International Environmental Law and the Achievement of Intragenerational Equity

Duncan A. French

Lecturer in law, University of Reading, United Kingdom (U.K.). The author can be reached at his e-mail d.a.french@reading.ac.uk. I would like to thank Professor Robin Churchill, Cardiff Law School, U.K., for reading an earlier draft. Part of this Article was also presented at the 2000 International Sustainable Development Research Conference, held at the University of Leeds, U.K. All errors and omissions remain my responsibility.

[31 ELR 10469]

This Article examines the relationship between legal constructions of equity and rules of international environmental law, with particular emphasis on the emerging concept of intragenerational equity as a significant element in the debate on the international attainment of sustainable development. On one level, the concept of equity has always been an integral part of human experience. At its core is the notion that human beings, both as individuals and as members of civil society, should "pay more attention to justice … [than] they are compelled to do by their situation."¹ In fact, it is no exaggeration to say that equity forms one of the very cornerstones of our modern liberal democracy. The term is often used as a synonym for basic notions of fairness and natural justice—the idea that human behavior is constrained by certain moral principles.² But this is not just a question of moral philosophy; the notion of equity also forms part of many states' political and legal systems. And at the international level, equity is increasingly relied upon both by the International Court of Justice (ICJ or the Court) and by the international community, more generally. Despite this, there is no agreed meaning of equity; in fact, due to its fluidity, it is very possible for it to possess differing, even contradictory, meanings. This is as true in international environmental law as in any other area in which equity is applied.

As will be discussed below, equity is used to mean different things in different contexts. On one level, equity is seen as being merely akin to general notions of fairness, such as the example of the 1992 United Nations (U.N.) Framework Convention on Climate Change demanding "equitable and balanced representation of all Parties" within its financial mechanism.³ However, on another level, equity has a central role within the concept of intergenerational equity—ensuring justice for future generations. While such a concept is also based on fairness, it is arguably of a fundamentally different order from that requiring equitable participation. Moreover, many developing states argue that equity can also justify substantive changes to the present international situation, i.e., that equity demands a fairer world order so as to benefit the poorer states of the world (the concept of intragenerational equity), which at its extreme some critics might term international socialism.

It is the aim of this Article, therefore, to explore the many different aspects of equity in international environmental law, in particular intragenerational equity. However, to place such an analysis in context, it is necessary to discuss other aspects of equity, including the jurisprudence of the ICJ on this issue and the principle of equitable utilization of shared natural resources, two areas in which equity has already been extensively applied.

Equity and International Jurisprudence

There can be little doubt that equity, in some form or another, is a principle of international law.⁴ Its use and endorsement by the ICJ has ensured that, in appropriate situations, it plays a pivotal role in judicial decisionmaking. However, the nature of equity in international law can only truly be understood when it is recognized that equity also forms a central part of many of the major municipal legal systems of the world.

This Article mentions two of these systems briefly, both of which originated in Europe—the common-law and civil-law traditions. Both systems endorse, in some form, the notion of equity. However, their approach to equity differs significantly. In the common-law system, as originally developed in England, equity is a separate system of law with its own normative status. Equity is not so much a principle, [31 ELR 10470] as a collection of rules. As Christopher Rossi notes, the "common law eventually freed equity from its restrictive function 'as a means of correcting specific laws' and in so doing, made equity 'an independent source of fresh rules of law' and indeed, a new system of law."⁵

The civil-law tradition, which was founded on the principles of Roman law, retained the notion that the purpose of equity was merely corrective, and therefore could not in itself be a separate source of law. The civil law, based as it is on the codification of rules in written codes, incorporates equity into its system by ensuring sufficient flexibility within its rules to allow "such discretionary practices" to be taken into account when applying the law.⁶ On the actual approach that the common-law and civil-law traditions adopt toward equity, therefore, there is an obvious and marked difference. Whereas the civil law incorporates the notion of equity within its substantive (written) law, within the common-law system equity is a separate, and supplemental, source of law that was originally intended to prevent injustices that arose because of the rigid application of common-law rules. However, on a conceptual level, the common-law and civil-law systems are not that different; ultimately, they both try to incorporate the notion of equity through the inclusion of flexibility within their regimes. As Rossi again notes, "much of the discussion about equity in the Western legal tradition stresses the differences between these systems without recognizing this important similarity."⁷

The relevance to international law of how the civil-law and common-law traditions approach equity will become self-evident as this Article discusses the jurisprudence of the ICJ. Of particular importance is Article 38.1(c) of the Statute of the ICJ, which states that "the general principles of law recognized by civilized nations" are a source of international law. It has always been debatable as to what was meant by this phrase, though the general consensus seems to be that it refers to those procedural rules of domestic law that are thought beneficial to the administration of international law. The extent to which equity falls within this definition is unclear. Conceptually, the use of equity in jurisprudence has often been divided into three types, or "modes in which equity can be applied"⁸: equity infra legem, equity praeter legem, and equity contra legem. A fourth form—a decision ex aequo et bono—is also thought by some commentators to reflect certain aspects of the notion of equity. It is necessary to discuss each briefly.

Equity infra legem refers to the situation faced by a court that has to choose between more than one interpretation of a legal rule; each interpretation being "acceptable from the legal point of view."⁹ Equity infra legem allows the court to determine which interpretation is the most just, "having regard to the circumstances and balancing the rights and obligations of the parties."¹⁰ In many ways this form of equity cannot be distinguished from the legal rule that it is helping to interpret. As Vaughan Lowe explains,

substantive legal norms purport to apply to abstract categories of persons or circumstances, and cannot be applied to a concrete case without some mediating act of characterisation which determines that the "facts" of the case fall within the ambit of the rule. This involves an exercise of judgment.¹¹

Therefore, in many ways equity infra legem is merely just another way of describing the ordinary process a court has to go through to arrive at its judgment. Moreover, on a closer analysis, equity infra legem has very little to say in substance as to how a court should decide between different interpretations of the law. There are various options open to a court—it could choose what it considers to be the most "just" interpretation, it could decide on a compromise interpretation, or it could choose the interpretation which endorses the result which the court wishes to achieve.¹² Equity infra legem, however, gives little guidance on this most important of issues. In fact, the most that can be said about equity infra legem is that it involves "considerations of fairness, reasonableness, and policy often necessary for the sensible application of the more settled rules of law."¹³

The second form of equity is equity praeter legem. It is based on the notion that there should not be "gaps" in the law, and that as regards the international community, equity should be utilized so as to provide a remedy to "the insufficiencies of international law and fill its logical lacunae."¹⁴ However, the role, even the very existence, of equity praeter legem is open to question. Some commentators would argue that there is no such thing as lacunae in international law; that rather, in the majority of cases, there are merely factual situations which require the "extension and application" of an already existing principle or rule.¹⁵ Lowe, for example, argues that there will always be "other techniques" to prevent the Court from having to admit a non liquet.¹⁶ Nevertheless, if what is meant by equity praeter legem is judicial innovation, it is simply impossible to deny that this does not occur. As Gerald Fitzmaurice notes, "it is … a truism that a constant process of development of the law goes on through the courts, a process which involves a considerable element of innovation."¹⁷

The third potential form of equity in judicial proceedings is equity contra legem. It is the notion that a court has the right to decide a case contrary to the relevant legal rules when it considers that such legal rules to be "unjust." Therefore, unlike the two forms of equity discussed above, equity [31 ELR 10471] contra legem is not concerned with "discovering" the correct legal rule for the situation, but with the much broader issue as to whether or not the rule in question is socially just. As Rosalyn Higgins notes, equity contra legem is "a softening of the … applicable norm, for extra-legal reasons."¹⁸ Whether or not this is equity acting as a means of "correcting" the application of a legal rule is unclear. It is one thing to interpret a rule in light of all legal considerations; it is, however, something totally different not to apply, or to "soften," the law for nonlegal reasons. It is therefore not surprising that some argue that there is very little difference between equity contra legem and a decision ex aequo et bono. A decision ex aequo et bono is one that is decided outside the confines of the rules of law. Article 38.2 of the ICJ Statute allows the Court to make such a determination, but only where the Parties to an action so allow. The implication of Article 38.2 is that the Court is acting in a nonlegal capacity.¹⁹ But if this is true, no sensible distinction can really be made between that situation and equity contra legem.²⁰ Both involve giving primacy to extralegal considerations over normative rules. And if equity really is a principle of international law, it is even more difficult to justify equity contra legem.²¹

In conclusion, it is clear that numerous meanings can be given to the legal notion of equity. However, the subdivision into various "forms" of equity is, in many ways, rather artificial as, in practice, the ICJ will usually utilize the principle without referring to any particular conceptual understanding of the term. Moreover, as will be seen in the next few paragraphs, the ICJ has been neither consistent nor uniform in its approach to equity.

The role of equity in the jurisprudence of the ICJ, and before that, in the Permanent Court of International Justice, has had an uneven history. Ever since the Meuse Case²² in 1937, where it was suggested that principles of equity are "part of international law," there has been a doctrinal division between those who endorse the role of equity in international law, and those who take a more critical approach. However, it has only been more recently, with the plethora of cases on the delimitation of the continental shelf, that the whole Court has had the opportunity to discuss in detail the use of equity in international law. The issue in question before the Court was what principles and factors are relevant in determining the boundaries between two or more states that share a subterranean continental shelf. Despite the absence of guidelines in customary international law on this issue, the Court has felt sufficiently confident to lay down what it considered to be relevant considerations.

