Mr JEAN-PAUL LAWRENCE TAMPU-EYA, PhD (Law Res.)

By Mr Jean-Paul LAWRENCE TAMPU-EYA, PhD (Law Res.) 

From population increase to global warming, nuclear power to extinction of endangered species, desertification to transboundary pollution, the world is facing many sources of threats to its planet globally. The more economically states become the more they use planet global resources, some of which seem at the present to be irreplaceable while others like the rain forests can only take a long time to be replaced. In response to these global threats, interdependency of states is being revealed because responses through different policies by separate individual sovereign states are completely ineffective. The international community has been developing a powerful international system, which with common approach protects the planet globally and in effect undermines the power of the nation state.      

This essay is structured as follows: in the first part, it argues that under the impact of globalisation, the neat distinction between international affairs and municipal ones has been put under an increasing strain, which has particularly brought the attempt of creating an effective legal regime to protect the planet globally. Secondly, it shows that by developing concepts such as the 'Common Heritage of Mankind', 'Sustainable Development' and the theory of 'Intergenerational Rights'[1], globalisation is hindering state's sovereignty, as this makes the classical distinction between municipal and international affairs to become more and more blurred. Thirdly, this paper discloses some important international obligations that undermine the classical doctrine of state's sovereignty; and, it investigates the pressures that the above doctrine received from the Stockholm, Montreal, Rio and the Kyoto Conferences. In the fourth place, it suggests that, in this time of increasing globalisation, there is a need for a redefinition of the classical doctrine of state's sovereignty. Lastly, it concludes that globalisation is eroding the doctrine of state's sovereignty since state's sovereignty does not necessarily lessen international obligations for the protection of the global planet. Therefore, since global threats do not respect state boundaries, globalisation is really becoming effective because the needs of the international community particularly to the protection of the planet globally take precedence.        

Western international law has its central actor the sovereign state. Since the European enlightenment, this has developed into a doctrine, which divides jurisdictions between international and municipal one. This has been further elaborated into the doctrine of non-interference on state's internal affairs that is incorporated in Article 2(7) of the 1945 United Nations' Charter. However, today's increasing impact of globalisation makes state's sovereignty to be an object of legal and political debate because things done, or political decision taken, in one state affects other state. As the boundaries of international law are changing very rapidly, state's sovereignty, which means "the ability of a state to act without external controls on the conduct of its affairs"[2], appears to be loosing its significance. This is since issues like the environment, human rights, use of force, immigration, are now being controlled and regulated internationally.

From 1960s and 1970s, global issues started becoming internationalised because it was understood that global threats are international and even transnational, as they affect everybody in the planet and that they cannot also be solved nationally. Therefore, an effective globalisation is very important because global threats do not respect state boundaries. For instance, firstly, the Chernobyl nuclear disaster, in April 1986, where nuclear fallout spread in most parts of Europe. As a result, the UK government continues to pay compensations to some Wales' farmers in order to avoid them producing contaminated sheep meats for the markets. Secondly, the late 1997 cloud of poisonous fume in Indonesia that spread over Malaysia and some other parts of the South East Asia. Thirdly, the transboundary air pollution took place because Canadian pollution crossed to the US. These three examples illustrate clearly that it is important to have an effective globalisation since global threats do not respect states boundaries, as things done in one side of the planet have effects on other sides. Therefore, since global threats cannot be solved nationally, the protection of the planet globally should concern everyone. Hence, globalisation is undermining the power of the nation state, as it can only be effective at its expense.

Consequently, E. Ostrong[3] suggests that globalisation made global issues such as the exploitation of the “Global Commons” like space, sea, air, outer space etc. to become more internationalised and globalised to some extent. As Gunther Handl[4] points out, globalisation is weakening state's sovereignty in today's shrinking world since state's independence is being replaced with an increasing international interdependence. He says:

 “... global interdependence has become painfully obvious, its manifestations distinctively threatening, its ramifications all-engrossing....”[5] He agrees with Maurice Strong that:  “The essential theme of modern age is interdependence, the interdependence of all the elements which sustain... life in the planet, of man with those elements, of the natural system with man’s needs and aspirations and most of all man with man.”[6] 

