exception. One of the texts on this principle is article 192 of the UN Convention on the Law of the Seas that says:» Governments are committed to protect and support the marine environment». Of course, it should be noted that this requirement relates only to one part of the environment. However, it is consistent with the significant general principle based on inclusion of all marine areas, including that part of the territorial sea of the coastal state, which is in exclusive jurisdiction of the coastal state, and it is consist of common areas such as high seas or even the common heritage of humanity such as seabed mineral resources.
Convention on Biological Diversity (1992) as well as on biodiversity in Article 6, is included in a list of the general steps that should be taken for the conservation
and reasonable use of biological resources. For example, it applies sensible development strategies in completing projects or programs as far as it's possible and appropriate, in order to promote and rationalize the use of biodiversity in Plans, programs and Section and introspection policies. In other areas of 1992, Framework Convention on Climate Change in paragraph 1 of Article 3 stated that: members must consider the climate system for the benefit of current and future generations of human race. Similarly, in Article 4, it determines detailed obligations for the parties to a given treaty.
There is no official definition of the term protection and maintenance. Nevertheless, both are used in Article 192 of the Law of the Sea convention that clearly shows their objectives are different. The word protection, contains a general principle that includes both of these interpretations, Including avoiding harmful actions and accepting positive measures to protect the environment to the extent that do not leads to a damage of the environment. In general concept, protection is consist of ecological comprehensive plan an d management related to it, including basic laws, procedure and relevant organizations on a national scale.
Whatever associate with the term maintenance is longer protection by considering interests and rights of future generations and for whom the natural resources should be protected.
The term of preserving is consist of limited scope, but it is also included the title of protection. The term is normally used in the field of the vital resources and based on present statue and is more demanding for improving current situation and makes it Possible to continue to provide a vital source. World Conservation Strategy, which was established in 1980 by the International Union for the Conservation of Nature and Natural Resources, recommends an action plan to governments, and pose establishment of protected principle, which have the following goals:
- Survival of the ecological cycle and support of life systems;
- Maintaining genetic diversity;
- Achieving sustainable use of species and ecosystems.
When the ways for exploitation of life species such as animal and plant life, was adopted in regulations, the term «protection» was actually widespread that imply» optimum level of sustainable products» which based on it, the exploitation of natural resources should be done in such a way that, to the permitted extent, renewing that source, do not cause damage and also provide causes for sustainable natural resources. In recent text, with reference to the principle of origin, protection is replace with «Sustainable Development» which follow the production issues from natural resources exploitation and protection of all species of plants and animals in a more reassuring way. The recent concept, which is relatively being used increasingly in this area, is «optimum protection state» which is not based on Exploitation and Production but it is based on ensuring the protection of vital resources.
4.Principle of prevention
Term and regulations of environmental must have predict the causes of environmental degradation and prevent them. When there are threats of serious or irreversible damage, Failure to fully recognize the threats most not is a reason to postpone the agreement to prevent environmental degradation.
Experiences and opinions of scientific experts prove that, the principle to avoid the environmental, both ecologically and economically is considered as a «Golden Rule», because it is often impossible to compensate for damage to the environment. This irreparable damage is consisting of:
Extinction of plant and animal species, soil erosion or even discharge of enduring contaminants materials into the sea, which cause irreversible condition. Even if the damage is recoverable, the cost of restoration is expensive.
Almost every document of international environmental law, made real the principle of prevention of environmental degradation as a fact which most of them are about sea pollution, domestic water, weather and living resources conservation, and only a small number of international instruments consider other ways of protecting the environment such as traditional principles of state responsibility for working directly with victims of environment.
Principle of prevention requires the use of special techniques such as risk analysis, and then evaluates the left outcomes of the activities, which carried out.
Assessing environmental impacts before starting or the plan that may bring considerable harmful environmental effects, this environmental effects must be evaluated which is achieved by implementing the project, that the development have minimum lateral losses and guarantee the stability. So environmental evaluation helps in implementing projects, develops solutions to reduce secondary losses resulting from the implementing project, and in total will increase the points of implementing project [4].
According to article 206 of the Convention on the Law of the Sea, Whenever governments have logic reason which state that the activities that are planned under their jurisdiction or supervision, cause pollution of the marine environment or cause fundamental or harmful changes, we should evaluate potential effects of these activities on the environment to the extent that, it is possible and reports about the results of these assessments are sent to members. The Rio+20 declare in Outcome (139-140), and also article 17 of the Rio Declaration 1992, provided definition of an environmental impact assessment. The principle of prevention assign that each state in applying regulations should try to act fairly and properly based on public order and activities of the private sector under the jurisdiction and supervision of that state would not be harmful on the environment. The principle of the abuse of the environment giving absolute duty, have emphasis on prevention of losses, but the obligation on states to ban the activities are when the activities cause severe damage to the environment. For example, the discharge of toxic waste into an International lake can be minimized by result of authorized activity. For example, applying limitations on the discharge of sulfur dioxide in the air is effective.