It has been suggested that the Court's jurisprudence on this issue can be divided into two time periods.²³ The first, pre-1982, is exemplified by the ICJ's suggestion that such delimitation should be decided "in accordance with equitable principles, and taking into account all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory under the sea."²⁴ During the second period, post-1982, the ICJ took a broader approach to the issue, holding that the ultimate aim in delimiting the continental shelf was to "arrive at an equitable result."²⁵ ThomasFranck and Dennis Sughrue argue that the approach to customary international law taken by the Court during these two periods reflected, to a large extent, the treaty provisions of the time. Prior to 1982, and despite the ICJ holding that the rule was not part of customary international law, the actual approach taken by the Court in the North Sea Continental Shelf Cases²⁶ largely reflected Article 6.2 of the 1958 Geneva Convention on the Continental Shelf, which stated that "unless another boundary line is justified by special circumstances, the boundary is the median line."²⁷ However, since 1982 and following the adoption, though not the entry into force, of the 1982 U.N. Convention on the Law of the Sea (UNCLOS),²⁸ the ICJ has argued that Article 83.1 thereof is reflective of customary international law. Article 83.1 states "delimitation … shall be effected by agreement on the basis of international law … in order to achieve an equitable solution." Whether or not one agrees with this analysis of the case law, it is certainly clear from the ICJ's jurisprudence that the majority of the Court has endorsed the role of equity as a core principle of international law. As the Court recognized in the North Sea Continental Shelf Cases, "it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas that have always underlain the development of the legal regime."²⁹

In a clear attempt to distinguish equity from a decision ex aequo et bono, the Court has consistently emphasised the "legal nature" of equity. This was again reiterated in subsequent cases³⁰ as the Court sought to appease critics, both from within and outside the ICJ, who argued that equity was not only an arbitrary tool, but one that was being used in a [31 ELR 10472] nonlegal fashion.³¹ A full analysis of the continental shelf cases is beyond the scope of this Article; however, there are a number of issues that are pertinent to a discussion on the use of equity in international environmental law. The first is the question as to which considerations are important in determining the factual situation. Whilst it is true that equity requires all relevant considerations to be taken into account, such a truism is rather unhelpful.³² The ICJ in Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta)³³ noted on this point that

although there may be no legal limit to the considerations which States may take into account of, this can hardly be true for a court applying equitable procedures. For a court, although there is assuredly no closed list of considerations, it is evident that only those that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation will qualify for inclusion.³⁴

In terms of the continental shelf, the ICJ has considered a whole range of "considerations." For example, in the North Sea Continental Shelf Cases, the ICJ paid particular attention to three factors, namely geology, "the desirability of maintaining the unity of natural resource[s]," and trying to ensure a certain proportionality between the length of the coastline and the size of the continental shelf.³⁵ Moreover, in the Jan Mayen Case³⁶ between Denmark and Norway, the ICJ considered, but did not necessarily endorse, a much wider list of criteria, including geographical context, proportionality, population, socioeconomic factors, national security, and cultural heritage.³⁷

It is important to note, however, that the Court has tried to distinguish between equitable considerations, such as those mentioned above, and equitable principles that provide guidance on the whole process. Farhana Yamin argues that there are, at least, six such principles, as follows:

. the principle of good-faith negotiations which obliges parties to enter into negotiations with a view to arriving at an agreement.

. The principle to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied.

. The principle of not "refashioning geography or compensating for the inequalities of nature."

. The principle of nonencroachment by one Party on areas appertaining to the other.

. The principle that although all states are equal before the law and entitled to equal treatment "equity does not necessarily imply equality."

. The principle that "there can be no question of distributive justice."³⁸

The last principle, that the Court is not concerned with distributive justice, is the second issue that is pertinent to the use of equity in international environmental law. The ICJ has consistently held that its role is one of delimitation, not one of allocation. The Court has continually emphasized the point that all it is doing is delimiting the boundary between two or more states. As the ICJ said in the North Sea Continental Shelf Cases, "delimitation … [is] not the determination de novo of such an area," in rebutting West Germany's claim to a "just and equitable share" of the continental shelf.³⁹ While this must be correct, it cannot be denied that such delimitations do have economic consequences. A further issue therefore arises as to whether or not socioeconomic considerations are relevant factors to be taken into account in delimiting the continental shelf. The ICJ has consistently rejected such arguments. It stated in Tunisia v. Libya⁴⁰ that as "a country can be poor today and become rich tomorrow," economic considerations are not static and therefore are subject to change. Likewise, in Libya v. Malta,⁴¹ the Court was not persuaded by Malta's arguments that it was, as a developing island state, disadvantaged by the lack of resources which that entailed. In what seemed to be setting out a general principle the Court noted that "it is clear that neither the rules determining the validity of legal entitlement to the continental shelf, nor those concerning delimitation between neighbouring countries, leave any room for any considerations of economic development of the States in question."⁴²

However, notwithstanding this, a chamber of the ICJ in the Gulf of Maine Case⁴³ (which involved delimitation not only of the continental shelf, but also the exclusive economic zone) suggested that there may well be extreme situations where it would be appropriate to take economic considerations into account. The example it gave was where a particular delimitation would "entail … disastrous repercussions on the subsistence and economic development" of certain communities.⁴⁴ The importance of this admission is that it undermines the argument of those who would suggest that the ICJ has completely ruled out any connection between the notion of equity and intragenerational distribution.⁴⁵ This is an issue to which this Article returns to hereinbelow.

[31 ELR 10473]

The third aspect of the ICJ's jurisprudence relevant to international environmental law is that the role of equity in international law is not without its critics. It would therefore not be wise for the international community to import wholesale the notion of equity from the jurisprudence of the ICJ into a variety of other situations, in particular climate change and the attainment of sustainable development, without taking note of the criticisms. Numerous judges of the ICJ have, over the years, issued dissenting judgments that flatly reject the incorporation of such flexibility into international law.⁴⁶ Judge Gros, for example, in the Gulf of Maine issued a stinging attack on the chamber's attempt to reach an "equitable solution." This search for equity had, he argued, become "an equity beyond the law, detached from any established rules, based solely on whatever each group of judges seised of a case declares itself able and free to appreciate in accordance with its political or economic view of the moment."⁴⁷

Indeed, the whole Court has held on certain occasions that equity may be of limited use in certain situations. In Burkino Faso v. Mali,⁴⁸ for instance, where the dispute arose over a territorial border on land, the ICJ noted that while equity did not always mean equality, "where there are no special circumstances the latter is the best expression of the former."⁴⁹ In addition, "resort to the concept of equity in order to modify an established frontier would be quite unjustifiable."⁵⁰ It therefore seems quite clear that although the jurisprudence of the ICJ on the delimitation of the continental shelf has enlarged our understanding of the notion of equity in international law, it has raised as many questions as it answers. Moreover, there seems to be a tendency to overuse the term "equity" whenever legal rules permit flexibility. As Higgins noted, "the factors that are termed 'equitable principles' … are really no more than a compendium of somewhat disparate principles … [and because they are] … the normal tools of judicial decision-making, [they should] require no classification as 'equitable principles.'"⁵¹

Notwithstanding the continued debate as to the nature and extent of equity in international law, the decisions of the ICJ have become an essential contribution to the jurisprudence on this issue. However, one of the most important points made by the ICJ is that there is a fundamental difference between the way that a tribunal is obliged to deal with the notion of equity and the way states are allowed to approach thesubject. As was said in the Court's decision in Libya v. Malta, "there [is] no legal limit to the considerations which States may take into account."⁵² This may well prove an important point considering the amount of discretion given to the Conference of the Parties under the Climate Change and Biodiversity Conventions. And as the next section on equitable utilization notes, the various definitions given to this notion differ significantly from the approach usually taken by the ICJ.

The Emerging Principle of "Equitable Utilization"

A further use of equity in international law has been the development of the principle of equitable utilization as a means of allocating, between states, the rights to a shared natural resource. It is an attempt to ensure that in determining the allocation and utilization of a particular natural resource, the interests of all states involved are taken into account. The principle, as originally understood, was primarily used in the areas of international watercourses and marine resources.⁵³ It has since been applied to the utilization of other natural resources, including the ozone layer,⁵⁴ and was an important aspect of the negotiations at the 1992 U.N. Conference on Environment and Development at Rio de Janeiro (UNCED). It is therefore useful to discuss briefly the early development of the principle, primarily in the context of shared watercourses.

One of the first attempts to codify equitable utilization was in the nonbinding Helsinki Rules adopted by the International Law Association (ILA) in 1966. This set of principles concerned the rights and responsibilities of riparian states over a common watercourse. The basic rule, as contained within Article 4, was that each riparian state had a right to a "reasonable and equitable share in the beneficial uses of the waters."⁵⁵ The formulation of this rule was an attempt to try to derive a general principle from the disparate collection of regional treaties, judicial pronouncements, and academic writings on the subject.⁵⁶ Moreover, the principle of equitable utilization was meant to be a balance between two extreme viewpoints, namely, the "territorial sovereignty" and "territorial integrity" arguments. Territorial sovereignty—otherwise known as the Harmon Doctrine—was the concept that a state had an unlimited right to do whatever it wished to water that passed through its territory, regardless of the consequences for other riparian states.⁵⁷ The notion of territorial integrity, on the other hand, was the counter viewpoint, that a riparian state could not interfere with the flow or quality ofthe water without the consent of the other states affected. Neither of these concepts has ever really had much support within the international community, as riparian states recognized the unrealistic nature of both views.⁵⁸

[31 ELR 10474]

Despite this, it has not been easy for the international community to come to a consensus on how to ensure the necessary balance between the interests of different states. The International Law Commission worked on this issue for many years,⁵⁹ and despite coming to similar conclusions to the ILA as regards the applicability of the notion of equitable utilization, it was only in 1997 that the international community adopted a general treaty on the issue. Article 5 of the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses⁶⁰ sets out the basic principle that "watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner."

This basic rule is supplemented by Article 6, which lists some of those factors that may be relevant to a determination as to whether or not a particular utilization is "equitable and reasonable," specifically:

Article 5 requires taking into account all relevant factors and circumstances, including:

(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;

(b) The social and economic needs of the watercourse States concerned;

(c) The population dependent on the watercourse in each watercourse State;

(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;

(e) Existing and potential uses of the watercourse;

(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;

(g) The availability of alternatives, of comparable value, to a particular planned or existing use….

The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.⁶¹

These provisions are extremely important, as they represent one of the best descriptions in conventional international law of the type of factors that must be taken into account to arrive at an "equitable" solution. Of particular note is the endorsement that socioeconomic and population factors are relevant considerations in determining whether or not a particular utilization is equitable. Unlike the rejection of such factors by the ICJ in its discussion of the delimitation of the continental shelf, the principle of equitable utilization seems to require the consideration of a much broader ranger of characteristics before a determination can properly be made.⁶² It presumably allows a developing state to argue that its current socioeconomic position requires a more judicious utilization of the watercourse than might otherwise be the case. Of course, such an argument will not alone be sufficient to justify a particular utilization, as socioeconomic need is merely one of a number of factors to be taken into account, but at least these provisions ensure its consideration.

Moreover, by incorporating the notion of equity into such a treaty, the legal regime established thereunder, in this case a regime governing the non-navigational uses of international watercourses, retains a flexibility and relevance which might otherwise have been lost if the Parties had tried to negotiate precise rules on the issue. As Philippe Sands notes, "in the absence of detailed rules, equity can provide a conveniently flexible means of leaving the extent of rights and obligations to be decided at a subsequent date."⁶³

However, notwithstanding the benefits of such flexibility, there is a potential conflict between the principle of equitable utilization and the objective of environmental protection. In effect, which takes priority—environmental protection or equitable utilization? Does environmental protection act as a limitation on the principle of equitable utilization so as to prevent ecological harm, or is it, in fact, merely another consideration to be taken into account in arriving at an equitable solution? If the former interpretation is correct, environmental protection has a priority status over all other considerations, thus capable of preventing environmentally damaging, but otherwise reasonable, activities. If, however, the latter interpretation is right, the long-term existence of a shared natural resource is jeopardized as environmental protection is not guaranteed. Initially, there was no general answer to this issue. Each legal regime that permitted equitable utilization had to decide for itself what emphasis to place on environmental protection.⁶⁴ However, more recently, there has been a general trend toward adopting a more environmentally sensitive approach to resource utilization, as highlighted by the adoption of the 1992 Convention on Biological Diversity.