This shows that globalisation is undermining state's sovereignty and that the classical distinction between municipal and international law is becoming more and more blurred because the world has become more interdependent in today's increasing globalisation.  Alexandre Kiss[7] emphasises that globalisation is eroding the classical doctrine of state's sovereignty because states are bound to protect and preserve the common interest of humanity in which the global planet globally is included.  He clarifies that: 

"The stated purpose of globalisation entails significant consequences for the international legal order. Most importantly, because the legal system aims to protect the common interest of humanity, states are seen as exercising the functions necessary to achieve this objective, rather than as possessing inherent sovereign rights."[8] 

The protection and preservation of the planet is very important because all generations of people have only an equitable interest in the planet. This is based on the intergenerational equity, which means therefore that human beings hold this planet's natural planet globally in common with all members of the natural species, i.e. past, present and future generations. While agreeing with Edmond Burke[9], John Locke and Karl Marx, Weiss clarifies that being members of the present generation: "We hold the Earth in trust for future generation…The purpose of human society must be to realise and protect the welfare and well-being of every generation, in relation to the natural system, of which it is part. This requires sustaining the robustness of the planet: the life support systems and the ecological processes and … conditions necessary and decent to human planet globally..."[10] Weiss explains that the present generation has only a passing interest in equity, which, since every generation of human beings is only transitory, implies a legal duty to take care of the planet for future generation. Therefore, the present generation has an equitable duty to preserve and keep a healthy planet globally for future generations. She opines that the deep roots to this principle that the present generation is only the Earth's tenants who have obligations to past and future generations are found in Islam, Judeo-Christian traditions, civil law tradition, socialist legal tradition, African customary law etc. The British Planet globally Secretary and Deputy Prime Minister John Prescott shared Weiss’ perspectives when he argued in the 1997 UN's Kyoto Conference “…we hold this planet on trust for future generation…" Hence, this concept of intergenerational equity weakens state's sovereignty because it imposes obligations on states, i.e. present generation, to use earth's resources in a way of getting a ‘sustainable development’. Sustainable development might be defined as: “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”[11] 

Nowadays, sustainable development's notion plays a major role in state's relations with international institutions and multinational corporations such as the UN, UNEP, AU, EU, IMF, World Bank, NGOs, Green Peace, Friends of the Earth, public opinion, media like CNN & BBC World, etc. that are all involved in protecting the planet globally. For instance, the World Bank, IMF and EU have set up a 'sustainable development programme', which implies that loans can only be given to those who will use it for projects resulting in sustainable economic development in order to ensure loans' repayment and a healthy future investment climate[12]. Therefore, while thinking of their own actual economic development and prosperity, states have to remember that there are other generations to come who should also benefit from a planet in no worse condition than the one they are using[13]. That is why, in this notion of “sustainable development”, equity calls for the remembrance of a right to a sustainable development, as part of a real positive international law[14]. In addition, this notion of sustainable development makes both planet globally and trade to become good partners.[15] Patrick Szell[16] holds that this notion of sustainable development constitutes an infringement of the doctrine of state's sovereignty since globalisation demonstrates that:  “... Many countries remain ... of external scrutiny on the quality of their performance in meeting treaty obligations...”[17].  Fleischer[18] asserts that the legal doctrine of 'Common Heritage of Mankind', as mentioned for instance under Article 136 of the 1982 Convention on the law of the Sea that the Deep Seabed "…Area and its resources are the common heritage of mankind", also undermines the classical doctrine of state's sovereignty. He explains clearly that common heritage includes the natural resources of the planet like deep-sea bed, outer space and oceans that are beyond the territorial sea and economic resource zones, which are 'not open to claims of sovereignty or sovereign rights.'[19] However, Edith Brown Weiss adds that the whole planet should be considered as the "global commons shared by each generation."[20] Further, she stresses that common heritage should encompass future generations' concerns because if it is relied upon: "…countries should reaffirm explicitly that the common heritage is directed to the welfare of future as well as present generations. It should extend to all natural and cultural resources, wherever located, that are internationally important for the well-being of future generations…"[21]  

