25: And God made the beast of the earth after his kind, and cattle after their kind, and every thing that creepeth upon the earth after his kind: and God saw that it was good.
26: And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth on the earth.
27: So God created man in his own image, in the image of God created he him; male and female created he them.
28: And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.
29: And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.
30: And to every beast of the earth, and to every fowl of the air, and to every thing that creepeth upon the earth, wherein there is life, I have given every green herb for meat: and it was so.
31: And God saw every thing that he had made, and, behold, it was very good.[1]
1. Introduction
The global environment has, slowly but surely, slid into crisis. Whether the more extreme warnings about global climate change are accurate, or overstated, man’s capacity, particularly in the industrialised world, to make significant and permanent changes to the global environment cannot be disputed. Coupled with the inexorable crush of population growth, the planet’s ability to provide resources to sustain demand, and to deal with the waste of human consumption, has declined in as little as a lifetime; yet this slide has not really been sudden in human terms, or unexpected.
Since the Luddites toured industrial Great Britain in the late 18th and early 19th centuries smashing mechanised looms in protest at the social and economic changes brought about by the industrial age, there have been increasingly strident warnings about the technological advances, mankind’s disregard for the impact of uncontrolled growth and the resulting degradation of the global environment. Those warnings have largely achieved general acceptance over the last 50 years; green issues and the need to address climate change are now mainstream political issues.
International law, particularly in international institutions, the global economy and global communication have developed considerably over the same period. Yet, international law has struggled to come to grips with the needs of the global environment, focusing initially on pollution and latterly the rights of States to develop their economies in accordance with their own environmental policies without undue interference from other States. International environmental law, particularly in the International Court of Justice, has also tended to focus on disputes inter partes under treaties and other hard law documents in relation to environmental damage, rather than any overarching universal interest in the protection of the natural environment for the benefit of all living things.
The absence of any wider focus on the ability of the global environment to deal with such rampant demand and waste is glaring. Traditionalists (largely taking a positivist view) would argue that this is not the role of the law; to take a lead in matters of such important policy. This argument simply reassures the deniers, and those so unsettled by the prospect of fundamental change that they seem unable to contemplate a rational way forward. Environmental movements are growing at grass roots level the world over; domestic laws are increasingly adopting environmental protection policies, including provision for sustainable development; many States’ constitutions acknowledge duties to protect resources and the natural environment for future generations.
However, at an international level, States have performed poorly. The fine rhetoric has been qualified by reference to sovereign rights to exploitation of resources, and objective attempts to actually slow the rate of climate change have foundered.
This paper argues that international environmental law needs to take cognisance of the reality of the environmental impact of human activity and to recognise the erga omnes obligations of current generations as trustees of the environment for future generations, and examines the roles global traditions and world religions can play in providing context for such trusteeship.
2. International Environmental Law
A Interconnected reality of the global environment
In September each year, Eastern Bar-Tailed Godwits, or kuaka (Limosa baueri)[2] start arriving in coastal areas around New Zealand,[3] after their long journey from breeding grounds in Alaska and Siberia. During their southern migration, many of the birds fly the entire 11,000 km route directly over the Pacific without stopping; in just over a week (averaging 56 kph, and flying at over 2,000 metres ASL).[4]
On the return, northern migration, the birds travel along the East Asia - Australasia Flyway; most will stop to rest and refuel in northern Australia and Asia, including at the 1,500 hectare wetland managed by the World Wildlife Fund at the Mai Po marshes, in north-western Hong Kong.[5] The wetland comprises foreshore and shallows in Inner Deep Bay, and abandoned shrimp pits (gei wai), on the border between the Special Autonomous Region of Hong Kong and the Special Economic Zone of Shenzhen.
In winter, Mai Po is home to 60,000 waterbirds, and in spring and autumn, the marshes provide a staging post for between 20,000 and 30,000 migratory birds.
Economic development in this area is intense. Hong Kong has a population of over 7 million, occupying an area of only 1,108 km2(roughly twice the size of Lake Taupo). Land occupation in Hong Kong is leasehold and traditionally highly sought after; use is intensive. Across what used to be the border between the People’s Republic of China and the Territory of Hong Kong is the town of Shenzhen. In the last two decades, Shenzhen has gone from a small border town of a few thousand people to a city of over 10 million residents, with one of the highest per capita rates of income in China.[6] Shenzhen is at a cross-roads where sustainable development has become critical; right in the midst of this high population density, and intensive commercial and industrial activity, are the Mai Po marshes.
The fundamental needs of entire species of migratory birds are difficult to balance against the economic drive for development and security for these two densely populated and vibrant communities. Yet, the wetland does not appear to be under immediate pressure from development. It is managed by the World Wide Fund for Nature, and notwithstanding the lack of any threat of sanction under international law, the local and State governments seem to recognise the environmental significance of the wetland.
There can be little argument that the needs of migratory birds transcend any State right to exploit its own resources, or the ability of any State to launch inter partes litigation. Yet, the global environment has an interest in their protection. Like much of the natural world, the wetland is but one small part in a global ecosystem. The birds stop to rest and refuel all along the East Asia – Australasia Flyway. Creating bird sanctuaries in New Zealand and in their Alaskan breeding grounds, or protecting wetlands along the migration route, will never be sufficient on their own. What is required is global recognition that environmental requirements transcend national interests and property rights.
The difficulty with the narrow, state sovereignty and control of pollution based approach to international environmental law is that it is too heavily focused on the rights of States to develop their own territories, and the obligations of other States not to interfere in the sovereign and economic affairs of their neighbours. It has developed largely on dealing with the consequences of pollution, rather than protecting the environment or promoting the sustainable exploitation of resources. The practical reality is that this approach does not adequately deal with pollution which has global impact (water and atmospheric, for example the nuclear accident at Chernobyl, and the French nuclear tests at Muroroa in the Pacific ocean), habitat destruction and resource depletion; and it is too heavily focused on narrow issues like pollution, rather than guiding development to be sustainable.
As shown by the needs of migratory birds, the global environment is interconnected, and requires far more subtle recognition than preservation of sovereign rights to exploitation of their resources. There is a complete lack of any recognition in Principle 21 and the declarations which followed it of a wider, more fundamental legal obligation to the natural environment,[7] or of mankind’s spiritual interdependence on it.
B Origins of international law
In the early development of the field of international law, the concept of legal positivism was also reflected in the writings of Hugo Grotius, the father of modern international law.[8]
Grotius advanced the theory of natural law in international relations between independent sovereign States, under which there are principles of conduct which are binding on all peoples, regardless of local custom. To Grotius, the sovereign rights of independent States to protect their own property were absolute, and should be respected by all States, regardless of size or power.