As regards international watercourses, Article 5 of the 1997 Convention qualifies the right of a state to equitable utilization of a watercourse by stating that such use must be both "sustainable" and "consistent with adequate protection of the watercourse."⁶⁵ Moreover, there are a number of other [31 ELR 10475] articles that are devoted solely to ensuring the prevention of harm. These include Article 7.1, which lays down a general obligation on all Parties to "'take all appropriate measures to prevent' significant harm to other watercourse States,"⁶⁶ Article 20, which requires the preservation of watercourse ecosystems, and Article 21, which obliges states to "prevent, reduce and control pollution." As freestanding obligations, they are independent of the provisions on equitable utilization, and could therefore be violated despite the fact that an activity was supposedly an equitable utilization of the watercourse. Therefore while "equitable utilization may be relied on to determine the permissibility of pollution injury falling below the threshold of serious or significant harm, [it does not] excuse injury above that threshold. Such injury will itself be inequitable."⁶⁷

Moreover, the notion of equitable utilization has received new impetus since the elaboration of the concept of sustainable development by the international community. As discussed later, equitable utilization is an important element in the attainment of the wider ideal of intragenerational equity.⁶⁸

Equity: An Integral Aspect of Sustainable Development

One of the most interesting aspects of the negotiations leading up to and during UNCED was its use of the notion of equity as an integral part of the compromise reached between developed and developing states.⁶⁹ In fact, all five texts agreed at the conference in 1992 included references to the term "equity." As regards the nonbinding documents, the Rio Declaration talks of a "new and equitable global partnership,"⁷⁰ and how the "right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations"⁷¹; Agenda 21 highlights the fact that the development of a new global partnership was "inspired by the need to achieve a more … equitable world economy"⁷²; and the Forest Principles state that the "benefits associated with forest conservation and sustainable development … should be equitably shared" by all states.⁷³ In a similar vein, the Climate Change and Biodiversity Conventions both contain numerous references to equity. The Climate Change Convention, for example, requires all parties, in achieving the ultimate objective of the Convention, to be guided on "the basis of equity."⁷⁴ Moreover, notions of equity are also relevant in determining the "equitable and appropriate contributions" of developed state Parties in reducing the buildup of greenhouse gas emissions,⁷⁵ and in ensuring "equitable and balanced representation" in the governance of the Financial Mechanism.⁷⁶ The Biodiversity Convention, on the other hand, uses the term much more sparingly, requiring the "fair and equitable sharing" of benefits arising from the use of genetic material between the state permitting the research and the state from which the material originally came.⁷⁷ These benefits include the results of subsequent research and development, the "commercial and other utilization of genetic resources,"⁷⁸ and the "results and benefits arising from biotechnologies."⁷⁹

Despite the problems inherent within an indeterminate notion such as equity, it is obvious that the international community attached great importance to the principle in its attempts to attain sustainable development. However, it is not at all clear as to why it was used so frequently. In fact, many commentators would argue that during the negotiations leading up to the conference, the international community paid scant regard to the actual implications of utilizing equity. As Sands noted: "Little consideration was given … to what the concept means or to its consequences when applied to a particular set of facts. Indeed, the way it was sometimes referred to suggests that some of its main proponents had little understanding of its prior use in international law."⁸⁰

Notwithstanding such criticism, this author believes that there are four interrelated reasons as to why the international community was so eager to use a term that had so far received little usage in international environmental law. First, the texts agreed at UNCED are not simply concerned with the issue of environmental protection, but rather, the much [31 ELR 10476] broader topic of sustainable development. Issues of economic development, social progress and human advancement are also essential objectives, which the international community is seeking to achieve alongside environmental protection. Equity is, therefore, a means of achieving numerous objectives at once, by requiring the international community to take into account all the relevant considerations when coming to a decision on the best practicable option. However, as none of the UNCED texts include a definition of "equity," there is no set list of considerations that states must take into account when deciding upon an equitable solution. Moreover, as such decisions are being taken by states and not by the ICJ, it will be very difficult to place restrictions upon which factors they might consider relevant. As Yamin notes as regards the Climate Change Convention, "it is ultimately for the … [Conference of the Parties] to decide what the relevant factual circumstances are bearing in mind that it must be guided by the Convention's legal provisions as to what is or what is not relevant."⁸¹

While this is undoubtedly true, it is also very obvious from a reading of the Climate Change Convention text that as many of its provisions are ambiguous—particularly the wording of the preamble, the ultimate objective (Article 2)⁸² and the list of guiding principles (Article 3)—it will be very difficult for a state to argue that something is not legally relevant. Equity will require the "consideration of all factual circumstances, including technological and scientific ones."⁸³ In fact, seen in this light, equity is a very useful way of implementing the principle of integration,⁸⁴ as it requires the international community to adopt a much broader and more holistic approach to environmental issues than previously was the case. And this must surely be correct if international environmental law is to evolve into "international law in the field of sustainable development."⁸⁵

A second and related reason for the use of equity at UNCED was that it introduced flexibility and a certain level of adaptability into international environmental law, both in terms of the way existing standards are implemented, and in the way new commitments are developed. Such flexibility allows the international community, and where conventions have been adopted, the meetings of the Conference of the Parties, to continually work together to improve their understanding on an issue and to discuss how they might go about resolving problems, without being constrained by the existence of overly detailed rules, which may prove difficult to amend. The use of equity can be, therefore, one way of ensuring responsive and well-informed international law.⁸⁶ Such flexibility was particularly evident during the negotiations that led up to the 1997 Kyoto Protocol, when developed state-Parties agreed to differentiated emission reduction objectives.⁸⁷ Of course, the extent to which such differentiation was based on relevant equitable factors, and the extent to which it was based on pure political considerations, is unclear. But, in a voluntary system of international governance as presently exists within the international legal regime, it will always be very difficult to distinguish between the two. Equity, as well as allowing flexibility, inevitably also permits political maneuvering. This, however, is less a problem with equity than with the whole structure of international law.

The third reason for the use of equity at UNCED was that it allowed states to agree to a text, despite the fact that many controversial aspects remained unresolved. Though many states retained grave misgivings about some of the obligations, they were able to endorse the text, as the notion of equity allowed them to accept the basic framework of the document without necessarily having to make a final decision on the nature and extent of all the provisions contained therein. Equity was simply a means of postponing difficult negotiations to some future meeting. As Sands notes, "its frequent usage reflects a lack of consensus (as opposed to the existence of consensus) in efforts to allocate rights and responsibilities with differing levels of economic development and perspectives on their future needs and priorities."⁸⁸

[31 ELR 10477]

Through the notion of equity, states could agree to disagree—with all sides of the debate knowing that they could claim success as very little had actually been decided on the most controversial issues. The use of equity was particularly useful in the North-South context, in which compromise between polarized views was inevitably a long-term objective that could not be achieved by the time of the adoption of the texts. In such cases, equity (along with semantic vagueness and intentional generality) supplied the necessary ambiguity, which would not only encourage all sides of the debate to participate in the process, but would assist the future negotiations by providing a broad framework from which to begin. Equity has become, therefore, an important tool in the negotiation of multilateral environmental agreements and soft law instruments.

The fourth reason for the use of equity at UNCED was that it allowed international environmental law to integrate more fairly the needs and interests of developing states into its provisions. This is particularly the case with those obligations that require either equitable representation within institutions, or the equitable sharing of benefits. And while there is usually no substantive guidance on what such obligations might mean, and it is very possible for equity not to mean equality, such obligations are welcomed by developing states as they are usually a significant improvement on the current situation between North and South. In fact, as equity may well require that the socioeconomic and population facts of developing states be taken into account before a final decision is made, as in the case under the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses.⁸⁹ An equitable solution may even result in preferential treatment for developing states.

The inclusion of the principle of equity in international environmental law and policy has therefore given developing states a platform from which to argue for greater participation in, and benefits from, the global search for sustainable development. Moreover, the use of equity in environmental agreements and soft law instruments reflects a broader attempt by the international community to incorporate the interests of developing states into international environmental law and policy. The introduction of differential standards between developed and developing states, and the provision of financial and technological assistance, are other examples of the same trend.⁹⁰ However, there is an argument that the concept of sustainable development demands further and much greater changes to the structure of the international community than those presently contained within international obligations. In effect, sustainable development is unachievable without the fulfilment of intragenerational equity.

Intragenerational Equity: A Model for True Sustainability?

The notion of intragenerational equity is a relatively new concept within international environmental policy. It is based on the premise that the international community must cooperate to achieve greater parity between the socioeconomic development and environmental protection of all states. At its core is a concern for the promotion of international social justice in order to achieve sustainable development. It is an attempt to incorporate wider issues of economic and social progress into the developing legal framework of "international law in the field of sustainable development." While no treaty has yet referred to "intragenerational equity" per se, this should not be taken as an indication that it is only of marginal importance to the attainment of sustainable development. In fact, it is arguable that without intragenerational equity global environmental protection will be impossible to achieve. Attaining equity between states is considered to be a core principle of sustainable development—one that is central to the international community's attempt to integrate the objectives of economic development and ecological preservation.⁹¹

However, it is not at all clear what intragenerational equity actually means, or how it is to be implemented. It inevitably involves ensuring a fairer and more just international community than currently exists, but it is unclear whether this merely requires additional preferential treatment for developing states, or whether it involves a much more radical alteration to the present world order. The final section of this Article will therefore introduce this emerging notion of intragenerational equity, and examine such issues as its conceptual roots, its present status, and what it might actually entail in practice.

Despite being a relatively new concept, many of the ideas behind intragenerational equity have a long history in international law and policy. In particular, there are two trends in international law and jurisprudential thinking that can be viewed as having a direct impact on the notion of intragenerational equity; first, the desire to protect the environment for humankind, regardless of whether they be present or future generations (the notion of intergenerational equity), and second, the emergence of the notion of equity as an aspect of the New International Economic Order (NIEO), as argued for by developing states, particularly in the 1970s. Despite being conceptually discrete, they have both had important roles in the development of the concept of intragenerational equity as a means of achieving the wider goal of sustainable development.