Hence, since natural resources do not constitute the fruits of work of the present generation, it seems therefore right to assert that any use of these natural resources should be done with due regard to the rights of future generations.  Thus, the international restrictions put on states because of the above the legal doctrines and concepts of 'Common Heritage of Mankind', 'Intergenerational Equity' and 'Sustainable Development' undermines the classical doctrine of state’s sovereignty since they are really making the globalisation effective. This development identifies a new basic legal principle of acceptance in state practice of responsibility for any global damage, which implies simply 'a legal obligation not to degrade the planet globally'.[22] Guther Handl[23] adds that the above concepts and doctrines have become more authoritative; since, whenever they are invoked, they limit states’ freedom of action in favour of protecting the planet that represents a global commons. For this reason, he says that the international community claims its participation in state's domestic affairs and decision making process that will affect the planet globally nowadays because states are obliged to adopt and obey international law. Further: ‘Restrictions on state autonomy are hinted at the concepts such as “intergenerational equity”, “sustainable development”, or “common concern of mankind”... all these notions have been invoked authoritatively to intimate limits on nation-states’ freedom of action for the sake of protecting larger community interest at stake. Together they provide a conceptual platform from which the international community advances its claim to review or participate in certain decision-making processes related to internationally sensitive … global resources, irrespective of their location or the presence of direct or immediate transnational …global harmful effect.’ [24] Peter S. Thatcher[25] advocates the virtual elimination of the classical doctrine of state's sovereignty for an effective management of the global planet globally since the international legal protection of the planet globally can only be effective at the expense of the doctrine of state sovereignty.

Moreover, Hubert Bocken[26] recommends the codification of the international legal regime on the planet globally protection. For its harmonisation, many international and regional conferences are still taking place in order to incorporate the globalisation into states’ domestic laws. African states, for example, through their regional organisation of OAU passed the 1991 Bamako Convention on the ban of the import into Africa and the control of transboundary movement and management of hazardous wastes within their continent. This Convention reduces the generation of and minimises the transboundary movement of hazardous wastes[27]. While arguing against the state's sovereignty in favour of protecting the planet globally, W. Paul Gormley[28]contends that there is a need for an international co-operation because individuals have an emerging right to be guaranteed a clean, decent, healthful and pure planet globally. For this reason, a right to healthy and clean planet globally constitutes one of the fundamental Human Rights, which once breached involves a breach of the International Bill of Rights[29] since any …. global destruction represents a threat to mankind.[30] Further, Alexandre Kiss[31] agrees with Edith Brown Weiss that:  "…The concept of a right to the planet globally is inherent in recognising the interests of future generations. Immediately after the Stockholm Declaration proclaims that man has the right to live in an planet globally whose quality permits a life of dignity and well being, it adds that man has the solemn responsibility to protect and improve the planet globally for present and future generation …Thus, the right to the planet globally as one form of the expression of human dignity may be seen as a necessary precondition."[32]  

From this concept of a right to the planet globally, W. Michael Reisman[33] urges an abandonment of the outdated classical doctrine of state's sovereignty because it is not only a prerequisite, for an effective global system, but it is a real condition for the enjoyment of fundamental Human Rights world-wide. He asserts that:  ‘...Those who yearn for “good old days” and continue to trumpet terms like “sovereignty” without relating them to the human rights conditions within the states under discussion do more than commit an anachronism. They undermine human rights.’  Nevertheless, the above scholars’ concepts of  “common heritage of mankind”[34], "intergenerational equity" rights and “sustainable development” were attacked by Professor Anthony D’Amato[35]. Professor D’Amato says that states should not sacrifice themselves by looking only for a sustainable development in order to protect the global planet globally because of these doctrines and concepts. While believing in the chaos theory, he asserts that: "In 1950s, Edwards Lorenz…discovered that a very slight shift in the initial data about weather conditions fed into a computer will result in drastic differences in simulated weather conditions after a number of iterations… Thus applying chaos theory,…any action we take will affect the planet globally in such a way as to change the conditions of all acts of human procreation several decades hence. Even minor acts in the present can substantially affect which particular sperm cells succeed in fertilising human ova 60 years from now…"[36] Mr D'Amato asserts that the present generation's acts of protecting the planet globally in order to pass it in good condition to future generations would make the latter worse off than if there was no act at all since they would be deprived of their existence. He agrees with Judge Richard Posner that the maximisation of wealth is the moral justification of all laws and that human life is more important than anything else. Therefore, in order to promote wealth, sovereign states should not stop searching for an economic development even if it is unfriendly to the planet globally since, even if it can seem to be chaotic now, everything will be fine at the end. Furthermore, D'Amato puts that there is no such thing as a legal duty to future generations because people only owe a legal duty to those who are living now in the planet. However, Professor D’Amato’s seems to be wrong in his chaos theory because pollution and environmental devastation are already killing people. Moreover, the global warming, the spread of smoke as it occurred in Indonesia, El Nino, climate change, earthquakes, rise in the sea level, forest fire as in Florida (US), Brazil and so forth are already bringing disastrous effects on earth. Accordingly, many children were born with deformities and many other people were infected with cancer from the Chernobyl disaster.  Professor D’Amato appears also to be wrong to state that there is only a legal duty to present generation since the law of Trust allows today’s generation to have a legal duty to future generations.   

