Unit Learning Objectives After reading this unit, you will: · Explain how international environment law evolved, identifysome of its major principles and concepts, and understandthe contexts in which they apply · Identify some of the main instruments (treaties/conventions, declarations, resolutions) that inform the substantive content of international environment law, and discuss critically some of the challenges to the making and implementation of international environment law. · Identify some of the rules and regulations created to address climate change and conserve biological diversity, and understand some of the main challenges to their effective implementation. Unit Plan and Summary This unit discusses the role of international law in the governance of the global environment and sustainable development. We begin with an examination of the evolution of international environment law, highlighting the major UN sponsored initiatives that have given impetus to the elaboration of new principles, concepts and agreements, especially the notion of 'sustainable development'. We then proceed to discuss two examples of international environment treaties (climate change and biological diversity) that attempt to translate notions of sustainable development into binding rules and regulations embodying some of the key principles of global environmental governance that have emerged over the past 40 years. Outline 1. The Evolution of International Environment Law 2. Making and Implementing International Environment Law 3. Climate Change 4. Biological Diversity Readings · Fuentes, Ximena. “International Law-Making in the Field of Sustainable Development: The Unequal Competition Between Development and the Environment.” International Environmental Agreements 2, no. 2 (2002): 109–133. doi:http://dx.doi.org/10.1023/A:1020990026398. Readings for Briefs · Hiskes, Richard P. “The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational Justice.” Human Rights Quarterly 27, no. 4 (2005): 1346–1364. · Risse, Mathias. “The Right to Relocation: Disappearing Island Nations and Common Ownership of the Earth.” Ethics & International Affairs 23, no. 3 (2009). doi:http://dx.doi.org/10.1111/j.1747-7093.2009.00218.x. · McIntyre, Owen, and Mosedale, Thomas. “The Precautionary Principle as a Norm of Customary International Law.” Journal of Environmental Law 9, no. 2 (1997): 221–241. doi:http://dx.doi.org/10.1093/jel/9.2.221. Key Concepts · Precautionary Principle · Polluter Pays Principle · Common Heritage Principle (Res Communis) · Common but Differentiated Responsibilities · Framework-Protocol Approach · State Responsibility (Good Neighbourliness) · Transboundary Environmental harm · Stockholm Declaration · Rio Declaration · Climate Change Mitigation & Adaptation · Sustainable Development · Access & Allocation · Public Goods, Private Goods and Merit Goods · Environmental Refugees · Carbon offsets & Certified Emissions Reductions (CERs) · Carbon Sin ...

1. Unit Learning Objectives
After reading this unit, you will:
· Explain how international environment law
evolved, identifysome of its major principles and concepts,
and understandthe contexts in which they apply
· Identify some of the main instruments (treaties/conventions,
declarations, resolutions) that inform the substantive content of
international environment law, and discuss critically some of
the challenges to the making and implementation of
international environment law.
· Identify some of the rules and regulations created to address
climate change and conserve biological diversity,
and understand some of the main challenges to their effective
implementation.
Unit Plan and Summary
This unit discusses the role of international law in the
governance of the global environment and sustainable
development. We begin with an examination of the evolution of
international environment law, highlighting the major UN
sponsored initiatives that have given impetus to the elaboration
of new principles, concepts and agreements, especially the
notion of 'sustainable development'. We then proceed to discuss
two examples of international environment treaties (climate
change and biological diversity) that attempt to translate
notions of sustainable development into binding rules and
regulations embodying some of the key principles of global
environmental governance that have emerged over the past 40
years.
Outline
1. The Evolution of International Environment Law
2. Making and Implementing International Environment Law

2. 3. Climate Change
4. Biological Diversity
Readings
· Fuentes, Ximena. “International Law-Making in the Field of
Sustainable Development: The Unequal Competition Between
Development and the Environment.” International
Environmental Agreements 2, no. 2 (2002): 109–133.
doi:http://dx.doi.org/10.1023/A:1020990026398.
Readings for Briefs
· Hiskes, Richard P. “The Right to a Green Future: Human
Rights, Environmentalism, and Intergenerational
Justice.” Human Rights Quarterly 27, no. 4 (2005): 1346–1364.
· Risse, Mathias. “The Right to Relocation: Disappearing Island
Nations and Common Ownership of the Earth.” Ethics &
International Affairs 23, no. 3 (2009).
doi:http://dx.doi.org/10.1111/j.1747-7093.2009.00218.x.
· McIntyre, Owen, and Mosedale, Thomas. “The Precautionary
Principle as a Norm of Customary International Law.” Journal
of Environmental Law 9, no. 2 (1997): 221–241.
doi:http://dx.doi.org/10.1093/jel/9.2.221.
Key Concepts
· Precautionary Principle
· Polluter Pays Principle
· Common Heritage Principle (Res Communis)
· Common but Differentiated Responsibilities
· Framework-Protocol Approach
· State Responsibility (Good Neighbourliness)
· Transboundary Environmental harm
· Stockholm Declaration
· Rio Declaration
· Climate Change Mitigation & Adaptation
· Sustainable Development
· Access & Allocation
· Public Goods, Private Goods and Merit Goods
· Environmental Refugees

3. · Carbon offsets & Certified Emissions Reductions (CERs)
· Carbon Sinks
· Emissions Trading
· Clean Development Mechanism
· Joint Implementation
· REDD
· Biological Diversity
· Latitudinal Gradients & Species Diversity
· Fair and Equitable Sharing
· Living Modified Organisms (LMOs)
EVOLUTION OF INTERNATIONAL ENVIRONMENTAL LAW
International environmental law is perhaps the newest area in
contemporary international law, with most analysts tracing its
emergence to the 1972 United Nations Conference on the
Human Environment (UNCHE) held in Stockholm, Sweden.
International instruments designed to protect the environment
did exist prior to 1972, in the mandates of international
organizations such as the Food and Agriculture Organization's
(FAO) mandate for the conservation of natural resources, and
the International Labor Organization's (ILO) standards on
occupational hazards in the work place, for example. There
were also a number of treaties such as transboundary
agreements on water resources. Prior to 1972, however, rules
for the protection of the environment came primarily in the
form of customary international law. We begin by examining
briefly these customs and then proceed to trace the evolution of
international environmental law, focusing on the major UN-
sponsored world conferences including the UNCHE in 1972, the
1992 UN Conference on the Environment and Sustainable
Development, the World Summit on Sustainable Development in
2002, and the 2012 UN Conference on Sustainable
Development.
Customary International Law and the Environment Prior to 1972
In customary international law, issues concerning the natural
environment were defined in terms of states' territorial
jurisdiction. Under the doctrine of state responsibility, while a

