HOW CAN
INTERNATIONAL ENVIRONMENTAL LAW
ASSIST EAST TIMOR?
Lisa A. Ogle, Director, Environmental Defender’s Office
Sydney, Australia
Of what
relevance is the international environmental legal framework to the emerging
nation of East Timor? How can it be of
use? Achieving sustainable development
is a global problem, and the principles for sustainability are therefore
reflected in many international treaties.
East Timor can make use of the work already carried out on
sustainability at the international level.
It should consider whether it wishes to adopt sustainability principles
and environmental rights in its Constitution of basic rights. It should also consider how it could
implement these principles in its new environmental laws. East Timor may also be able to obtain
financial, technical and legal assistance under some treaties, and through
joining some regional environmental networks to help it develop and implement a
new environmental legal framework.
A.
Introduction
Why do we have international environmental law?
Over the past 20 years, the international community has recognised that development around
the world has not been sustainable. Globally, we are depleting our natural resources such as
fish, forests, soils and fresh drinking water very quickly. Biodiversity is threatened. Pollution from one country crosses the boundary into another. For example, carbon dioxide pollution generated in one country will contribute to the warming of the entire planet.
The causes of environmental degradation are also similar around the world; excessive consumption and development, rising population pressures, poverty, hunger, and armed conflict. There is a need for the international community to address the causes of poverty, and to ensure that wealth and technology are shared fairly between countries.
The response from the international community has been to develop international laws that provide the framework for ecologically sustainable development (ESD) to take place. International environmental law is aimed at eradicating poverty, and improving economic, social and cultural conditions while conserving biodiversity and the environment. This is done by ensuring that the environment is considered in all decisions about development (International Covenant on the Environment and Development, Article 13).
What is international law?
International laws on the environment are found in a range of documents including treaties, conventions, covenants and declarations of principles.
Like human rights law, one of the primary weaknesses of international environmental law is that it relies on countries to adopt the treaty into their own domestic law for it to be enforceable.
1. Several international treaties identify the principles for sustainable development. East Timor should consider:
(a) whether it wishes to adopt environmental rights and the principles for sustainability in its Constitution (eg. “The right to a clean and healthy environment”); and
(b) how it can include the principles for sustainability in its new environmental laws (such as following the precautionary principle in making decisions about development).
2. Participation in international treaties may also facilitate assistance from the international community in the following areas:
(a) Assessment of environmental issues, e.g. surveys of biodiversity;
(b) Financial or “in kind” assistance;
(c) Environmental management assistance, eg. in managing special areas, such as nature reserves and wetlands;
(d) Assistance in preparing legislation;
(e) Transfer of technology.
The key international documents which set out the general principles for sustainable development are:
· Rio Declaration (1992)
A statement by the international community of general principles for sustainable development.
·
Agenda 21 (1992)
An Action Plan for sustainability, which builds on the Rio Declaration.
·
International Covenant on
Environment and Development.
This document is intended to go one step further, by giving effect to the provisions of the Rio Declaration and Agenda 21 in the form of a binding treaty. It will be a sort of “Declaration of Human Rights” for the environment. It has no official status at present.
These documents refer to five main principles for ecological sustainable development. These are listed below, along with an example as to how each principle could be applied to a new mineral resource development, such as the extraction of oil in the Timor Gap, to ensure that it is environmentally sustainable:
·
Intergenerational equity
Fairness between generations. The present generation has an obligation to pass natural resources on to following generations in a state that lets them have the same opportunities physically and ecologically, as well as for economic development.
Example: Will the mineral resource to be mined, such as gold, copper or oil, be available for the next generation? If not, how can the benefits of mining be made available to future generations?
·
Intragenerational equity
Fairness within each generation. Development should not impact unfairly on those who are socially or economically weak. All members of the community should have the same opportunity to influence decisions about development and the environment.
Example: Will the mine unfairly affect one part of the community more than another? Mines often dump their contaminated waste into rivers. This can ruin the river for people who live downstream and use the river to fish or for clean water. Similarly, dumping mine waste in the ocean can kill a coral reef, and make it harder for communities that rely on the reef to catch fish.