The debate on strengthening the globalisation in order to protect the whole planet because global threats do not respect states' boundaries appears to be quite new. It possibly started in the 1972 Stockholm Conference on the Planet globally, which established Principles 21 and 22 and global programmes that led directly to the creation of the United Nations Secretariat at Nairobi and the Governing Council of UN Planet globally Program (UNEP) to promote and develop an international system to protect the protect globally. These Principles 21 and 22 concern the international protection of the planet globally are part of the 1972 Stockholm Declaration on the Human Planet globally, which is seen as a customary international law as it represents states practice and it is being accepted as the law, opinio juris[37]. This was the first international document to balance "the sovereign right of States to exploit their resources pursuant to their own planet global policies" with "the responsibility to ensure that activities within their jurisdiction or control do not" cause damage to the planet globally of other states or areas beyond the limits of national jurisdiction."[38] Its Principle 1 clarifies that states are seen as exercising the functions necessary to protect and improve the planet globally[39]. While specifying that states have to co-operate in order to develop a further global system, it had set out an agenda for the internationalisation, harmonisation and institutionalisation of globalisation in which individual states should have similar laws, policies and governance.[40]  In addition, there is another Principle 21 of the 1982 World Charter for the Nature, which mentions explicitly how state's sovereignty is becoming limited in globalisation because it imposes legal obligations to states to protect and preserve the global planet globally. It is asserted clearly that:  States and, to the extent they are able, other public authorities, international organisations, individuals, groups and corporations shall: (a) Cooperate in the task of conserving nature through common activities and other relevant actions, including information exchange and consultations; (b) Establish standards for products and manufacturing processes that may have effects on nature, as well as agreed methodologies for assessing these effects; (c) Implement the applicable international legal provisions for the conservation of the nature and the protection of the planet globally; (d) Ensure that activities within their jurisdiction or control do not cause damage to the natural systems located within other states or in the areas beyond the limits of national jurisdiction; (e) Safeguard and conserve nature in areas beyond national jurisdiction.  

Other international legal obligations hindering state sovereignty include Article 192 of the 1982 Convention on the Law of the Sea that states that "States have the obligation to protect and preserve the marine planet globally" and Article 136 of the same Convention.[41] Moreover, Kyle W. Danbish[42] adds that the "Bottom Up" approach taken in the recent 1995 Desertification Convention 1995 also goes beyond the classical doctrine of state's sovereignty because it gives more power to local people and NGOs than state's governments. Protocol I, on armed conflicts, adopted in 1977, to the Geneva Conventions of 1949 undermines also sovereignty because it prohibits states from "employing methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural planet globally."[43]  In the 1987 Montreal Conference, which resulted in the Montreal Protocol, for the international protection of the Ozone Layer took place. This Conference shows that global planet globally has to be protected at the expense of state's sovereignty because there is a need to fight the emission of substances like the CFC that create holes and damage the Ozone Layer, which will cause the effect of global warming in the planet. Thus, the sunrise could have dramatic effects such as skin cancers and others. Therefore, Margaret Thatcher, the then UK Premier, argued that ‘free enterprise’ would be affected if people look at their own sovereign economic decisions without taking care of what might happen to the Ozone layer and the planet as a whole. Then, she demanded for a comprehensive plan to reduce CFC emission in the atmosphere in order to protect the Ozone layer. However, Chinese argued against her idea because most Chinese, especially those in villages, cannot sacrifice an increase in their standards of living since they do not still have fridge. They asserted that what Mrs. Thatcher is telling the Conference is that in order to protect their planet globally in the West, Chinese have to sacrifice themselves by either having no fridge or buying a more expensive one, which does not have the effect of emitting CFC. From this, they said that Western demand, led by Mrs. Thatcher’s, was for their economic underdevelopment since it makes it hard and difficult for developing countries to develop. This argument put by China shows that there is a tension involving the question of global protection with that of state's sovereignty because all states look for their people's economic prosperity. Nevertheless, since the global protection of the planet globally is pre-eminent, the Montreal Protocol, which made[44] the international protection of the Ozone Layer a legal obligation was passed.  In 1992 during the Rio Conference on the Planet globally and Development, where four main principles were declared, i.e. Convention on the Climate Change[45], Convention on Bio-Diversities, Rio Declaration and a statement on the protection of the rain forests, this issue of the planet globally protection and state sovereignty arose well. This resulted from the statement on the protection of the rain forest, which was stated initially, in the original Declaration draft, that rain forests have been defined, as the ‘common heritage of mankind’.[46]

