Year XXXIV, 1992, Number 3 - Page 240
Protection for Every Person and Nature under World Law
PAUL CLARK
The Mandate for Life on Earth is a world-wide grass roots campaign intended to reinforce the rights of the individual against environmental abuse and to enable ordinary people to make their voices heard on the environment at a global level. It is raising 100 million signatures on a document authorising the creation of new global institutional structures to be responsible for the conduct of the environment – including a World Court of Justice for the Environment. The campaign operates through over 200 organisations in over 60 countries.
Participating organisations represent a broad swath of society. They include the Young Men Christian Association (YMCA) of Canada and Young Women Christian Association (YWCA) International, the Spiritual Community of the Bahais of Great Britain, the Junior Chamber of Commerce in Japan, the World Wildlife Fund (WWF) in Australia and India, the Association of Young Environmental Workers in China, the Lions Clubs in Russia, the National Resources Board in Zimbabwe and the United Nations Association in Mongolia. The Secretary-General of the Earth Summit has endorsed The Mandate and has written his encouragement for its genuine grassroots participation in the Rio Conference.
A World Court of Justice for the Environment implies a new kind of jurisprudence for the environment. Existing international law for some of the most powerful countries, for example, regards the “global commons” – that is, the sea beds, the oceans, the atmosphere – as belonging to no one. What can be expected beyond competition, conflict and chaos as a consequence? So a saner environmental jurisprudence might start by enshrining in law the concept that the valuable “global commons” belong to everyone. That is just one example of how we need to rethink the way the environment can be protected by new legal concepts.
Another example concerns the role of cause and effect evidence. In organic systems and eco-systems, called by engineers non-linear systems, there is little hope in producing persuasive cause and effect evidence before irreversible damage may be perpetrated. The dolorous history of victims of tobacco use and their suppliers in courts of law, where few if any findings of liability have been established, is illustrative of the difficulty of establishing cause and effect in non-linear systems to the satisfaction of judges. It is in such cases that precaution should be exercised and a “precautionary principle” be established within global environmental law. Experience confirms that by the time cause and effect may be established damage has become irreparable.
The Mandate campaign also calls for a new institutional framework that offers global environmental protection. It is an open concept that allows the possibility of national/regional and public/private co-operation in new forms. It is worth considering the possibility of private participation at the global level. We observe that safe transport, safe homes and work places have evolved primarily as a result of that important eighteenth century social invention, insurance coverage. Such coverage was developed in a response to commercial demands apart from government.
Governmental regulation adds a necessary dimension in realising the full benefits of this social invention. The combination of insurance premiums and prosecutions for liability in a court of law have been fundamentally instrumental in securing accountability and safety in most domains of our lives. One might adopt a working rule, “If you cannot insure it, do not install it.”
We are working toward the recognition that common problems require common management. It is clear that we have common problems. It is also clear that we have no common management at the global level. We have national and international talk shops, study groups, scientific commissions and a surfeit of meetings: but no management structure. And if it is clear that we need effective, common management then such management means, in the parlance of the street, an institution with “jaws and claws.”
If we are really serious about management, that is doing instead of talking, then we know that international agreements, treaties, protocols and declarations that rest solely on consent and goodwill are problematic, especially in the face of serious environmental challenges that have the power to divide and divert us.
One of the tasks of such an institutional framework is to develop global standards about environmental factors. Take for example the issue of clean water. What does “clean” mean? It must have at least some 160 different meanings, one for each country. But if we can see the value of setting a world standard for television sets, for tetanus jabs, for automobile tyres, even for nuts and bolts, then how much more important it is that we should have a world standard for the meaning of clean water. This standard should be published and the performance of our governments in achieving those standards should also be openly published. There can be no accountability except under the rule of law.
