THE WORLD HERITAGE CONVENTION AND
ITS IMPLEMENTATION IN AUSTRALIA
BY
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JULIET M. BEDDING, BA/LLB (Hons) .
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A dissertation submitted to the Faculty of Law, University of
Tasmania in fulfilment of the requirements for _the award of
Dedication
I dedicate this thesis to my parents,
Myrna and Robin Bedding,
in love and gratitude •
Declaration
This dissertation is the result of my original research
and borrowed sources have been duly acknowledged in
Acknowledgments
I am grateful to a number of people for their invaluable assistance in the process which has resulted in the production of this dissertation, and wish to acknowledge the same.
I owe a great debt of gratitude to my supervisors, Dr Martin Tsamenyi and Dr Sam Blay, of the Law Faculty, University of Tasmania. Any scholarship which this work can claim is a result of their criticisms, comments and suggestions. The fact that the thesis has been completed at all, and that the preparation of it has been such a stimulating process, is in large part due to their friendship and encouragement.
I acknowledge the support of the Trustees of the Lionel Murphy Foundation through a Lionel Murphy Australian Bicentennial Post-Graduate Scholarship for 1988 which enabled me to work on this dissertation full time during that year.
My thanks go to the secretarial and library staff at the University of Tasmania for their assistance, and particularly to Ms Lisa Parremore, who typed the first draft of the thesis.
I am eternally grateful to my colleagues in the Law Faculty, Mr Dave Brown and Mrs Mandi Haynes, for their patience and skill in educating a computer-illiterate in the marvels of word processing.
My thanks also go to the numerous officials at Unesco Headquarters, Paris and of the Commonwealth Department of Arts, Sport, Environment Tourism and Territories and Tasmanian Department of Lands, Parks and Heritage, who have at all times been helpful in their supply of information and documents.
Dedication ii
Declaration iii
Acknowledgments iv
Table of Cases xii
Table of Statutes xiv
Abstract xv
INTRODUCTION 1
PART 1
THE WORLD HERITAGE CONVENTION
CHAPTER I.THE EVOLUTION OF INTERNATIONAL ENVIRONMENTAL LAW
Introduction 7
Sources of International Environmental Law 7 Conventions as a Source of International Environmental Law 8 Custom and International Environmental Law 8 Resolutions, Declarations and Recommendations as Sources of
Law 9
The Development of International Environmental Law 12
The First Stage 13
The Second Stage. 15
International Organization 16
United Nations Specialised Agencies 16 Non-governmental Organizations 17
(i) IUCN 17
(ii) The Rome Centre 18
(iii) ICOMOS 19
Regional Organization 19
The Ecological Approach 19
Expansion in Environmental Law 21
The Third Stage 22
Environment and Development 22 X
The United Nations Conference on the Human
Environment (UNCHE) 24
The United Nations Environment Programme (UNEP) 26
Post- 1972 Developments 28
CHAPTER II.BACKGROUND TO THE WORLD HERITAGE CONVENTION
Introduction 34
The Concept of the Heritage in International Law 34
The Common Heritage of Mankind 35
The World Heritage Concept 37
The Relationship of the World Heritage Concept to State
Sovereignty 38
The Concept in the World Heritage Convention. 39 Future Applications for the World Heritage Concept 40 An Emerging Sense of a World Heritage 42 International Agreements for the Protection of Cultural Sites 42
The 1899 and 1907 Annexes to the Laws and Customs of
War on Land Conventions 43
The Convention Respecting the Bombardment by Naval
Forces in Time of War 43
The "Washington Pact" 44
The Hague Convention 44
The European Cultural Convention 46 The Cultural Property Convention 47 Ad Hoc Arrangements for Protection of Cultural Sites 48 International Agreements to Protect Aspects of the Natural
Environment. 49 'K
International and Regional Standards for Protection 53 The Development of the World Heritage Convention 54 The Legal Status of the Heritage Instruments 58 The Legal Status of the World Heritage Concept 60
Conclusion 61
CHAPTER III.THE TERMS AND OPERATION OF THE WORLD HERITAGE CONVENTION
Introduction 62
Defining the World Heritage 62
The Cultural Heritage 63
Natural Heritage 63
Outstanding Universal Value 64
Identification of the World Heritage 66 \
vii Obligations at the International Level 71 Institutional Arrangements for the Protection of the World Heritage 72
The World Heritage Committee. 72
(i) The World Heritage List 75 44
Nomination Procedure 76
Consent to Nomination 78
Removal of a Property from the World Heritage
List 79
World Heritage Listing and Territorial Disputes 81 The Role of the World Heritage List
(ii) The List of World Heritage In Danger 83 The Danger List Inclusion Procedure. 84 The Relationship of Listing to the Obligations of
States Parties 85
(iii) International Assistance 86 Conditions and Arrangements for International Assistance 87
Miscellaneous Provisions. 90
Conclusion 90
PART 2
THE IMPLEMENTATION OF THE WORLD HERITAGE CONVENTION IN AUSTRALIA
CHAPTER IV.THE DEVELOPMENT OF AN ENVIRONMENTAL CONSCIOUSNESS IN AUSTRALIA
Introduction 93
Australia's Environmental Problems 93
The Development of a Domestic Environmental Consciousness. 95 The Lake Pedder Conservation Campaign. 96 The Beginnings of Federal Environmental Initiatives 100
Committee of Inquiry into the National Estate 101 Aftermath of the Hope Report 103 Australia and International Environmental Law 106*.