4. state had sovereignty over the natural resources within its
territory, it also had a duty to protect other states against
injurious acts from within its borders, and was held responsible
for any damage to the environment of another state. Injured
states had the legal right to insist on the abatement of such
harm. Support for the existence of such a customary principle,
also known as the principle of 'good neighbourliness', is found
in a number of judicial decisions, the most well-known being
the Trail Smelter case (USA v. Canada, 1938).1Thus, although
each state has the jurisdiction to act in the manner they choose
within their territorial jurisdiction, they also have an obligation
not cause transboundary environmental harm that adversely
affected other states.
Thus, customary rules for the protection of the environment
operated within a state-centric paradigm that emphasized inter-
state claims to transboundary environmental harm. As a result,
it suffered from at least three major weaknesses.
1. Although state responsibility did include a notion of
preventing environmental harm, in practice the emphasis was on
reparations that arose after transboundary environmental harm
had occurred. The system was essentially bilateral and
adversarial in that the injured state whose territorial rights were
would press a judicial claim against the offending state.
2. The system was bilateral in character in that only states
directly affected by a transboundary problem had the legal
standing to press a claim. Thus, for example, a state that did not
share a watershed with another state could not press a claim
against the latter if it was involved in polluting underground
water.
3. Environmental issues were defined in terms of states'
territorial boundaries. The notion of territorial boundaries is
somewhat absurd when attempting to deal effectively with
problems such as air and water pollution, ozone depletion,
ecosystem preservation, climate change, and other issues arising
from the global commons that do not fit into states' territorial
demarcations.

5. Because of these weaknesses, although state responsibility
remains a cornerstone of international environmental law, since
the UNCHE in 1972 it is widely recognized that dealing
effectively with contemporary environmental issues requires a
multilateral preventative regime rather than a bilateral
adversarial one.2
Common Heritage (of Humanity) Principle
In addition to state responsibility, Common Heritage (an
extension of res communis) is another principle that informs
contemporary international environment law. Common Heritage
holds that defined territorial areas and elements of humanity's
common heritage (cultural and natural) are to be protected from
exploitation by individual states or corporations, harnessed for
the benefit of all humanity, and held in trust for future
generations. The principle, for example, is applied to the ocean
floor, seabed, and Antarctica. The common heritage principle is
also found in the 1967 Outer Space Treaty, the 1979 Moon
Treaty, and was incorporated into the 1982 UN Convention on
the Law of the Sea (UNCLOS III, articles 136-37). The
Principle also informs efforts to preserve places of cultural and
historical value such as the various UNESCO 'World Heritage
Sites'.
The 1972 UN Conference on the Human Environment (UNCHE)
Contemporary efforts to create a multilateral legal and
institutional framework to govern the global environment date
only to 1968 when the United Nations General Assembly
(UNGA) adopted resolution 2398 (XXIII) convening the
UNCHE. The Conference adopted theStockholm Declaration –
twenty-six principles that for the next twenty years provided the
foundation of international environmental law.
The Stockholm Declaration
The Stockholm Declaration asserted that a healthy environment
was a human right essential to a "life of dignity and well-being"
(principle 1). It also reaffirmed the customary principle of state
responsibility (principles 21-23) that had provided the basis for
the limited approach to environmental regulation in traditional

6. international law. However, as applied in subsequent
multilateral instruments, Stockholm's principle 21 has been
interpreted as imposing an obligation on states, not merely to
make reparations for transboundary environmental harm, but to
take suitable measures to prevent future environmental damage.
Since 1972, this expanded definition of state responsibility
explicitly to include prevention and control has formed the basis
of numerous multilateral treaties on the environment including
the ozone conventions, and treaties dealing with pollution. The
Stockholm Declaration also placed emphasis on adopting a
multilateral approach to the management of the environment by
calling on states and international organizations to "play a
coordinated, efficient and dynamic role for the protection and
improvement of the environment" (principle 25).
Another major outcome of the 1972 UNCHE was the creation of
the United Nations Environment Program (UNEP) in December
1972 by the UNGA. Since its inception, UNEP has emerged as
the central coordinating agency for global environmental
management. UNEP has been active in drafting international
and regional treaties dealing with various aspects of the
environment and in environmental monitoring. Indeed, prior to
1972, there were relatively few multilateral agreements
concerning the environment. Since 1972 over 1000 international
instruments have been created consisting primarily of treaties
and resolutions and declarations by international organizations.
Sustainable Development
Another significant factor in the evolution of contemporary
international environmental law was the emergence of the
concept of sustainable development. Although the natural
environment is the life-blood of socioeconomic development,
many contemporary environmental problems are rooted in
inappropriate patterns of development. The traditional paradigm
that shaped the relationship between humans and the natural
environment since the industrial revolution held that economic
growth, which was essential to the development of society, was
made possible by the exploitation of natural resources. The