Thus much of the message of the Mandate is accountability of institutions, public and private, under the rule of law. During this past year I have travelled five times around the world. Everywhere I sensed a growing feeling of profound injustice and inequity in relation to the opportunities that exist for development, environmental quality and personal well-being between the privileged peoples of the world and the two-thirds world. (I prefer to talk about the so-called ‘‘third world” as the “two-thirds world” – that keeps it in perspective. It also avoids the implied sense of hierarchy and keeps the focus on the objective fact that we are addressing those parts of the world where more than two-thirds of the human family dwells.)
To solve the common environmental problems that confront us will take a collective and co-operative effort on a scale that is almost unimaginable. It is a journey into completely new territory. It is like going to the moon. The old vehicles simply will not get us there. We can take an aircraft from any point on earth to any other, from pole to pole, right around the equator and all point in between, but no airplane will ever get us to the moon. For that a new vehicle is required.
We do have some ideas about the operating characteristics of such a new vehicle. We have learnt much that is useful in our individual development as nation-states. No mere rearrangement of existing systems will however solve our problems, any more than a mere rearrangement of the parts of an airplane will get us to the moon. Our challenge is just as daunting as that which faced the early scientists who were charged with the task of building a vehicle capable of flying to the moon.
Much of what we have learnt from our existing political and social institutions will also apply to a truly global institution. It surely must be accountable to individuals, open to the rule of law, and provide the means of obtaining justice to all. These are the basic themes of The Mandate.
The importance of accountability to ordinary people is best illustrated by the effects of environmental disasters. Be they in the form of nuclear accident or red tides or acid rain or deliberate military targeting (euphemistically called “resource denial”), they destroy the livelihoods of individuals, not governments – always individual fishermen, fanners, shepherds, foresters and industrial workers. Such incidents also destroy living things and their habitats for which there is no voice in a court of law.
People who live on the front line of environmental destruction, mainly those in the two-thirds world, whose natural bounty supplies the needs and appetites of the developed world, appreciate the situation with poignant intensity. They intuitively recognise the need for structural modifications in the global system of governance.
Protection of the “global commons” is the foundation for universal agreement. It is the ground on which we can begin to erect such global structures that will allow us, the whole human family, to protect ourselves in the face of vast environmental change while keeping to the principles of equity and justice inherent in our common humanity.
I was giving an interview for The Statesman newspaper in India December last when the reporter suddenly brightened. He exclaimed: “My God, what you are doing is Gandhian. Did you read him?” “Yes” I replied, “there is a Gandhian inspiration to the Mandate as we are expressing our collective support for a positive direction to the future that transcends all our individual, cultural and political boundaries.” We are saying, “You have our support if you go in this direction.”
It means taking responsibility for the direction we want to go rather than screaming at our leaders that we do not like the direction they are taking us. One hundred million people, saying to the leaders and the governments of the world: ‘‘We want you to take this route. You have our authority to do so and we will support you.”
This is a bottom-up approach to our common life. Politics os often a top-down approach where a few impose their programme on the many. To distinguish further The Mandate’s approach from the political, we might call it a social movement that empowers ordinary people to set the direction on the future.
There is good news about the availability of a working model of a World Court of Justice for the Environment. It is our own European Court of Justice. Individual nations empower it with shared sovereignty, decisions are binding on governments, individuals possess standing and it is accessible by all.
There is further good news that there exists a concrete outline for such a Court, thanks to the visionary and pioneering initiative of the Italian Supreme Court.[1] It is a document that can form the basis of serious treaty making efforts. We have concrete models and proposals to work from in building global structures that can respond to our most pressing needs. Mobilisation of popular support to those leaders and those countries who move in this preferred direction is also well underway. Reliable funding by universal taxation will ensure its independence from the influence of special interests.
We have enough in the way of models and proposals that are concrete enough to commence concrete work. Support for The Mandate and for the labours of Judge Amedeo Postiglione of the Italian Supreme Court is a worthwhile goal in advancing our collective objectives in securing our common future on the principles of democracy and the equal protection of law.
[1] Postiglione’s initiative, which is quoted below, aims to create an International Court of the Environment, with compulsory jurisdiction over all environmental controversies. [Ed.]
