It is growing; there are more than 40 global and regional conventions on resources management and conservation
Peter Send
PETER H. SAND is FAO Legal Officer, Environment Law. This article is based on a survey prepared in connection with the 1977 FAO report on The state of food and agriculture.
Environmental problems are not caused by natural or technological factors alone, but may be generated or aggravated by socio-economic factors. A well-known example is land degradation and desertification, where inadequate patterns of land and water management are often closely tied to the underlying legal structure of ownership and rights of use. Overintensive farming, for instance, may partly be a result of excessive fragmentation of holdings, due to existing land tenure and succession laws. Overgrazing may stem from traditional rights of land use insufficiently adapted to changing economic and demographic circumstances. The mutual legal claims of upstream and downstream water users, whether based on contiguity or acquired rights of use, may prevent optimal development of shared water resources. Similarly, the historical legal regime of the oceans raised the danger of overexploitation of common marine resources.
"Outdated" legal structures may thus act as constraints on the rational management of resources - though not necessarily so: many countries have begun to re-discover the advantages of adapting existing legal instruments to the new requirements of resource conservation and environmental protection; examples are the discharge permits required pursuant to the 1899 U.S. Refuse Act or the remedies for neighbourhood nuisances (troubles de voisinage) available under nineteenth century European civil codes, both of which have been turned into useful instruments of pollution control today.
The very multitude and diversity of laws applicable to natural resources and environmental matters, and the ensuing risk of overlapping or contradictory regulations on competences, have been recognized as a problem in most countries. While the need for coordination and administrative reorganization in this field is urgent, new integrated legislation should not be considered as a panacea. The effectiveness of modern environmental law depends to a large extent on sound "sectoral" legislation and administration for specific resources in such traditional fields as land and water law; forestry, fisheries and wildlife legislation; health and food regulation.¹
One of the shortcomings of past legislation for the conservation and protection of natural resources has been its predominantly negative and punitive approach. While legal restrictions are necessary to avoid overexploitation and interference by incompatible activities, legislation should do more than just prohibit pollution, hunting, or timber-felling. The need to combine sanctions with positive incentives to implement policy objectives, and the need to provide a legal basis for resource planning and management, arise both at the national and the international level. For example, the 200-mile extension of national jurisdiction over living marine resources, which is emerging from the Third U.N. Conference on the Law of the Sea, involves increased management responsibilities for coastal states and creates a need for review and harmonization of legal regimes and institutions.²
There is a close interrelation between national and international aspects also as regards the effects of legal rules on international trade. Strict environmental controls unilaterally applied to certain commodities and products in one country may seriously affect imports from other countries. In order to reconcile conflicting national laws and standards in this field, international efforts at harmonization are required, along the lines of the work already undertaken by the Joint FAO/WHO Codex Alimentarius Commission.³
As different countries share common problems of resource management and environment protection, they can share the experience acquired in coping with these problems and endeavour to develop mutually acceptable solutions. International exchange of information for this purpose includes legal data exchange. Several U.N. specialized agencies have for many years disseminated information on the current legislation of their Member States in such environment-related fields as health law (WHO International Digest of Health Legislation), and renewable natural resources law (FAO Food and Agricultural Legislation series). The principal aim of these information services is to bring innovative recent developments in national legislation to the attention of other interested countries, thereby facilitating also ongoing technical assistance activities. In 1976, FAO and UNEP initiated a joint experimental project for the cataloguing of such environmentally relevant legislative data by computer.4
GIRAFFE AND ZEBRA IN EAST AFRICA - environment law needs to be considered sectorally
A significant trend in both national and international law-making in this field has been the broadening scope of legal rules, from a "use-oriented" to a "resource-oriented" perspective.5 Some countries have attempted comprehensive codification of all rules relating to renewable natural resources and environment protection, in a single "environment code".6 Others, while retaining separate legal instruments for different categories of resources, have introduced substantive reforms, with a change in emphasis from the police functions to the management functions of the law and to new incentives for compliance;7 from classical nature protection to natural resources conservation;8 from water and air pollution controls to general antipollution acts ;9 from provisions for specific dangerous chemicals such as pesticides to the regulation of all potentially harmful substances ;10 and from laws protecting specific species of animals and plants to trade controls over primary and secondary products derived from them.11
At the same time, besides re-allocating administrative competences between existing and new institutions, a growing number of countries have enacted "framework legislation" laying down general policies and procedures for environmental management, including citizen participation in decision-making.12 The regulatory systems developed for this purpose usually require either special licences,13 or environmental impact statements,14 for all activities involving potential environmental risks. At the international level, a combination of legal restrictions with compulsory licensing and joint technical measures has been developed, e.g., for the control of waste dumping in ocean and inland waters.15 There also is a common tendency to establish - by law, and in some cases by international agreements - functional administrative units for ecological areas which are either particularly suitable for resource management (e.g., self-governing water basin authorities) or are particularly endangered (e.g., nature reserves and parks).