Intergenerational Equity

Intergenerational equity is the notion that the international community is under a moral, even possibly a legal, obligation to protect and preserve the environment and its natural resources for present and future generations. Whilst it is an overtly anthropocentric notion, intergenerational equity can, however, be interpreted within a broader ecological context. As Edith Brown Weiss noted, "it is certainly true that [intergenerational equity] … is concerned with equity among generations of the human species. But it is equity with regard to the care and use of the planet, which is explicitly rooted in the recognition that the human species is part of the natural system."⁹²

Much of the theoretical work on the nature and extent of intergenerational equity has only been undertaken within [31 ELR 10478] the last two decades; however, the idea that the international community is under an obligation to take into account the interests of mankind has been noticeable in international law for over 100 years. The United States, for example, argued during the Bering Sea (Pacific) Fur Seals Arbitration⁹³ that it was conserving the seals in "the common interests of mankind." While not explicitly saying so, the United States surely intended "mankind" to be understood so as to include what Christopher Stone calls both "spatial strangers" (members of the present generation) and "temporal strangers" (members of future generations).⁹⁴ Since that time, the notion of protecting the environment for present and future generations has appeared occasionally in international environmental law. Instances include the 1946 International Convention for the Regulation of Whaling,⁹⁵ the 1968 African Convention on the Conservation of Nature and Natural Resources,⁹⁶ and the 1972 World Heritage Convention.⁹⁷ However, it was its inclusion in the 1972 Stockholm Declaration⁹⁸ that ensured intergenerational equity became a basic precept of international environmental law, and more recently, sustainable development. Principle 1 of the Rio Declaration states that "man … bears a solemn responsibility to protect and improve the environment for present and future generations."⁹⁹

Since that time, the notion has been incorporated within a number of important environmental texts, including the 1982 World Charter for Nature,¹⁰⁰ the 1991 Madrid Protocol on Antarctica¹⁰¹ and all the texts adopted at UNCED. Thus, the Rio Declaration notes in Principle 3 that present and future generations have both "developmental and environmental needs."¹⁰² Agenda 21 states that one of the central goals of national sustainability strategies should be to protect "the resource base and the environment for the benefit of future generations" whilst simultaneously encouraging "socially responsible economic development."¹⁰³ The Forest Principles, in a similar vein, note that forest resources should be managed in order to ensure the "social, economic, ecological, cultural and spiritual human needs of present and future generations."¹⁰⁴ Moreover, the preamble of both the Climate Change and Biodiversity Conventions include references to present and future generations.¹⁰⁵ In addition, Article 3 of the Climate Change Convention, which contains the principles that should guide state Parties in the attainment of the ultimate objective of the convention, includes, as its very first principle, the notion that the climate system should be protected "for the benefit of present and future generations of humankind."

Although such references are important in terms of the development of a coherent global environmental philosophy, there has been little discussion at governmental levels of what "practical consequences might flow from a recognition of the needs of future generations."¹⁰⁶ Moreover, "the principle appears to have been accepted as an article of faith, drawing on pre-existing language in earlier treaty and other soft-law developments."¹⁰⁷ This should not, however, be taken to mean that intergenerational equity does not potentially have legal implications. There have been, for example, a number of judicial decisions that have mentioned the concept, principally Request for an Examination (New Zealand v. France),¹⁰⁸ The Gabcikovo-Nagymaros Project (Hungary v. Slovakia),¹⁰⁹ and Minors Oposa v. Secretary of the Department of Environment and Natural Resources.¹¹⁰ The first two were cases decided by the ICJ, the third by the Supreme Court of the Philippines. As regards the two international decisions, the notion of intergenerational equity was mentioned both times in the individual opinions of Judge Weeramantry, who was serving as vice president at the time of The Gabcikovo-Nagymaros Project. It is quite clear that he regards intergenerational equity as having legal consequences. He noted in Request for an Examination that

the case before the Court raises, as no case ever before the Court has done, the principle of intergenerational equity—an important and rapidly developing principle of contemporary environmental law…. If this Court is charged with administering international law, and if this principle is building itself into the corpus of international law, or has already done so, this principle is one which must inevitably be a concern of this Court. The consideration involved is too serious to be dismissed as lacking in [31 ELR 10479] importance merely because there is no precedent on which it rests.¹¹¹

This part of his speech was in response to New Zealand's argument that not only would its present population be affected by France's nuclear testing in the South Pacific, but that the testing would affect the "rights of unborn posterity."¹¹² Weeramantry felt that this part of New Zealand's argument was an "important aspect not to be ignored."¹¹³ Similarly in the later case of The Gabcikovo-Nagymaros Project, Vice President Weeramantry noted:

As modern environmental law develops, it can with profit to itself, take account of the perspectives and principles of traditional systems…. Among those which may be extracted … are such far-reaching principles as the principle of trusteeship of earth resources, [and] the principle of intergenerational rights….

We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare.¹¹⁴

These are important pieces of judicial dictum, but they have not, so far, been endorsed by the whole Court—nor, realistically, is it likely that they will be within the foreseeable future. Weeramantry's views will remain, therefore, de lege ferenda. However, of equal, if not of more, importance is the decision of the Supreme Court of the Philippines in the 1993 decision Minors Oposa. The case involved an application by a group of children represented and joined by their parents seeking the discontinuance of existing and future timber licenses on the grounds that deforestation was causing environmental damage. The case is important for a number of reasons; in particular, the Court had to decide whether it was possible for the petitioners to have locus standi to represent both the present generation and future generations. The trial judge rejected such a proposition; however, the Court, in reversing that decision, adopted a much more radical approach:

This case … has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right … considers the "rhythm and harmony nature" … [and requires] that … [the] … exploration, development and utilization … [of the environment] … be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony…. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.¹¹⁵

The thinking behind the decision in Minors Oposa, while radical and, in many ways, unprecedented, was not, however, original. Much theoretical work was already underway on what the notion of intergenerational equity might entail. One of the foremost proponents of the notion was Professor Edith Brown Weiss, whose 1989 book In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity remains a seminal text in the area.¹¹⁶ She suggests that the present generation holds the planet on trust for future generations, but as "beneficiaries" of an earlier generation itself, the present generation is entitled to "enjoy the fruits of this legacy."¹¹⁷ There is, therefore, a mutuality of obligations and rights between generations as all generations hold the planet "as a partnership."¹¹⁸ As she comments,

in order to define what intergenerational fairness means in using and conserving our common patrimony, it is useful to view the human community as a partnership among all generations…. Given these circumstances, each generation [must] pass the planet on in no worse condition than it received it….¹¹⁹

Brown Weiss' work is largely the result of the 1987 report of the World Commission on Environment and Development, Our Common Future, and in particular its definition of sustainable development, which states that the needs of future generations must not be "compromised" as a result of development in the present generation. Brown Weiss divides intergenerational equity into three fundamental elements.¹²⁰ First, there should be "conservation of options" for future generations, in that the diversity of the resource base should be conserved so as to allow future generations to have the freedom to make their own choices. As Brown Weiss notes, future generations "should be entitled to diversity comparable to that of previous generations."¹²¹ Second, there should be "conservation of quality," in that the environment should be passed on to the next generation in the same condition as when the present generation received it. It requires that each generation maintain the quality of the environment during its period of trusteeship.¹²² Finally, there should be "conservation of access"—all members of the present generation should have equitable access to natural resources. It is this third aspect, "conservation of access," that is most closely [31 ELR 10480] associated with intragenerational equity.¹²³ As Brown Weiss notes, "in the intragenerational context, conservation of access implies that all people should have a minimum level of access to the common patrimony."¹²⁴

While the notion of conservation of access is premised on the principle of ensuring maximum equality between members of the present generation, it is not at all clear as to what such equality entails. As Brown Weiss is forced to ask rhetorically, would it be a more equal world if the majority of people had the same income—inevitably smaller than the incomes some richer members presently receive—or would it be more equal if there was merely less income differential than is presently the case?¹²⁵ Such an issue goes to the core of intragenerational equity as it involves the question as to whether equity merely requires greater fairness between North and South, or whether it demands broader notions of distributive justice. However, whatever the meaning of "equality," it is clear that the richer states have additional responsibilities in fulfilling the intergenerational obligations of the present generation. "Members of the present generation must not degrade the patrimony available, and to the extent that some members are too improverished to have effective access, the others must assist them to gain such access."¹²⁶

Ensuring intergenerational equity between generations further justifies, therefore, the existence of differentiated obligations between North and South. Developed states are required to provide assistance to developing states so as to guarantee conservation of access for all members of the present generation,¹²⁷ because it will only be through such equitable access that the poorer communities will have the ability to meet their own conservation obligations to future generations. As Lothar Gundling points out, "without equity within the present generation … equity among generations" will be unachievable.¹²⁸ In fact, some have taken this argument one step further and argued that by favouring the "contemporary poor," action by the present generation will also benefit "temporal strangers." Stone, for instance, argues that as expenditure on developing countries in the present generation provides huge "opportunities for abnormally high social rates of return on investments," such expenditure will also inevitably be of benefit to future generations.¹²⁹

So, what actions by the current rich would benefit the current poor, while at the same time also be advantageous to the future? Ajai Malhorta, for example, thinks that resolving such issues as the endemic poverty in the South, unsustainable consumption and production patterns in the North, and the disparities in environmentally sound knowledge will not only be beneficial in achieving intragenerational equity, but will also "meet … some of the major concerns of future generations."¹³⁰ And while there will always be an obvious tension in intergenerational equity between improving the situation of the present generation and protecting the environment for future generations, it certainly is possible to justify the notion of preferential treatment for developing states on the basis of intergenerational equity. This argument is further supported if one accepts Stone's view that one of the best ways to achieve intergenerational justice is by giving priority to the present world's poor—as those who will suffer most in the future are the descendants of the poor now living.¹³¹

However, the concept of intergenerational equity is still in an embryonic stage of development; although commentators such as Brown Weiss continue to argue that intergenerational rights and responsibilities are readily translatable into legal rights and obligations,¹³² the international community has not yet been convinced of the advantages of adopting such a radical new approach. Moreover, there are still too many issues left unresolved as to what intergenerational equity actually means for it to have any real substantive impact on international law. Intergenerational equity will therefore remain a useful philosophical and political argument for advancing the case of environmental protection and, to a lesser extent, of giving preferential treatment for developing states, but it still lacks the necessary legal authority that is essential if it is to be a fundamental principle of international environmental law.¹³³

Equity and the New International Economic Order

The notion of intragenerational equity does not rely solely, however, on the concept of intergenerational equity for its moral, and potentially legal, validity. A second trend to have influenced the evolution of intragenerational equity is the development of the NIEO. The NIEO was a political attempt by developing states to restructure the international economic, financial, and trade system so as to grant them a greater role in the operation of that system, and ultimately greater access to the world's wealth. As Uprenda Baxi notes, "the basic impulse of the NIEO, its objectives and strategies, point to a restructuring of North-South relations in such a [31 ELR 10481] fundamental manner as to reduce dominance and dependence which characterized [previous] relations."¹³⁴