Coming at a time of considerable conflict in Europe, with the end of the Thirty Years War, the Eighty Years War, the demise of the influence of the Holy Roman Empire (the Peace of Westphalia), Grotius’ theory of natural law, and the supremacy of State sovereignty was critically important.
As the industrial revolution developed and the wealth and power of industrialised nations grew, the focus of States on protecting their sovereign property rights took hold
In the words of Judge Weeramantry in his book Law in Crisis: Bridges of Understanding[9] we became guilty of inexcusable neglect. In the Judge’s view, international law has become far too narrow, where it needs to be multi-disciplinary, looking at all interfaces, rather than being simply focused on enforcement and sanctions. The value of the obeying the law is not because of the threat of police power and the sanction of the law “but because they feel bound in conscience to observe it without coercion of any kind”.[10]
This statement also assumes that the law recognises the value systems of the people to whom it applies. Such laws are obeyed simply because it is the right thing to do, and there is a mutual interest in such law being complied with. As Judge Weeramantry observes:[11]
Law loses respect if it is so different in content from morality that it actively discourages what morality extols, or actively encourages what morality condemns.
For positivists, the law and its ability to impose sanctions or to adjudicate between competing rights, is critical to the concept of property. For Locke, with his social contract theory, ownership of property is a natural right, resulting from the application of labour. That ownership is absolute, and cannot be taken away arbitrarily by government action. This is not a matter for the application of spiritual or moral consideration, but a simple application of the social contract.
Similarly, for Austin, moral concerns should be separated from positive law. The law is only concerned with the threat of sanction issued by an all powerful sovereign.
International law developed in this philosophical environment of introducing rules of engagement in war, protection of property and trade, and latterly the consequences of pollution between States. It is only relatively recently that international law has become interested in concepts of fundamental human rights, and moral considerations.
C Economic attitudes to the environment
This attitude of separation between values systems and the environment could not be clearer than in the field of market economics.
One of the earliest contributors to the dismal science, Adam Smith, gave us the concept of the invisible hand of the free market. In his magnum opus, An Inquiry into the Nature and Causes of the wealth of Nations, published in 1776, Smith famously commented:
It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.
Smith was extolling the virtues of labour. While the need for shelter and sustenance is universal, the most effective and efficient way of ensuring prosperity is through the application of hard work in pursuit of self interest.
As every individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labours to render the annual value of society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it.
By labouring hard, the entire community benefits. Smith was observing that wealth had its origins entirely in applying labour and capital to endeavours which provide the best return to the individual.
By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it.
And if there was no demand for the product of his labour, the invisible hand of the market would guide him to another endeavour. The market was infinite in its ability to match demand with supply, and in the ruthlessness with which it killed off oversupply.
By pursuing his own interest he frequently promotes that of society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.
No good would come of a planned or highly regulated or protected economy; and altruistic endeavour for the wider benefit of society, while laudable, would come to nought. That was the role of the Church, not the market, which was to be pure.
Smith’s views on the value of labour echoed those of John Locke, particularly in respect of the ownership of property. For Smith, the product of labour was of considerably greater value than the accumulation of rare metals, like silver and gold. It also has to be acknowledged that Smith’s views on the value of self interest in competition had the same lack of moral or ethical compass as the legal positivists inspired by John Austin in the century following his death.
The difficulty with Smith’s greatest value of labour approach to growth and community well being is that it assumes that natural resources required to feed such growth are limitless, or that technology will continually adapt the market to deal with scarcity. It is central to this that the environment is able to accept and digest the waste from production and consumption. Smith has no concern for wasted resources and a deteriorating global environment.
Applying Smith’s laissez faire approach, it is the duty of the economy to exploit all available resources. That results in individual wealth, which leads to communal wealth. Under the free market theory, once a resource is depleted, technology and market demand will find an alternative. In this way, the market actors move from resource to resource, stimulating growth and consumption.
As we have found in the 20th century, global resources are finite, and the environment’s ability to deal with waste does have its limits. The recent discovery of an estimated 100 million tons of plastic waste in the Western and Eastern North Pacific gyres is a case in point.[12] It is thought that this vast soup of plastic waste, collected in rotating currents, was originally discharged from ships, dumped or washed from the land.
While Smith acknowledged that we have a responsibility to participate in government, like tenants of the great estates, and to pay taxes in proportion to the wealth earned, the inevitable result of the promotion of self interest and the self regulating invisible hand of the free market was that the market always promoted the cheapest method of production. The most accessible resources would be used first.
This may have resulted in more efficient production and cheaper and more varied and abundant products, however the purchaser was not always rational or fully informed as Smith’s model assumed. This inevitably meant the that full cost of production was not factored into the price for the product; the environmental cost of extracting and exploiting the resource, and the end cost of disposing of by-products of production, use and disposal of the exhausted product. No more so is this apparent than in the nuclear industry where no sustainable method of disposal of nuclear waste has been developed since nuclear generation was first developed in the 1950s.
By focusing on the value of labour, Smith’s model of the free market also overlooked that it is the perceived value to the consumer which sets the price, rather than any wider concept of the value of the labour that went into the product. While this may be splitting hairs, a market value will always reflect baser human instincts of demand, rather than the inherent value of the resources that went into the supply; and the cost of disposing of the remains after it has fulfilled its useful purpose were never considered.
A product which is introduced to a market without regard to the consequences of its production, use and ultimate disposal, priced purely to meet consumer demand will always succeed in a free market ahead of an ethically produced item which is priced according to the entire cost of its production and use. The free market assumes a rational actor, making purchasing decisions on an informed and rational basis. In practice, and in a global marketplace, this is rarely the case.
At best the free market picks the low hanging fruit and moves on.
As the market consumes readily available resources, the market will find ways to enhance or vary the product to meet, or stimulate further demand. Technology will overcome the loss of a depleted resource, but the net effect is exhaustion of readily available resources and degradation of the environment for future generations.
Globalisation has exacerbated the issue, as the apparent cost of production is moved to States which have comparative advantage, either in the form of little or no labour protection and lax environmental controls. Under the free global market, producers will automatically relocate to States where the cost of production is lower. While the producing State may claim that both their workers and consumers are better off, environmental costs are not factored into the market pricing.[13]
At international law, if environmental norms were recognised, then the issue could be dealt with at a global level. The global environmental crisis is an intergenerational issue. States are recognising their responsibilities not to degrade the environment at the cost of future generations, and it is incumbent on international law to do likewise. For the global market, this would enable States to factor into the price for imported goods, the true cost of production in developing economies (assuming that such a true price could be objectively ascertained).