Conclusion 111
CHAPTER V. THE CONSTITUTIONAL FRAMEWORK FOR ENVIRONMENTAL DECISION MAKING IN AUSTRALIA
Introduction 113
The Federal System 113
viii
Implied Immunities Doctrine 116,
The Federal Government's Powers and the Environment 117
Characterisation of Laws 118
Background to the Tasmanian Dam Case 120
The External Affairs Power 121
The Corporations Power 124
People of a Particular Race Power 124 Financial Powers of the Commonwealth 125 Commonwealth Development Project Approval 126 Commonwealth Power over Territories 127
Implied Nationhood Power 128
Conclusion 128
CHAPTER VI. AUSTRALIA AND THE INSTITUTIONAL ARRANGEMENTS ESTABLISHED UNDER THE WORLD HERITAGE CONVENTION
Introduction 130
Australia and the World Heritage Committee. 130 Australia and the World Heritage Fund 130 Australia and the World Heritage List 132
The Great Barrier Reef 133
Kakadu National Park 133
Willandra Lakes Region, 134
Western Tasmanian Wilderness 135A-
Lord Howe Island 136
East Coast Temperate and Sub-Tropical Rainforest Parks 137
Uluru National Park 137
Wet Tropical Rainforests of North East Australia 138 Domestic Factors and the World Heritage List 138 Tentative List of World Heritage Properties 138
Future Nominations 139
The IUCN Study 140
Figgis and Mosely Study 141
Conclusion 142
CHAPTER VII. THE LEGISLATIVE FRAMEWORK FOR WORLD HERITAGE PROTECTION IN AUSTRALIA
Introduction 143
The Australian Heritage Commission Act 1975 143
"National Estate" 144
ix The Register of the National Estate. 147 Other Functions of the Commission 149 Protection for the National Estate 150 The Importance of the Heritage Commission Act for the World
Heritage in Australia 152
The National Parks and Wildlife Conservation Act 1975 153 The Creation and Management of National Parks 154
Conservation Zones 155
Existing Interests in Reserved Areas 156 Operations for the Recovery of Minerals 157
Managing National Park& 158
The Director of National Parks and Wildlife 160
Regulation-making Powers 160
The Importance of the National Parks Act for the World
Heritage 161
The World Heritage Properties Conservation Act 1983 162 Application and Constitutional Bases 163
Protective Provisions 165
Ministerial Consent 167
Enforcement 168
Compensation 169
1988 Amendments to the World Heritage Properties
Conservation Act 170
"Identified Property" 171
Protective Provisions 172
Compensation 172
Inspectors 173
The Importance of the World Heritage Properties Act for the
World Heritage 174
The Lemonthyme and Southern Forests (Commission of Inquiry) Act
1987 175
The Commission of Inquiry 175
Interim Protection 178
Consents 178
Enforcement 179
Compensation 179
Importance of the Lemonthyme and Southern Forests Act for the
World Heritage 180
State Land Management Legislation 180
182 Federal-State Cooperation and State Legislation 185
Conclusion 186
CHAPTER VIII. ADMINISTRATIVE ARRANGEMENTS FOR THE IDENTIFICATION AND PROTECTION OF THE WORLD HERITAGE IN AUSTRALIA
Introduction 188
Identification of the World Heritage 188* General Administrative Procedure for Identification 188 The Commission of Inquiry Approach to Identification 190
The Helsham Inquiry 191
The Final Report 195
Reactions to the Report 197
Lessons from Helsham 199
The Resource Assessment Commission 201 Administrative measures in management of world heritage areas 202 Management of the Tasmanian World Heritage Area 202 Proposed Queensland Management Plan. 204
Conclusion 207
CHAPTER IX.MANAGEMENT OF WORLD HERITAGE PROPERTIES: TWO CASE STUDIES
Introduction 209
Management Issues in World Heritage Properties: A General
Discussion 210
Defining Management Objectives through Management Plans 210
The Zoning System. 211
Kalcadu: Aboriginal Land, National Park and World Heritage Property 214
Background 215
Management principles and Kakadu National Park 219
Mineral Exploitation 219
Accommodation of Residents and Tourists 221 Participation of Traditional Land Owners 222
The Great Barrier Reef 224
Background 224
Management of the Reef under the Great Barrier Reef
Marine Park Act 226
Conclusion 233 CHAPTER X. CONTROVERSY AND CONFLICT IN THE IMPLEMENTATION OF THE WORLD HERITAGE CONVENTION IN AUSTRALIA
Introduction 235
The Political Context 236
The Constitutional Context 236
Commonwealth v Tasmania (The Tasmanian Dam Case) 237
Background 237
The Constitutional Challenge. 239 The Question of International Concern 240 The Validity of the Regulations and the Act 243 Richardson v the Tasmanian Forestry Commission (the
Tasmanian Forests Case 246
Queensland v The Commonwealth 252
Private Interests in World Heritage Properties 255
The Economic Context 260 &,!?.
Oil and the Great Barrier Reef 262 The Economic Potential of the Tasmanian World Heritage Area 2634- Kalcadu Uranium and Precious Metals 264 World Heritage and Recreational Land Use 266
Conclusion 267
CHAPTER XI. THE FUTURE OF THE WORLD HERITAGE CONVENTION IN AUSTRALIA
Introduction 268
Constitutional Reform 269
Cooperative Federalism 272
The Tourism Potential of World Heritage Areas 276k
Conclusion 279
GENERAL CONCLUSION 281
SELECT BIBILIOGRAPHY 287
Books 287
Articles and Papers 294
Reports 301
International Documents 306
Document Collections 306
Table of Cases
Actors Equity v Fonatana Films (1982) 40 Australian Law Reports 609 119
Amalgamated Society of Engineers v The Adelaide Steamship Company and Others
(1920) 28 Commonwealth Law Reports 129 116-117
Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 46 A.L.R.
625 114, 117, 120-125, 162-164, 170, 236-246, 248, 249,263
Corfu Channel Case (1949) I.C.J. Reports 4 8
7
D'Emden v Pedder (1904) 1 C.L.R 91 116
Deputy Commissioner of Taxation (N.S.W.) v 'W.R Moran Pty Ltd (1939) 61 C.L.R.
735 126
Fairfax v Federal Commission for Taxation (1965) 114 C.L.R. 1 120
Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (The Railway Servants'
Case) (1906) 4 C.L.R 488 116
Huddart Parker v Moorehead (1909) 8 C.L.R 330 116
The King v Barger (1908) 6 C.L.R 41
The King v Burgess; Ex Parte Henry (1936) 55 C.L.R. 608
Koowarta v Bjelke-Petersen (1982) 153 C.L.R. 160
The Lord Mayor, Councillors and Citizens of the City of Commonwealth and another (Melbourne Corporation Case)
31
Melbroune v The
(1947) 74 C.L.R.
123,124
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 66 A.L.R. 299 219
Minister for Arts, Heritage and the Environment v Peko-Wallsend (1987) 75 A L.R.
218 219, 220, 257-260
Murphyores Inc Pty Ltd v The Commonwealth and Others (1976) 50 Australian Law
Journal Reports 570 127
New South Wales v Commonwealth (the Seas and Submerged Lands Case) (1975) 135
C.L.R. 337 154,227
Peko-Wallsend v Minister for Arts, Heritage and Environment (1986) 70 A.L.R.