7. environment was little more than a resource to be used and
exploited. When environmental problems arose, they were seen
as discrete technical problems requiring technical solutions,
rather than as inter-connected problems producing wide-ranging
and often unforeseen consequences that required socioeconomic
and political as well as technical solutions.
The genesis of the concept of sustainable development can be
traced to the activities of UNEP. Since the early 1970s, UNEP
has been a leader in promoting the view that environmental
issues should be addressed within their socio-economic and
political contexts, as well as within the economic and financial
framework provided by the prevailing global political economy.
This early attempt at linking environment and development was
captured in the concept of 'ecodevelopment', which, although
generally consistent with what subsequently became known as
sustainable development, lacked an integrated vision of
multilateral governance. The term sustainable development was
popularized through the work of the World Commission on
Environment and Development (WCED, also known as the
Brundtland Commission). The WCED was established in 1983
by the UNGA to explore the relationship between the
environment and development and to make recommendations.
Its 1987 publication, Our Common Future, became the blueprint
for subsequent global negotiations over sustainable
development.3
The WCED report and its preliminary documentation challenged
traditional approaches in at least two important ways. The first
was the tendency to focus on the effects of environmental
problems rather than the causes; the second was the separation
of environment issues from development issues. Sustainable
development, then, as elaborated by the WCED, attempts to
treat the environment and the economy as a unity rather than as
two separate spheres. According to the WCED report,
sustainable development is "development that meets the needs
of the present without compromising the ability of future
generations to meet their needs." Development is as a

8. progressive transformation of an economy and society, and the
satisfaction of human needs and aspirations is or should be the
major objective of development. Sustainable development, then,
is "a process of change in which the exploitation of natural
resources, the direction of investments, the orientation of
technical development, and institutional change are all in
harmony and enhance both current and future potential to meet
human needs and aspirations."
Since the WCED report's publication, debates over sustainable
development have centred on how to solve the environmental
paradox – the mismatch between the demands placed on Earth's
resources and what Earth is capable of supplying. Two broad
views on how to solve this paradox have emerged in the
literature. The first, 'weaker sustainability' (or 'shallow
environmentalism') sees the solution in the expansion of the
stock of resources by, for example, developing renewable
resources, creating substitutes for non-renewable resources, and
applying new technologies to solve problems such as resource
depletion and pollution. The second view, 'stronger
sustainability' (or 'deep ecology'), argues that nature is finite
and thus rather than attempting to adapt the natural environment
to meet the increased demands of the world's population, the
demands made on the world's resources need to be changed and
reduced.4
Sustainable development thus broadened the agenda of
international environment law to include environmental
problems related to development (and underdevelopment) that
affected the 'global commons'. These include climate change,
depletion of stratospheric ozone, preservation of biodiversity,
acid rain, the international traffic in toxic substances, and the
destruction of the environment in times of armed conflict –
problems that are of concern to all countries, developed and
developing.
The 1992 United Nations Conference on the Environment and
Development (UNCED)
In 1989, the UNGA passed resolution 44/288 convening a

9. conference on the environment and development based on the
1987 WCED Report. The conference – United Nations
Conference on the Environment and Development (UNCED,
also known as the Rio Conference or the Earth Summit I) – was
held in June 1992 in Rio de Janeiro, Brazil. The UNCED
produced five major documents including the Rio Declaration
on Sustainable Development, Agenda 21, UN Framework
Convention on Climate Change, a Convention on Biological
Diversity, and a set of Forest Principles. The Rio Declaration
contains principles and guidelines that set the international
agenda for sustainable development cooperation into the
twenty-first century.
The Rio Declaration
The Rio Declaration contains 27 principles that not only
reaffirmed the principle of state responsibility set out in the
Stockholm Declaration of twenty years earlier (principle 2), but
expanded the Stockholm formulation by linking explicitly
environmental protection and development as related goals. The
Rio Declaration may thus be seen as an attempt to expand the
traditional customary rule of state responsibility explicitly to
include the goal of sustainability. Principle 1 places human
beings at the centre of concerns over sustainable development
stating that they are "entitled to a healthy and productive life in
harmony with nature". Principle 3 reaffirms a 'right to
development', and principle 4 states that in order to achieve
sustainable development for present and future generations
"environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from
it." The Rio Declaration is also significant for elaborating on
three more principles that have become pillars in contemporary
global environmental governance because they and are
considered to be part of customary law.
Common but Differentiated Responsibility (Principle 7)
This principle states that although all states have a common
interest to conserve, protect and restore the natural
environment, they bear differential responsibility for

10. environmental degradation. Hence, "In view of the different
contributions to global environmental degradation, States have
common but differentiated responsibilities. The developed
countries acknowledge the responsibility that they bear in the
international pursuit of sustainable development in view of the
pressures their societies place on the global environment and of
the technologies and financial resources they command".
Precautionary Principle (Principle 15)
"In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental
degradation."
Polluter Pays Principle (Principle 16)
"National authorities should endeavour to promote the
internalization of environmental costs and the use of economic
instruments, taking into account the approach that the polluter
should, in principle, bear the cost of pollution, with due regard
to the public interest and without distorting international trade
and investment.
The 2002 World Summit on Sustainable Development (WSSD)
The World Summit on Sustainable Development Summit
(WSSD) took place in Johannesburg, South Africa, in August
and September 2002. The WSSD was supposed to be an
implementation-focused summit and as such, no major new
agreements were signed. Instead, the focus was on the practical
and sustained steps needed to address some the world's most
pressing problems, especially global poverty and the
deteriorating natural environment.
The 2012 United Nations Conference on Sustainable
Development (Rio + 20)
The 2012 United Nations Conference on Sustainable
Development took place in Rio de Janeiro, Brazil in June 2012 –
twenty years after the first 1992 Earth Summit in Rio. No new
major agreements came out of this conference. The official

11. discussions focused on two main themes: how to build a 'green
economy' to achieve sustainable development and lift people out
of poverty; and how to improve international coordination for
sustainable development.
MAKING & IMPLEMENTING INTERNATIONAL
ENVIRONMENT LAW
International cooperation in sustainable development occurs
within a multilateral framework of rules and the institutions
charged with implementing those rules (see Table 1 below for a
selected list of international environmental treaties). The
primary methods of international rule-making include
multilateral treaties (hard law), as well as soft law resolutions
and declarations passed at international conferences (such as the
Rio Declaration) and the regulations and standards established
by international organizations. The multilateral treaty is the
primary mechanism for making binding rules on various aspects
of the environment.Table 1 below provides a selected list of
major international Environmental Agreements.
Table 1: Selected List of Major Multilateral Environmental
Treaties
1971 Wetlands Treaty
Protects designated wetlands from encroachment, particularly
those important for migratory birds.
1972 World Heritage Treaty
Protects cultural and natural heritage sites of "outstanding
historical value".
1972 Stockholm Declaration on the Human Environment
First global statement of environmental principles
1972 Ocean Dumping Convention
Controls marine pollution
1973 Endangered Species Convention
Limits international trade in endangered species (fauna and
flora), or in products made from them, through a system of
import and export controls