D Impact of economic considerations on international environmental law
The accepted sources of international law, as reflected in Article 38 of the Statute of the International Court of Justice are (1), international treaties and conventions, (2) international custom, (3) general principles of law,[14] and (4) judicial decisions and teachings.
In the narrow, inter partes world of settling disputes between States, hard law in the form of treaties and established declarations and conventions, tend to be given greater weight than the other factors which can be harder to define.[15]
The international focus on international environmental law following the 1972 Stockholm Declaration, the 1987 Brundtland Report, the Rio Summit of 1992 and the Kyoto Protocol of 1997 brought environmental issues into this hard law focus. Yet the noble concepts of the fundamental right to an environment of a quality that permits a life of dignity and well-being in Principle 1,[16] and the safeguarding of the natural resources of the earth for the benefit of present and future generations in Principle 2, fall rather flat in the harsh reality of State entitlement to exploitation in Principle 21.
Principle 21 cites the Charter of the United Nations (and in particular Article 2, which establishes the principle of sovereign equalityand the exclusive jurisdiction of States in their domestic affairs), and the principles of international law as authority for the proposition that States have the sovereign right to exploit their own resources, subject only to their own environmental policies and the limitation that they are not to cause damage to the environment of other States, or of areas which are not subject to national jurisdiction.
While the Stockholm and Rio Declarations represent a significant step by States recognising wider environmental responsibilities, Principle 21 is very narrow in its focus and has little or no regard for the potential input from custom or general principles of law. Its starting point of exploitation of a State’s resources is purely economic, and its overarching assumption is that a balancing of competing economic priorities of States will protect the entire environment. The difficulty with such an approach is that it represents the lowest common denominator of the negotiated interests of economic powers, rather than any real recognition of the wider needs of the global environment; it ignores any suggestion of any universal obligation to protect the environment generally, or any concept of current generations having obligations to protect the global environment in its entirety for future generations.
Similarly, attempts to define or codify customary rules to establish international norms for dealing with pollution has tended to highlight the different values, and underlying economic interests, between States have lead to what some commentators have described as a quandary of legitimacy.[17]
Mankind has developed and adapted its environment to such a degree that the global environment is now changing. Yet the greatest strides by States have been to recognise their respective environmental responsibilities, while protecting rights to exploitation; while the rhetoric may sound good, but it is a long way short of an objective, universal standard to which all States are expected to adhere.
The global commitment to reduce green house gas emissions by agreed percentages below 1990 levels under the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change is a case in point. With almost universal acceptance of anthropogenic climate change there can be little doubt about the urgency of reducing the rate of acceleration of green house gas emissions, let alone reducing emissions in absolute terms. Yet, the world’s largest emitter of green house gases (until it was passed by the People’s Republic of China in August 2008) was the United States, which is not an Annex 1 country. New Zealand, at 57 in terms of total emissions, but 11th on a per capita basis is a signatory, yet New Zealand continues to balance its reliance on international trade against its Kyoto commitments.[18]
It is extremely unlikely that any real initiative will come from States negotiating effective treaties of universal application to protect the global environment. That will need to be addressed by the application of international custom and the general principles of law in the International Court of Justice.
3. Global Traditions and World Religions
A Morals, spiritual values and the law
In 1967, Lynn Townsend White, Jr, a professor of mediæval history, published an essay entitled The Historical Roots of our Ecological Crisis, putting the environmental crises into a new perspective.[19]
In his essay, Professor White argued that with the advance of technology in Northern Europe during mediæval times (particularly with the harnessing of water and wind power, and with the development of the plough share which cut a deeper furrow), man’s relationship to the soil and ultimately to the environment changed profoundly, from subsistence farmer connected to the rhythms of his environment, to a landholder molding his environment to enhance productivity. “Formerly man had been part of nature; now he was the exploiter of nature”.
In White’s view, how we think about our ecology is inextricably linked to how we see ourselves in relation to the things around us. Our ecology, he argues, is “deeply conditioned by beliefs about our nature and destiny – that is, by religion”. Christianity in Western Europe governed all aspects of life, from mediæval times through to the late 19th and early 20th centuries. However, the technological move to increased efficiency (particularly in agriculture in the 7th century) introduced what White calls a dualism of man and nature.
Unlike other religions which more closely associated man and righteous behaviour with the environment, Christianity in Western Europe moved to the position that it was God’s will that man exploit the natural environment for his proper ends. As the quote from the Book of Genesis above commands, be fruitful and multiply; man was to have dominion over the natural environment, rather than to live in harmony with it, as pagan rituals had previously demanded. This separation of value systems, like religion, from endeavour has ultimately resulted in our current environmental crisis.[20]
Development in technology has increased the efficiency with which we exploit the natural environment, and it also serves to isolate us from the consequences of our rampant consumption. Overproduction of food resources, and wasteful utilisation of perishable production while there are those who die of hunger would have offended Austin; particularly in a small community. However, on a global scale, the purchasing public in the wealthier nations are completely unaware of the conditions under which their cherished products are manufactured or the environmental consequences of their production and use. No person involved in the chain of design, mass production, distribution, marketing and sale of consumer products has any interest in educating their customers on these issues. The market would penalise such candour very swiftly and very cruelly.
It should also be acknowledged that these were no Godless times (though Smith was almost certainly an atheist). They simply saw property rights, economics and the law as being outside the realm of the religion they observed. They prided themselves on the virtue of this separation.
In his essay, Professor White argues for the introduction of a new value system which brings economic endeavour back into line with traditional, spiritual considerations:
I personally doubt that disastrous ecological backlash can be avoided by applying to our problems more science and more technology. Our science and technology have grown out of Christian attitudes toward man’s relation to nature which are almost universally held not only by Christians and neo-Christians but also by those who fondly regard themselves as post-Christians. Despite Copernicus, all the cosmos rotates around our little globe. Despite Darwin, we are not, in our hearts, part of the natural process. We are superior to nature, contemptuous of it, willing to use it for our slightest whim…
What we do about ecology depends on our ideas of the man-nature relationship. More science and more technology are not going to get us out of the present ecological crisis until we find a new religion, or rethink our old one.
To this end, Professor White invokes St Francis of Assisi and the concept of the humility of man as a species and the equality of all God’s creatures.
As mentioned above, Article 38 of the Statute of the International Court of Justice identifies 4 sources of international law, each of which is to be applied equally. After international convention, are custom, as evidenced by general practice accepted as law, and general principles of law recognized by civilised nations.