523 255-258
Queensland v Commonwealth (1988) 77 ALR 291 170,253
Queensland v Commonwealth Unreported decision of the High Court of Australia,
no. 29/1989 236,252-255
Richardson v The Forestry Commission (the Tasmanian Forests Case) (1988) 62
A. L. J. R 158 171,236,246-251
Right of Passage Case (1969) I.C.J. Reports, 39 10
116,118 123,239
xiii
Tasmanian' .Wildertzess Society Inc. v Fraser (1982) 56 A.L.J.R 763 145
United States v Canada (Trail Smelter Arbitration) 3 R.LA.A. 1905 8,12
Victoria v Commonwealth (1926) 38 C.L.R. 339 125
Victoria v Commonwealth (1957) 99 C.L.R 575 125
Victoria v Commonwealth and Hayden (1975) 134 C.L.R. 338 128
Table of Statutes
Commonwealth155, 218, 221-223
168,251
Aboriginal Rights (Northern Territory) Act 1976
Administrative Decisions (Judicial Review) Act
Australian Heritage Commission Act 1975 103,143-153,176,186,193
Coastal Waters (State Title) Act 1980 227
Conservation Legislation Amendment Act 1988 170-174,252
Environment Protection (Impact of Proposals) Act 1974 126,151,156,170,192,216
Great Barrier Reef Marine Park Act 1975 103,143,166,209,226-233,262
Lemonthyme and Southern Forests (Commission of Inquiry) Act
1987 115,143,175-180,194,195,246,249-251
National Parks and Wildlife Conservation Act 1975 103, 110, 121, 127, 137, 143, 147, 153-161, 164, 166, 167, 180, 186, 207, 208, 209, 211, 216-223, 228, 237- 238, 243
Resource Assessment Commission Act 1989 190, 201
Seas and Submerged Lands Act 1973 227
World Heritage Properties Conservation Act 1983...103, 110-111, 114, 115, 121-124,
143, 162-174, 178, 179, 187, 194, 205, 237-239, 243, 245, 249, 252, 253, 256, 257, 260, 266
New South Wales
Heritage Act 1977 103,151
Lord Howe Island Act 1953 181,183,211
Lord Howe Island (Amendment) Act 1981 181
National Parks and Wildlife Act 1974 159,180,213
South Australia
Heritage Act 1978 103,151
Tasmania
Crown Lands Act 1976 13 6,182,184
National Parks and Wildlife Act 1970 135,159,180,182
Queensland
Forestry Act 1959-1976 180,181,225
National Parks and Wildlife Act 1976 180,171,184,225
Abstract
The thesis involves an examination of the Convention for the Protection of the World Cultural and Natural Heritage (hereinafter referred to as the World Heritage Convention) in its international context, and the implementation of the Convention in Australia. This examination begins with a consideration of the sources and development of international environmental law. It moves to consider specifically the concept of a world heritage as a basis for imputing environmental responsibility to States.
The international legal issues arising from the idea of a world heritage, particularly its relationship to concepts of sovereignty and development, are explored. The emergence of the world heritage concept is traced through a discussion of earlier international documents dealing with protection of unique aspects of the cultural and natural environment. Detailed analysis of the terms and operation of the World Heritage Convention, which embodies the concept as a matter of international law, enables a discussion of the effectiveness of the Convention as an instrument for achieving international cooperation on issues of environmental protection.
The implementation of the World Heritage Convention in Australia is set in context through an examination of the development of environmental consciousness in Australia, and the constitutional framework for environmental decision-making in this country. A detailed analysis of the legal and administrative framework for world heritage protection enables a discussion of the extent to which Australia has fulfilled its obligations under the World Heritage Convention.
conflict by fully realising the tourism potential of world heritage sites.
INTRODUCTION
The aims of this thesis are, first, to promote a greater understanding of the uniqueness and importance of the Convention for the Protection of the World Cultural and Natural Heritage (hereinafter referred to as the World Heritage Convention) as an instrument for achieving international cooperation on environmental matters. It is hoped in this way to strengthen government and public commitment to the aims and ideals of the Convention. The second aim of the thesis is to analyse Australia's implementation of the World Heritage Convention and to examine the reasons behind the controversies which have surrounded the implementation of the Convention in Australia.
The World Heritage Convention establishes permanent arrangements to ensure effective international cooperation in the identification and protection of what is defined as "the natural and cultural heritage of mankind". The Convention imposes obligations on States Parties both at the national level, with regard to the world heritage within their own territories, and, at the international level, respecting that which is situated in other States. The Convention is designed to complement, to aid, and to stimulate national efforts to protect the world heritage rather than to compete with or replace such efforts.1
Important as the institutional structure established by the World Heritage Convention is, it is the ethical rationale behind the Convention which provides a truly unique basis for the environmental responsibility of States into the twenty-first century.
The earliest international environmental law was based upon notions of State responsibility. Thus, where the activities of more than one State had the potential to affect aspects of the environment of another State, or natural resources shared by those States, such as fish or migratory birds, it was appropriate that those activities be regulated.2 There was no ethic which comprehended an interest beyond national boundaries behind such international agreements. Such an ethic did, however, begin to emerge early in the twentieth century with regard to cultural sites. Perhaps this is because, more than natural sites, cultural elements of the environment can truly be
1 Slatyer (1983), 140.
2 See, for example, the Trail Smelter Arbitration (United States v Canada) 3 1905 where
regarded as "heritage" in the sense of having been built by the human hand and passed down through generations.
However, throughout the twentieth century there has been a gradual realisation of the importance of the preservation of genetic diversity for the survival of mankind, of the sense that cultural heritage must have some natural context in which to exist, and that the natural world has an intrinsic value of its own. The idea of a "heritage" began to be applied to the protection of aspects of the natural environment.
The problem of protection of unique natural and cultural sites does not fit neatly into one of the traditional categories of concern of international environmental law such as the prevention of transboundary pollution or the protection of migratory wildlife, interdependent ecosystems or shared waterways. Nor is the problem one which, like the protection of the ozone layer, action to avoid the "Greenhouse Effect", or even protection of the moveable cultural heritage, clearly requires global action. Certainly, international regulation to prevent States from destroying the heritage of other nations was necessary. Such regulation has its rationale in traditional concepts of State responsibility. One might ask, however, why the international community should be concerned with the steps which are taken by a State to protect its own heritage.
The answer to this question can be found in the world heritage trust concept, which recognizes an interest of present and future generations of mankind in certain areas. Once one adopts this concept and realises that many nations do not have the scientific and technical knowledge, the resources nor, often, the political will to enable national action for protection without assistance, it is clear that the problem of protecting these sites requires an international response.
The Common Heritage of Mankind (CHM) concept has been applied as a rationale for regulating activities in the global commons.3 Its application is only partly explained by environmental motivations, with economic rationale prominent. The world heritage concept, on the other hand, applies within the exclusive territory of States, and has been motivated by a desire for environmental preservation.