Through the U.N. General Assembly, the developing states ensured the adoption of several nonbinding documents, including the 1974 Declaration on the Establishment of the New International Economic Order¹³⁵ and, later the same year, the Charter on Economic Rights and Duties of States (CERDS).¹³⁶ These texts explicitly endorsed the concept of "equity" as a means of achieving international justice and a fairer international economic system. Moreover, the term was not used simply to describe how the NIEO was to be achieved, but also became the purpose of the NIEO.¹³⁷ And this argument that equity is both a substantive, as well as a procedural, principle of international law was endorsed by the 1986 ILA Seoul Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order.¹³⁸ It noted that "without ensuring the principle of equity there is no true equality of nations and states in the world community consisting of countries of different levels of development," and that "[a] new international economic order should therefore be developed … in conformity with the principle of equity, which means that this development should aim at a just balance between converging and diverging interests and in particular between the interests of developed and developing countries."¹³⁹

In fact, the ILA distinguishes between the principle of equity as a normative principle of international law and the principle of substantive equality that, the ILA notes, provides the justification for "preferential and non-reciprocal treatment of developing States."¹⁴⁰ In the view of the ILA, therefore, although it is the principle of substantive equality that justifies differentiated obligations, it is the principle of equity that provides the overall objective for this NIEO. And while there is no uniform interpretation on what the principle of "equity" means, or how the ILA's interpretation of "just balance between converging and diverging interests" is to be achieved, the notion inevitably involves preferential treatment for the South:

The thrust of the new egalitarianism is to require intervention on behalf of the materially disadvantaged, since without such intervention there can be no equality of opportunity…. But the equality of opportunity asked for is not the equality of treatment that is identified by the developed capitalist nations … [as] a society marked … by radical inequalities, equality of treatment can only lead to discrimination in favor of the stronger.¹⁴¹

Such arguments have continued to play an important part in the foreign policy of many developing states, despite the fact that it has become increasingly apparent that developed states are unwilling to make fundamental changes to the international economic and political structure.¹⁴² Nevertheless, the intransigence of the views of developing states ensured that UNCED provided the South with the ideal opportunity to combine the issues of environmental protection and socioeconomic development, as was reflected in the texts of a number of pre-UNCED declarations. The 1991 Beijing Ministerial Declaration of Developing Countries on Environment and Development, for instance, stated "it is … imperative to establish a new and equitable international economic order conducive to the sustained and sustainable development of all countries."¹⁴³

In a similar way, the 1989 Brasilia Declaration of the Sixth Ministerial Meeting on the Environment in Latin America and the Caribbean noted that there is an "indissoluble relationship" between environmental protection and socioeconomic development.¹⁴⁴ Moreover, without a rectification of the injustices in the present international economic system, the likelihood of "proper environmental management" is "significantly curtailed."¹⁴⁵ The Brasilia Declaration, in particular, attaches great significance to the interrelated relationships between the issues of international debt, poverty, and environmental degradation: "The debt cannot be paid under current conditions, not by increasing hunger and poverty among our peoples, not with further underdevelopment and the consequent defacement of our environment."¹⁴⁶

This insistence, primarily by the South, on the existence of a connection between environmental degradation and socioeconomic considerations has inevitably had an important effect on the development of current international environmental law and policy. Moreover, the explicit inclusion of equity and socioeconomic considerations in the texts adopted at UNCED has resulted in the development of a further justification for intragenerational equity, namely the promotion of social justice as an integral aspect of sustainable development.

The Rio Declaration, for instance, includes numerous references that focus on the intragenerational aspects of sustainable development. The preamble refers to "the goal of establishing a new and equitable global partnership" and "working towards international agreements which protect the interests of all."¹⁴⁷ And while the wording in the preamble [31 ELR 10482] makes it clear that these are merely objectives—and not necessarily reflective of political reality—their endorsement by the entire international community raises important questions over their legal status; an issue which is discussed further below. The Rio Declaration also contains, within its substantive principles, other aspects originally developed within the NIEO negotiations, including the right to development (Principle 3), the need to eradicate poverty and "decrease the disparities in the standards of living" (Principle 5), the obligation to always take into account the interests of developing states (Principle 6), and the importance of "a supportive and open international economic system" (Principle 12). In addition, Principle 8 requires all states to "eliminate unsustainable patterns of production and consumption and [to] promote appropriate demographic policies."¹⁴⁸

Of particular importance is Principle 3, which combines the NIEO concept of "right to development" with intergenerational equity.¹⁴⁹ It endorses both the importance of socioeconomic development, and emphasizes that it is not to be development at the expense of either the environment, or its natural resources. As Jeffrey Kovar notes:

[The Chair of the Preparatory Committee] imposed the final text over the protests of both the developing and developed country delegates in the final drafting session. The text was [his] and included the words "so as" suggested by Germany. These words, which replaced the words "in order" subtly shifted the balance back from one where development would be a precondition to environmental protection, to one in which development is to be carried out in such a way as to meet equitably both developmental and environmental needs.¹⁵⁰

However, despite what Kovar sees as a subtle shift away from pure developmental considerations in Principle 3 of the Rio Declaration, the Climate Change and Biodiversity Conventions both endorse the importance of intragenerational considerations in the implementation of their provisions.

The Climate Change Convention, for instance, notes that in achieving the objective of the convention, "full account [must be taken of] the legitimate priority needs of developing countries" and to that end, their "share of global emissions originating in developing countries will grow to meet their social and developmental needs."¹⁵¹ In addition, Article 3 states that all parties "have a right to, and should, promote sustainable development," an essential feature of which is a "supportive and open international economic system."¹⁵² Similarly, the Biodiversity Convention also contains numerous references to the intragenerational implications of sustainable development. In particular, the preamble notes, "economic and social development and poverty eradication are the first and overriding priorities of developing countries" and "conservation and sustainable use of biological diversity is of critical importance for meeting the food, health and other needs of the growing world population, for which purpose access to and sharing of both genetic resources and technologies are essential."¹⁵³

However, arguably the most significant text agreed at Rio as regards exploring the implications of intragenerational equity was Agenda 21, the international community's nonbinding plan of action for sustainable development into the 21st century. As is clear from numerous chapters in Agenda 21, intragenerational equity is an integral aspect of sustainable development. Issues such as international trade, financial transfers, population, consumption patterns, and agricultural development are included, as well as the more traditional environmental issues, such as air and marine pollution. It is very apparent from Agenda 21 that the achievement of sustainable development requires a global and proactive response, both in terms of reversing negative trends in environmental degradation, and promoting a more just and equitable international community—intragenerational equity will have a vital part to play in this process.

Intragenerational Equity—Particular Obstacles to Its Attainment

There remain, however, fundamental difficulties with the notion of intragenerational equity. The next few paragraphs will highlight arguably the two most contentious, i.e., the extent to which intragenerational equity requires distributive justice, and whether or not intragenerational equity is truly compatible with long-term environmental sustainability. First, consider the notion that intragenerational equity is a synonym for distributive justice. This argument has already been briefly referred to during the analysis of Brown Weiss' theory of intergenerational equity. She raised the issue as to whether intragenerational equity is more likely to be achieved through the imposition of an identical income for the majority of people in the world, or whether such equity merely requires a gradual reduction in present income differentials. The former interpretation is hopelessly utopian—many would argue "dystopian"—yet both interpretations reflect, to a greater or lesser extent, the notion of distributive justice, specifically that richer states are morally bound to "distribute" at least some of their resources to poorer states so as to ensure a more equal world. While few states would deny the existence of some kind of moral duty to the poorer states, issues over the extent of such a duty and its legal status have long plagued international negotiations. Therefore, the commitments and promises agreed at UNCED must be seen in the light of these controversies. The North has consistently rejected any argument that international law is evolving into a system of "social interdependence" as Judge Alvarez suggested in Anglo-Norwegian [31 ELR 10483] Fisheries Case.¹⁵⁴ Moreover, the North has constantly denied that it is under any obligation to provide developmental assistance to states in the South; when it does so, it argues, it does so purely on a voluntary basis. It was not surprising, therefore, that at the Special Session of the U.N. General Assembly in 1997 to examine progress on the implementation of Agenda 21 (Rio +5), the North was seen to have failed to keep to its promises on financial and technological commitments; the text of the final report noted that "much remains to be done to activate the means of implementation."¹⁵⁵

The question is, accordingly, how should the notion of "new and equitable global partnership" in the Rio Declaration be interpreted? Is it an espousal of some idealistic future world society in which states cooperate for the benefit of humankind without consideration of self-interest in matters of social, economic, and environmental concern, or should it be interpreted, in light of present political reality, so that the concept merely relates to the moral duty of the North to help the South achieve very much more "limited" goals?

The truth, in fact, probably lies somewhere between these two extremes. It is difficult to argue that the notion of a global partnership endorses the idea of a new world order when the most influential states within the present system are totally opposed to such a development. However, neither can it be said that the notion of global partnership has no implications for the international community. The Rio Declaration quite clearly sees global partnership as a "goal" to be achieved in the future. And while it requires "new levels of cooperation," not only among states, but also "key sectors of society and people," the international legal system has an essential role to play in both providing and promoting such co-operation.¹⁵⁶ Moreover, as the attainment of the global partnership is a "goal" not yet achieved, the interpretation of the notion should not be limited in vision simply because of the present failures in the system of international cooperation. A goal is the achievement of an objective; it inevitably looks beyond the present situation to the attainment of that objective sometime in the future.¹⁵⁷

Of course, it is arguable that the term "new and equitable global partnership" was adopted precisely because it was sufficiently vague to allow all states to interpret it as they wish—the South equating it with the NIEO, the North emphasizing its voluntary nature. However, it is this author's opinion that a definition acceptable to all is actually not as impossible as might be thought. If one reads the texts of all the documents agreed since the evolution of the concept of sustainable development in 1987, one will always find a compromise between the issues of North and South, development and environment, international assistance and self-reliance. Many have criticised these tensions as indicative that sustainable development, and the international community's attempt to implement it, are fundamentally flawed. This author believes, however, that such tensions are valid factors that the international community must take into account before arriving at an "equitable" compromise.

Therefore, the wording of UNCED and more recent texts is, in fact, an indication of the true nature of this "global partnership." As such a partnership requires the interests of all those affected to be taken into account, it is therefore inevitable that issues such as the international economic system, the transfer of environmentally sound technology, and the nexus between population and consumption patterns will reflect the views and interests of both North and South.¹⁵⁸ However, notwithstanding this, there are many fundamental issues that have yet to be resolved; issues that go to the core of the relationship between developed and developing states. These are issues that will remain inchoate until such time as the political will exists to deal with them. Failure to resolve such questions may well ultimately undermine the international community's aim of a "global partnership," and jeopardize what is already a rather fragile global coalition on sustainable development. Whilst accepting that any global partnership is always likely to be a compromise between the interests of different states, intransigence and an unwillingness to negotiate in good faith are inimical to the aspirations expressed in the Rio Declaration.