Judge Weeramantry has already made the point that custom and general principles of law do not need universal acceptance. There simply needs to be compelling evidence of good governance. Similarly, the Eurocentric monocultural reference to civilised nations can be largely ignored. One could safely argue that many cultures which are economically not as developed are considerable more civilised than many developed countries; particularly if civilisation is accorded at least some level of spiritual value.
This gives rise to an altogether more complex difficulty. Having identified the difficulty with an Austinian separation of law from morality, and development from spiritual values towards our natural environment, we cannot simply re-impose a tyranny of religious government. Those States under the Sharia and those dominated by Hindu religious government are hardly shining lights in international environmental law. Two are already nuclear powers, and a third is trying hard to join the nuclear club. Similarly, during the Dark Ages, much of Europe was terrorised by the Inquisition.
The issue is more as Professors White and Bosselmann, and Judge Weeramantry suggest – what is needed is a recognition of the universal application of singular truths, like respect for the natural environment. This is enriched by reference to cultural traditions and religious concepts, not by simply imposing religious dogma. As Judge Weeramantry observes, international law will be strengthened by such recognition, and we will also get a return to the balance which Professor White has identified.
B Maori concepts of kaitiakitanga
Aotearoa was the last stop in the Great Polynesian Migration. When Maori, the first colonisers of New Zealand, arrived at some stage in the 14th century in their great sailing canoes, the vast land must have been filled with limitless potential and inexhaustible resources.[21]
According to the late Michael King, Maori made the most of this providence, with no regard at all to the consequences of their greed. Game was relatively tame (having few if any natural predators until that time), and was easy to take.
Moa, the largest bird to have lived on the planet, was a main, if not the main, source of protein for those colonising Maori.[22] Moa were also a source of feathers for clothing and bone for fish hooks, weapons, ornaments and tools; giant moa eggs, the size of rugby balls, were also used as water carriers. It is estimated that within the first 100 years of colonisation by early Maori moa, flightless goose, adzebill, swans and pelican were hunted to the point of extinction. Sea mammals were similarly decimated.
hunter gatherer diet was also supplemented with crops Maori brought with them from their Eastern Polynesian islands. As a result of such a diet rich in protein, fat and starch, Maori populations soared.[23] The ecology of that time simply couldn’t cope with such plunder. After a relatively short period of 100 to 150 years, the colonial period came to an end: [24]
… the big game was all but exhausted. The northern seal rookeries were deserted, in part because hunters had killed mothers and pups along with adult males. Moa became extinct because of the profligate manner in which this resource too was exploited (a process the Australian ecological historian Tim Flannery would refer to as ‘future eating’). With the moa had disappeared a range of other birds, mostly flightless, some of them humanly hunted to extinction, others pursued and killed at the egg, fledgling or adult stage by the kiore (rats) and dogs which the East Polynesians had brought with them.
King also identifies the extensive deforestation undertaken during this period, arguably as a hunting strategy, clearing living space, or as an agricultural strategy to encourage the growth of edible fern. In the centuries that followed, the experience of these mass extinctions led to the development of more sustainable practices. The press of population, and growth of agriculture also resulted in the descendants of those early settlors abandoning their semi-nomadic lifestyles and adapting their island lore to a new indigenous culture (Te Ao Maori).
Maori became settled, and was forced to manage their resources.
With this move to settlement, and increased focus on maintaining resources at sustainable levels came the concept of kaitiakitangaor guardianship. Selwyn Hayes usefully describes kaitiakitanga as a concept derived from spiritual rather than jurisprudentialbackground.[25] Kaitiakitanga acts as both benefactor and beneficiary, regarding and protecting resources in a holistic sense:[26]
It ensures harmony with the environment, provides daily checks and balances, prevents intrusions that cause permanent imbalances and guards against ecocide. This holistic approach is derived from a Maori worldview based on values and beliefs quite distinct from those of Pakeha. Maori attitudes towards the natural world reflect the relationships created through Ranginui (Sky father) and Papatuanuku (Earth mother). All of the natural elements, including humans, are their descendants and are thus related. This interconnectedness by way of whakapapa (genealogy) explains why Maori relate to the environment from a position of parity rather than ascendancy. Everything is inherently tapu (sacred) and is to be respected … Every element within the realm of Rangi and Papa possesses mauri (life force) which is protected by a kaitiaki (guardian) or atua (god).
This approach to respecting all living things and preserving their life forces (mauri) brought with it rules governing exploitation necessary to balance human need with preservation, and protection of that life force. Andrea Tunks describes the role of kaitiaki as central in maintaining the utu (balance or value) and hence mauri of all life.[27] Each family and tribal grouping (hapu/iwi) exercises its authority over its respective areas of their ancestral lands, and they are the medium of kaitiaki for that area, protecting the mauriof all life forms there recognising its interconnection to the rest of the Earth.
The concept of kaitiakitanga was holistic, taking into account intra- and inter-generational issues.
This traditional concept of kaitiakitanga is recognised as part of the domestic law of New Zealand, directly through the Treaty of Waitangi, and through section 7 of the Resource Management Act 1991, though it is fair to say that much of the discussion about section 7 has been less about guardianship as a force for sustainable development than about the role of Maori as tangata whenua(literally people of the land) and as kaitiaki (guardians) to be consulted on all development. A significant part of that discussion has been about the exclusive right of tangata whenua to be kaitiaki or guardians, rather than the wider responsibility to put a jurisprudential gloss of environmental trusteeship on consideration of any development.
C Southern African and other concepts
In his separate opinion, Judge Weeramantry refers to the African tradition of viewing the community as threefold, past, present and future, each of which is to be consulted or at least considered in major decisions, and the refusal to adopt a one-eyed vision of concentration on the future.[28] Similar ideals are in the Native American stricture, also referred to by Judge Weeramantry, that no activity affecting the land should be undertaken without giving thought to its impact on the land for seven generations to come.
In the words of a Native American proverb, “We do not inherit the land from our ancestors; we borrow it from our children.”
Judge Weeramantry also refers to Chief Seattle of the Suquamish tribe addressing President Franklin Pearce in 1854: “You must teach your children that the ground beneath their feet is the ashes of our grandfathers; so that they will respect the land, teach your children that the earth is rich with the lives of our kin. Teach your children that the earth is our mother. Whatever befalls the earth befalls the sons of the earth. If men spit on the ground they spit on themselves.”[29]
In each case, there is a strong connection with the land and with nature, and the primary consideration is not to deprive future generations of its bounty.