In addition, the Conference suggested that the forest protections could have been originally achieved by stopping to cut woods and preserving the world endangered species because the present generation owes a legal duty to future generations. This in fact limits state's sovereignty because, to some extent, it tried to oblige states to restrain from certain activities. As usual, the idea of rain-forests constituting 'common heritage' of mankind resulted in a debate between Brazil, Malaysia, and other developing countries that see forests as one of their natural resources and Western countries. Brazil and Malaysia argued against this Declaration because selling woods constitute a main way of getting foreign currencies and entering international trade. Rain forest was said to be part of national sovereignty of each state and moreover part of the 1960 UN General Assembly Declaration on the law of self-determination states clearly that people have the right to determine their own economic and political futures. They asserted that international law allows their countries, which have rain forests to have the right to determine their own future either economically or politically; and, if it is not the case, this doctrine of common heritage would be seen as colonialism. In reality, this debate involves the old classical legal doctrine of state's sovereignty and the need for a global or a universal common approach in order to protect the planet globally. At last, it was agreed that state should remain sovereign and, therefore, the version of the Declaration, which stated that rain forests constitute ‘common heritage of mankind’, was replaced by the principle of state sovereignty. This shows however that states do still have the sovereign legal power to legislate upon their sovereign legal territory. Consequently, since global issues needing protection still remain under individual state's sovereignty and states, which are generally jealous of loosing their sovereignty, play also a major role in international negotiation and signing of treaties, they are therefore seen as the final determinant for the protection of the global planet globally. Nevertheless, states have to assume function in the general interest to remedy wider planet global concerns such as the conservation of nature and survival of ecosystems. As a consequence, state's role has to be transformed to that of trustees in which various elements of the planet globally like in intergenerational rights where states would be the trustee, caretakers that in good faith have to augment and protect the trust that is the global planet globally. From this theory, it seems that the boundaries between national and international law are becoming blurred. Therefore, although states are still said to be sovereign, they have to respect their international legal obligations protecting the planet globally because they are bound to obey what was signed in international law. Hence, this doctrine of state sovereignty does not diminish the legal international obligations, which states themselves took under international law.