5- Principle of precaution
In order to achieve sustainable development, Policies should be established based on the principle of precautionary action. While still the principle of prevention does not put its effect on general provisions on environmental protection, Principle of precaution was considered and it was developed. This principle can be considered as one of the most important initiatives of the past and current Rio declarations. For example, the Rio+20 "158 outcome" at the latter stated "precautionary approach in the management, in accordance with international law, of activities having an impact on
the marine environment, to deliver on all three dimensions of sustainable development". Furthermore Article 15 of the Rio Declaration it is stated that: In order to preserve the environment, States should use a precautionary criteria and terms based on their ability. Referring to the government, shows the universal implementation principle and attention to ability of each states, shows common but different responsibilities of states. In paragraph 3 of Article 3 of the Convention on Climate Change, Complex process of negotiations is reflected. It is better that parties of treaties, provide precautionary regulations to anticipate, prevent or minimize climate change and reducing undesirable effect that these criteria should be to the benefit of all humanity by the least possible cost.
Introduction to the Convention on Biological Diversity points out that» Lack of full scientific certainty should not be used a reason for Suspending the rules to avoid or minimizing important treat In order to reduce biodiversity, without proactive reference to a precautionary approach.
The question that was asked during the negotiations on of the Vienna Convention on the Protection of the Ozone Layer and the Convention on Climate Change about this principle was that what kind of risk is necessary to produce a responsibility to prevent harm? Answers to these questions can reduce the ambiguity of the concept of preventive action. First, it seems that, this loss should be related to future and be foreseeable but not be current and imminent, because only foreseeable risk of future is preventable. Second, the danger which is going to occur occurs, should be important. So «reasonable predictability» and «The importance of risk» are two components that, applying the precautionary principle must be considered [9. P. 12]. A consequence of this principle is that Governments can do a work when they show that action do not cause unacceptable harm to the environment. However, the interpretation and conclusions of the discussed principle, is for limiting the sovereignty of states, however, the World Bank has practically followed it, for the evaluation of various schemes in order to give loans. Similarly, this principle cannot be proved even in the case of environmental damage. From this principle even for improvable environmental damage (Such as a gap in the ozone layer) we can demand compensatory measures by citing the importance of risk and pushing the burden of proving the safety of the activity on the other party (defendant). For example, in the problem of acid rain in North America, When Canada proposed that the United States do countervailing measures in accordance with international law, United States Government used «lack of scientific diagnosis» and disposal of pollution emissions as a reason for denying the Canada's request.
6- The principle of Compensation on environmental pollution
According to this principle, decontamination costs must be paid by the polluter. This principle in one hand recognizes others right to a healthy environment and on the other hand, is considered as a precautionary measure to prevent environmental degradation. The obligation to pay compensation on the behalf of paying compensation for damages for polluting the environment was first proposed by organization for economic cooperation and development. Today, the principle has been cited in treaties and other international important documents and precedent and has become the international norm.
Principle 16 of Rio Declaration, by emphasizing on the public interest and pointing out to the issues that practically says environmental polluters should pay for the costs of debris and pollutants, asked the states to pay attention to aforementioned principle. In Chapter 20 of Agenda 21, the government has been asked that in their domestic policy, especially in connection with hazardous waste, must have attention to this issue.
The principle, during the scheme of civil liability of people in international treaties on nuclear and oil accidents has civil responsibility, against activities that lead to environmental degradation and entered into international environmental law. However, before that, it was cited in the decision of the International Court. Accordingly, the Court of Arbitration Asmltr, recognize Canada responsible for environmental pollution of America and announce that, the country should pay compensation for damage to the environment of America. It should be noted that in the latter case, Canada's responsibility, is a responsibility of the risk that is due to activities that are not prohibited in international law and not liability arising from errors that is the result of a breach of an international binding obligation. However, today this kind of responsibility has become a rule of international customary.
In implementation of this principle, the UN Security Council as a competent authority in maintaining international peace and security, blamed Iraq's invasion of Kuwait for environmental degradation and require Iraq to pay compensation for damages to the environment in Kuwait and other neighboring countries, including Iran. Accordingly, the amount of damage to the environment in the affected countries was assessed by effected countries and the Security Council of Compensation Committee was informed. The committee has also paid part of the relevant compensation.
