A Right to Environment in International Law: Current Status and Future Outlook

• Published date: 01 November 1999
• DOI: http://doi.org/10.1111/1467-9388.00215
• Date: 01 November 1999
• Author: Paula M Pevato

Volume 8 Issue 3 1999 A Right to Environment

A Right to

Environment in

International Law:

Current Status

and Future Outlook

Paula M. Pevato

Mankind is approaching a historic turning point: the beginning of

the third millennium of the common era. Today there is an

especially keen desire to look into the future and try to see what

it holds.

Igor Ivanovich Lukashuk, ‘The Law of the International Com-

munity’

1

Introduction

International law for the protection of the environment

has evolved rather rapidly during the latter part of the

twentieth century. Indeed, since the Stockholm and Rio

Declarations

2

were adopted in 1972 and 1992 respect-

ively, a broad consensus of the international community

has undertaken the laborious task of drafting and adopt-

ing, ratifying or implementing a plethora of hard and soft

law instruments, policy documents and otherwise, at the

global, regional and municipal levels. In fact, most of the

standard-setting for environmental co-operation has

taken place since 1972. These sources of international

law express many of the aspirations contained within

and inspired by both declarations. In the course of this

evolution, a number of new concepts have emerged sim-

ultaneously – including the precautionary principle, the

polluter-pays-principle, intergenerational equity, and of

course sustainable development – concepts that have

become part of the lingua franca circulating amongst

international legal circles. Although the legal status of

many of these concepts of international environment co-

operation (IEC)

3

is unclear and the subject of much aca-

demic debate, their importance in providing guidance

for, contributing to and encouraging IEC cannot be

denied. However, forcing the issue to f‌ind a right to

environment exists – implicit, express, third generation

and so on – does little for the credibility the debate des-

Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

309

perately needs at this stage. It is one thing to say that a

right to environment should exist (lex ferenda), but quite

another to insist it does exist (lex lata), particularly in

the light of the sources of international law.

In adhering to the spirit of this special issue of RECIEL

that aims to ‘look back and look ahead’, this article is

both ref‌lective and somewhat prescient, given that it will

touch upon recent history, present status and future

prospects of one such concept that has emerged para,

or alongside, the progressive development of inter-

national law for the protection of the environment: the

right to environment. The leitmotif of this article is rather

straightforward: what is a right to environment in con-

temporary international law and policy and what is the

forecast for future recognition as a human right? Given

that many arguments cannot be developed fully within

the scope of this article, its aim is modest: to reevaluate

prevailing attitudes, both convergent and divergent tides

of thought; to situate the status of this concept within

current international legal theory and practice; and, to

raise relevant questions for further ref‌lection.

This article adopts a policy science perspective, viewing

law as a process of authoritative decision-making wherein

policy choices play an important role. The policy science

approach recognizes a broader methodological basis for

identifying and appraising current or emerging norms or

standards, for evaluating new trends in international law

encapsulated within declarations, recommendations,

decisions, amongst other soft law documents. With that

international legal philosophical perspective in mind,

policy science would attempt to make law and jurispru-

dence more relevant to contemporary social, economic

and political realities, and dependent upon demands and

expectations of a particular society,

4

in this case in the

context of balancing competing interests amongst