In making concessions in relation to outer space and the ocean depths a State concedes little of its national sovereignty. An acceptance of the application of the world heritage concept, however, involves a recognition of an international interest to be protected within State boundaries, possibly at the expense of State sovereignty. Thus, the move towards recognition of the application of the heritage concept within the exclusive territory of States has been tentative and, in the only international instrument to adopt the concept, the World Heritage Convention, qualified by reference to State sovereignty.
To date, the notion of a world heritage has been applied in international law only in relation to certain types of natural and cultural sites which fulfil the requirement of exhibiting "outstanding universal value". There have been suggestions, however, that the concept could be used as a rationale for protecting other aspects of the environment, including the genetic base provided by species which ensures the preservation of biological diversity. It seems possible that in the future the concept will come to represent a qualification on State sovereignty which is applicable where the international community can justly claim an interest in some matter within the territory of a State.
One of the problems faced by the international community in recent years has been ensuring the participation of developing nations in the international environmental movement. This problem is linked to issues of sovereignty in the sense that the developing world has in the past indicated an unwillingness to concede elements of such sovereignty to the cause of international cooperation in environmental protection for fear that their development would be hindered thereby. Initially the problem was to convince the developing world of the relevance of the international environmental movement to their situation. Following general acceptance of this amongst the Less Developed Countries, the difficulty has been establishing international standards which are appropriate to the different levels of development which exist in the world so as to ensure truly international participation. This can be achieved in a variety of ways, including the prEscription of different standards for the developing nations, or in providing special schemes to assist or encourage the participation of such nations.
State sovereignty, does not enable the prescription of uniform standards of protection for all world heritage sites.
The analysis of the implementation of the World Heritage Convention in the Australian domestic context provides a fascinating case study. Issues of sovereignty at the international level, are transposed at the domestic level in the rhetoric of regional politicians calling for a recognition of States' rights in the Federal constitutional context.4 Issues of development at the international level are reflected in the calls of those adhering to the developmentalist ideology for concepts of sustainable development to be realised in the identification and management of these areas.
As a consequence, Australia, unique in its natural and cultural heritage because of the very isolation which has separated it from many of the environmental problems of the major European and North American nations, has played host to some of the most heated and internationally publicised controversies over environmental management that the world has known.5
The three Commonwealth Governments which have held power in Australia since the World Heritage Convention was negotiated have all expressed their commitment to its ideals. Australian participation in the implementation of the Convention has taken place at the international level, through representation on the World Heritage Committee, contribution to the World Heritage Fund and nomination of Australian properties for world heritage listing. At the national level there exists a comprehensive legislative and administrative framework for the realisation of the aims of the Convention. The question of appropriate principles for management of world heritage sites has generally been resolved satisfactorily. However, the implementation process has been fraught with difficulties.
The conflicts and controversies which have surrounded this process have had legal, political and economic bases. First, we have the factor of a federal system under which the Australian Federal Government, the international player, ratifies and accepts obligations under increasing numbers of international environmental conventions while having no direct power over land-use and environmental management. Second, there are political factors of parochialism and State loyalty which arise out of the complex Australian power system and the history of isolation which some States have experienced. Third, there is the fact that Australia has an
4 This phenomena is discussed in detail in Chapter X.
economy largely based on natural resource exploitation. This fact has led to the establishment of a very vocal developmentalist lobby. In most of the controversies surrounding the implementation of the World Heritage Convention all of these factors have been at play.
The initial battles of the Australian Federal Government against the intransigent conservative State Governments in Tasmania and Queensland have led to a new approach which emphasizes the Federal Government's obligations, but accepts the reality of the Australian legal, political and economic situation and, thus, the necessity for negotiation and compromise.
Cooperation in world heritage matters is crucial. The Federal legislative framework for world heritage protection in Australia enables the regulation of particular activities likely to damage world heritage values of properties. But only through cooperation with State Governments can ongoing joint management under State nature conservation legislation be achieved. Fortunately, cooperation through compromise has not as yet allowed widespread exploitative activities, such as mining developments, to take place in listed world heritage areas.
Characteristically Australian world heritage sites are huge, natural areas which often contain valuable mineral or other resources. The Australian economy is heavily reliant on the exploitation of natural resources. _Thus, it will inevitably be necessary to compromise on nominations for the World Heritage List. Resolving the conflict between those who slavishly adhere to the conservationist ideology and those who would have development at any cost is one of the major challenges faced by Governments today. Their task will become easier as the developing environmental consciousness spreads and there is greater recognition that in some areas conservation and exploitative development simply are not compatible.
PART 1
CHAPTER I
THE EVOLUTION OF INTERNATIONAL ENVIRONMENTAL LAW
Introduction
The World Heritage Convention is a multilateral international agreement establishing obligations and arrangements for bringing about the protection of a very crucial part of the world environment, namely its unique cultural and natural sites. The Convention is a part of the intense development of international environmental law in the latter half of this century. In no other subject area has the body of international law grown so enormous in such a short period of time. This is a reflection of the fact that, 'perhaps never before in human history has public opinion been moulded So widely, in so uniform a manner and in so short a period of time'l over a given issue. The World Heritage Convention must be seen in this context. Only by tracing the sources and development and analysing the concerns of environmental law at the international level can we assess the significance of the Convention as an instrument for international cooperation on environmental issues.
Sources of International Environmental Law
The Statute of the International Court of Justice provides the starting point for any discussion on sources of international law. Article 38 of this instrument states that the Court, in deciding disputes submitted to it in accordance with international law, shall apply international conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The primary sources of international environmental law are both conventional and customary, however the vast bulk falls into the former category. During the twentieth century a large number of resolutions, declarations and recommendations have been passed by inter-governmental organisations on environmental issues. While these cannot form sources of law in themselves, the principles in them can become custom where there is sufficient repetition and conviction to establish State practice and opinio furls. 2
United Nations/World Commission for Environment and Development, 'Proposals for International Environmental Law Developments toward the Year 2000', (1986) 16/3 Environmental Policy and Law, 90, at 91.
Conventions as a Source of International Environmental Law
The major source of international environmental law is treaties.3 Attempts to regulate the environment are of comparatively recent origin. Thus, a large body of customary law has not had time to develop. Further, in many cases, effective environmental solutions at the international level require the establishment of quite specific standards and principles of protection, which is most effectively done through bilateral and multilateral negotiation and agreement. Treaties enable the new principles, and sometimes radical changes, required to address international environmental problems to be introduced with the minimum of delay.4
The number of relevant conventions is continually increasing, and their scope is expanding. They serve many functions, including the establishment of uniform standards for the use and protection of aspects of the environment, the development of schemes to achieve international cooperation on environmental issues and the regulation of international aid to address problems of the environment.