Seant, (the famous German jurist) believes that, Due to the large share of developing countries in global environmental degradation by the pollution caused by industrial activities, Acceptance of the principle of polluter responsibility help developing countries, to have a legal basis « Debt to Nature» for the claim and strengthen the principle of historical responsibility of northern states.
B. Concepts of international environmental law relating to the sustainable development
1. The concept of common heritage of humanity
Common heritage of humanity is a concept that has recently been formulated and its history goes back to the 1960s. The concept of common heritage of humanity has broader concept of common property sense and the concept of common property in international law refers to areas outside the national territory, such as the open sea and untouched spaces that cannot be accessible, and it belongs to the United Nations, however, the available resources can be used by anyone. Since the common heritage is in relation to public humanity, it must be supported by a special legal regime. In certain areas, this right has been accepted, such as, Antarctica, the moon, celestial bodies, space, similarly, regions and locations and monuments are considered as Antiquities in department of Cultural Affairs and the common heritage of humanity [5. P. 110].
These areas cannot be held in exclusive sovereignty of states, but it must be protected and exploitation of them must be in a way that meets the interests of all humanity without any discrimination.
The concept of common heritage of humanity is consisting of five basic concepts. Lack of allocation, common international management, Share interests (Particularly to the benefit developing countries), Condition for peaceful purposes and Protection of humankind.
It should be mentioned that, convention for the Protection of the World Cultural and Natural Heritage (1972) is the key conventions that used to the concept of the common heritage.
In addition, the Convention on Biological Diversity, transfers the conservation and sustainable use of biodiversity under the jurisdiction of any State to States Parties to this Convention (Articles 6 to 10). In the introduction to the Convention on Biological Diversity: «Biodiversity conservation is an issue for all humanity». In addition, it pose that «States Parties are responsible for maintaining the biological diversity and the sustainable use of their biological resources ... Intheinterestsofpresentand-futuregenerations».
This concept in global environmental issues, especially issues such as the gap in the ozone layer, deforestation, global warming and ... is more reasonable and more acceptable, because a number of natural resources (such as the atmosphere) cannot be divided and being owned and meanwhile has been used for all humanity.
According to this principle, all states are required to protect the environmental zone under the common heritage of humanity to refrain from destroying or polluting it, so everyone can enjoy the benefits.
2- The concept to the rights of future generations
In international environmental law, Human rights of future generations to enjoy the appropriate conditions for life on earth has been, identified, and considered. Accordingly, environmental degradation, due to its negative consequences, is considered violations of the rights of future generations should be avoided. Protect the rights of future generations is one of the fundamental concepts of international instruments in the field of environment. It is also considered seriously in Stockholm and Rio declarations. For acceptable definition of these rights we can say that, it is a right whish according that, interest of one generation based on development of natural heritage is inherited from previous generations, and is transferred to the next generation. According this right, conservation of Renewable Natural Resources and also ecosystem protection and life strengthening flow and further support the human knowledge and culture and arts is regarded as a necessity and calls for avoiding harmful activities and irreparable effects on the natural and cultural heritage.
The Stockholm Declaration, which is regarded as the first founder of principle, says in first principle» human have the solemn responsibility to protect and improve the human environment for present and future generations. Also the same principle is repeated in various treaties and other international instruments, especially in Paragraph 1 of Article 3 of the Framework Convention on Climate Change, it stated that: members should support climate system for the benefit of current and future generations of mankind on the basis of equity and in accordance with common but differentiated responsibilities and their ability [11].
Article 3 of the Rio Declaration on Environment and Development considers human rights of future generations with right to development and whereby says» The right to development must be provided that The future and current needs of the generation must be fairly observed according to the Environment and Development. 3- The principle of common but differentiated responsibilities This principle was first stated in the introduction of the Stockholm Declaration. The Stockholm Declaration which summarize the today's world situation, forecast different functions for each of the developed and developing countries which despite the difference leads to the same result that is protection of the environment and because of environmental considerations in the development process, it can be said that the ultimate goal of The Stockholm Declaration is leading Northern states and southern states by two different ways to sustainable development.
According to this principle, all governments in the world are jointly responsible to prevent environmental degradation and support and preserve it. Despite this, and despite the sovereign equality of States, Countries responsibilities must be consistent with features and capabilities of them and be equal to the role that they have in destroying the environment.