Moreover, whilst the concept of intragenerational equity does require both preferential treatment for the South and changes to the lifestyles of the people in the North, intragenerational equity is not simply one-sided. It also imposes obligations on the South as well. Developing states are not simply passive actors in the search for sustainable development. Agenda 21 makes it quite clear that developing states are expected to invest heavily in sustainable forms of livelihood, and to remove inequalities within their own social structures in the search for sustainable development.¹⁵⁹ Indeed, one of the central reasons as to why developing states have fewer obligations within recent multilateral environmental agreements has been to allow them to concentrate more of their resources on achieving sustainable development domestically. Intragenerational equity is [31 ELR 10484] therefore a nexus of both rights and responsibilities for all actors involved. Moreover, even if concepts such as intragenerational equity and global partnership cannot, as yet, be described in legal terms, it is inevitable that their elaboration will rely heavily on international law and its institutions.

One of the many tensions that still exist within the concept of sustainable development—and the second contentious issue mentioned above—is the relationship between the notion of intragenerational equity and environmental protection. Are the two reconcilable? Some commentators have argued that the two are not compatible and that, in fact, distributive justice will increase environmental degradation. Virginia Abernethy argues that:

Nations, like individuals, have less motivation to forgo present benefits if they doubt they will reap future rewards from their saving. One-world ideology, which implies a commitment to sustaining the needy wherever they may be, creates ambiguity over the ownership of resources… it fosters a preference for short-term consumption over long-term saving.¹⁶⁰

In a similar vein, Harold Hohmann argues that if the right to development is taken to mean "a right to equal resources," this is likely to be misunderstood as meaning "maximum use."¹⁶¹ These two quotations reflect a general fear that if sustainable development is interpreted as primarily concerned with intragenerational equity, the environmental implications of sustainable development will consequently suffer. Distributive justice is often perceived, therefore, as undermining the ecological basis of sustainability.¹⁶² However, considerations of equity need not undermine effective environmental protection. Indeed, it could be argued that the problem is not, in fact, one of reconciling environmentalism and intragenerational equity, but rather the way in which environmental law is implemented.¹⁶³ As Dan Tarlock notes, there are numerous ways of incorporating equity into environmental protection.¹⁶⁴ These include, inter alia, increasing the sensitivity to equitable considerations in environmental impact assessments,¹⁶⁵ and using subsidies as a means of reconciling the two objectives. The effectiveness of such approaches, in terms of achieving both equity and environmental implications, will inevitably depend upon the circumstances in which they are applied. For instance, while there are circumstances when enforcing preexisting proprietary claims would be detrimental to both equity and environmental protection, there are other situations in which proprietary claims are not only environmentally efficient (such as preventing a "tragedy of the commons" scenario), but can also be justified on the grounds of equity. As Tarlock notes, "recent efforts to promote sustainable development by allowing local populations to profit from stewardship … illustrate the potential convergence of efficiency and equity."¹⁶⁶

Ultimately, the perceived anthropocentrism of intragenerational equity need not conflict with the environmental objectives of sustainable development. As Principle 3 of the Rio Declaration states, present generations have "environmental" as well as "developmental" needs. Moreover, many environmental problems will only be resolved through the elaboration and implementation of intragenerational equity. Issues such as deforestation, desertification, and biodiversity are all caused, in part, by the poverty that is endemic in many parts of the South. These are problemsthat will only be resolved through the adoption of wider structural changes to society as a whole. This, of course, is not intended to ignore the fact that increasing industrialization in the South in the name of "sustainable development" will inevitably have a significant impact upon the environment, particularly in terms of increased transboundary and global pollution and greater resource utilization. But since the elaboration of sustainability at UNCED, economic growth per se is not now the end-goal for the international community. As the commentary to the International Union for Conservation and Nature-International Council of Environmental Law (IUCN-ICEL) 1995 Draft International Covenant on Environment and Development notes, "the right to development means a right to sustainable development. This is confirmed by the reference to future generations and to sustainability."¹⁶⁷

The concept of intragenerational equity, if it is to be relevant to "international law in the field of sustainable development," must reflect such considerations. In particular, ways must be found to ensure development occurs without causing irreversible or unjustifiable environmental damage. However, before developing states will be willing to accept this revised (greener) interpretation of the NIEO, developed states must prove their commitment to intragenerational equity. As Henry Shue notes metaphorically, "whatever justice may positively require, it does not permit that poor nations be told to sell their 'blankets' in order that rich nations may keep their 'jewellery.'"¹⁶⁸

Conclusion

This Article has attempted to provide a broad overview of the role and influence of equity in international environmental law. It examined the history of the concept, both in terms of the case law of the ICJ and in relation to the international regulation of shared natural resources. But while these earlier references to equity provide useful indications as to its true nature, in the field of sustainable development the international community has relied on the concept without any significant regard as to how it was used previously. Moreover, as was argued in this Article, the term "equity" (or a derivative thereof) has been used in recent international legal texts for a number of different reasons.

[31 ELR 10485]

First, equity is a means of integrating socioeconomic and environmental considerations, as is required by the broader concept of sustainable development. Second, equity is a means of allowing a certain degree of flexibility in the implementation of international environmental law. Third, equity is a means of allowing states to agree to a text without having to resolve the most controversial issues contained therein. And fourth, equity is a means of trying to reduce the socioeconomic (and environmental) divide between developed and developing states. But beyond these simple references to equity in international environmental law is a broader discussion of the relevance of equity to the achievement of sustainable development. Or put in a slightly different way, the importance of equity as a substantive principle of "international law in the field of sustainable development," referred to in this Article as intragenerational equity. In an era of ever-closer interdependence between states, international environmental law must reflect the concerns, needs, and interests of all states—especially developing states—if it is to encourage both participation and effective implementation.

However, there is more to the notion of equity than simply achieving an effective international system; rather, at its core, there is a concern for creating a fairer international system, both in terms of social and environmental justice. And though significant differences in opinion remain as regards the meaning, legal authority—even the very validity—of the concept, the promotion of intragenerational equity is central to the future direction of international law and policy in this area. If only the following grand statements made by the leaders of the world at the September 2000 U.N. Millennium Summit was mirrored by the same amount of political will:

We recognize that, in addition to our separate responsibilities to our individual societies, we have a collective responsibility to uphold the principles of human dignity, equality and equity at a global level. As leaders we have a duty, therefore, to all the world's people, especially the most vulnerable and, in particular, the children of the world, to whom the future belongs.

Only through broad and sustained efforts to create a shared future, based upon our common humanity in all its diversity, can globalization be made fully inclusive and equitable.

Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer, or who benefit least, deserve help from those who benefit most.¹⁶⁹

1. THUCYDIDES, HISTORY OF THE PELOPONNESIAN WAR 80 (R. Warner trans.) (1972). The full quotation reads, "those who really deserve praise are the people who, while human enough to enjoy power, nevertheless pay more attention to justice than they are compelled to do by their situation."

2. See Subrata R. Chowdhury, Intergenerational Equity: Substratum of the Right to Sustainable Development, in THE RIGHT TO DEVELOPMENT IN INTERNATIONAL LAW 241 (Subrata R. Chowdhury et al. eds., 1992).

3. U.N. Conf. on Env't & Dev., Framework Convention on Climate Change, May 29, 1992, U.N. Doc. A/AC.237/18 (1992), reprinted in 31 I.L.M. 848 (1992) (available in ELR STAT. 50343) (entered into force Mar. 21, 1994), art. 11.2, available at http://www.unfccc.int/ (last visited Mar. 9, 2001). See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (IPCC) WORKING GROUP III, CLIMATE CHANGE 1995: ECONOMIC AND SOCIAL DIMENSIONS OF CLIMATE CHANGE 85 (1996) ("Equity applies to two separate categories of issues. It applies to both procedural issues—how decisions are made—and consequentialist issues—the outcome of decisions.").

4. Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 I.C.J. 18, 60 ("the legal concept of equity is a general principle directly applicable as law").

5. CHRISTOPHER R. ROSSI, EQUITY AND INTERNATIONAL LAW: A LEGAL REALIST APPROACH TO INTERNATIONAL DECISIONMAKING 32 (1993). In the above quotation, Rossi refers to the writings of the jurist Gustav Radbruch.

6. Id. at 38.

7. Id.

8. Vaughan Lowe, The Role of Equity in International Law, 12 AUSTL. Y.B. INT'L L. 56 (1992).

9. ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 219 (1994).

10. Id.

11. Lowe, supra note 8, at 56.

12. HIGGINS, supra note 9, at 219-20. Moreover, Higgins makes the point that "what is gained by terming the need to make choices as 'equity' is less certain—especially if no pretence is made that equity assists in how one makes choices (save by some general reference to 'justice'"). Id. at 219.

13. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 25 (5th ed. 1998). Interestingly, Brownlie does not refer to this definition of equity as equity infra legem, but it is relatively clear that this is what he means.

14. Barcelona Traction (Second Phase), 1970 I.C.J. 3, 332 (separate judgment of Ammoun, J.).

15. Lowe, supra note 8, at 61.

16. Id. at 63.

17. GERALD FITZMAURICE, JUDICIAL INNOVATION—ITS USES AND ITS PERILS 24 (1965); Lowe, supra note 8, at 61.

18. HIGGINS, supra note 9, at 220.

19. Cf. Free Zones of Upper Savoy and the District of Gex, 1930 P.C.I.J. (ser. A) Nos. 24, 34 & 40 (separate opinion of Kellogg, J.):

It is scarcely possible that it was intended that, even with the consent of the Parties, the Court should … decide questions upon grounds of political and economic expediency …. The authority given to the Court to decide a case ex aequo et bono merely empowers it to apply the principles of equity and justice.

20. Cf. Tunisia v. Libya, 1982 I.C.J. 18, 60:

Application of equitable principles is to be distinguished from a decision ex aequo et bono … [where] the Court is then freed from the strict application of legal rules in order to bring about an appropriate settlement. The task of the Court in the present case is quite different: it is bound to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result.

21. HIGGINS, supra note 9, at 228 ("Once equity is viewed not only as a general principle of international law, but also as the outcome required, can it really be said to be different from a decision ex aequo et bono…?").

22. 1937 P.C.I.J. (ser. A/B) Nos. 70, 77.

23. See Thomas M. Franck & Dennis M. Sughrue, The International Role of Equity-as-Fairness, 81 GEO. L.J. 563-95 (1993).

24. North Sea Continental Shelf Cases (Germany v. Den.; Germany v. Neth.), 1969 I.C.J. 53.

25. Tunisia, 1982 I.C.J. at 59.

26. 1969 I.C.J. 3.

27. Geneva Convention on the Continental Shelf, 499 U.N.T.S. 311. Franck & Sughrue, supra note 23, at 577 ("In spite of its seemingly capacious nature, [the judgment] nevertheless reflected a preference for the legal norm codified in article 6(2).").

28. United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. No. A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982).

29. 1969 I.C.J. at 47.

30. See supra notes 4 & 20.

31. HIGGINS, supra note 9, at 224 ("The reality is that there are few substantive norms to guide decision-making on shelf delimitation. Decisions will in reality, and necessarily, reflect policy preferences … [nevertheless] the Court insist[s] it is applying 'an actual rule of law'—but one that is opaque and not capable of scrutiny or review."). On the views of dissenting judges in the continental shelf cases, see below.