12. 1977 Environmental Modification Convention
Prohibits military and other hostile uses of the Environment.
1979 Convention on Long-Range Transboundary Air Pollution
Reduces the risks and effects of pollution. Protocol focusing on
Nitrogen Oxides was added in 1988.
1982 UN Convention on the Law of the Sea (UNCLOS III)
Established a comprehensive regime for the world's oceans and
seas, sets environmental standards and enforcement provisions
to control marine pollution.
1985 Vienna Convention for the Protection of the Ozone layer
Called for collaborative research and monitoring of ozone layer
to protect human health and the environment.
1986 International Atomic Energy Agency (IAEA) Convention
on Early Notification of a Nuclear Accident
Designed to minimize consequences of nuclear accidents.
1987 Montreal Protocol on Substances that Deplete the Ozone
Layer
and the subsequent amendments (London 1990, and Copenhagen
1992) that have resulted in the phase-out of some of the primary
ozone-depleting substances
1989 Basel Convention on Hazardous Waste Movement
Restricts international traffic in hazardous waste materials,
particularly the export of toxins from rich to poor countries.
1991 Protocol on Environmental Protection to the Antarctic
Treaty
Updates the 1959 Antarctic Treaty which prohibited nuclear
testing and hazardous waste disposal, to enhance protection of
ecosystems and endangered species, and prohibit mineral
resource use except for scientific purposes.
1992 Rio Declaration on Environment and Development
Major statement of global principles for sustainable
development
1992 Agenda 21
Most extensive statement of priorities relating to the
environment and development, including a review/assessment of
international institutions and law, and development of

13. implementation and compliance measures
1992 UN Framework Convention on Climate Change
Principles and measures to combat greenhouse effect from
emissions of carbon dioxide and other gases
1992 Convention on Biological Diversity
National monitoring and strategies for conserving biological
diversity in all ecosystems
1992 Authoritative Statement of Principles for Global
Consensus on the Management, Conservation and Sustainable
Development for all types of Forests
Principles encouraging the sustainable development of forests,
reforestation, and reduction of pollutants, especially acid rain.
1997 Kyoto Protocol to the Framework Convention on Climate
Change
Sets quantitative reductions in greenhouse gas emissions.
However, several collective action problems beset the treaty
making process, including the 'free rider' problem, the 'slowest
boat' problem, and 'the lowest common denominator' problem.
With respect to the free rider problem, as noted in unit 2 most
international treaties specify an 'effective date' and/or a certain
number of ratifications/accessions for the treaty to come into
effect. This is to ensure reciprocity and to avoid the free rider
problem where states that initially ratify the treaty shoulder a
disproportionate share of the burden. The slowest boat problem
refers to the amount of time it takes for a treaty to come into
effect. The requirement of ratifications creates a time lag that
delays the implementation of international agreements. For
example, the third UN Convention on the Law of the Sea
(UNCLOS III) took nine years to negotiate (1973-1982) and
finally came into effect in 1994, twelve years after its adoption,
when the required 60th ratification instrument was deposited. A
study by the UN Institute for Training and Research (UNITAR)
has shown that this phenomenon has tended to postpone the
effective date of treaties from between two to twelve years after
reaching a formal agreement. The average is five years. Because
of these problems, obtaining multilateral agreements to protect

14. the environment sometimes has to be the least ambitious
program or the minimum standard (lowest common
denominator). Thus, where a multilateral agreement requires the
consent of all the major parties involved, collective action to
deal with the issue may sometimes be limited to those measures
acceptable to the least enthusiastic party. This creates
significant problems in international environmental management
since the minimum standard that is often a compromise to
obtain agreement may not be adequate to deal with the problem.
Various attempts have been made to deal with these problems.
One method is theframework-protocol approach to make binding
rules for the environment. This approach was first developed in
the context of the problem of ozone depletion, and entails the
following steps. First, gain acceptance for a general set of
principles (the 1985 Vienna Convention); then address the
substance of the problem by breaking it down into smaller
issues phrased as targets and goals (the 1987 Montreal
Protocol). These targets and goals are subject to revision or
tightening as conditions change (the London and Copenhagen
Amendments of 1990 and 1992), thus obviating the need to
renegotiate and ratify a new treaty. The framework-protocol
approach stands in contrast to the comprehensive approach that
attempts to address all aspects of a given problem in a single
package – as in the case of UNCLOS III, which, as noted above,
took 14 years to come into effect. The 'framework-protocol'
approach was also employed to address the problem of climate
change.
Selective incentives may also be used to induce parties to sign
an environmental agreement. The Montreal Protocol for
example, has provisions that allow developing countries to
postpone implementation of certain treaty provisions for 10
years. Another method is through the creation of differential
obligations (based on the principle of 'common but
differentiated obligations') where treaty obligations are
differentiated according to the circumstances of the parties.
Various environmental treaties such as the Montreal Protocol,

15. and the conventions on endangered species, climate change, and
on transboundary pollution, established trust funds to finance
joint programs where contributions to the fund are weighted --
richer countries contribute proportionally more than poorer
ones. Another option is regionalization where instead of
attempting to obtain a global agreement the focus is on a
particular group of countries in a particular area. The premise
here is that agreement is more likely to be achieved at the
regional level where states have similar interests than at the
global level. Examples of this include the various regional seas
treaties signed under the auspices of UNEP such as the 1976
Barcelona Convention for the Protection of the Mediterranean
Sea. A different method is to create and enforce rules through
the medium of international institutions, discussed below.
The Multilateral Institutional Framework for Environmental
Cooperation
The institutional framework for sustainable development
cooperation internationally is centered on the United Nations
system, and includes regional organizations as well as a global
network of international non-governmental organizations. As
noted in unit 6, International institutions come in a variety of
forms ranging from formal intergovernmental organizations
such as UNEP to less formal institutional arrangements known
as 'regimes' such as the regime for the oceans institutionalized
via UNCLOS III.
Institutions are themselves an important source of rules to guide
the conduct of states. Institutions derive this authority from
their constituent treaties, and/or indirectly through the
elaboration of standards that give effect to the more general
framework provided by a treaty. An example is the World Bank,
which plays a prominent role in financing sustainable
development programs. Other institutions facilitate the creation
of rules by providing a forum for the negotiation of multilateral
treaties – such as the UNGA's role in the creation of numerous
agreements on the environment.
Institutions gather, analyze and disseminate information. Inter-