Yves Berthelot[47] makes a good point in this conflict between the international protection of the planet globally and state's sovereignty by saying that the role of international institutions need to be enhanced. This is when he asserts that: “... The sovereignty of states makes collective action at the international level a cumbersome affair. Planet globally and development issues transcends the state, because economic and environmental reality depends upon the actions of individuals, but the problems themselves are global in scope. Nevertheless, the state is the primary actor in intergovernmental negotiations, such as those held at Rio. A certain tension appears, however to persist between collective action and sovereignty ... I therefore ... question: how can the aims of responsible management of the planet globally for the aims of sustainable development be achieved in a world organised around sovereign states? I do not presume to provide an answer to this question, but I would suggest that it would probably lies in enhancing the role of international institutions.”      The Third Conference of the Parties to the United Nations Framework Convention on Climate Change, which is called as well "Kyoto", took place and nations came together without insisting on their sovereignty in order to fight global warming. The purpose of this Conference was no less lofty than its name; i.e. reducing international emissions of the heat-trapping greenhouse gases that cause global warming in the planet. The Conference was the culmination of several years of negotiations to improve and strengthen the first international treaty to address global warming, forged at the 1992 Earth Summit in Rio de Janeiro and signed by over 160 countries world-wide. The original Treaty, which is called the UN Framework Convention on Climate Change (UNFCC), called on industrialised nations to voluntarily reduce their greenhouse gas emissions. Since then, most countries' emissions have actually risen instead. As voluntary limits have proven ineffective, the current negotiations aim to put "legally-binding," or mandatory, reductions in place, the argument being that only mandatory reductions will spur the shift into energy efficiency and clean energy sources that is essential to reducing emissions in the planet. The Kyoto Conference showed that the globalisation is eroding the classical doctrine of state's sovereignty since states accept interdependence because they have to come voluntarily together to fight global warming.  It can be pointed out that globalisation obligations are eroding state's sovereignty since they correspond to the functions that states must fulfil in serving the common interest of the entire humanity. This is because when added to other international legal obligations such as international human rights law, international society centre shifts from the individual state's interests and sovereign rights to collective and global concerns of protecting the planet globally, which has become the state's function. As there appears to be a revolution in current developments, international institutions through the United Nations, European Union, North American Free Trade Area and the African Union play a central role in today's foundation of the new international system.[48] For this reason, it appears right to suggest that, in today's shrinking world, the classical doctrine of state's sovereignty needs to be redefined. This is because in the planet globally and Human Rights issues, state's absolute sovereignty and freedom to act as they wish within their limited boundaries are no longer compatible with the rule of law and the global survival of the planet[49]. The classical absolute doctrine of state's sovereignty has become obsolete, outdated and incompatible with today's solidarity and interdependence.

Sovereignty brings itself into conflict with the global transterritorial media, global warming, economy, terrorism, ozone layer depletion, the vanishing of the whales, extinction of endangered species, transboundary pollution, protection of rain forests, and others. Since global threats do not respect state boundaries, Luzuis Wildhaber[50] advocates that state's sovereignty needs to be redefined. He explains that:  “...Sovereignty must be mitigated by the exigencies of interdependence...Part of sovereignty may be taken or delegated away without destroying statehood as such. It is…unacceptable still to conceive of sovereignty (as in the Harmon doctrine) as an absolute right to pollute and cause injury to other states and their inhabitants, or to endanger vital aspects of the global planet globally, or to extinguish the most significant species of plants and wildlife. On the contrary the duty to prevent such pollution and deprivations must become part of the international law of co-operation, solidarity, and human dignity.”[51] 

However, although globalisation is undermining state's sovereignty in favour of protecting the global planet globally, it seems that this can create dangers and even destabilise the whole international law unless there are stronger international institutions developed in order to supervise and implement international legal policies and norms. Until nowadays, several scholars still argue that globalisation creates "soft responsibility", which corresponds to "soft law rules", legally not binding[52] because it lacks effective control and enforcing mechanisms. Its present mechanisms consist of international commissions that examine reports on the applications of the conventions in their supervision. Moreover, most global damage appears to be repaired because of protest by states, NGOs like Green Peace, Friends of the Earth etc. and public opinion, but without a clearly stated acceptance of international responsibility. In addition, Philippe J. Sands[53] opines that the Convention on International Trade in Endangered Species (CITES), highly contested international trade ban decision of the African elephant and the reservations taken subsequently shows the difficulties of constructing an effective globalisation mechanism to protect and conserve endangered species. This is particularly if there are commercial values in the trading of these species. Therefore, apart from UN collective sanctions, lack of institutions to monitor and enforce compliance with international system; and, the fact that international treaties are being interpreted differently make it so important to create an effective international mechanism, which will strengthen compliance with international system.  

In conclusion, it can be argued that globalisation is eroding the doctrine of state sovereignty since the above legal doctrines and concepts of 'Common Heritage of Mankind', 'Intergenerational Equity Rights' and 'Sustainable Development' are really becoming effective. Since people have right to safe, clean, decent and healthy planet globally, therefore an effective globalisation is really important for the protection of the planet.  Since the classical doctrine of state's sovereignty is being undermined, there is a need to redefine it because international law has a duty to protect the global planet globally from any threats for a successful promotion of human dignity, international co-operation and solidarity. In reality, there is already an important shift from this classical doctrine of state's sovereignty the international community has a real need to develop an effective international regime for the protection of the planet globally and, as known, this can only be done at the expense of state sovereignty. Globalisation seems to be very reliant in eroding the classical doctrine of state's sovereignty since global threats do not respect state boundaries. It can be argued that only few people would deny the fact that states are bound together in what is called a “community of necessity”, which brings an increasing mutual rights and obligations on the protection of the global resources.  

