Boer, Ben --- "The globalisation of environmental law" [2000] ALRCRefJl 7; (2000) 76 Australian Law Reform Commission Reform Journal 33

---

Reform Issue 76 Autumn 2000

This article appeared on pages 33 - 39 & 99 of the original journal.

The Globalisation of Environmental Law

The evolution of environmental law over the past several decades can be characterised in terms of three related processes — globalisation, internationalisation and regionalisation.

These integrative processes can be said to be a response to the increasingly obvious effects of degradation of the global and regional environment, and the increasing awareness of the need to address the issues at all levels. Professor Ben Boer* briefly examines these phenomena.

The process of globalisation in the context of the development of environmental law has several manifestations. The first is that over the past two decades an increasing number of conventions have been developed to address global environmental issues. The second is that common approaches and principles are being developed and transferred from one convention to the next. This can be referred to as the globalisation of concepts. These concepts particularly include the concept of sustainable development, the precautionary principle, and the principle of intergenerational equity.¹ The process of globalisation in the second sense can be characterised as the horizontal transfer of concepts and approaches, between conventions and other international environmental instruments.

The globalisation of environmental law has been part of a broad movement in relation to environmental protection internationally. It has been promoted considerably by the conduct of major United Nations conferences on the environment, from the Stockholm Conference on the Human Environment in 1972 to the UN Conference on Environment and Development of 1992 in Rio de Janeiro. The establishment of major international institutions has been a part of these activities. In particular, the UN Environment Program (UNEP) was a result of the 1972 Stockholm conference, and the Commission on Sustainable Development arose out of the 1992 Rio conference. The Rio+5 conference of 1997, together with the annual meetings of the Commission on Sustainable Development since its establishment in 1993, have also contributed to this development. Other important meetings that have assisted the process of globalisation include the regular international congresses of the IUCN-World Conservation Union, which have resulted in highly significant reports such as Caring for the Earth,² which have clearly become important in shaping environmental policy at a regional and national level. Less directly, the activities of the World Trade Organisation are influencing the direction of environmental protection and management.

In addition, the ongoing efforts of UN institutions have resulted in the development of international environmental instruments and programs, the drafting of environmental laws at a national level and training in environmental law.³ The various development banks, including the World Bank and the Asian Development Bank, are also increasingly important players in the process of globalisation of environmental law.

Evidence of globalisation of environmental matters is also seen in the continuing program of performance reviews being conducted as part of economic performance of member countries by the Organisation for Economic Cooperation and Development (OECD). The recent OECD environmental performance review for Australia makes clear that environmental law is a key factor in determining the progress being made to address the environmental protection and sustainable management of natural resources.⁴

Further, the World Conservation Union, through its Commission on Environmental Law and the Environmental Law Centre in Bonn, has played a significant role in the processes of globalisation, through the preparation of initial drafts of the UNESCO World Heritage Convention, the United Nations World Charter for Nature, the Convention on Biological Diversity and the nascent International Covenant on Environment and Development, which awaits completion.

Internationalisation

Internationalisation can be seen as a particular aspect of globalisation. As part of this process, many countries are now looking externally to environmental conventions and agreements to guide their own policies and laws, rather than remaining internally focused on developing their environmental management policies and regulatory systems. The principles and approaches found in these instruments are beginning to be absorbed into national and sub-national legislation, and into environmental jurisprudence, especially in Australia.

A further aspect of internationalisation is the phenomenon of legislative cross-fertilisation. Drafters of environmental legislation are borrowing concepts, approaches and language, sometimes quite directly, from countries where environmental management systems and legislation are already well developed. Cross-fertilisation also takes place at the level of institution building and policy making, through the study of comparable systems, for example, the urging by the World Bank of adoption by China of industrial pollution programs developed in Indonesia and the Philippines. Of course, this is a common and generally beneficial phenomenon in legislative drafting in many areas of law. The danger in this process is the possible adoption of legislative models and administrative mechanisms without adequate adaptation to the social, cultural and economic context of the country concerned. This can result in local approaches and management techniques being ignored, if not overridden.