Custom and International Environmental Law
Cases such as the Trail Smelter 5 and the Corfu Channel 6 provide illustration of the ways in which general established principles of customary international law can have effect in situations involving environmental degradation. The general principle expounded in these cases is that no State may use its territory in such a manner as to cause harm to the territory or interests of other States. This is a principle of customary international law with clear environmental implications. For example, in the Trail Smelter Case itself the United States of America claimed that a smelter in Canada was emitting sulphur dioxide fumes which were damaging trees and crops on the United States side of the border. The tribunal established by agreement between the parties7 held that:
under the principles of international law, as well as the law of the United States, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and continuing evidence.8
3 See the comprehensive collection of such conventions in Rusta and Simma (1975). Also see Kiss (1983).
4 Burhenne-Guilmin et al (1986), 197.
5 Trail Smelter Arbitration (United States v Canada) 3 R. I. A. A. 1905. 6 (1949) I.C.J. Reports 4.
7 See the Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, U.S.T.S. no. 893.
On the basis of this principle the tribunal established a regime to govern the continued operation of the smelter. State responsibility has been a traditional justification for international regulation on environmental matters.
Resolutions. Declarations and Recommendations as Sources of Law
One of the ways in which principles relevant to the environment have been expounded at the international level is through resolutions and declarations of inter-governmental organisations, and particularly through the United Nations General Assembly. One cannot mention international environmental law, for instance, without referring to the United Nations Conference on the Human Environment (UNCHE), held in Stockholm in 1972 and attended by 113 delegations of member states of either the United Nations or its specialized agencies. 9 From this Conference, the aims and results of which will be discussed in detail subsequently, emanated the
Declaration of the United Nations Conference on the Human Environment. 10 Other relevant declarations of the international community include the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space
(1963),11 the Declaration of Principles Governing the Sea-bed and the Ocean Floor, And the Subsoil thereof Beyond the Limits of National Jurisdiction (1970),12 the Nairobi Declaration on the State of the Worldwide Environment (1982),13 the World Charter for Nature (1982),14 and the Declaration of the Hague (1989).15
The establishment of standards to solve particular environmental problems, whether among a certain regional group, or at a broader international level, is also appropriately done through recommendations of inter-governmental or non-governmental organisations. The standards thus established may be too specific in some cases to become the subject of binding obligations in treaties, but the documents can provide guidance to national Governments when formulating policy. 16
9 Notable absentees were delegates from the Soviet Union and the countries of Eastern Europe, with the exception of Yugoslavia and Romania.
10 (1972) 11 LL.M. 1416.
11 General Assembly Resolution 1962(XV111). 12 General Assembly Resolution 2749(XXV). 13 (1982) 21 LL.M. 676.
14 (1983) 22 I.L.M. 456.
15 (1989) 19/2 Environmental Policy and Law, 78. The text of this Declaration was publicised simultaneously in major newspapers around the world by signatory nations- see the Weekend Australian, April 1-2, 1989.
While resolutions, declarations and recommendations are not in themselves sources of law under Article 38 of the Statute of the I.C.J., they can form the basis of international custom as a recognised source of law. The question of the legal effect of declarations of international organisations or meetings of States has been explored through much academic comment.17 Thirlway has described declarations as 'all formal statements of a legal nature and purporting to express legal rules binding on States, whether entitled resolutions, declarations or whatever, which are not embodied in a treaty-document to which States are invited to express their specific assent in the normal way.'18 He suggests that resolutions of the General Assembly, and presumably of conferences convened by the General Assembly, at which the vast majority of United Nations members are represented, such as UNCHE, may serve four purposes relevant to the creation of international law. First, they may constitute State practice; second, they may originate practice; third, they may corroborate rules of international law; fourth, they may supply the opinio juris sive necessitatis.19
Just as the principles contained in treaties and declarations can become a part of general or special custom, so can recommendations of international or regional organisations. Generally speaking recommendations of international organizations do not create international obligations on Member States.20 Recommendations of international organisations can have an impact on the evolution of international law and can 'indicate the paths which custom is following:21 Given evidence of State practice, and, crucially, opinio juris, they may indicate either general or special custom which binds a limited number of States.22 This special custom may be regional or non-regional. In the latter case it may bind States sharing socio-economic or ideological interests.23 Thus, for example, it is quite possible for custom to form among the member States of Unesco. Many of the recommendations on environmental issues contain quite specific details of appropriate national measures, and it seems unlikely that such will form into binding custom. Irrespective of whether they do so or
language- see Montreal Protocol on Substances that Deplete the Ozone Layer, (1987) 26
ILM 1542.
17 See Castaneda (1969); Alcehurst (1974-5); Johnson, D.H.N. (1955); Asamoah (1966); Higgins (1963).
18 Thirlway (1972), 62-63.
19 Ibid, 63-64. See also Judge Tanaka, South West Africa Cases (1966) IC.J. Reports, 4, at 292: Akehurst (1974-5), 5-8: Bleicher (1969), 444-5.
20 See Castaneda (1969), 8-9 where he states: There is no doubt that the prevailing meaning [of the term recommendation] is that of "invitation"; hence recommendations are only the resolutions adopted with no intention of binding their addressees'.
21 Ibid at 21.
22 Recognized in the Asylum Case (1950)1CJ Reports, 276 and the Right of Passage Case (1969)
ICJ Reports, 39.
not, they provide useful indications of international and regional concerns on issues on environmental importance. Further, one cannot ignore the political and moral force of recommendations24 nor the additional social sanction involved in the failure by a Member State to comply with a recommendation adopted by an international organization. Thus, the importance of environmental recommendations must be recognised; they may tend to have more effect on the conduct of states than their lack of juridical force would suggest.