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[1] Weiss, Edith Brown (1989) “In Fairness to Future Generation: International Law, Common Patrimony and Intergenerational Equity”, (UNU and Transnational, New York).

[2] Please see Palmas Island Arbitration & Magalhaes doctrine.

[3] Ostrong, E.  (1990), "Governing the Commons: The Evolution of Institutions for Collective Action".

[4] See Gunther Handl, “Environmental Security and Global Change: The Challenge to International Law”, in Winfried Lang et al, “Environmental Protection and International Law”, International Environmental Law & Policy Series, Graham & Trotman Ltd., 1991, pp. 59-89.

[5] Ibid., at p. 59.

[6] UN Doc. A/C.2/SR. 1466 (1972).

[7] Kiss, Alexandre et al (1991), "International Environmental Law", Transnational Publishers, , pp. 18-21 & 119-122.

[8] Ditto. at p. 18.

[9] Edmund Burke, "Reflection on the Revolution in France", pp. 130-140(1790); In 2 Works of Edmund Burke, 368 (London, 1854, Reprint Services, 1987), where he argued that partnership between generation is corollary to equality since it is better to see human community among every generation. While looking at a state as a partnership, Burke said that "as the end of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living but between those who are living, those who are dead, and those who are to be born…"

[10] Weiss, Edith Brown (1989), ibid. See also E.B. Weiss, " Environmental Change and International Law ", 1992, p.395.

[11] See the Resolution concerning Environment, Development Employment and the Role of the ILO, International Labour Conference, Provisional Record, 27th Session, 29/32 (1990).

[12] S. Chowdhur, “The Right to Development in International Law”, 1992.

[13] Edith Brown Weiss, 1989, ibid.

[14] Chowdhur, S. ibid. p. 256.

[15] Edith Brown Weiss, “Environment and Trade as Partners in Sustainable Development”, American Journal of International Law, Vol. 86 (1992), 728.

[16] Szell, Patrick (1995), “The Development of Multilateral Mechanisms for Monitoring Compliance”, in Winfried Lang, “Sustainable Development and International Law”, Environmental Law & Policy Series, Graham & Trotman Ltd., at p. 107.

[17] Patrick Szell adds to this issue of state’s sovereignty infringement that “... Attempts to provide for the development of non-compliance regime under the UN Framework on Climate Change were largely unsuccessful for just this reason. In consequence, it has been necessary to overcome the sensibilities by designing non-compliance procedures that are supportive, constructive and respectful of national sovereignty rather than ones that lead to individual parties being found “guilty” and penalised.” 

[18] Fleischer in M. Bothe, “Trends in Environmental Policy and Law”, 321, 1980, at p. 338.

[19] Harris, D.J., ibid. p. 445.

[20] Weiss, E.B., ibid. p. 49.

[21] Ditto.

[22] Weiss, E.B. et al, 1992, ibid. 151.

[23] Handl, Gunther (1991) “Environmental Security and Global Change: The Challenge to International Law”, in Winfried Lang et al, “Environmental Protection and International Law”, p. 85-7.

[24] Ibid.

[25] Thatcher, Peter S. (1989) "Institutional Options for Management of the Global Environment and Commons," United Nations Associations Project on Global Security and Risk Management.

[26] Broken, Hubert & Ryckbost, Donatienne (1995) “Codification of Environmental Law: Proceedings of the International Conference in Ghent”, Feb. 21-22, Klwer Law Int., The Hague, London & Boston.

[27] International Legal Materials (1991), vol. 30, p. 773.

[28] Gormley, W. Paul (1976), "Human rights and Environment: The Need for International Co-operation", A.W. Sijthoff, Leyden, 1976, pp. 1-31, at p.1 and 2. Alexandre Kiss who speaks of "The right to Environment", ibid. p. 21.