Cross-fertilisation is also occurring at the level of constitutional drafting, where drafters look to other countries to ensure the inclusion of variously constructed environmental guarantees or rights. It is also beginning to occur at the level of environmental litigation, with courts hearing environmental legal actions beginning to draw on the jurisprudence of other countries around the world in a way that has not occurred as rapidly in other areas of law. Examples can be found particularly in South Asia, between India, Sri Lanka and Nepal. In contrast to the globalisation of environmental law, internationalisation can be characterised as both a vertical (from conventions to national legislation) and a horizontal (between national legislative systems) transfer of concepts and approaches.

Regionalisation

The process of regionalisation is, in this context, the regional outcome of the combined processes of globalisation and internationalisation. It means that environmental programs and instruments, often based on global trends, are being developed through regional bodies to address terrestrial and marine environmental problems for groups of countries. These in turn are being translated into national environmental policies and gradually reflected in legislation. In the Asian and Pacific region, the relevant institutions are the South Asia Cooperative Environment Program, the ASEAN Environment Program, the South Pacific Regional Environment Program and, to a lesser extent at this stage, the Mekong River Agreement. All of these are manifestations of regionalisation of environmental law.

^{In the past five years, the activities and statements of the Asia Pacific Economic Cooperation forum (APEC) have also begun to have an influence on regional environmental debates, particularly in terms of the adoption of the concept of sustainable development and related} principles. As with internationalisation, horizontal and vertical transfer of approaches and concepts are also characteristic of regionalisation.

A recent example of the need for regional strategies, backed by a stronger institutional and legal framework at a regional level, is found with the south east Asian forest fires. These events serve to demonstrate the weaknesses of regional environmental arrangements in Asia, epitomised by the ASEAN Agreement on the Conservation of Nature and Natural Resources of 1985⁵ (not yet in force), and the ASEAN Environment Program.

While the ASEAN agreement, if it were in force, would impose a range of obligations on contracting parties, it would do little to directly address issues such as the transboundary pollution of forest fires.⁶

A holistic approach

The need for a holistic approach which incorporates the processes of globalisation and internationalisation, with the aim of promoting sustainable development across the board, is neatly summed up by the IUCN Commission on Environmental Law.

‘Concern about the environment as our natural capital should be at the foundation of all local, regional and national development. At the same time, the environment demands global consideration, for it is not compartmentalised into nation-states and certain problems can only be solved by cooperation at the global level.
The objective of sustainable development requires the improvement of legal and administrative systems, which have in the past often been sectoral and reactive. This entails the adoption of forward-looking legislation conducive to the integration of conservation and development. It calls for an integrated conceptual base for international and national law-making, as well as for a constant effort to implement and enforce existing conservation instruments.’⁷

To this can be added the process of regionalisation and the need for encouragement of its further development through the coordinating efforts and technical assistance of regional organisations to ensure that environmental mechanisms to take root at a national level.

Conventions & international instruments

The 1990s has seen the negotiation and coming into force of a number of important generally applicable environmental conventions, as well as other international instruments, which have had a very significant effect on the domestic law and policy of many countries, including Australia. The following, all arising from the United Nations Conference on Environment and Development of 1992, are the most significant:

• The Rio Declaration on Environment and Development;

• Agenda 21; the United Nations program of action for the 21st century;

• The Convention on the Conservation of Biological Diversity;

• The Framework Convention on Climate Change; and

• The Statement of Forest Principles.

In addition, we have seen the conclusion of the Convention on Desertification in 1994, and the coming into force of the 1982 UN Convention on the Law of the Sea.⁸ In 1998, a new European Convention emerged, which is likely to eventually have repercussions in Australia and this region, entitled the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention).

Agenda 21

Agenda 21 is aimed particularly at the achievement of sustainable development across every sector of human activity. It represents a comprehensive framework for the cooperative generation of strategies for sustainable development and environmental management at a global level. Agenda 21 also explicitly recognises and promotes the globalisation of environmental law and policy.

Chapter 8 of Agenda 21 deals with the integration of environmental and developmental issues in decision making at policy, planning and management levels, with the overall objective of improving or restructuring the decision making process so that socio-economic and environmental issues are fully integrated. It urges the adoption of a national strategy for sustainable development, to build on and harmonise sectoral economic, social and economic policies in each country. The overall objective, ‘in the light of country-specific conditions’, is the promotion of the integration of environment and development policies through appropriate legal and regulatory policies, instruments and enforcement mechanisms at every level of government.