32. FARHANA YAMIN, PRINCIPLES OF EQUITY IN INTERNATIONAL ENVIRONMENTAL AGREEMENTS WITH SPECIAL REFERENCE TO THE CLIMATE CHANGE CONVENTION 7 (1994).

33. 1985 I.C.J. 13.

34. Id. at 40.

35. See Franck & Sughrue, supra note 23, at 577.

36. Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.), 1993 I.C.J. 38.

37. See YAMIN, supra note 32, at 12. In fact, the issues of population, socioeconomic considerations, and cultural beritage were specifically rejected by the Court as irrelevant.

38. Id. at 9-10. The quotations are taken from the decision in Libya v. Malta, 1985 I.C.J. 13, 29.

39. North Sea Continental Shelf Cases, 1969 I.C.J. 3, 22.

40. 1982 I.C.J. 18, 77.

41. 1985 I.C.J. 13.

42. Id. at 41.

43. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 I.C.J. 246.

44. Id. at 342. In the Jan Mayen Case, whilst the Court did not take into account socioeconomic factors, it did modify the boundary to ensure that Denmark had equitable access to relevant fish stocks. 1993 I.C.J. 38, 70-2.

45. Yamin seems to suggest this when she notes that the "general principle" that "equity does not involve distributive justice" may "be relevant to the climate change context." YAMIN, supra note 32, at 42. However, notwithstanding this, she had already made the point, id. at 37, that "the specific inclusion of socio-economic factors … [within the Climate Change Convention] means that factors which have a close bearing on distributive justice would have to be addressed."

46. Judges Oda and Evensen were particularly vocal of their criticism of the ICJ's use of equity. Judge Evensen likened it to a decision ex aequo et bono. Tunisia v. Libya, 1982 I.C.J. 18, 296.

47. 1984 I.C.J. at 388.

48. 1985 I.C.J. 554.

49. Id. at 633.

50. Id.

51. Higgins, supra note 9, at 227.

52. 1985 I.C.J. at 40.

53. As regards the allocation of rights over fish stocks in the high seas, ever since the Icelandic Fisheries Case (U.K. v. Ice.), 1974 I.C.J. 3, there has been a general requirement on all States "to negotiate in good faith with a view to reaching an equitable solution." See PATRICIA W. BIRNIE & ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT 118 (1992).

54. See 1987 Montreal Protocol, Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1550 (entered into force Jan. 1, 1989), pmbl. para. 6 ("determined to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it") (emphasis added).

55. INTERNATIONAL LAW ASS'N, REPORT OF THE FIFTY-SECOND CONFERENCE 485 (1966).

56. See BIRNIE & BOYLE, supra note 53, at 218-22.

57. Id. at 218 nn.25, 27.

58. See Lac Lanoux Arbitration (Spain v. Fr.), 12 R.I.A.A., 24 I.L.R. 101 (1957). The arbitral tribunal rejected, in effect, both the territorial sovereignty and territorial integrity arguments by noting that while Spain, as the riparian state affected by the diversion work, had a right to be consulted and a right to have its interests taken into account (rejection of Harmon Doctrine), it did not have the right to prevent France from undertaking the work in the first place (rejection of the territorial integrity argument).

59. See U.N. Doc. A/46/10 (1991), at 161; U.N. Doc. A/CN.4/L492 & Add. 1 (1994): various versions of the International Law Commission (ILC) draft articles on the Non-Navigational Uses of International Watercourses. See generally 1978 UNEP Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, 17 I.L.M. 1097 (1978).

60. 36 I.L.M. 700 (1997).

61. Id.

62. Cf. Judge Weeramantry in Jan Mayen Case, 1993 I.C.J. 38, 268 ("no general proposition can be laid down that the population factor is in all cases irrelevant").

63. 1 PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 204 (1995). However, as regards the specific case of the 1997 Watercourses Convention, see Philippe Sands, Environmental Protection in the Twenty-First Century: Sustainable Development and International Law, in ENVIRONMENTAL LAW, THE ECONOMY, AND SUSTAINABLE DEVELOPMENT 389 (Richard L. Revesz et al. eds., 2000) ("Even if the 1997 Convention does come into force, its substantive provisions are so general—and open to creative interpretation and application—that one is bound to ask whether they can have any real impacts upon the environment or utilization of a shared resource.").

64. One approach suggested by the ILC in its Reports on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law (see U.N. Docs. A/CN.4/428 (1990), A/45/10 (1990)) was to require "compensation for harm as part of an equitable balance of interests allowing the polluting activity to continue." BIRNIE & BOYLE, supra note 53, at 95. Interestingly, the ILC made significant amendments to its earlier draft articles in 1998, focusing primarily on prevention rather than seeking to achieve an "equitable balance of interests." See Report on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law (Prevention of Transboundary Damage From Hazardous Activities), U.N. Doc. A/CN.4/L.554, Corr.1-2, Add.1, Add.1/Corr.1-2, Add.2/Corr.1.

65. The whole of the second sentence of art. 5.1 reads "in particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse."

66. Cf. art. 7.2:

Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

67. BIRNIE & BOYLE, supra note 53, at 228.

68. See, e.g., FINAL REPORT OF THE EXPERTS GROUP ON ENVIRONMENTAL LAW OF THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT (1987) arts. 9-20 ("Principles specifically concerning transboundary natural resources and environmental interferences"). More recently, section 7 of the 1995 International Union for Conservation and Nature-International Council on Environmental Law (IUCN-ICEL) Draft International Covenant on Environment and Development contains provisions on similar transboundary issues.

69. See Edith Brown Weiss, Introductory Note, 28 I.L.M. 1302 (1989) ("The dominant issue in international environmental law for the 1990s is likely to be one of equity—who pays whom how much to clean up the environment or develop in an environmentally sustainable way.").

70. Rio Declaration on Env't & Dev., U.N. Conf. on Econ. Dev., 47th Sess. U.N. Doc. A/CONF.151/REV.1 (1992), reprinted in 31 I.L.M. 874 (1992), pmbl. para 3. Throughout this paragraph of the Article text, emphasis has been added by the author.

71. Id. princ. 3.

72. Adoption of Agreements on Env't & Dev., U.N. Conf. on Econ. Dev., 47th Sess., Agenda 21, U.N. Doc. A/CONF.151/4 (1992), ch. 2, para. 2.1 [hereinafter Agenda 21].

73. U.N. Conf. on Env't & Dev., Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, U.N. Doc. A/CONF.151/6/Rev.1 (1992), reprinted in 31 I.L.M. 881 (1992), princ. I(b) [hereinafter Forest Principles].

74. U.N. Framework Convention on Climate Change, supra note 3, art. 3.1. As regards the role of equity in the 1992 Climate Change Convention, see INTERGOVERNMENTAL PANEL, supra note 3, at 119 ("Equity issues involved in responding to climate change may be divided into four distinct categories: (1) distributing the costs of adaptation, (2) distributing future emission rights, (3) distributing the costs of abatement, and (4) ensuring institutional and procedural fairness.").

75. U.N. Framework Convention on Climate Change, supra note 3, art. 4.2(a).

76. Id. art. 11.2.

77. U.N. Conf. on Env't & Dev., Convention on Biological Diversity, U.N. Doc. DPI/1307, reprinted in 31 I.L.M. 818 (1992), art. 1.

78. Id. art. 15.7.

79. Id. art. 19.2.

80. Philippe Sands, International Law in the Field of Sustainable Development, in 65 BRIT. Y.B. INT'L L. 340 (1994).

81. YAMIN, supra note 32, at 43.

82. Article 2 states that

the ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

U.N. Framework Convention on Climate Change, supra note 3.

83. Id. For another example in international law, see art. 59 UNCLOS, supra note 28:

In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

84. Rio Declaration, supra note 70, princ. 4 ("In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.").

85. Id. princ. 27 ("States and people shall cooperate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the furtherdevelopment of international law in the field of sustainable development.") (emphasis added).

86. An alternative way to ensure international law remains responsive to the situation is through the adoption of protocols, such as the 1987 Montreal Protocol, Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 3, the 1997 Kyoto Protocol, Kyoto Procotol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc. FCCC/CP/197/L.7/Add. 1, art. 3.1 & Annex B, reprinted in 37 I.L.M. 22 (1998), and the various protocols under the 1979 Convention on Long-Range Transboundary Air Pollution. See, e.g., Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, Oct. 31, 1998, 28 I.L.M. 214 (1989); Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes, Nov. 18, 1991, 31 I.L.M. 568 (1992). See also the simplified amendment procedure within the 1987 Montreal Protocol, which allows the technical annexes to be "adjusted" by a two-thirds majority vote—such adjustments being then "binding on all Parties" (art. 2.9(d)). (Though, it should be noted that this two-thirds majority must include "a majority of the Parties operating under Article 5(1) [developing country Parties] present and voting and a majority of the Parties no so operating [developed country Parties] present and voting" (art. 2.9(c)).

87. See, e.g., Annex B of 1997 Kyoto Protocol, supra note 86, in which the United States is required to reduce its greenhouse gas emissions by 7%, the member states of the European Union by 8%, while Australia can raise its emissions by 8% (based on 1990 levels).

88. Sands, supra note 80, at 340.

89. Convention on the Law of Non-Navigational Uses of International Watercourses, May 21, 1997, G.A. Res. 51/229, U.N. GAOR, 51st Sess., 99th plen. mtg., U.N. Doc. A/RES/51/229 (1997).

90. See Duncan A. French, Developing States and International Environmental Law: The Importance of Differentiated Responsibilities, 49 INT'L & COMP. L.Q. 35 (2000).

91. See Sands, supra note 80, at 338.

92. Edith Brown Weiss, Our Rights and Obligations to Future Generations for the Environment, 84 AM. J. INT'L L. 199 (1990).

93. 1 Moore's Int'l Arb. Awards 811 (Aug. 15, 1898).

94. Christopher Stone, Safeguarding Future Generations, in FUTURE GENERATIONS AND INTERNATIONAL LAW 76 (E. Agius & S. Busuttil eds., 1997).

95. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72, pmbl. para. 1 ("Recognizing the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks.") (emphasis added).

96. African Convention on the Conservation of Nature and Natural Resources, 1968, 1001 U.N.T.S. 4, pmbl. para. 6 ("establishing and maintaining their rational utilization for the present and future welfare of mankind").

97. UNESCO Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 27 U.S.T. 37, 1037 U.N.T.S., reprinted in 11 I.L.M. 1358 (1973) (entered into force Dec. 17, 1975), pmbl. para. 6 ("Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole") (emphasis added).

98. Declaration of Principles for the Preservation and Enhancement of the Human Environment, Stockholm, June 5-16, 1992, 27th Sess., U.N. Doc. A/Conf. 48/14 (1972).