The interconnectedness of all aspects of inherent in these traditions and in kaitiakitanga, is also present in the Southern African concept of ubuntu, a Bantu word signifying the essence of being human, and the interdependence of all humanity. The following statement was included in a White Paper on national development and social welfare in South Africa:
The principle of caring for each other’s well-being will be promoted, and a spirit of mutual support fostered. Each individual’s humanity is ideally expressed through his or her relationship with others and theirs in turn through a recognition of the individual’s humanity. Ubuntu means that people are people through other people. It also acknowledges both the rights and the responsibilities of every citizen in promoting individual and societal well-being. [30]
Inherent in that well being is the interest of future generations, and the ability of natural resources, and the environment generally, to feed it and support it.
Increasingly, such traditional concepts are appearing in domestic law. The Constitutions of a number of States include concepts of trusteeship and concerns for future generations. In Norway, the constitution includes recognition of a right to an environment conducive to health and an obligation to manage the natural environment for future generations (art 110(b)). Japan similarly confers fundamental human rights on future generations (art 11), and in the United States, the constitutions of a number of Sates (Alabama, Colorado, Hawaii, Illinois and Montana) include similar concepts.
The issue, therefore, is not whether or not there is a relationship of trust, guardianship or stewardship of the environment for future generations, but why such a principle which is inherent in so many traditional values and State domestic law gets such scant regard at international law.
D Religious concepts
In the same way that cultural traditions guide the way we relate to the natural environment, so the world’s great religions also colour our thinking of the world. A society’s religious teachings are the ingrained values referred to by Judge Weeramantry in his separate opinion in the Case Concerning the Gabčíkovo-Nagymaros Project[31], from which the law gains its validity, and against which they are judged.
By looking at religious concepts, we are not proffering conversion to religious dogma, or advocating the adoption of pagan rituals, but looking at centuries of wisdom and acknowledging that they contain fundamental truths which can and should guide us in our relationship with the natural world, and the rules we apply to it. Global tradition and world religions have the potential to enrich the law, and to provide it with greater meaning than the narrow, positivist application it has received to date.
It also has to be acknowledged that much religious teaching can be obscure, and centuries of scholarship has been dedicated to unravelling its contradictions. For the purposes of this analysis it is enough to identify common threads in each of the main religions; Hinduism, Buddhism, Tao Te Ching and the three monotheistic religions of the middle-east, Judaism, Christianity and Islam.
Hinduism
The basic concepts of Hindu teaching are dharma (righteous living); kharma (action and reaction); sangsara (the cycle of birth and re-birth until nirvana is reached); and ahimsa (not doing harm to any person (which was central to Ghandi’s teaching), or to any living creatures).
For the Hindu, there is divinity in everything, as reflected in this prayer:
There is peace in heavenly region; there is peace in the environment; the water is cooling; herbs are healing; the plants are peace-giving; there is harmony in the celestial objects and perfection in knowledge; everything in the universe is peaceful; peace pervades everywhere. May that peace come to me![32]
In Hinduism there is a need for harmony with all forms of life, as their destinies are inextricably linked.
Buddhism
The teachings of the Buddha centre on the “one-ness” of the natural environment, and the importance of the annihilation of the egoand concerns for the self in preference for righteous living. The four noble truths of Buddhism are (1) there is suffering in the world, (2) there is a cause for suffering, (3) there can be emancipation, and (4) there is a way to emancipation.
Around 223 BC, Arahat Mahinda, son of the Emperor Ashoka of India, preached to King Devanampiya Tissa, while the King was on a hunting trip. During that sermon, Mahinda commented:
O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.[33]
In the one-ness of Buddhist teaching, and the pursuit of awakening, greed and concerns for the self are to be aside in favour of an appreciation of humanity’s place in the environment, the world and all living things.
Tao Te Ching – Lao Tzu
The dao or the way, is central in Chinese religion, both Taoism and Buddhism.
The Tao Te Ching, set down by the scribe, Lao Tzu in the 6th century BC, is poetic, varied and at times obscure, and sadly loses much of its subtlety in translation.
Heaven is long-enduring and earth continues long. The reason why heaven and earth are able to endure and continue this long is because they do not live of, or for, themselves. This is how they are able to continue and endure.
Therefore the sage puts his own person last, and yet it is found in the foremost place; he treats his person as if it were foreign to him, and yet that person is preserved. Is it not because he has no personal and private ends, that therefore such ends are realised?[34]
(The Tao) produces (all things) and nourishes them; it produces them and does not claim them as its own; it does all, and yet does not boast of it; it presides over all, and yet does not control them. This is what is called ‘The Mysterious Quality” (of the Tao).[35]
Judaism
Chapter 1:28 from Genesis quoted above, be fruitful and multiply and have dominion over the fish of the sea … is often quoted in both Judaism and Christianity as justification for the exploitation of nature for man’s needs. However, when compared to Genesis 2:15, when God takes the newly created man “and placed him in the garden of Eden, to cultivate it and to guard it”, there is a degree of conflict.
On the seventh day, there is a prohibition against undertaking productive work on the Sabbath. In Judaism, the right to undertake industry is not an absolute right; it is circumscribed by the obligation to give thanks to God. Similarly, the obligation to let the land lie fallow in every seventh year. In Judaism, God is the owner of all things; man simply has possession rights in varying stages of complexity.[36]
In the complexity of Jewish laws, there is a continual reminder that the entire world belongs to God, and it is man’s duty to protect and preserve it. In the words of Rabbi Berman:
The longer-term solution to environmental problems depends upon our ability to re-educate ourselves and our children towards humility - towards anavah - and moderation. We need to devote ourselves to the elimination of material excess in our lives, in our homes, in our offices, in what we eat, and in the technology which we utilize so wastefully. Even our waste is wastefully disposed of. Only such a re-orientation, in which material excess is replaced with deep spiritual awareness of the ultimate partnership between Humanity and the Earth in the achievement of God’s goals, can lay the foundation for a new and more healthy relationship between us and our environment.
The resolution of the apparent conflict in Judaism between the two approaches seen in the Book of Genesis (quoted above) lies for Jewish scholars in the requirement of urgent action to protect God’s creation. This is recognised in Judaism as a fundamental obligation which qualifies the authority of dominion.
Christianity
For Christians, the words of Genesis 1:28 also contain considerable justification for much of the expansion and exploitation of untamed lands for God’s greater good. Much of the commercial greed of colonialism was cloaked in the justification of this text.
Christ, however, brought a different mandate. When questioned by the Pharisees as to which was the greatest commandment, Christ responded:
The first of all the commandments is, Hear, O Israel; The Lord our God is one Lord:
And thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind, and with all thy strength: this is the first commandment.