16. governmental organizations such as UNEP, the World Health
Organization (WHO) and the Food and Agriculture Organization
(FAO), for example, have technical expertise and information
technologies at their disposal that may not be available to
individual states. In addition, the development and enforcement
of environmental standards depend on reliable scientific data.
Institutions also play an important role in monitoring
compliance with rules and regulations. These monitoring
provisions can involve the development of specific regulations;
receiving reports on treaty implementation; facilitating
independent monitoring and inspection and acting as a forum
for reviewing the performance of individual states or the
negotiation of measures and regulations; a review process to
monitor compliance, and a dispute settlement process. Some
institutions have extensive monitoring powers within their areas
of jurisdiction. For example, the International Atomic Energy
Agency (IAEA), the organizational core of the nuclear non-
proliferation regime, has extensive powers to monitor
compliance with established standards for the use of nuclear
energy.5
Information gathering and monitoring play an important role in
reducing uncertainty -- one of the greatest impediments to
international cooperation in the absence of centralized
enforcement. Two methods of institutional supervision of
international agreements are most frequently used. The first is
treaty-based: specific treaties provide for periodic reviews and
meetings of the parties, with institutional continuity provided
by a permanent secretariat. Examples of this method include the
UNEP regional seas conventions, the convention on endangered
species, and the climate change convention. The second is non-
treaty based: a formal commission is created within the UN
system in which member states are represented, as, for example,
the UN Commission for Sustainable Development (CSD).
Although non-treaty based methods of institutional supervision
have existed within the UN system in other issue-areas since
1946, the creation of the CSD in 1992 was a first for the

17. environment.6
Institutions also provide financial assistance and capacity-
building services in the implementation of sustainable
development programs, particularly in developing countries.
Institutions play an important role in raising awareness of
sustainability issues and in agenda setting. Institutions are also
important media in international socialization, an important
process in the reproduction of patterns of behavior. For
example, through processes of 'collective legitimization'
institutions enable states to make judgments about the
appropriateness or otherwise of specific types of conduct, and
thus to exercise a form of community supervision. By providing
incentives, resources, information and monitoring, institutions
lower transaction costs, and thus help transform the way states
define their interests. They also play a key role in transnational
coalition-building -- linking experts with specialized knowledge
of a given issue located within the international organization
with those within governments and NGOs to create 'epistemic
communities' who play key roles in transforming the way
leaders of states understand environmental problems. A good
example in this regard is the role of epistemic communities in
the evolution of the ozone conventions.7
CLIMATE CHANGE
Global efforts to address climate change have occurred within
the framework of the 1992 United Nations Framework
Convention on Climate Change (UNFCCC) and the 1997 Kyoto
Protocol. Together these agreements established broad
principles (framework convention) and concrete measures
(protocol) to combat climate change. These measures are
grouped into climate change 'mitigation' and 'adaptation'.
Climate Change Mitigation
Climate Change Mitigation involves human interventions to
reduce the emissions of greenhouse gases by sources or enhance
their removal from the atmosphere by 'sinks'. There are six main
sources of greenhouse gas (GHG) emissions, with carbon
dioxide (CO2), methane (CH4) and nitrous oxide (N20) as the

18. most important. These gases are by-products
of anthropogenic development processes associated with
industry, agriculture, commerce, energy production, household
use, etc). A 'sink' refers to forests, vegetation or soils that can
reabsorb CO2.
Table 2: The major types/sources of GHG Covered by the
UNFCCC & Kyoto Protocol
Gas
Source
Share of global emissions in 2004
Carbon dioxide (CO2)
1. Consumption of energy from burning fossil fuels
2. Deforestation
76,7%, with 56.6% from fossil fuel use
Methane (CH4)
1. Agricultural activities
2. Energy production
3. Waste
14.3%
Nitrous oxide (N20)
Agricultural activities
7.9%
Hydrofluorocarbons (HFCs)
Perfluorocarbons (PFCs)
Used as replacements for ozone-depleting substances
1.1%
Sulphur hexafluoride (SF6)
Used in some industrial processes and in electric equipment
Carbon dioxide is the largest contributing gas to the greenhouse
effect. In the 200 years since 1800, levels have risen by over
30%. Since levels of greenhouse gases are currently rising even
more steeply, leading to the most dramatic change in the
atmosphere's composition in at least 650,000 years,
international action on mitigation is urgently required.8
Climate Change Adaptation

19. Climate Change Adaptation entails measures to address
the impacts or effects of climate change. According to the
Intergovernmental Panel on Climate Change (IPCC) the world's
most authoritative source on Climate Change, these impacts will
result from changes in the earth's geophysical, biological and
social systems. The impacts and risks associated with these
changes are real and are already happening in many systems and
sectors essential for human livelihood, including water
resources, food security, coastal zones and health.
Climate Change impacts highlighted by the IPCC's Fourth
Assessment Report (2007) include9:
· Worldwide, approximately 20-30% of plant and animal species
are likely to be at increased risk of extinction if increases in
global average temperature exceed 1.5-2.5°C;
· Widespread melting of glaciers and snow cover will reduce
melt water from major mountain ranges (e.g. Hindu Kush,
Himalaya, Andes), where more than one billion people currently
live;
· In 2008 alone, more than 20 million people were displaced by
sudden climate-related disasters. An estimated 200 million
people could be displaced as a result of climate impacts by
2050;
· Climate change currently contributes to the global burden of
disease and premature deaths. Adverse health impacts will be
greatest in low-income countries, including from heat stroke,
malaria, dengue and diarrhoea.
Although climate change impacts will be worldwide and affect
all nations and peoples in different ways and to varying degrees,
the IPCC's 4th Assessment Report notes that people in poorer
developing nations are more vulnerable to and less able to cope
with 'key' harmful impacts. These include:
· Intense droughts and scarcity of freshwater water supplies,
· Sea level rise,
· Extreme weather events (cyclones, changes in precipitation,
heat waves, etc)
The most vulnerable regions include Africa and the Middle East