Chapter 8 reflects and further promotes a trend towards homogenisation of approaches, policies and principles. In examining developments in national environmental policy, it is clear that the provisions of chapter 8 are beginning to form the basis of decision making on environment and development matters for governments, intergovernmental organisations, non-government organisations and the private sector around the world.

While Agenda 21 is not legally binding in international law, the major programs and activities that it promotes have had, and will continue to have, a very important influence on developments at a national level, assisted and encouraged by the UN Commission on Sustainable Development.

The Asia-Pacific

The processes of globalisation in the Asia-Pacific region can be seen inter-regionally and at a country-specific level.

Of particular interest are developments in national courts, particularly in terms of recognising environmental rights within national constitutions, as well as the use of internationally accepted concepts, such as sustainable development, the precautionary principle, and the polluter pays principle, which are being increasingly applied in environmental decisions. In order to address particular regional environmental problems, it has been realised that, in some instances, the adoption of regional strategies and conventions is a more appropriate strategy than adoption of global strategies and conventions.⁹

Environmental law education

Agenda 21 recognises that one of the elements of achieving sustainable development is adequate functioning of environmental management systems, which rely on the capacity of national environmental institutions. Fundamental to this is the question of how to ensure that government regulators and policy makers, scientists, lawyers and judges and those in the private sector have a good understanding of the relevant environmental law and policy. In recent years, a range of major environmental law training programs have been initiated in the Asian region, and elsewhere, within universities and through bodies such as UNEP. A major program of this kind was conducted in 1997 and 1998 through the National University of Singapore. The philosophy behind the university-based programs is that by educating environmental law lecturers in a variety of national tertiary institutions, the knowledge acquired will economically and efficiently filter through to a large number of students, as well as lawyers and government administrators, via in-country training programs.

Spin-offs from the Singapore program so far have been a World Bank-funded initiative for the training of university lecturers and government officials in environmental law in India. The decision to fund the program was made in the light of the decision of the Indian education authorities to make the study of environmental law compulsory in all Indian law schools. Given that there are more than 400 law schools in India, this is an ambitious undertaking.¹⁰ A similar program is being planned for Indonesian state law schools and government officials.

These trends are a manifestation of globalising, or at least regionalising, environmental law education. In the longer term, they may have the effect of contributing, rightly or wrongly, to some homogenisation of environmental legislation and policy. As these and similar programs get underway there is likely be a good deal more interaction between Australian law schools and those in the Asia-Pacific region.

The Australian experience

In the past several decades, Australia has played a strategic role in global environmental developments, particularly in the negotiation of environmental conventions. It is clear that in this area of international relations it has gained an influence, usually for the good, rather beyond its economic power or normal political sway.

On the other hand, global developments have also had a very important influence in Australia – at a national and state level – in terms of legislative developments. To an extent, this influence has extended to environmental jurisprudence as well. This is recognised by analysts such as Kellow:

‘In an era of increasing globalisation, environmental policy is becoming increasingly international. Global and regional multilateral agreements are increasingly requiring the adoption of national regulatory regimes, and are becoming increasingly specific about the obligations imposed. Increasingly, therefore, environmental policy in the Australian federation is being made outside Australia and its development is being shaped by forces beyond the control of single governments, forces which are not always expressions of the noblest motives.’¹¹

While it is not clear what motives Kellow is referring to, the important point is that the process of globalisation, particularly in a federal system such as ours, means that if Australia is to be able to conform to international standards set through conventions and documents such as Agenda 21, our environmental laws must become more uniform, in terms of the principles adopted, the standards formulated (particularly for pollution) the species being protected, and the mechanisms being employed.

One of the more concrete manifestations of this is the negotiation of the Intergovernmental Agreement on the Environment of 1992 (IGAE). The IGAE purports to establish an environmental policy for the Commonwealth, states, territories and local government, in a wide range of areas, under one set of principles – those of ecologically sustainable development.¹² Significantly, most Australian governments signed off the IGAE one month before the UN Conference on Environment and Development of June 1992.

