Centre for Environmental Law
Volume 14 2010 Articles
- The Resource Management Regime and Private Property Rights and Interests - Is there an Untoward Tension between the Two?
- Common but Differentiated Responsibilities: Adjusting the "Developing"/"Developed" Dichotomy in International Environmental Law
- The Global Covenant: The Earth Charter and the Concept of Covenants in International Law and Environmental Governance
- R J Bollard
This paper explores the relationship between the Resource Management (RMA) regime and private property rights. It discusses various RMA cases with the intent of illustrating that, while tension is oft reported between the RMA regime and private property rights, the two ought not to be treated or interpreted as competing in ways liable to undermine one or the other.
- Sacha Hollis
Concern for future generations or the concept of intergenerational equity is a fundamental tenet of environmental law, recognised in international declarations and national legislation. There is justification for protection of the environment for future generations from both religious and evolutionary perspectives. In spite of this, the rights of future generations that require protection are not always obvious, and as future generations are not represented in environmental legislation or legal proceedings it is argued that these rights are not given effect to. This article traces the development of the theory of intergenerational equity through international law. Recognition of the rights of future generations in national law is then analysed and the effectiveness of implementation of these rights considered. Various options are also proposed with the aim of improving the implementation of the rights of future generations in the hope that this will assist with more effective environmental protection for all generations.
- Rachel Boyte
The principle of common but differentiated responsibilities addresses different historical and current contributions of states to global environmental problems, along with their capacity to mitigate these, while recognising that all nations have a responsibility to provide for the "common heritage of mankind". The principle affects the obligations of "developing" and "developed" countries under numerous multilateral environmental agreements. It is by virtue of this principle being included in a number of agreements that differential treatment applies to environmental regimes. The principle has its roots both in equity and pragmatism, but it is contended that the effective and fair application of the principle is being undermined due to issues with the current categorisation of countries. This article suggests that amendment to the categories and the means by which nations are grouped under these is necessary in the best interests of a number of "developing" countries, the efficacy and equitability of the principle, and importantly, the global environment. The article proposes means by which these necessary changes can occur, while adhering to the elements of, and strengthening, the underlying legal principle.
- Shane D Nicholls
Sustainable development, and the general theory of sustainability in environmental governance, has reached a point where humankind, as the Earth's stewards, chooses between State-based fragmentation and a human-based "moral" code. The inability of international law to create a truly sustainable system between consumption and progress and the protection of global resources for future generations has never been more apparent than today. We are in a time of such technology that communication is available to almost everyone and what was once a localised problem is now a global one. Throughout the best part of last century international law has attempted to contain progress to a point where what we consume is limited to resources available. A yardstick is missing by which we can judge what is consumed or is protected for future generations. We look to the Rio Declaration or the Stockholm Convention as paving the way for international law to reflect the global community's need to legislate on sustainability. We have underestimated, however, the very nature of State-based sovereignty, which forms the basis of international law, and may be the very reason for the failing of any internationally enforced environmental code of conduct. On this ground we have witnessed a rise in the global community's desire to self-govern without the direct need to have enforceable international law as a deterrent to the global citizen's behaviour. The Earth Charter has emerged as a the moral code that may have the ability to govern environmental and social conduct successfully, where international law cannot. What the Earth Charter seeks to achieve is the introduction of an inclusive and non-discriminatory code based on the concept of "the global covenant". In effect, the Charter forms governing principles that withstand international conflict and State-based disputes - a "moral code" that depends not on what is written but on the desire of the individual to adhere to what they believe is fundamental to humankind's indefinite survival. This article looks at how the concept of a "moral code" for global civil governance has the ability to override what civilisation and State sovereignty was built on: codified law. How does an appeal to one's ethics overcome cultural, social, economic and political divides to effectively govern on an international scale? That humans have moral and ethical codes on which they base their daily conduct is beyond doubt, but how these codes translate to a consensus in international governance is the question that remains unanswered.