And the second is like, namely this, Thou shalt love thy neighbour as thyself. There is none other commandment greater than these.[37]
The same neighbour principle was repeated by Christ at the last supper:
A new commandment I give unto you, That ye love one another; as I have loved you, that ye also love one another[38]
As an interesting aside, the neighbour principle was used by Lord Atkin to establish a duty of care in negligence in the case of Donoghue v Stevenson,[39] and subsequently as a basis for establishing proximity when determining whether or not a duty of care is owed.
Islam
The Holy Qu’ran, dictated to the Prophet Mohammed by the angel Gabriel in the 7th century, contains teachings on every aspect of everyday conduct. For most Muslims, the Qu’ran can only be read in the original Arabic, as without its rhythm and subtlety much of its meaning is lost.
In Islam, God is responsible for all creation, with all elements in balance and proportion most exactly:
In the name of God, the Compassionate, the Merciful … And the servants of the God of Mercy are they who walk upon the Earth softly; and when the ignorant address them, they reply, “Peace!”[40]
This is but a small snapshot of religious teaching on environmental issues. There are further statements (for example in the Assisi Declarations) also from the Baha’i Faith, and from Jains and Sikhs. The critical issue is not to find resolution in all religious teaching, but to identify a singular common thread – of mankind’s obligation to care for the natural environment and to exploit its resources in a way which is consistent with the needs and aspirations of future generations, and of the environment generally, if we are to follow the teachings of St Francis.
The common thread is that we have an overarching duty, a moral imperative, to rise above satisfying immediate, selfish concerns, and to live in peace with our environment and to share its bounty with future generations.
4. Trusteeship
A erga omnes obligations at international law
The disconnected nature of human development from traditional, spiritual values for the natural environment as discussed by Professor White has meant that the environment has been degraded by current generations for immediate gain, at the cost of the global environment to meet the needs for the wellbeing of future generations. In the same way that previous generations and those alive today are cumulatively responsible for the degradation, not least because of our increased ability to change it irrevocably, we owe a duty to protect the environment for the future. We are its guardians.
It may not be productive to try to construct a trust on traditional grounds, with the Creator as settlor and each generation being trustees and beneficiaries for future generations of trustee/beneficiaries. However, the law adapts legal concepts to meet community needs as they arise. It may be dancing on the head of a pin to repeat the traditional fiction that judges “find” the law of God, rather than make it. The fact is that the law moves to meet societies’ demands, and it must do so in order to be relevant. A law which is unbending in its application of historical rules and mores, and reliant wholly on legislative intervention to deal with social change, would be inadequate; an anathema. Particularly in the field of environmental law, where expectations of the law are changing so rapidly.
The law of equity grew from broad maxims of fairness designed to effect justice which would not otherwise have applied from a strict application of the common law. In many respects, the current status of international environmental law is analogous to the state of the common law before the law of equity (and the Star Chamber, in its finer hours) intervened to ensure that justice was effected.
At international law, this adaptation and development to meet the wider needs of the international community has been hampered by a fixation on the negotiation of formal treaties and declarations. For each new convention, it is a certainty that national self interest will intervene, as is the case with the US negotiations at the Rio Summit in 1992, in relation to it submitting to the International Criminal Court and in its refusal to join the Annex 1 States in the Kyoto Protocol.
The International Court of Justice has also failed to rise to the occasion, with its traditional focus on the resolution of inter partesdisputes. Erga omnes considerations were first considered seriously in the 1970 judgment in the Case Concerning The Barcelona Traction, Light and Power Company, Limited.[41]
The case concerned losses sustained by Belgian shareholders in a Canadian company, The Barcelona Traction, Light and Power Company, Limited, with assets in Barcelona, Spain. The Spanish Government, under General Franco, had taken action which resulted in the liquidation of the Canadian company, and the loss of assets in the company, and the shareholders’ capital. Belgium issues proceedings in the ICJ against Spain.
The Court ultimately decided that Belgium had no standing in the matter. However, it took the opportunity to make some important observations about erga omens obligations.
On the third preliminary objection, the Court asked the question whether or not Belgium could protect Belgian shareholders in a company incorporated in Canada against measures taken by Spain against the company itself, rather than any Belgian national. Observing that States are bound to extend the protection of the law to foreign investors, the Court commented:[42]
These obligations are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.
The Court outlined the wide focus on erga omnes obligations, covering acts of aggression, genocide and the principles and rules concerning the basic rights of the human person. Slavery and racial discrimination were given as examples of universal interest to which the law should apply. It is a short step in that context to include the rights of humanity to protect the environment from degradation to the cost of future generations.
That is not to say that the Court in Barcelona Traction would have accepted this position in relation to environmental obligations, but as the world changes, so must the law with it. Environmental considerations have moved considerably since the 1960’s and early 1970s, when this case was argued, and the pressure of overpopulation and concerns about green house gas emissions had only just been identified as cause for concern. Agitation on those areas was still firmly in the realm of activist non governmental organisations like Green Peace and Friends of the Earth.
As the Court itself observed in Barcelona Traction, the Court has to bear in mind the continuous evolution of international law.[43] That continuous evolution can be had by reference to municipal law, and it was this issue which was determinative for Belgium. It was held to have no jus standi in the case.
B Case Concerning the Gabčíkovo-Nagymaros Project [44]
In 1997, the Republic of Slovakia (formerly Czechoslovakia) issued proceedings against the Republic of Hungary for breach of a 1977 treaty in relation to the complex and expensive development of a series of locks and hydroelectric power stations on the River Danube. The detail of the project does not concern us, other than to observe that the ICJ ruled, by majority decision, that both States were in breach of their treaty obligations and that they should endeavour to give effect to the original treaty; a less than satisfactory result, both for the development of international environmental law, and for the parties themselves. This dispute effectively remains unresolved.
The issue of particular interest in this case was the groundbreaking [45] separate opinion of the Vice-President of the Court, Judge Weeramantry.
The Judge identifies three issues of particular importance, (1) the role played by sustainable development in balancing competing demands of development and environmental protection, (2) the protection provided by continuing environmental impact assessment, and (3) the appropriateness of the use of inter partes legal principles, such as estoppel, for the resolution of issues with erga omnesconnotations, like environmental damage.
On the issue of sustainable development, Judge Weeramantry took a more forthright approach than the rest of the Court (which identified sustainable development merely as a concept of international environmental law) by proclaiming it as a principle with normative value.[46] After reviewing the various sources of international law, he stated:[47]
The principle of sustainable development is … a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community.
…
Sustainable development is … not merely a principle of international law. It is one of the most ancient of ideas in the human heritage. Fortified by the rich insights that can be gained from millennia of human experience, it has an important part to play in the service of international law.