To solve the environmental problems in this principal, we are faced with two kinds of responsibilities, which the first is the responsibility of the developed countries that is mainly based on its historic role in the environmental pollutions. Moreover, the second is Responsibility of Developing Countries that in recent years is accompanied by environmental degradation by country. Of course, this responsibility is different from the other aspect. Due to the difference between developed and developing countries, technical standards that should be adopted to achieve sustainable development, are different. Principle 7 of the Rio Declaration, Principle 11 of the Declaration is telling the same story that «Environmental standards should reflect the environmental and developmental context to which is related to it».
This principle which is originated fromequity and fairness principles in international law, is based on the what principle of fairness verdict, that developed countries which have largest role in the pollution and environmental degradation, and enjoys more facilities and capabilities than developing countries, should have more responsibility for protecting it. Accordingly, and developing countries in Proportion to their less role in environmental destruction of earth, have less responsibility and needs and conditions of these communities must also be considered. Here due to the principle of common but differentiated responsibilities, article 7 of the Rio Declaration 1992 is fully described:
Countries must work together in a spirit of global partnership to conserve protect and «restore ecosystem integrity and health of the planet. Countries, with a looking to varying share in global environmental degradation have common but different responsibility. The responsibility of developed countries takes the responsibility in the international pursuit of sustainable development, Due to the pressures of their communities on environmental globalization and technology and their resources.
According to this principle, it is illuminated that the advanced countries must help developing countries in two aspects: Financing and technology transfer necessary for achieving sustainable development.
Although, aforementioned principles is expressed in all document of International Environment conference and Development, but it seems that arrangements for the Convention on Climate Change is more accurate and more detailed. Convention on Climate Change made distinctions among the general obligations and specific commitments of all Parties that are the only developed countries.
First category is developed countries that should take important step in the fight against climate change and its adverse effects (Pursuant to paragraph 1 of Article 3 of the Convention). To do this, this group of countries must provide new and additional funding to pay for agreed cost to developing countries, which incurring heavy costs on developing countries are recognized as their accepted commitments (Paragraph 3 of Article 4). Developed countries help developing countries in paying costs of compliance with the adverse effects, which are vulnerable against the adverse effects of climate change. (Paragraph 4 of Article 4). They should facilitate safe technological transfer for the environment and knowledge related to it for developing countries (Paragraph 5 of Article 4). They should also provide necessary information in the framework of convention applicable regulations, which shall be taken at various meetings.
In the second group, the former communist countries of Eastern Europe are considered. These countries are moving; from transition, process to a market economy and Considerations must be done, to be able to meet its commitments to tackle climate change (Paragraph 6 of Article 4). Third group, are developing countries that must receive financial assistance and benefit from technology transfer. They should accept arrangement that in Convention Regulatory Framework, spent most of their time with member states which are on the list of developing countries. In the end, it is hoped that these solutions will help reduce destruction of the global environment.
Of course, it is important that sustainability be proposed as a concept in international law of the environment. Because, after the end of 1980s, the key for solving these issues was in the field of environmental protection (The principle of sustainable development). And during the Negotiations of Conference on Environment and Development, Group 77 and developing countries could managed by consensus, include the right to development in Article 3 of the Rio Declaration, which says, The right to development must be applied in a way that meet, equally the needs of the current generation and future generations in the field of development and environmental protection. However, instead, developed countries were able to gain consensus on Principle 4. It should be mentioned that Principle 4 state: In order to achieve sustainable development, Development process should be coordinated with the Environmental Protection and cannot be considered apart from it. These two principles are at the heart of the Rio Declaration and necessarily have to be considered together. Principle 3 is very similar to the definition of sustainable development in the Commission of Brantland. In addition, article 4 consider environment as an integral part of development. The only difference is that the emphasis, he first emphasized more on development and the second emphasized on environment.
Additionally, the first principle of the Stockholm Declaration has connected the right to live and the right to have a proper environment with each other, regarding this
fact that; the «sustainable development» is a concept that is able to express the right to have development and the right to have a healthy environment together at once. Therefore, the right to have sustainable development can be considered to be as one of the best examples of human rights. This viewpoint can be found in a large number of international documents that have considered the human as the base of development.
In the viewpoint of «singh», former judge of the International Court of Justice, the right to have development is rooted in the United Nations Charter; «the basic principles of sovereignty, equality, non-use of force, non-interference, non-discrimination, self-determination and multilateral cooperation, which all have been noted in the Charter», at the time of laying the cornerstone of the human rights, form the foundation of the right to live, the right to have peace, the right to have a proper environment and the right to have a sustainable development [8.P. 12].