It can be noted that in Australia there are now more than 100 statutes, at federal, state and territory level, which refer to ecologically sustainable development and the various principles associated with it.¹³ On any analysis, this trend is remarkable. However, not so remarkable is the fact that good legislative provisions incorporating these high-minded and well-intentioned principles will not necessarily result in better environmental outcomes. A great deal more work needs to be done at the administrative level to prepare adequate guidelines to ensure change in on-the-ground practices and in the development of jurisprudence through testing of these provisions in the courts.

The latest manifestation of the influence of international environmental law in legislation is found in the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Act represents a serious attempt to come to grips with Australia’s responsibilities under a number of environmental conventions, such as the Ramsar Convention on Wetlands and the World Heritage Convention. The Act also adopts the concept of ecologically sustainable development (ESD) and the precautionary principle.

Conclusion

The globalisation of environmental law, while it continues apace, will take a good deal of time to have any marked effect on major global environmental problems, such as climate change, the destruction of the ozone layer and the decline in the world’s biological diversity. Much greater effort needs to be put into capacity-building of global and regional institutions to promote environmental governance, as well as into generating the administrative machinery at a national level to ensure that global and regional environmental law and policy programs can be implemented. If global governance cannot be achieved in the economic sphere,¹⁴ it may be even less likely in relation to its close counterpart, if not its parent, the ecological sphere.

*Professor Ben Boer is Professor in Environmental Law and Co-Director, Australian Centre for Environmental Law, at the Faculty of Law, University of Sydney. He is also the Deputy Chair of the Environmental Law Commission within the World Conservation Union.

This is an edited text of a paper presented at the 1999 Law Society Legal Studies Teachers Conference in Sydney. Parts of the analysis on globalisation, internationalisation and regionalisation are drawn from B Boer ‘The Rise of Environmental Law in Asia’ 1999 32 University of Richmond Law Review 1503-1553.

Endnotes

1. These are found, for example, in the 1992 Rio Declaration on Environment and Development, the Framework Convention on Climate Change ((1992) 31 ILM 849), the Convention on Biological Diversity ((1992) 31 ILM 818) and the Convention to Combat Desertification in those Countries experiencing Serious Drought and/or Desertification ((1994) 33 ILM 1328).

2. Caring for the Earth: A Strategy for Sustainable Living, IUCN, UNEP and WWF, 1991; the report is seen as the successor to the World Conservation Strategy (IUCN, UNEP & WWF 1980).

3. These institutions include the UNEP and the UN Development Program and, to a lesser extent, the UN Institute on Training and Research and the UN Industrial Development Organisation.

4. OECD Environmental Performance Reviews: Australia, OECD Paris 1998.

5.See KL Koh (ed) Selected ASEAN Documents on the Environment, APCEL Document Series (1996) Asia Pacific Centre for Environmental Law, Faculty of Law, National University of Singapore.

6. See further, B Boer, ‘The Rise of Environmental Law in Asia’ 1999 32 University of Richmond Law Review 1503-1553.

7. IUCN-The World Conservation Union Commission On Environmental Law, IUCN Bonn, June 1998, 1.

8. (1982) 21 ILM 1261.

9. See further, B Boer, ‘The Rise of Environmental Law in Asia’ 1999 32 University of Richmond Law Review 1503-1553.

10. This project is being carried out by the Centre for Environmental Education, Research and Advocacy (CEERA), National Law School of India University in Bangalore.

11. A Kellow ‘Natural Resources Decision Makers in the Australian Federation: Who, What, When and How Well?’ (1996) 1 The Australian Journal of Natural Resources Law and Policy 1-9

12. See National Strategy on Ecologically Sustainable Development 1992, AGPS.

13. See further P Stein ‘Are Decision-makers too Cautious with the Precautionary Principle?’ (2000) 17 Environmental and Planning Law Journal, 3.

14. See G Soros, The Crisis of Global Capitalism, Little Brown and Co, 1998, as extracted in The Sydney Morning Herald, 30 November 1998, 13, where he argues that the governance of a global economy without a global society is untenable. The same may be said in relation to global environmental management.