Автор: Oleksandra Chornous, Ph.D., research worker, Koretsky Institute of state and law of the National Academy of Science of Ukraine
[Екологічне право. Земельне право. Аграрне право]
In the review the basic items of information concerning the development of conception of the World Environmental Constitution in the modern legal science and in the international politics as well as the prospects of its further development are given in the brief form.
The globalization process is steadily gaining momentum in the modern world. Its development is particularly active in those spheres of public life which at the same time affect the interests of both individuals, so-called "citizens of the planet", and states as well. One of the branches of law, directly experiencing the impact of globalization, is the environmental law. In particular, the need to resolve economic and environmental conflicts, as well as the lack of properly structured and codified rules of international law have given rise to an idea of formulation and adoption of the World Environmental Constitution (WEC).
It is logical that, as new environmental challenges and the need to meet them emerged, an array of international and national environmental laws has grown ever since. In his interview noted Doctor of Law Sciences, Professor Yu.S. Shemshuchenko noted that “according to the United Nations Environment Program (UNEP), nowadays international environmental treaties cover more than 250 issues” [1]. Besides, one should also take into account a multitude of international environmental agreements entered into between individual states and groups thereof, as well as between international organizations.
Despite such a huge mass of international environmental laws, including international legal acts of a general nature, in particular, Stockholm Declaration on Environment (1972) [2], World Charter for Nature (1982) [3], Rio Declaration on Environment and Development (1992) [4] and others, it should be recognized that the as far as their content is concerned they have certain legal shortcomings, i.e., these documents are not legally binding since they have an advisory nature; besides, many of them have a declarative character lacking universalism.
Consequently, these flaws increase the risk of gaps in environmental legislation, moot cases and, therefore, affect the quality of law enforcement in this sphere. Thus, the need has occurred to systematize all previous agreements in the field of environmental protection and sustainable development, as well as to define institutions to enforce their provisions.
For the first time this consideration was officially stated by Ukrainian delegation (F. Burchak, M. Kostitsky, S. Kravchenko, Yu. Tunitsa, Yu. Shemshuchenko) at the International Conference on Federalism held at Hofstra University, New York (1992) [5]. The conference adopted a resolution “On Establishment of New Institutional Structures for International Environmental Cooperation” and took a decision to develop and adopt the World Environmental Constitution under the aegis of the UN.
Later, the Ukrainian political circles actively promoted this idea at the Sessions of UN from 1997.
At the moment, the conceptual framework of the WEC is being developed at the V.M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine. In particular, the following aspects contained in the Constitution can be pointed out:
1) Basic principles of international cooperation in the field of environmental relations. However, detailed description of various aspects of environmental relations should be avoided while maintaining the framework nature of this document.
Content and structure of the WEC must be constructed in such a manner that this unprecedented international instrument would not compromise the sovereignty of any country, but enjoin each of them to use their natural resources and environment so as to ensure the welfare of both present and future generations… The WEC should become a tool for "greening" the economy and education, stimulate the formation of a new – environment-friendly economics [6].
2) The human right to safe environment: “Nothing is said about this right in the Universal Declaration of Human Rights (1948), nor in the European Convention on Human Rights and Fundamental Freedoms (1950) nor in the International Covenant on Civil, Political, Economic, Social and Cultural Rights (1966). By implication, this right is referred to in the Stockholm Declaration on Environment and the Rio Declaration on Environment and Development” [7]. Although the international community has made some efforts to promote the human right to a safe environment, national legislation in many countries outruns the international law in legal support of this right. In particular, it should be noted that this right is guaranteed by the constitutions of many post-Soviet states. With a view to developing this right, the other environmental human rights should be included in the WEC, namely:
- rights of general and special use of natural resources;
- public access to environmental information and public acquisition of environmental data;
- rights of public participation in environmental decision-making and participation in conduct of ecological examination at domestic and international levels, etc.
3) Basic principles of a national environmental policy.
4) Forms and methods of environmental cooperation among States in view of its diversity.
5) Institutional mechanism of the WEC implementation.
Due to the low efficiency of UNEP, which was more than once mentioned at various international forums and on the UN floor, it becomes necessary to change the format of this international organization, or to replace it with an alternative body of relevant jurisdiction: "In particular, during the 19th Special Session of the UN General Assembly mentioned above Brazil, Germany, Singapore and South Africa came up with a joint statement which called for a radical re-formation and strengthening of the United Nations Environment Program, as well as for establishment of a new UN body on environment. In our view, an Environmental Security Council (italics - O.Ch.) could become such a body to be set up on the model of the UN Economic and Social Council dealing with economic and social spheres. This council could be created by way of reforming the UNEP. It would be appropriate to give the Environmental Security Council a status of the special international organization and lodge it with wide-ranging powers to ensure environmental safety, coordinate international environmental cooperation, as well as to monitor the implementation of the World Environmental Constitution" [8].