So far as the UNCHE Declaration25 is concerned, it seems clear that States did not intend to assume binding obligations under that document; it has been described simply as a 'statement of basic outlook and principles, broadly acceptable to all participating nations, designed to inspire and guide the peoples of the world in the preservation and enhancement of the human environment.'26 As has been pointed out, the Principles are essentially statements of what "must be done" but are not of course intended to have any binding effect in themselves.27 Thus, it would not be open to argue that simply by reason of the inclusion of Principle 7, 'States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea', States have assumed an obligation with regard to prevention of the pollution of the sea.28
The principles contained in the Declaration, however, have formed the basis of much national and international action on the environment. Some of the principles embodied in the Declaration were arguably already principles of customary international law. Principle 21, for example, which provides that 'States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction', finds its basis in the notion of sovereignty embodied in the Charter of the United Nations and the principles of State
24 Castaneda (1969), 11. 25 (1972) 11 LL.M. 1416.
26 See United Nations Conference on the Human Environment (1972), 2. 27 Brown, E.D. (1973), 209.
28 However, this principle has been included in many subsequent treaties, including the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
responsibility which are a recognised part of international law. The combination of the two elements reaffirms the sovereign right of exploitation and regulates this in the light of the new environmental realities.29 It extends the principle established in the Trail Smelter Arbitration to apply to areas beyond national jurisdiction, such as the High Seas and Antarctica.
It is arguable that many of the other principles embodied in the Declaration have or may eventually become a part of customary international law. The first principle, that 'Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being and he bears a solemn responsibility to protect and improve the environment for present and future generations', could now be regarded as part of general international law, given the vast number of international documents based upon this principle and the enormous amount of domestic legislation. 30
Further, Principle 2 that 'the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate' and Principle 3, that 'the capacity of the earth to produce vital renewable resources must be maintained and, wherever practicable, restored or improved' form the basis of the notion of sustainable development, as explained in the World Conservation Strategy 31 and the World Commission on Environment and Development's report Our Common Future (the Brundtland Report).32 This principle has received widespread support from the international community and is one of the five general principles of the World Charter for Nature, adopted by the General Assembly on 28 October 1982. 33 In this Charter the General Assembly provides that, 'ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist'.
The Development of International Environmental Law
The development of international environmental law has been in response to the increasing realisation that a significant number of environmental issues transcend
29 See Timagenis (1980), 94. On this point see Peters et al (1989).
30 This view is supported by Timagenis, at least so far as responsibility to protect the environment is concerned- ibid at 88.
3 1 IUCN, UNEP and World Wildlife Fund (1980).
national boundaries and that many of the environmental problems facing the world can most effectively, and in some cases only, be resolved through international regulation and cooperation.
Some issues that have arisen are inherently international because of their global ecological scope. Examples are the problems of marine and air pollution, acid rain, the "Greenhouse Effect" and protection of the ozone layer. Apart from these obviously international issues, there are others which have a real importance beyond national boundaries. Among such issues we would have to include the protection of floral and faunal species. Extinction of species through destruction of habitat or any other means results in a diminishing of the genetic pool, with consequences for scientific research which effect people from all nations. 34 Loss of unique cultural and natural sites will diminish the quality of life for both present and future generations.
Thus, international law has a role to play in proscribing standards for protection and providing for schemes of assistance. Further, the sharing of scientific data, analysis and experience between countries is essential in assessing environmental problems and appropriate reactions to them. As we shall see, international and regional organizations are now involved in a plethora of environmental activities. The organizations involved are inter-governmental and non-governmental, specifically established to deal with environmental issues, or with broader objectives. There are now bilateral and multilateral conventions and recommendations on a vast range of subjects relevant to the environment.35
The development of international environmental law can be seen in three stages which are marked by different characteristics which reflect changing international values and understanding of environmental issues.
The First Stage
International efforts to promote conservation of living resources date from before the beginning of the twentieth century. 36 The treaties negotiated during this
34 See World Charter for Nature (1983) 22 !.LM 456.
35 Ruster and Simma (1975), have classified the concerns of international environmental law into the following subject areas: regulation of marine pollution; protection of fauna and flora on land; conservation of living resources of the sea; protection of fresh water resources; peaceful uses of atomic energy; protection of the cultural heritage; air and noise pollution; and prohibition of the use of chemical weapons, along with a miscellaneous category. We would certainly now have to include a new category of global atmospheric change, including protection of the ozone layer and regulation to reduce the "Greenhouse Effect" - two of the major concerns of international environmental law today.
36 See, for example, the Austria/Hungary-Italy Declaration for the Protection of Birds Useful to
Agriculture, November 5 and 29, 1875, Martens, Nouveau recueil general de traites et autres
period exhibited three characteristics. First, they were concerned with the protection of living resources valuable to man, 37 and usually specifically with preventing the depletion of the fisheries resource. 38 The Conventions of this period also demonstrate a general lack of recognition that the environment might have some value beyond that of an economic resource. In the 1936 international Agreement for the Regulation of Whaling, 39 for example, signatories were motivated not by concern for the whales themselves nor for the part they play in the ecological structure of the oceans, but by the need to protect the economic value which the whales represented. Thus, the Preamble states that the signatories, 'desiring to secure the prosperity of the whaling industry and, for that purpose, to maintain the stock of whales have agreed' to the measures adopted in the Convention.
Second, the conventions were largely concerned with the direct killing of wildlife for sport and commerce and afford little or no protection from threats such as environmental degradation or loss or habitat; there was an absence of recognition of the importance of an ecological approach to environmental protection. 40
A third characteristic of these early treaties was the unwillingness of sovereign states to adopt true obligations in relation to environmental protection in their own territories. Consequently, the language used in the agreements was nebulous; in the main they did not go beyond such cautious phrases as "explore the possibility of" and "give consideration to".41 For example, under the Convention Relative to the Preservation of Fauna and Flora in their Natural State (1933),42 the Contracting Parties
International Phylloxera Convention, Berne, November 3, 1881 between Germany, Austria-Hungary, France, Portugal, Switzerland, ibic4 vol. 8, 435.
37 There were numerous conventions signed in the first two decades with regard to fishing and common waterways (see note 33). On other issues see: the 1902 Convention to Protect Birds Useful to Agriculture, signed in Paris, Reichsgesetzblatt 1906, no. 2, 89; the 1911 Treaty between the United States of America and Great Britain providing for the Preservation and Protection of Fur Seals, signed at Washington in Malloy (ed) Treaties, Conventions, International Acts, Protocols and Agreements Between the USA and Other Powers, 1910- 1923, Washington, 1910, Vol. TIT, 2629; Great Britain, Germany, Spain, Congo, France, Italy and Portugal: Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa, which are useful to Mankind or Inoffensive, London, May 19, 1900, Martens, Nouveau recueil general de traites et autres actes relatifs aux rapports de droit international deuxieme serie, vol. 30 at 430.