[29] Higgins, Rosalyn  (1994), "Problems & Process: International Law and How We Use It", Ch. 6, 1994, pp. 95-110. She argues that International Bill of Rights comprises the 1948 Universal Declaration of Human Rights and both UN 1966 International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. It is a customary international law and binds all states even those that are not its signatories.

[30] Ditto.

[31] Kiss, Alexandre, ibid. p. 2.

[32] Ditto.

[33] See Reisman, “Sovereignty and Human Rights in Contemporary International Law”, Vol. 84 AJIL (1990), p. 866. 

[34] This is mentioned under article 136 of the 1982 United Nations Convention of the Law of the Sea.

[35] Anthony D’Amato, “Do We Owe a Duty to Future Generations to Preserve the Environment?”, American Journal of International Law, vol. 84, 1990, pp. 190-8.

[36] Ibid., p. 192.

[37] Kiss, A., ibid. p. 105-7.

[38] Kiss, A., ibid. at p. 20. See also D. J. Harris, "Cases and Materials on International Law", Fourth Edition, Sweet & Maxwell, 1991, pp. 242-249.

[39] Ditto.

[40] Lang, Winfried (1995),  “Sustainable Development and International Law”, Graham & Totman Ltd. See also Stockholm Declaration on the Human Environment, 1972, International Legal Materials, Vol. 11, (November 1972), p. 1416. However, it should be noted that this Conference raised the relation between the environment and economic development to become an object of debate between the West and the developing countries[40]. The Third World countries led by China argued, on the basis of the doctrine of state sovereignty that they couldn’t stop their economic growth and development because of the environment protection since, as the people in the west, their citizens also need to enjoy a good living standard.

[41] Article 136 0f the 1982 Convention on the Law of the Sea states that the Deep SeaBed "…area and its resources are the common heritage of mankind".

[42] Kyle W. Danish, International Environmental Law and the "Bottom Up" Approach: A Review of the desertification Convention, http://www.law.indiana.edu/glsj/vol3/no1/danish.html

[43] Protocol Additional to the Geneva Conventions of August 12 1949, Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 35 (3), 19 I.L.M. 1391 (1977).

[44] However, by 1993, this was seen to be insufficient; and, as a result, the Copenhagen Protocol was made in order to speed up the process of eliminating the emission of CFC. In 1996, the UN published a report that says that if the 1987 Montreal Protocol is not implemented, there would be a quadruple of the rate of skin cancers while if it is implemented, there would only be a doubling. However, if the 1993 Copenhagen Protocol is implemented, there would be no increase at all. In other words, this involves that the lives of many humans would be determined on whether or not states comply with the Copenhagen Protocol. 

[45] It is said that the global warming, i.e. climate change is already taking place since 2006 was said to be the warmest year ever in UK. Nowadays, it is noticed that there is an increase in temperature in the world. This will have a direct effect in the planet since the global warming would cause the Arctic and Antarctic ices to melt and, as a result, this will increase the level of the sea, which at the end will result in countries like Seychelles, Malta, and many Islands to disappear. It is also said that global warming would also cause the beginning of deserts in some other parts of the world such as central Europe and others.

[46] Initially, it was stated in the Rio Conference that the rain forests need to be protected since they constitute the common heritage of mankind.

[47] Betherlot, Yves (1994), “Are International Institutions in Favour of the Environment” in Luigi Campiglio et al, “The Environment After Rio: International Law and Economics”, Graham & Trotman Ltd., pp. 274-5.

[48] Alexandre Kiss, ibid. p. 19.

[49] E.B. Weiss, ibid.

[50] See “Commentary by Luzius Wildhaber”, in Winfried Lang et al, “Environmental Protection and International Law”, Grahanm & Trotman Ltd., 1991, pp. 88-9. 

[51] Ibid., at p. 89.

[52] Alexandre Kiss, ibid. p. 21.

[53] Philippe J. Sands & Albert P. Bedecarre, "Convention on International Trade in Endangered Species: The Role of Public Interest Non-Governmental Organisations in Ensuring the Effective Enforcement of Ivory Ban", Environmental Affairs, Vol. 17:799, 1990, pp. 799-822, at p. 822.

By Mr Jean-Paul LAWRENCE TAMPU-EYA, PhD (Law Res.) 

(2007) Plefilia, Plenty and Plevinas & Co.