There now are more than 40 multilateral conventions dealing with natural resources management and conservation, especially of the marine environment. While a number of these treaties are global in scope (possibly culminating in a future convention on the law of the sea), the main advances in recent years have been made at the regional level. In particular, a number of new legal instruments were created, and existing agreements revised, for the joint management of inland water resources 16 and ocean fisheries 17 and for environment protection in special marine regions such as the Baltic, the Mediterranean and the Red Sea.18 Together with bilateral agreements on shared resources and transfrontier pollution, and with related declarations recommendations and standard-setting activities of several international and regional organizations, these instruments may be considered as part of the growing body of international environmental law.19 Besides serving as secretariat for several of the institutions concerned, FAO has contributed to the development of new methodological approaches in this field by way of information exchange, legal drafting assistance, and through the organization of expert meetings and intergovernmental conferences.20
¹E.g., see the following studies: Mifsud, F.M., "Customary Land Law in Africa", FAO Legislative Series No. 7 (1967); FAO/WHO Guidelines for Legislation concerning the Registration for Sale and Marketing of Pesticides (1970); Kropp, G., "Wildlife and National Parks Legislation in Asia", FAO Legislative Study No. 2 (1971); Christy, L.C., "Legislative Principles of Soil Conservation", FAO Soils Bulletin No. 15 (1971); Caponera, D.A., "Water Laws in Moslem Countries", FAO Irrigation and Drainage Paper No. 20/1 (2nd ed. 1973); Moore, G.K., "The Role of Administrative Action as a Tool in Water Pollution Control", FAO/EIFAC Technical Paper No. 18 (1973); Savini, M.J., "Report on International and National Legislation for the Conservation of Marine Mammals", Part I: FAO Fisheries circular No. 326 (1974); Gerard, A., "An Outline of Food Law: Structures, Principles, Main Provisions ", FAO Legislative Study No. 7 (1975); Prats-Llaurado J. & Speidel G., Estudio comparado de las administraciones forestales públicas de América Latina FO: MISC/75/22 (1975), Moses, W.R & Henderson, J.J., "Guidelines for Developing an Effective National Food Control System" FAO/WHO Food Control Series No. 1 (1976).
²See "Limits and Status of the Territorial Sea, Exclusive Fishing Zones, Fishery Conservation Zones and the Continental Shelf", FAO Fisheries Circular No. 127 (Rev. 2, 1975), and the reports of the FAO/SCSP Workshop on the Legal and Institutional Aspects of Fishery Resources Management and Development (Manila, April 1977), and of the FAO/CIDA Seminar on the Changing Law of the Sea and the Fisheries of West Africa (Banjul, September 1977).
³See Dobbert, J.P. "Le Codex Alimentarius: vers une nouvelle méthode de réglementation international" Annuaire français de droit international, vol. 15 (1969) p. 677, and the List of Standards Codes of Practice and other Documents already adopted by the Codex Alimentarius Commission and those under elaboration CX/GEN-75/1 (1975).
4See the Summary Report, Catalogue of Legislation on Environment and Natural Resources, FAO/UNEP loins Project No. FP 1302-75-02 (1977).
5E.g., further to the references in footnote 1 above, see Sandoval, M.T., "Legislación de Aguas en América Central, Caribe y Mexico", FAO Legislative Study No. 8 (1975); "Water Law in Selected European Countries", Vol. I, FAO Legislative Study No. 10 (1975).
6E.g., the 1974 Colombian Code of Renewable Natural Resources and Environment Protection, drafted with FAO/UNDP assistance; see Cano, G.J., "A Legal and Institutional Framework for Natural Resources Management" FAO Legislative Study No. 9 (1975).
7E.g., see the 1976 U.S. Fishery Management and Conservation Act; the 1976 U.K. Fishery Limits Act, and the 1976 Decree on Provisional Measures to Conserve Living Resources and Regulate Fishing in the Sea Areas Adjacent to the Coast of the U.S.S.R. On incentives in forestry legislation see Bombín, L.M., Incentivos económicos forestales en América Latina FO:MAFP/LA/75/4 (1975).
8E.g., the 1970 Natural Resources Conservation Act of Zambia.
9E.g., the 1971 Mexican Federal Act for the Prevention and Control of Environmental Pollution; and the 1974 German Federal Act on Protection from Environmental Nuisances.
10E.g., the 1973 Swedish Act on Products Hazardous to Man or the Environment; and the 1975 Canadian Environmental Contaminants Act.
11E.g., under the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora. A similar trend appears in the proposed 1976 amendments to the 1951 International Plant Protection Convention, and in recent national legislation such as the 1975 Trinidad and Tobago Plant Protection Act.
12See the surveys by Sand, P.H., "Legal Systems for Environment Protection: Japan, Sweden, United States", FAO Legislative Study No. 4 (1972); and Lutz, R.E., "The Laws of Environmental Management: A Comparative Study", American Journal of Comparative Law Vol. 24 (1976), p. 447.
13Procedure developed under the 1969 Swedish Environment Protection Act, and subsequently adopted, e.g., in the 1973 Danish Environment Protection Act, and the 1974 Malaysian Environmental Quality Act.
14Procedure developed under the 1970 U.S. National Environmental Policy Act, and subsequently adopted, e.g. in the 1974 Australian Environment Protection (Impact of Proposals) Act, and in the 1976 French Nature Protection Act and Philippines Env. Poll Decree.
15See the so called "black lists" and "grey lists" annexed to the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, or the 1976 Bonn Convention on the Protection of the Rhine against Chemical Pollution.
16See the report on "Management of International Water Resources: Institutional and Legal Aspects", U.N. Natural Resources/Water Series No. 1 (1975).
17See generally the "Report on FAO, the FAO Committee on Fisheries and International and Regional Fishery Bodies", FAO Fisheries Circular No. 331 (1975); and particularly the 1976 statutory amendments of the General Fisheries Council for the Mediterranean and the Indo-Pacific Fisheries Council.
18E.g., the 1976 Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, see "Protection of the Marine Environment against Pollution in the Mediterranean", FAO Fisheries Report No. 148 (1974).
19See Kiss, A.C. "Survey of Current Developments in International Environmental Law", IUCN Environmental Policy and Law Paper No. 10 (1976).
20FAO activities in environmental law are reported annually in the U.N. Juridical Yearbook, see vol. 1972, p. 61; 1973, p. 51; 1974, p. 67; 1975, p. 68.
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