20. where droughts and acute water shortages are expected to
worsen; South Asia where extreme weather events are expected
to intensify; and the so-called Small Island Developing States
(SIDS) some of which are already experiencing land loss due to
rising sea levels. The plight of these SIDS has sparked debates
regarding the rights of 'environmental refugees', 'climate
refugees'and the 'right to relocation.'
The UNFCC and the Kyoto Protocol
The UNFCC (1992) and the Kyoto Protocol (1997) are the two
treaties created to address climate change mitigation and
adaptation. The UNFCCC was adopted in 1992 and entered into
force in 1994. There were 195 Parties to the Convention in
2013.10 The Convention divides state parties into three main
groups according to differing commitments.
Annex I
Annex I Parties include the wealthy industrialized countries that
were members of the OECD (Organisation for Economic Co-
operation and Development) in 1992, plus countries with
'economies in transition' (the EIT Parties), including the
Russian Federation, the Baltic States, and several Central and
Eastern European States – 36 states (including the European
Union). The GHG emissions of the 36 Annex I Parties are
63.7% of total world emissions.
Annex II
Annex II Parties consist of the OECD members of Annex I, but
not the EIT Parties. They are required to provide financial
resources to enable developing countries to undertake emissions
reduction activities under the Convention and to help them
adapt to adverse effects of climate change. In addition, they
have to 'take all practicable steps' to promote the development
and transfer of environmentally friendly technologies to EIT
Parties and developing countries. Funding provided by Annex II
Parties is channelled mostly through the Convention's financial
mechanism.
Non-Annex
Non-Annex Parties are mostly developing countries. Certain

21. groups of developing countries are recognized by the
Convention as being especially vulnerable to the adverse
impacts of climate change, including countries with low-lying
coastal areas and those prone to desertification and drought.
Others (such as countries that rely heavily on income from
fossil fuel production and commerce) feel more vulnerable to
the potential economic impacts of climate change response
measures. The 49 Parties classified as least developed countries
(LDCs) by the UN were given special consideration under the
Convention because of their limited capacity to respond to
climate change and adapt to its adverse effects. Parties are
urged to take full account of the special situation of LDCs when
considering funding and technology-transfer activities.
The UNFCCC (1992) sets an overall framework for
international efforts to tackle the challenge of climate change.
Parties to the Convention agreed to a number of commitments to
address climate change:
1. To develop and periodically submit national reports
containing information on the greenhouse gas emissions of that
Party and the steps it has taken and plans to take to implement
the Convention.
2. To put in place national programmes and measures to control
emissions and to adapt to the impacts of climate change.
3. To promote the development and use of climate-friendly
technologies and the sustainable management of forests and
other ecosystems.
Developing countries (Non-Annex) did not make commitments
to reduce or limit greenhouse gas emissions at the time when
the UNFCCC was being negotiated. The Convention thus
applies the principle of common but differentiated
responsibilities. Industrialized countries on the other hand
agreed to the following broad commitments:
1. Undertake policies and measures with the specific aim of
reducing their greenhouse gas emissions.
2. Provide more frequent and more detailed national reports and
must separately provide yearly reports on their national

22. greenhouse gas emissions.
3. Promote and facilitate the transfer of climate friendly
technologies to developing countries and to countries with
economies in transition.
The Kyoto Protocol
The Kyoto Protocol to the UNFCCC was adopted in Kyoto,
Japan, in 1997. The Protocol entered into force in 2005. There
were 191 Parties to the Kyoto Protocol in 2013. The Kyoto
Protocol shares the UNFCCC's ultimate objective; however, in
keeping with the 'framework-protocol approach' it builds upon
and enhances many of the commitments already in place under
the Convention, and identifies specific targets.
The Annex I parties to the UNFCCC agreed under the Kyoto
Protocol to two commitments:
1. Under the first commitment period (2008-2012) Annex I
parties agreed to reduce their GHG emissions by 5% below 1990
levels by December 2012. This goal was not achieved.
2. Doha Amendment: Under the second commitment period
(2013-2020), negotiated at Doha Qatar in December 2012,
Annex I parties agreed to reduce their GHG emissions by 18%
below 1990 levels by December 2020. At the Doha meeting,
Canada announced its withdrawal from the Kyoto Protocol.
The Kyoto Protocol introduced three mechanisms by which
Annex I Parties could lower their costs of achieving emissions
targets:
Emissions Trading ('Cap & Trade')
Parties with commitments under the Kyoto Protocol have
accepted targets for limiting or reducing emissions. These
targets are expressed as levels of allowed emissions, or
"assigned amounts," over the commitment periods. Emissions
trading, as set out in Article 17 of the Kyoto Protocol, allows
countries that have emission units to spare - emissions
permitted them but not 'used' - to sell this excess capacity to
countries that are over their targets. Thus, a new commodity
was created in the form of emission reductions or removals.
Since carbon dioxide is the principal greenhouse gas, people