·
Precautionary principle
Even if it is not certain that harm to the environment will occur, steps should be taken to avoid or limit any possible damage.
Example: The toxic chemical cyanide is often used in gold mines. The mining company might say that it is safe to use cyanide because the waste will be collected in a dam. But what if the dam breaks? Then the impacts on the river will be very serious. Applying the precautionary principle may mean that the mining company should not be permitted to use cyanide.
· Conservation of biodiversity
We should avoid species becoming extinct, not only for their own sake but also because they provide us and future generations with food, medicine, industrial products, and contribute to a healthier environment.
Example: Has an assessment been made of the impact that the mine will have on plants and animals? Does the law in East Timor prohibit development that may result in a species becoming extinct?
·
The user should pay the full
environment costs
The developer should not only pay the full financial cost of exploiting natural resources, such as timber, oil or minerals. They should also pay the full cost of any damage they cause to the environment, such as pollution, as well as for remediation measures.
Example: Will the mine pay a fair price for the gold or copper? Will the mine have to pay for all damage that the pollution causes to the environment and to people?
In addition to ESD principles, some other general principles for sustainable development in international law include:
· The right to a healthy and productive life and environment;
· The right of the community to participate in decisions made about the environment;
· The right for the community to access remedies through the government and the courts;
· The right to information about development;
·
The need for environmental impact
assessment (EIA) to be carried out for all new development;
·
The right of women to fully participate
in decisions about the environment.
Question: East Timor should consider whether it wishes to adopt environmental rights, the principles of ESD, and the other general principles set out in international law in:
· its Constitution; and
· each of its environmental laws?
Example: East Timor’s Constitution could provide that: “All people have the right to a clean and healthy environment”.
Most treaties will have a Secretariat that can assist parties with advice, financial support and environmental expertise to implement the terms of a treaty (eg. World Heritage Committee, the Ramsar Bureau to assist in protecting wetlands).
Specific treaties which East Timor may want to consider becoming a signatory to include:
Requires countries to protect species through legal and institutional mechanisms. The Global Environment Facility (GEF) provides financial assistance to developing countries under this Convention, such as funds to carry out biodiversity assessments.
·
Convention on the International
Trade in Endangered Species 1973 (CITES)
Controls trade in endangered species by requiring permits to import and export those species.
·
Basel Convention on the
Transboundary Movement of Hazardous Wastes and their Disposal (1989)
Regulates the movement of hazardous wastes between countries.
·
World Heritage Convention (1972)
Special areas of outstanding cultural or natural heritage can be listed for protection under this treaty. Example: the Great Barrier Reef is listed in Australia. A Fund for the protection of World Heritage sites is established under the Convention to support the conservation of World Heritage sites and sites which are threatened by development.
E.
Assistance
through international and regional associations
·
UN Environment Program
The Division of Environmental Policy Development and Law can provide assistance with preparing policies and drafting laws to assist in the adoption of international laws.
·
UN Development Program
·
World Bank
The
International Environmental Law Division of the World Bank can provide
assistance in drafting legislation to implement international laws.
· Global Environment Facility
Provides grants for projects, technical assistance and research to benefit developing countries to implement Agenda 21, Biodiversity Convention and Climate Change Convention.
The Association of South East Asian Nations (ASEAN) has an Environment Programme to assist Member States. It also has an important Agreement on the Conservation of Nature and Natural Resources (1985), although this is not yet in force.
This is based in Western Samoa. The organisation was created in 1993 and has 27 members, including all of the Pacific Island countries. The purposes of SPREP are to:
· promote cooperation between member countries in the South Pacific region
· provide assistance to protect and improve its environment and
· ensure sustainable development for present and future generations.
It may be possible for East Timor to join SPREP, although this would require SPREP to extend its geographical coverage.
Global non-government organisations
·
IUCN (The World Conservation Union)
The IUCN has an Environmental Law Program that could provide assistance and advice in drafting and implementing international environmental laws.
The international legal framework has worked on developing the principles for ecologically sustainable development to address this issue of global concern. These principles should assist East Timor in considering how it wishes to develop its own legal and environmental management system to achieve sustainable development.