As regards the judicial protection of violated environmental rights on the international level, currently the United Nations International Court, International Court of Arbitration and the European Court of Human Rights deal with the matters pertaining to this sphere. However, the fact is certain that all these courts have general jurisdiction and, therefore, it is difficult sometimes to ensure their timely settlement of litigation in this sphere. Even the existence of specialized branch courts, e.g., the International Tribunal for the Law of the Sea, International Maritime and River Arbitration Court, cannot withdraw from agenda the issue of establishing a system of qualified international courts specializing in environmental matters. In particular, at the inaugural International Foundation Conference held in Mexico City in 1994 an attempt was made to establish an International Court of Environmental Arbitration and Conciliation [9]. It consisted of environmentalists from 22 countries. For certain reasons, this attempt failed. Presently, legal practitioners and scholars actively discuss the establishment of an International Environmental Court under the aegis of the UN. In addition, in order to ensure the implementation of the WEC provisions it is proposed to set up under the auspices of the UN the International Service for Environmental Monitoring and the International Environmental Bank.
When considering this subject, we should also mention the problems that may arise in the process of harmonization and implementation of the WEC. One of the issues that may influence the adoption and implementation of the Constitution, is rooted in different levels of socio-economic and political development of individual nations, including the development of their institutional environment. Another problem stems from the fact that it affects the interests of major subjects of world politics. As an example, it suffices to recall the case of the U.S. refusal to ratify the Kyoto Protocol to the UN Framework Convention on Climate Change of 11 December 1997 [10].
Based on the foregoing, one can conclude that the WEC concept has a good practical basis and its provisions may well be implemented. Some scientists consider the codification as a redundant and unnecessary work, a waste of developers and other process participants time and state and international organizations' money. But it is not. Codification helps to evaluate and classify the legal regulations taken and effective at the moment, and thus facilitate the operation of all law enforcement agents: from individual citizens to corporations and public authorities, to international organizations.
Another issue that arose in the process of developing the WEC concept was the title of the document: "One of the basic objections of numerous opponents to the WEC idea was that the Constitution traditionally referred to an individual state (as the basic law), while in the case in question it goes about the entire world" [11]. In our opinion, at this moment the title of this international codifying instrument is not important, whether it is WEC, or UN Code or Convention on the Environmental Safety [12]. What is important is the very idea to codify and systematize the international environmental law, thus giving it a binding effect.
The WEC has a great potential to turn into an effective instrument of globalization in the environmental field. It should be noted that we are witnessing and taking part in an interesting process of implementing scientific concepts into real life. Thus, suffice it to mention a more than 10-year history of development and adoption of the UN Convention on the Law of the Sea of 10 December 1982 [13], which has effectively ensured the participation of all mankind in solving problems of the World Ocean development as one of the global challenges of our time.
Literature:
1. Yu.S. Shemshuchenko's Interview in the article by S. Demsky "Environmental Constitution of the Earth: From Concept to Practical Implementation" / Golos Ukrainy newspaper of 10 October 2007: http://www.golos.com.ua/rus/article/1191933320.html
2. Convention of the United Nations Conference on the Human Environment of 16 June 1972 // http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503
3. World Charter for Nature of 28 October 1982 // http://www.unep.org/Law/PDF/UNEPEnv-LawGuide&PrincN05.pdf
4. Rio Declaration on Environment and Development // http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163
5. Шемшученко Ю.С. Екологічна Конституція Землі: від ідеї до практичного втілення // Вісник НАН України: http://www.nbuv.gov.ua/portal/All/herald/2007-09/a1-9.pdf - 2007. - № 9. - с. 4.
6. Ю. Туниця, Е. Семенюк, Т. Туниця. Діалектика глобалізації в контексті екологічного імперативу // Вісник НАН України: http://www.nbuv.gov.ua/portal/all/herald/2008-02/a2-1-n2.pdf - 2008. - №2. – с.с. 8 -24.
7. Шемшученко Ю.С. Екологічна Конституція Землі: від ідеї до практичного втілення // Вісник НАН України: http://www.nbuv.gov.ua/portal/All/herald/2007-09/a1-9.pdf - 2007. - № 9. - с. 5.
8. Шемшученко Ю.С. Екологічна Конституція Землі: від ідеї до практичного втілення // Вісник НАН України: http://www.nbuv.gov.ua/portal/All/herald/2007-09/a1-9.pdf - 2007. - № 9. – с.с. 6-7.
9. For more details, look at: http://iceac.sarenet.es/
10. Kyoto Protocol to the UN Framework Convention on Climate Change // http://unfccc.int/resource/docs/convkp/kpeng.pdf
11. Ю. Туниця, Е. Семенюк, Т. Туниця. Діалектика глобалізації в контексті екологічного імперативу // Вісник НАН України: http://www.nbuv.gov.ua/portal/all/herald/2008-02/a2-1-n2.pdf - 2008. - № 2. – с.с. 8 -24.
12. For more details, look at: Шемшученко Ю.С. Екологічна Конституція Землі: від ідеї до практичного втілення // Вісник НАН України: http://www.nbuv.gov.ua/portal/All/herald/2007-09/a1-9.pdf - 2007. - № 9. - c. 4.
13. For more details, look at: http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm
e-mail: achernous@yandex.ru
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