23. speak simply of trading in carbon. Carbon is now tracked and
traded like any other commodity, in what is known as the
'carbon market'.
Clean Development Mechanism
The Clean Development Mechanism (CDM), defined in Article
12 of the Protocol, allows a country with an emission-reduction
or emission-limitation commitment to implement an emission-
reduction project in developing countries. Such projects can
earn saleable Certified Emission Reduction (CER) credits, each
equivalent to one tonne of CO2, which are counted towards
meeting Kyoto targets. The mechanism is the first global,
environmental investment and credit scheme of its kind,
providing a standardized emissions 'offset' instrument, CERs. A
CDM project activity might involve, for example, a rural
electrification project using solar panels or the installation of
more energy-efficient boilers. The mechanism is designed to
stimulate sustainable development and emission reductions,
while giving industrialized countries some flexibility in how
they meet their emission reduction or limitation targets.
Joint Implementation
Article 6 of the Kyoto Protocol, allows a country with an
emission reduction or limitation commitment to earn Emission
Reduction Units (ERUs) from an emission-reduction or
emission removal project in another country with a
commitment, each equivalent to one tonne of CO2, which can be
counted towards meeting its Kyoto target. Joint implementation
offers Parties a flexible and cost-efficient means of fulfilling a
part of their Kyoto commitments, while the host Party benefits
from foreign investment and technology transfer. Projects
funded under Joint Implementation are usually in EIT countries
in Eastern Europe.
REDD (Reduction Emission from Deforestation and forest
Degradation)
The UNFCC introduced a 'low cost' mitigation mechanism in
2007, REDD, which aims at slowing down the rate at which
remaining tropical forests are degraded and deforested in

24. developing countries. REDD is designed to remove GHG from
the atmosphere by 'sinks' (forests, vegetation and soils that
absorb C02). The REDD mitigation potential can be defined as
the foreseen reduction in greenhouse gas emissions through the
slowdown or halt of deforestation. The main concern for an
efficient REDD mechanism is the accurate estimation of the
avoided carbon reduction in tropical forests.
Deforestation is responsible for about 17% of global
anthropogenic CO2 emissions. The loss of forests amounts to
more than 13 million hectares per year in tropical countries.
Globally forest loss is dominated by deforestation occurring in
Latin America. This accounts for around 60% of the global
tropical forest area loss, mainly localized in Brazil (48% of the
total). Deforestation in Asia and Africa accounted globally for
30% and 5%, respectively over the same period 1990-2010.
Indonesia alone totals 13% of global forest loss. Anthropogenic
land-use changes alter the balance between the CO2 released
into the atmosphere and that absorbed by the ecosystem. The
corresponding loss of carbon from land occurs with a flow that
is very difficult to estimate
Adaptation Measures under the UNFCCC and Kyoto Protocol
Adaptation is particularly important to developing countries
because of the 'triple inequality' of climate change ¬¬¬–
inequality in historical responsibility for climate change, where
the North has been responsible for a far greater proportion of
GHG emissions than the South; inequality in vulnerability to
climate change impacts; and inequality in the ability to cope
with and manage those impacts.11
The UNFCCC commits all Parties to formulate, implement,
publish and update adaptation measures, as well as to cooperate
on adaptation. It provides for a variety of support mechanisms
for adaptation implementation in developing countries,
including measures on:
· The provision of funding
· Insurance and technology transfer
· Scientific and technical assistance for all Parties to enhance

25. their knowledge base
· Adaptation Fund: established to finance concrete adaptation
projects and programmes in developing countries that are
Parties to the Kyoto Protocol. It is to be financed with a share
of proceeds from clean development mechanism (CDM) project
activities and funds from other sources. The share of proceeds
amounts to 2% of CERs issued for a CDM project activity. The
Adaptation Fund is managed by the Adaptation Fund Board
(AFB) with the Global Environment Facility (GEF) providing
secretariat services to the Board, and the World Bank serving as
the trustee of the Adaptation Fund. The AFB is composed of 16
members and 16 alternates and it meets at least twice a year.
· At a meeting in Cancun Mexico in 2010, parties agreed to
the Cancun Adaptation Framework and the Green Climate Fund.
The Cancun Adaptation Framework seeks to enhance action on
adaptation by reducing vulnerability and build resilience in
developing countries. The Green Climate Fund will scale up the
provision of long-term financing for developing countries. The
fund will support projects, programmes, policies and other
activities in developing country Parties using thematic funding
windows.
BIOLOGICAL DIVERSITY
Biological diversity – or biodiversity – is the term given to the
variety of life on Earth and the natural patterns it forms. The
biodiversity we see today is the fruit of billions of years of
evolution, shaped by natural processes and, increasingly, by the
influence of humans. It forms the web of life of which we are an
integral part and upon which we so fully depend.
Biological diversity includes the wide variety
of plants, animals and microorganisms. So far, about 1.75
million species have been identified, mostly small creatures
such as insects. Scientists estimate that there are actually about
13 million species, though estimates range from three to 100
million. Biodiversity also includes genetic differences within
each species – for example, between varieties of crops and
breeds of livestock. Chromosomes, genes, and DNA– the

26. building blocks of life – determine the uniqueness of each
individual and each species. Yet another aspect of biodiversity
is the variety of ecosystems and ecosystem services. An
ecosystem is a community of animals (including humans) and
plants interacting with one another and with their physical
environment, such as those that occur in deserts, forests,
wetlands, mountains, lakes, rivers, and agricultural landscapes.
Ecosystem services play a part in regulating the chemistry of
our atmosphere and water supply. Here, biodiversity is directly
involved in such processes as water purification, recycling
nutrients and providing fertile soils. Experiments with
controlled environments have shown that humans cannot easily
build ecosystems to support human needs.
Species Diversity & 'Latitudinal Gradients'
Biodiversity is not evenly distributed; rather it varies greatly
across the globe as well as within regions. Among other factors,
the diversity of all living things depends on temperature,
precipitation, altitude, soils, topography and the presence of
other species. Biodiversity is generally higher in the tropics
than temperate zones and much lower in the polar regions.
Generally, biodiversity increases as we move from the poles
(higher latitudes) to the tropics (lower latitudes). Thus, places
at lower latitudes have more species than localities at higher
latitudes. This is often referred to as the latitudinal gradient in
species diversity. While there are several reasons for this, the
most important is the higher mean temperature at the equator
compared to that of the poles. This general rule only applies
to terrestrial biodiversity (i.e. on the earth's surface). It does
not necessarily apply to biodiversity in the earth's oceans and
seas (marine or aquatic biodiversity).
The Convention on Biological Diversity (CBD)
The CBD was opened for signature in June 1992 at the UN
Conference on Environment and Development (the Rio "Earth
Summit"). By 2013, 193 states were parties to the CBD. The
CBD has three main objectives (article 1):
1. The conservation of biological diversity;