On the second issue of continuing environmental impact assessment, the Judge expressed the view that Hungary was entitled to review its obligations under the 1977 treaty in the context of a changing political and ecological environment. As that environment changed, so would the impact, and so there was a continuing obligation to monitor the effects of the development.
More critically, on the third issue, while finding that estoppel would apply to Hungary’s actions in the years leading up to the termination of the treaty, erga omnes connotations as discussed by the ICJ in the Barcelona Traction case must be given greater weight:[48]
We have entered an era of international law in which international law subserves not only the interests of international States, but looks beyond them and their parochial concerns to the greater interest of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation.
In analysing the principle of sustainable development, Judge Weeramantry argued, quoting former International Law Commission member James Brierly, that to have normative value, principles do not need universal acceptance.[49] The test is necessarily vague in the nature of establishing customary law – what is required is contemporary general acceptance.
The judge then went through a wide ranging review of religious and cultural practices which supported the general acceptance of the principle of sustainable development, commenting:[50]
In drawing into international law the benefits of the insights available from other cultures, and in looking to the past for inspiration, international environmental law would not be departing from the traditional methods of international law, but would, in fact, be following in the path charted out by Grotius.
His review took in the ancient irrigation schemes of Sri Lanka, Tanzania, Iran and China, the teachings of Buddhism, the Tao Te Ching from China, African and native American teachings on intergenerational considerations, in each case highlighting the importance of development within the constraints of environmental sustainability.
In the course of this analysis, Judge Weeramantry had this to say about the concept of trusteeship:
As modern environmental law develops, it can, with profit to itself, take account of the perspectives and principles of traditional systems, not merely in a general way, but with reference to specific principles, concepts, and aspirational standards.
Among those which may be extracted from the systems referred to are such far-reaching principles as the principle of trusteeship of earth resources, the principle of intergenerational rights, and the principle that development and environmental conservation must go hand in hand. Land is to be respected as having a vitality of its own and being integrally linked to the welfare of the community. When it is used by humans, every opportunity should be afforded to it to replenish itself. Since flora and fauna have a niche in the ecological system, they must be expressly protected. There is a duty lying upon all members of the community to preserve the integrity and purity of the environment.
Natural resources are not individually, but collectively, owned, and a principle of their use is that they should be used for the maximum service of people…
Applying Professor White’s view of the disconnection of moral consideration from development, the interrelationship of law and spiritual values is something which has slipped away from us, and which we should examine if we are to find a way out of the current environmental crisis. Extending Judge Weeramantry’s analysis, the crisis extends to further fields of law than just the environment. However, what White is not saying is that we should return to animism, or re-embrace harsh religious dogma to govern our lives. Instead we should reintroduce moral and spiritual values to legal theory to re-establish the interrelationship between human endeavour, the law which governs them and nature.
This approach is certainly consistent with the fluid and developing nature of international environmental law.
In his separate opinion, Judge Weeramantry does not argue that we should adopt a new paradigm, but that concepts of trusteeship and sustainable development are, and always have been a part of international law; much like universal ideals like human rights.
It must be, as a matter of inescapable logical necessity, that we inherit the earth from our forefathers, and pass it on to our children, with responsibility to ensure that the natural environment can continue to meet the needs of future generations; as a matter of survival of the species, if nothing more.
There can also be little argument that this is a moral duty of greater importance than any conception of universal human rights. The universal freedom, equality and dignity of humanity is something which humanity can fight for. Generations yet to be born are unable to fight for the resources which they have no access to, or for an environment which will support their needs. That is up to the current generation to protect.
C Trusteeship as a concept of sustainable development
The fundamental obligations to future generations should, as Professor Bosselmann observes, go without saying:[51]
From a sustainability perspective, a duty to protect the environment should not have to be negotiated. Like justice and human rights, sustainability should principally be non-negotiable. As foundation norms of humanity, they need to guide the functions of states rather than be guided by them.
He argues that international environmental law is fluid, and has the capacity to move beyond protecting territorial interests, towards protecting the global environment (though, he concedes, not to hard law status). While it is open to States to enact environmental policies which acknowledge the concept of environmental trusteeship (and many have), imposing global environmental trusteeship obligations, which may override free trade agreements, is another matter; it’s a bit like asking the fox to look after the chicken.[52] The economic aspirations of States, and their appetite to exploit the global environment seems to be greater than their interest to preserve it. As Professor Bosselmann so eloquently observes:[53]
If we accept … that the integrity of the Earth’s ecosystems cannot be sliced up in pieces that fit into areas inside or outside national boundaries, then states need to be bound by a universal principle. Like universal principles of justice and human rights, sustainability would defined the internal as well as external functions of the state.
Professor Bosselmann acknowledges that this is unlikely to be achieved through treaty or through international institution; but through public opinion affecting judicial law development.
Conversely, the Harvard Law Review expresses the view that legal analysis of international custom serves at best a hortatory purpose and fails to overcome the divergence of states’ interests in international environmental control.[54] This seems overly pessimistic, particularly in the context of the traditional concepts of custom and increasingly recognised general principles of law.
The track record of international treaties for progressing environmental issues at international law is patchy at best. In the context of the historical interrelationship between man and nature and the unconstrained development since the industrial revolution gathered steam in the mid 17th century, the negotiation of treaties and more formal conventions and declarations have failed to rise above protecting the economic and security interests of the negotiating States. On the ability of treaties, like Kyoto, to deliver real environmental benefit, this performance is hardly likely to improve any time soon.
Principle 21 preconditions any commitment by reference to State sovereignty and the rights of States to exploit their resources in accordance with their own environmental policies. There is no reference to any international norms for the protection of the environment, the main focus being prevention of pollution between States. Similarly the Kyoto Protocol set bold limits, from an economic perspective, but achieved little from an environmental perspective, other than to inform the public.
Professor Bosselmann’s expectation that judicial law development will recognise the concept of trusteeship, or the wider ideal of stewardship, of the environment for future generations as a result of greater public sensitisation to the issues seems far more likely. A greater recognition of spiritual values and connection with nature, as envisaged by Lynn White, will be an essential part of the increased acceptance of erga omnes obligations to the environment. Judge Weeramantry’s opinion lights the way for such developments.
5. Conclusion
It is to be noted in this context that the rights of future generations have passed the stage when they were merely an embryonic right struggling for recognition. They have woven themselves into international law though major treaties, through juristic opinion and through general principles of law recognized by civilized nations.[55]
This paper has examined the interconnected nature of the environment, and the role which international law has to play in it.
From the earliest time in the Industrial Revolution, there has been a disconnect between rights to development and our responsibilities to the environment. As Judge Weeramantry states in the quote above, there can surely be no doubt that such obligations to the environment and to future generations exist.