38 See Agreement concluded between the delegates of the Kingdom of Italy and the Kingdom of the Serbs, Croats and Slovenes, Regarding a Draft Convention for the Regulation of Fishing in the Adriatic, signed at Brioni, September 14, (1921) 19 LNTS, 14/39; Convention Between the Republic Regarding Fishing Regulations in the Gulf of Finland, Helingfors, September 20, (1922) 19 LNTS, 143/151; Convention Between Estonia and Latvia for the Protection of Fish and the Regulation of Fishing, Rieu, October 28, (1925) 54 LNTS , 233; and other agreements cited in Ruster and Simma (1975), vol. VI, 2574-2669.
39 (1936) 190 LNTS, 80. 40 See Caldwell (1972), 58. 41 lbid
undertook to 'explore forthwith the possibility of establishing in their territories national parks and strict natural reserves as defined in the preceding Article. 43 Further, Article 4 of that Convention provided that the Contracting Governments 'will give consideration in respect of each of their territories to' a series of administrative measures. Another example of this sort of tendency is provided by the Convention on
Nature Protection and Wildlife Preservation in the Western Hemisphere (1940).44 By that Convention the Contracting Parties undertook to 'explore at once the possibility of establishing in their territories national parks, national reserves, nature monuments and strict wilderness reserves. 45
There are a number of international values and perceptions which were prevalent during the first stage and which are reflected in the international environmental law developments during that stage. First, there was the view that the environment was to be seen in terms of its economic value to Mankind. Second, the perception was that the living resources of the world can be separated from the broader environment. Third, while there was a recognition of the importance of international regulation with regard to some narrow aspects of the environment this did not in general extend beyond migratory species and common waterways. Fourth, there was insufficient concern over environmental protection for States to accept stringent international obligations on the subject.
The Second Stage
The setting up of the United Nations and its specialised agencies in 1945 provides a convenient marking point for the beginning of the second stage of the development of international environmental law. At this time there was a clear expansion in all areas of international activity and environmental issues were among those which came to be dealt with in a significant way. This was partly the result of the international organization which followed the Second World War.
This stage exhibits three major characteristics so far as the development of international environmental law is concerned. The first is the degree of involvement of international governmental, non-governmental and regional organisations in the area;
43 Article 3.1.
44 (1940) 161 UNTS, 194.
45 Article II. See also the Convention between the United States of America and the United States of Mexico for the Protection of Migratory Birds and Game MammaLc, Mexico, Feb 7th, 1936, (1936) 178 LNTS, 310 which, in Article 1 provides that:
the second is the change towards an ecological approach to the environment and a sense of the inherent value of the natural world; and the third is the enormous expansion in the number and type of environmental treaties and their subject matter. Each of these features will be discussed in turn.
International Organization
The first feature of the period is international and regional organisation to further environmental objectives. This is reflected in the mandates and activities of United Nations Organisations, the establishment of non-governmental organisations with environmental objectives, and the increasing involvement of regional organisations in studying environmental problems and in the establishment of appropriate standards for environment protection.
United Nations Specialised Agencies
While the United Nations Charter makes no specific reference to environmental issues, there is clear emphasis on international organization to achieve cooperation in resolving international problems of an economic, social, cultural, or humanitarian character. 46 Further, the mandates of a number of the United Nations specialised agencies have enabled them to deal with different environmental issues since their establishment. For example, the World Meteorological Organization (WMO) had and still has a clear mandate to investigate air pollution and weather patterns.47 The World Health Organization (WHO) deals with the effects of environmental pollution on human health. The Intergovernmental Maritime Consultative Organization (IMCO) assesses marine pollution problems and appropriate responses. The International Civil Aviation Organization (ICAO) lays down standards for aircraft noise pollution.
While protection of the environment was not a central aim in the establishment of the United Nations Scientific, Educational and Cultural Organization (Unesco), the organisation has played an important role in international environmental matters. The preamble to the Constitution of Unesco refers to the need to diffuse culture and science among all of humanity to ensure peace in the world. 48 Unesco's primary purpose is stated to be 'advancing, through the educational and scientific and cultural relations of the peoples of the world, the objectives of international peace and
46 See Articles 1.3 and 55 of the Charter of the United Nations.
47 This mandate can be ascertained from the Convention of the World Meterological Organization, signed at Washington on 11 October, 1947 which provides in Article 2 that the
the common welfare of manIcind'.49 By Article 1.2 the Organization is to assume,
inter alia, the conservation and protection of the world's inheritance of books, works of art, and monuments of history and science and to recommend to the nations concerned the necessary international conventions. From its earliest years, Unesco has been involved in environmental activities, including research on natural resources and Arid Zone Research and Humid Tropics Research.50
During the 1950s and 1960s, as serious environmental problems became more evident, the various specialised agencies became increasingly involved in projects with an environmental flavour; in 1954 the Inter-governmental Maritime Consultative Organization (IMCO) adopted the International Convention for the Prevention of Pollution of the Sea by Oil and created a subcommittee to keep the subject of oil pollution under constant review; in 1963 the United Nations set up international commissions for the protection of the Moselle and the Rhine against pollution; in 1967 the World Meteorological Organization began the World Weather Watch.
Non-governmental Organizations
As part of this growing international organization of environmental law, the second phase is marked by the growth of non-governmental organisations concerned with the environment. These NGOs developed to fulfil a need for expertise and research within specialised areas in order to facilitate effective international action by inter-governmental organisations on environmental matters. The NGOs also operate as interest and lobby groups on the international scene. The most important NGOs active in the formulation of international environmental policy, and which perform important roles in the implementation of the World Heritage Convention, are described briefly below.
(i) IUCN
One of the more important non-governmental organizations, from the environmental point of view, established in this post-World War II period was the International Union for the Conservation of Nature and Natural Resources (IUCN). The IUCN was established in 1948 following a conference at Fontainebleau convened by Unesco and the Government of France. Its formation was part of the move away from seeing the natural environment simply as a source of natural resources in an economic sense.51 The organization is not part of the United Nations system but works closely with the various organs and specialised agencies of the U.N. The preamble of