99. Id. princ. 1.

100. U.N. General Assembly Resolution on a World Charter for Nature, G.A. Res. 37/7, U.N. GAOR, 37th Sess., Annex, U.N. Doc. A/RES/37/7 (1983), pmbl. para. 5 ("man must acquire the knowledge … which ensures the preservation of the species and ecosystems for the benefit of present and future generations").

101. Madrid Protocol on Antarctica, 30 I.L.M. 822 (1991), pmbl. para. 7 ("Convinced that the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole") (emphasis added). "Mankind as a whole" surely refers to both future as well as present generations. Outside the environmental context, see also Preamble paragraph 9 of the 1998 Statute of the International Criminal Court, 37 ILM (1998), which states that an International Criminal Court is required "for the sake of present and future generations."

102. Rio Declaration, supra note 70, princ. 3.

103. Agenda 21, supra note 72, para. 8.7.

104. Forest Principles, supra note 73, princ. 2(b).

105. U.N. Framework Convention on Climate Change, supra note 3, pmbl. para. 23; Biological Diversity Convention, supra note 77, pmbl. para. 23.

106. Sands, supra note 80, at 342. Sands notes that the international community at UNCED took note of, but did not endorse, a proposal for an intergenerational guardian. See Agenda 21, supra note 72, para. 38.45.

107. Sands, supra note 80, at 342.

108. 1995 I.C.J. 288.

109. 1997 I.C.J. 7.

110. 33 I.L.M. 173 (1994).

111. Request for an Examination, 1995 I.C.J. at 341.

112. Id.

113. Id. at 342.

114. Gabcikovo-Nagymaros Project, 1997 I.C.J. at 110, 118.

115. Minors Oposa, 33 I.L.M. at 185.

116. EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY (1989). The book was cited by Judge Weeramantry in Request for an Examination, 1995 I.C.J. at 341.

117. BROWN WEISS, supra note 116, at 21.

118. Id. at 23.

119. Id.

120. Id. at 38-44.

121. Id. at 38.

122. In economic terms, this is the argument that the wealth passed onto future generations should be "nondeclining." But what is the nature of this wealth? One argument is that so long as the totality of the wealth passed on to future generations is at least the same as the present generation received, it does not matter from where it came. It is the idea that natural resources and environmental services can be replaced (or replicated), where necessary, by developments in human knowledge and innovation. Others take a completely different view, arguing that the environment is a unique complex of organic relationships, the resilience and inherent diversity of which cannot be copied by man-made capital, and therefore there should be no question of degrading the quality of the "natural" environment.

123. On the issue of protecting the interests of future generations, see also Anthony D'Amato, Do We Owe a Duty to Future Generations to Preserve the Global Environment?, 84 AM. J. INT'L L. 190-98 (1990); Lothar Gundling, Our Responsibility to Future Generations, 84 AM. J. INT'L L. 207-12 (1990); Gary Supanich, The Legal Basis of Intergenerational Responsibility: An Alternative View—The Sense of Intergenerational Identity, 3 Y.B. INT'L ENVT'L L. 94-107 (1992); CATHERINE REDGWELL, INTERGENERATIONAL TRUSTS AND ENVIRONMENTAL PROTECTION (2000).

124. BROWN WEISS, supra note 116, at 44.

125. Id. On this issue, see Report of the Expert Group on Identification of Principles of International Law for Sustainable Development (1995), para. 48 ("Intragenerational equity does not indicate how the burdens and fruits are to be borne by members of the present generation.").

126. BROWN WEISS, supra note 116, at 44.

127. French, supra note 90, at 52 ("the capability of the North to provide assistance to the South may well prove to be a central feature of ensuring greater economic justice between States—the notion of intragenerational equity").

128. Gundling, supra note 123, at 211.

129. Stone, supra note 94, at 77.

130. Ajai Malhorta, A Commentary on the Status of Future Generations, in FUTURE GENERATIONS AND INTERNATIONAL LAW, supra note 94.

131. Stone, supra note 94, at 77 ("favouring the present poor in Rwanda also benefit the remote descendants of those poor and eventually the entire global community").

132. BROWN WEISS, supra note 116, at 45:

The dual role of each generation as trustee of the planet for present and future generations and as beneficiary of the planetary legacy imposes certain obligations upon each generation and gives it certain rights. These may be called planetary, or intergenerational, rights and obligations. Through these rights and obligations, we give concrete expression to the principles of intergenerational equity.

133. See Juliane Kokott, Equity and International Law, in FAIR WEATHER: EQUITY CONCERNS IN CLIMATE CHANGE 188 (F. Toth ed., 1999) ("intergenerational equity is international law in statu nascendi").

134. Uprenda Baxi, The New International Economic Order, Basic Needs and Rights: Notes Towards Development of the Right to Development, 23 INDIAN J. INT'L L. 225 (1983).

135. U.N. Doc. No. A/RES/3201 (S-VI) (1974).

136. U.N. Res. 3281, U.N. GAOR (1974).

137. Id., pmbl. ("Mindful of the need to establish and maintain a just and equitable economic and social order through … the achievement of more rational and equitable international economic relations.") (emphasis added). As regards this substantive/procedural dichotomy, see also INTERGOVERNMENTAL PANEL, supra note 3.

138. INTERNATIONAL LAW ASS'N (ILA), REPORT OF THE SIXTY-SECOND CONFERENCE (HELD AT SEOUL, SOUTH KOREA 1-11 (1987). See also ILA COMMITTEE REPORT 409-87 (1987).

139. REPORT OF THE SIXTY-SECOND CONFERENCE, supra note 138, at 5, para. 3.1.

140. Id. at 9, para. 10.2.

141. ROBERT W. TUCKER, THE INEQUALITY OF NATIONS 69 (1977).

142. The 1995 Agreement to UNCLOS, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, U.N. Doc. A/CONF.164/37 (1995), reprinted in 34 I.L.M. 1542 (1995), reflected the attempt by a number of developed states to move away from the principle of equitable sharing of benefits and technology [as contained in the 1982 Convention], to a more individualistic stance. As § 6.1(a) and (b) of the Agreement notes, "the development of the resources of the [Seabed] Area shall take place in accordance with sound commercial principles" and "the provisions of the General Agreement on Tariffs and Trade, its relevant codes and successor or superseding agreements shall apply with respect to activities in the Area."

143. 1991 Beijing Declaration, INC Doc. GE. 91-70443 (June 24, 1991), para. 1.

144. 28 I.L.M. 1311 (1989), para. 1.

145. Id. para. 4.

146. Id. para. 5.

147. Rio Declaration, supra note 70, pmbl. paras. 3 & 4.

148. Of course, whereas the requirement to "eliminate unsustainable patterns of production and consumption" is directed primarily at developed states, the requirement to "promote appropriate demographic policies" is directed primarily at developing states.

149. The full text of Principle 3 reads as follows: "The right todevelopment must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."

150. Jeffrey D. Kovar, A Short Guide to the Rio Declaration, 4 COLO. J INT'L ENVTL. L. & POL'Y 126 (1993).

151. U.N. Framework Convention on Climate Change, supra note 3, pmbl. paras. 21 & 23. See also id. art. 4.7 ("developed country Parties … will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties").

152. Id. art. 3.4. The 1997 Kyoto Protocol to the 1992 Climate Convention, supra note 86, continues this reliance on socioeconomic considerations by adopting, inter alia, the Clean Development Mechanism (see art. 12) and strengthening the provisions on the transfer of environmentally sound technologies.

153. Biological Diversity Convention, supra note 77, pmbl. paras. 19 & 20.

154. 1951 I.C.J. 116, 148-50. For Alvarez, this "law of social interdependence" as he called it, had eight defining characteristics namely: (1) "This law governs not merely a community of States, but an organized international society"; (2) "It is not exclusively juridical … the domain of law and the domain of politics is considerably modified"; (3) "It is concerned not only with the delimitation of the rights of States but also with harmonizing them"; (4) "It particularly takes into account the general interest"; (5) It also "takes into account all possible aspects of every case"; (6) "It lays down, besides rights, obligations towards international society"; (7) "It condemns abus de droit"; and (8) "It adapts itself to the needs of international life and develops side by side with it." On a similar theme, another commentator has noted "the world community is bound to become a welfare community, just as the nation State became a welfare State." See Stephen Vasciannie, LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES IN THE INTERNATIONAL LAW OF THE SEA 24 n.18 (1990).

155. Programme for the Further Implementation of Agenda 21, U.N. Doc. A/RES/S-19/2 Annex (1997), para. 17.

156. Rio Declaration, supra note 70, pmbl. para. 3.

157. Whilst the rather dismal evaluation of the first five years since UNCED as presented at the Rio +5 Conference was not encouraging, it is to be hoped that the international community will adopt a more proactive approach to many of the issues by the time of the next evaluation in 2002 (Rio +10).

158. This raises an interesting question as to how the interests of the environment, future generations, and others without a "voice" can ensure that their interests are heard. One solution is to increase the role of nongovernmental organizations. As Sands notes, "we are faced with an unprecedented opportunity [since UNCED] to break the virtual stranglehold which states have on the international legal order." Phillipe Sands, Protecting Future Generations: Precedents and Practicalities, in FUTURE GENERATIONS AND ENVIRONMENTAL LAW, supra note 94, at 90.

159. Of particular interest is the emphasis placed in the 1992 Rio Declaration and Agenda 21 on the role of indigenous people in promoting sustainable development. Principle 22 of the Rio Declaration and Chapter 26 of Agenda 21 both require states to, in the words of Principle 22, "duly support their identity, culture and interests." Rio Declaration, supra note 70, princ. 22.

160. Virginia Abernethy, The One World "Thesis" as an Obstacle to Environmental Preservation, in RESOURCES, ENVIRONMENT, AND POPULATION—PRESENT KNOWLEDGE, FUTURE OPTIONS 323 (Kingsley Davis & Mikhail Bernstam eds., 1991).

161. Harold Hohmann, Environmental Implications of the Principle of Sustainable Development and Their Realization in International Law, in RIGHT TO DEVELOPMENT IN INTERNATIONAL LAW, supra note 2, at 285.

162. Dan Tarlock, Environmental Protection: The Potential Misfit Between Equity and Efficiency, 63 U. COLO. L. REV. 874 (1992).

163. Id. at 875.

164. Id. at 884.

165. See CHRISTOPHER J. BARROW, ENVIRONMENTAL AND SOCIAL IMPACT ASSESSMENT (1997).

166. Tarlock, supra note 162, at 887.

167. IUCN-ICEL DRAFT INTERNATIONAL COVENANT 29 (1995).

168. Henry Shue, The Unavoidability of Justice, in THE INTERNATIONAL POLITICS OF THE ENVIRONMENT 397 (Andrew Hurrell & Benedict Kingsbury eds., 1992).

169. United Nations Millennium Declaration, U.N. Doc. A/55/L.2 (Sept. 6, 2000).