Global population, industrial capability, technology and communication has developed to such an extent over the last century that there can be no doubt about mankind’s ability to change the global environment. It is not enough to simply exploit the natural world relying on technology to solve the problems such exploitation causes.
If we examine global traditions and world religions, we can see that such responsibilities have grown from experience. The current position of the global environment is analogous to the state of the New Zealand environment after that first colonisation by Maori, when they discovered that they had plundered the environment with little or no regard for the future. They then learned the value (utu) of the natural environment and the life force (mauri) of all living things: Maori developed the concept of kaitiakitanga – guardianship over the natural resources.
States at a domestic level are increasingly recognising our obligations as trustees for the future, and erga omnes obligations are established principles of international law. It is simply a question of applying these principles to the global environment at international law, rather than being fixated on protecting narrow concepts of sovereign and property rights without the regard for the responsibilities which go with those rights.
[1] Genesis 1:27 to 31 (King James Version).
[2] Coastal wading birds of about 40 cm, with long legs and an upturned bill.
[3] Many of the coastal areas favoured by wading birds in New Zealand are designated as bird sanctuaries, for example the Miranda Bird Sanctuaryon the Firth of Thames, southeast of Auckland.
[4] See the PRBO website for more information. This non-stop migration is the longest by any bird in the world. Before departing, the birds go on a binge, increasing their overall fat content to 55 % of their body weight, and reducing gut, kidney and liver sizes by up to 25% to compensate.
[5] For more information about Mai Po, see the WWF website.
[6] See UNEP’s July 2007 Shezhen Environment Outlook. – the first urban environmental outlook report in China under UNEP’s Global Environmental Outlook assessment framework.
[7] Professor Bosselmann makes the analogy with human rights in The Principle of Sustainability – Transforming Law and Governance (Ashgate 2008), see Chapter 4, pp 111 – 144.
[8] De Jure Belli ac Pacis (Paris, 1625). The idea that Grotius is the founder of modern international law is open to reasonable doubt, with Hinduism and Islam dealing with agreements between sovereigns on the treatment of prisoners of war long before Grotius.
[9] London, Capemoss 1975
[10] At page 25
[11] At page 119
[12] Sea of Trash, Donovan Hohn, New York Times, 22 June 2008.
[13] It should be noted that, while the GATT allows under Article XX for measures to be introduced on the grounds of public morals, protection of health, conservation of exhaustible natural resources (in conjunction with domestic restrictions) and the like, the environmental cost of production is not valid grounds for imposing protectionist measures.
[14] Article 38 includes the unfortunate reference to “recognised by civilised nations” in the context of general principles of law.
[15] As evidenced by the majority decision of the ICJ in the 1997 Case Concerning the Gabčíkovo -Nagymaros Project (Hungary v Slovakia), in which wider erga omnes environmental interests were ignored in favour of a strict interpretation of the treaties between the two states, with the result that the Court gave a determination which effectively suited neither party.
[16] Repeated in Principle 2 of the Rio Declaration on Environment and Development, Rio de Janeiro 1992.
[17] See Developments in International Environmental Law 104 Harv. L. Rev. 1484 (1990-1991)
[18] See paper given by the Minister for Trade and Climate Change Negotiations to the International Policy Council on 12 May 2009.
[19] Science, Vol 155 (Number 3767), March 10, 1967, pp 1203-1207.
[20] The separation of ethics or morality from the validity of law is one of the central precepts of legal positivism, as espoused by John Austin (1790-1859). Austin’s three basic points of law discussed in detail in The Province of Jurisprudence (1832) are that (1) the law is command issued by the uncommanded sovereign, (2) such commands are back by threats, and (3) the sovereign is habitually obeyed.
[21] See Michael King, The Penguin History of New Zealand (Penguin Books, 2003), chapter 5, First Colonisation pp 65-71
[22] Ibid at page 63.
[23] King refers to a relatively short lifespan of 30 odd years, but with women bearing 4 or 5 children.
[24] Ibid at page 66.
[25] Defining Kaitiakitanga and the Resource Management Act 1991 (1996-1999) 8 Auckland U. L. Rev 893. See also Minhinnick, N., Kaitiaki(1989); Tomas, N., Implementing Kaitiakitanga Under the RMA (July 1994) NZ Envirtl, Law Reporter 39-42; and Roberts, M et al, Kaitiakitanga: Maori Perspective on Conservation (1996) Pacific Conservation Biology Journal 7
[26] Ibid at page 893.
[27] Tangata Whenua Ethics and climate Change (1997) 1 N.Z. J. Envtl. L. 67
[28] Idib at page 107.
[29] Weeramantry, Universalising International Law at page 190, quoting Guruswamy, Palmer and Wester, International Environmental Law and World Order : A Problem Oriented Casebook, West Publishing Company, 1994, pp 298-300.
[30] Point 24, chapter 2, White Paper, National Developmental Social Welfare Strategy, presented to the South African National Assembly by Geraldine Fraser-Moleketi, Minister for Welfare and Population Development, in February 1997.
[31] at page 108.
[32] Hindu prayer, Shanti path
[33] The Mahavamsa, Chap XIV
[34] Chapter 7, J Legge Translation, Sacred Books of the East vol 39 (1891).
[35] at chapter 10.
[36] Rabbi Saul Berman Jewish Environmental Values: The Dynamic Tension Between Nature and Human Needs, Jewish Virtual Library.
[37] Matthew 12:28 - 31
[38] John13:34. See also Luke 10.
[39] [1932] AC 562
[40] verse 25:63 (JM Rodwell Translation, 1861)
[41] Belgium v Spain, second phase.
[42] At paragraph 33.
[43] At paragraph 37.
[44] ICJ in the 1997 Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia)
[45] The Vice-President’s separate opinion is the first time such issues have been traversed in the ICJ. For a wider discussion of the case, see Prue Taylor, The case Concerning the Gabčíkovo-Nagymaros Project 3 N.Z. J. Envtl. L. 109 (1999).
[46] At page 85.
[47] At pages 107-108.
[48] At pages 95 & 118.
[49] J. Brierly, The Law of Nations, 6th ed., 1963, p61.
[50] At page 96.
[51] The Principle of Sustainability at page 149.
[52] At page 173.
[53] Ibid.
[54] Developments – International Environmental Law 104 Harv. L. Rev. 1484 (1990-1991) at 1490
[55] Legality of the Threat or Use of Nuclear Weapons 1996 (ICJ Reports), vol 1, pp 429-554, Judge Weeramantry, Dissenting Opinion, at page 455.