49 See the preamble to the Constitution of UNESCO, !bid 50 Wilson (1971).
the statutes of the IUCN recognizes the intrinsic value of nature and natural resources, referring to the inspiration of spiritual life of natural beauty and to the economic, social, educational and cultural importance of nature.52
The objects of the Union include: encouraging and facilitating cooperation between governments, national and international organizations and persons concerned with the conservation of nature and natural resources; promoting national and international action, scientific research and education in respect of the conservation of nature and natural resources; and preparing draft international agreements relating to the conservation of nature and natural resources and encouraging governments to adhere to agreements once concluded.53 Membership of the IUCN is open to States and government agencies, national and international non-governmental organizations.54 Its main policy organ is a General Assembly, which is assisted by a Council, Bureau, Commissions and a Director General. Much of the IUCN's work is done through its commissions, including the Survival Service Commission, through which the IUCN investigates the status and ecology of rare species of plants and animals, the Commission on Education, the Commission on Ecology, the International Commission on National Parks and the Environmental Policy, Law and Administration Commission.55 As we shall see in Chapter III, the IUCN plays an important role in the scheme of international cooperation established under the World Heritage Convention
(ii) The Rome Centre
Another significant environmental NGO established during this stage is the International Centre for the Study of the Preservation and Restoration of Cultural Property (the Rome Centre), which also plays a role in providing information to, and advising, the World Heritage Committee. The Rome Centre was established pursuant to a resolution of the Ninth session of the General Conference of Unesco.56 The functions of the Centre include: collecting, studying and circulating information concerned with scientific and technical problems of the preservation and restoration of cultural property; coordinating, stimulating and instituting research in this domain; and giving advice and recommendations on general or specific points concerned with the
52 See Revised Statutes of the International Union for the Conservation of Nature and Natural Resources, Geneva, April 22, 1977 - Proceedings of the 13th General Assembly of the International Union for the Conservation of Nature and Natural Resources, Morges, 1977,
155.
53 Article 1, of the Statutes, ibid 54 Article II.
preservation and restoration of cultural property.57 Membership of the Centre is open to all States members of Unesco, and associate membership to public or private institutions of a scientific or cultural nature.58
(iii)
icomos
In 1965 a third important non-governmental international organization, the International Centre for the Conservation of Monuments and Sites (ICOMOS), was established, again from an initiative of Unesco. ICOMOS acts as a link between the experts in all disciplines relating to monuments and sites and the bodies engaged in conservation work, largely through its national committees. ICOMOS also plays a very important role in advising the World Heritage Committee on issues within its areas of expertise which arise under the World Heritage Convention. 59
Regional Organization
During this stage regional organisations also became involved in developing environmental standards. The Organization for Economic Co-operation and Development (OECD) was engaged in environmental studies which included the management of air and water resources, noise, pesticides and trans-frontier pollution. 60 Other developments in regional organizations in the 1960s included the creation by the North Atlantic Treaty Organization of a Committee on the Challenges of Modern Society with environmental problems as a major aspect of its mandate, 61 the adoption by the Organization for African Unity of the African Convention for the Conservation of Natural Resources ,62 and the Council of Europe's involvement in environmental activities, including the setting up of the International Commission for the Protection of the River Rhine against Pollution, the European Water Charter and the International Plant Protection Convention.. 63
The Ecological Approach
Along with the growth in international organisations involved in environmental activities and with the expansion of already established organisations into the area of environmental research and regulation, the stage is also marked by a
57 Article 1 of the Statutes of the International Centre for the Study of the Preservation and Restoration of Cultural Property, New Delhi, 1956 - United States Treaties and Other International Agreements, Vol. 22, Part 1,19.
58 Articles 2 and 3. 59 See Chapter III.
60 Kay and Jacobson (1983), 90. 61 'bid
62 USTS 981.
change in attitude towards an ecological approach to the environment and a sense of the inherent value of the natural world. This is the second characteristic of the stage.
The trend towards the ecological approach became evident even before 1945. In two of the early conventions there was a discernable move towards recognition of the intrinsic value of aspects in the environment in contrast to recognizing purely their economic value, and of the importance of the protection of habitat. Thus, the Preamble to the Convention Relative to the Preservation of Fauna and Flora in their Natural State 64 provides:
Considering that the natural fauna and flora of certain parts of the world, in particular Africa, are in danger, in present conditions, of extinction or permanent injury;
Desiring to institute a special regime for the preservation of flora and fauna;
Considering that such preservation can best be achieved by the constitution of national parks, strict nature reserves, and other reserves within which the hunting, killing or capturing of fauna, and the collection or destruction of flora shall be limited or prohibited...
The Convention goes on to provide that Contracting Governments shall explore the possibility of setting up national parks and strict nature reserves, as defined in the Convention, in their territories,65 and sets out comprehensive measures for protecting flora and fauna within those areas.
Similarly, the preamble to the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere66 provides:
The Governments of the American Republics, wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory birds, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man's control; and
Wishing to protect and preserve scenery of extraordinary beauty, unusual and striking geologic formations, regions and natural objects of aesthetic, historic or scientific value...
The terms of the Convention require Contracting Governments to explore the possibility of establishing national parks and reserves, as defined in the Convention, and provide for measures to protect wildlife.
64 (1933) 172 LNTS, 242. 65 Article 3.
This ecological approach was expanded in the second stage of the development of international environmental law. In recognition of the importance of ecological relationships Unesco convened an Inter-Governmental Conference of Experts on a Scientific Basis for Rational Use of the Resources of the Biosphere in
1968. This Conference represented a step forward in that it began to recognize the importance of ecological relationships.67 The Conference was followed in 1970 by the establishment of Unesco's Man and the Biosphere programme to promote research designed to provide practical answers for decision-makers involved in the interactions between natural systems and man's activities.
Expansion in Environmental Law
The third feature of the stage is the enormous expansion in the number and type of environmental treaties, the subject-matter and terms of which reflect the broadening of the environmental issues of concern to the international community, as well a new recognition of the inherent of the natural world.
The International Geophysical Year of 1957/8 gave international cooperation a major impetus by demonstrating the possibility and effectiveness of tacking worldwide scientific problems at the international leve1.68 The International Geophysical Year provided the impetus for the enormous expansion in the body of international environmental law in the 1960s and 1970s. There was increasing domestic awareness of environmental issues, encouraged by the buoyant economies of industrialized states which meant that governments were free to spend time and resources considering environmental effects of development. The prominent and much publicized effects of contemporary environmental disasters also played a role in the development of domestic environmental awareness.69 It became evident that the necessary scientific information to tackle problems effectively could only be gained through international cooperation. Many problems, such as transboundary pollution in Europe, could only be tackled at the international level. There was clear evidence of the continuing deterioration of the environment and scientific forecasts made many fear for the future of the planet.
A number of conventions were negotiated to address these problems, including the 1954 International Convention for the Prevention of Pollution of the Sea by 011, 70 under which Contracting Governments undertake significant obligations to
67 Caldwell (1972), 73. 68 Holdgate et a/ (1982), 4.
69 Kay and Jacobson (1983), 1 and United Nations Environment Programme, The Environment
in 1982; Retrospect and Prospect, 3-4.