In the formulation of the sustainable development principle, the World Union for Conservation of Nature and the Natural Resources founded the emphases and bases of the planning for compliant development in concert with the environment, and emphasized that the development policies should aim at resolving of the deprivation, overall improving of the economic, social and cultural circumstances, protecting the biodiversity, and conserving the substantial ecology streams and the life systems. The environment protection plans and programs must make decisions about details of the plans and methods for implementation of their relevant activities in each stage and at different levels, with regard to have a full compliance and coordination between the environmental considerations and the economic, social and cultural factors. Finally, governments need to be guided and encouraged to formulate their policies in compliance with the environment, and consequently, they regulate the laws necessary to make the plans at hand possible for practical implementation, and make the decisions based upon the economic tactics and establishment of the effective structures and procedures fully compliant with the environmental streams and the development of the entire Earth's planet.
A note that should be added here is to recognize the need for long-term planning to achieve the specific goals, so this strategically method may include the using style of the environment, the social problems impact assessment, the analysis of the results of the investment or cost that is done, and the accounting of the natural resources. In this planning, the compliance between all aspects of the environment and the all-economic and social policies must be considered, and the governments should take these decisions transparently and with the public participation [2].
From the above, it can be concluded that, regarding the evolution of the sustainable development concept, generally in the international law, and specifically in the international environmental law, it is expected that the concept of sustainable development goes out of its conceptual form and transforms into being an important principle in the international environmental law, to be having practical use and finally, as being promised by the United Nations, it can be observed very soon, the transformation of the international environmental law into the international law of the sustainable development.
Conclusion
The attention of the international environmental law towards economic and social considerations, in implementing the rules or regulations of the international environmental law, made the environment to be as an important part of the sustainable development process, and the necessity of coordination between the «development and environment» to be more emphasized than before in the documents and declarations of the United Nations.
The binding necessity and authority of the rules and regulations of the international environmental law are extracted from the international treaties, the international common laws and the general principles of the laws. Since there is still no comprehensive convention about the sustainable development, to provide a legal expression about this concept, the principles were studied along with the other concepts related to them in the field of the international environmental law.
These principles, which are extracted from the international common laws and entered to the written conventional texts, in any way, typically make all members of the international community to be committed and bound, though they have different degrees of binding, but they must be viewed as an integrated set, because each single principle will complement the others.
According to the generally accepted definition of the sustainable development which is a general consensus among the international society: «the sustainable development means; the human capabilities to meet the needs of the present generation without violation or damaging the rights and capabilities of the future generations to meet their needs» (Our Common Future Report, the World Commission on Environment and Development).
Almost all of the principles of the international environmental law can be used in order to prove the sustainable development concept. The principles such as: the principle of the sovereignty over natural resources, the principle of the commitment to cooperation, the information and assistance in the environmental emergency situations, the principle of the support and protection of the environment, the principle of the obligation for the environment polluter to pay compensation, the principle of the prevention and the principle of the precaution. Of course, among the international environmental law concepts such as (the concept of the common heritage of the humanity, the concept of the future generations rights), the concept of sustainable development can be directly and explicitly seen more abundantly than these principles, and for implementing the global sustainable development, it has been emphasized, the commitment to the principle of common, but differentiated, responsibilities of the countries, that is one of the extremely important concepts of the international environmental law. In the end, this is important to notify that, the difference between the developed countries and the developing ones, on agreement about the concept of sustainable development, is caused by this idea in which, the sustainable development is assumed to be as one practical model for all of the countries. However, the most of the United Nations documents emphases about the sustainable development are concentrated on the matter that, the countries should regulate their laws transparently and accountably based on their own circumstances.
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ИССЛЕДОВАНИЕ ПРИНЦИПОВ И КОНЦЕПЦИЙ МЕЖДУНАРОДНОГО ПРАВА ОКРУЖАЮЩЕЙ СРЕДЫ
М.А. Кафаи Фар
Кафедра международного права Российский университет дружбы народов
ул. Миклухо-Маклая, 6, Москва, Россия, 117198
Практически все принципы международного права охраны окружающей среды применяются при обосновании концепции устойчивого развития: принцип неотъемлемого суверенитета над естественными ресурсами и богатствами; принцип сотрудничества, принцип оповещения и помощи при чрезвычайных экологических ситуациях; принцип защиты и охраны окружающей среды; принцип обязательного возмещения ущерба при загрязнении окружающей среды, принцип предотвращения ущерба окружающей среде. Несмотря на то, что данные нормы имеют разную степень юридической обязательности, они представляют собой совокупность норм, взаимодополняющих друг друга. В данной статье исследуются принципы и концепции, связанные с концепцией устойчивого развития в международном праве окружающей среды.
Ключевые слова: принципы международного экологического права, устойчивое развитие, охрана окружающей среды.