27. 2. The sustainable use of its components; and
3. The fair and equitable sharing of the benefits arising out of
the utilization of genetic resources, including by appropriate
access to genetic resources and by appropriate transfer of
relevant technologies, taking into account all rights over those
resources and to technologies, and by appropriate funding
4. In addition, the CBD recognizes Traditional
Knowledge(Article 8) as a key element in biodiversity and its
conservation. Article 8 states: "Each contracting Party shall …
respect, preserve and maintain knowledge, innovations and
practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and
sustainable use of biological diversity … and encourage the
equitable sharing of the benefits arising from the utilization of
such knowledge innovations and practices".
Key Provisions of the CBD
The CBD has several key provisions two of which have
generated some controversy. The first is article 3 that affirms
states' sovereign rights over the natural resources and
biodiversity within their territory and affirms the principle
of state responsibility. By placing biodiversity under the
territorial sovereignty of states, the CBD rejects the notion that
biodiversity is, or should be, part of humanity's Common
Heritage. In part, this provision was included at the insistence
of developing countries. As indicated by the latitudinal
gradient, the bulk of the world's biological diversity is in the
tropical and sub-tropical regions, where the majority of
developing countries are located. These developing countries
were determined to retain control over the biodiversity located
within their territories, particularly in the face of the
technological and financial dominance of developed countries.
Article 15 dealing with access to genetic resources, and article
16 on biotechnology, technology transfer and intellectual
property, have also generated debate particularly since
corporations in the developed countries, which protect that
technology with patents and other forms of intellectual

28. property, own the bulk of the world's biotechnology. A key
issue of debate then, concerns the 'fair and equitable' sharing of
the benefits of genetic resources between developing countries,
where the bulk of these genetic resources are located, and
developed countries that have the technology to exploit and
profit from these genetic resources.12 This issue was taken up
in the 2010 Nagoya Protocol (discussed below)
The Cartagena Protocol on Biosafety to the Convention on
Biological Diversity is an international treaty governing the
movements of living modified organisms (LMOs) resulting from
modern biotechnology from one country to another. It was
adopted in January 2000 as a supplementary agreement to the
Convention on Biological Diversity, and entered into force in
September 2003. In accordance with the precautionary
principle, the objective of this Protocol is to ensure an adequate
level of safety in the transfer, handling and use of LMOs that
may adversely affect the conservation and sustainable use of
biological diversity, taking also into account risks to human
health, and specifically focusing on transboundary movements.
The Nagoya Protocol on Access to Genetic Resources and the
Fair and Equitable Sharing of Benefits Arising from their
Utilization to the Convention on Biological Diversity aims at
sharing the benefits arising from the utilization of genetic
resources in a fair and equitable way. This is to be
accomplished by appropriate access to genetic resources and by
appropriate transfer of relevant technologies, taking into
account all rights over those resources and to technologies, and
by appropriate funding, thereby contributing to the conservation
of biological diversity and the sustainable use of its
components. It was adopted in October 2010 in Nagoya, Japan.
Discussion Questions
1. What are some of the main weaknesses of the state-centric
paradigm on transboundary environment harm and what
principles in contemporary international environment law
attempt to improve upon this paradigm?
2. What are some of the main challenges to the making and

29. implementation of international environment law and how can
these challenges be addressed? Are they effective?
3. What is the relationship between climate
change mitigation and adaptation? What challenges do
disparities between developed and developing countries pose to
the effectiveness of the mechanisms created to combat climate
change?
4. What are the main principles and goals of the Convention on
Biological Diversity? What are some of the main challenges to
realizing these goals?
Nature, Sources & Types of Human Rights
Self-determination also provides a framework for human rights,
as depicted the 5th row in Table 1. Here, we discuss what
human rights are and their sources, and identify the different
types of human rights.
Nature of Human Rights
A human right is defined somewhat tautologically as a right an
individual enjoys simply because he/she is human. The word
'right' in human rights has moral, legal and political
connotations:
1. Moral: Rights in this sense imply rectitude – i.e. that
something is 'correct', 'right', 'proper', or 'good' in a moral
sense.
2. Legal: This addresses the status of the person claiming the
right, and the obligations/duties of others in their relationship
with the right-bearer. Legal rights ground rights-claims in a
legal framework. They do two things: a) they give the rights-
claimant the procedural capacity to defend his/her rights (i.e.
the ability to go to court to defend the right); and b) impose
duties on others to respect that right. Rights that are
entitlements are obligatory and carry the force of law. A legal
right grounds duties and provides reasons for that duty.
3. Political: This addresses procedures and mechanisms that
empower rights-claimers to be assertive in defence of rights.

30. As we shall see a major challenge for human rights in
international law is that the three components identified above
often do not go together (i.e., there is a gap between the moral,
legal and political dimensions of human rights).
Sources of Human Rights
Here, we address the question, where do human rights come
from? The explicit recognition of human rights in international
law is a fairly recent development. Although ideas concerning
protection of individuals and groups have been around for some
time, it was not until the post WWII period, that human rights
were recognized explicitly in international law.
The philosophical origins of the contemporary human rights lie
in 18th century European Enlightenment thinking.
Philosophically, the source of HR represents a moral vision of
the minimum requirements of a life of dignity, and the content
of these rights are defined in terms of what a society believes
its people must enjoy in order to realize their full potential as
human beings. Thus, at one level, HR are essentially extra-legal
rights. If legal rights are based on existing social practices (the
"is" in legal positivism), human rights are based on notions of
what "ought to be" (natural law). Their principal aim is to
challenge/change existing institutions and practices, including
legal institutions.
Thus, as we shall see when we discuss the issues of debate, one
of the greatest obstacles to strengthening human rights
internationally lies in disagreements and competing moral
visions of what a 'life of dignity' entails and how the 'full
potential' of human beings is to be realized.
Types of Human Rights
Human Rights are usually classified into the following
categories:
1. First-Generation rights: These are the Civil and Political
rights and liberties such as the right to free speech, freedom
from arbitrary arrest, freedom of association and assembly, and
so on.
2. Second-Generation Rights: These are the Social and

31. Economic Rights such as the right to food, shelter, clothing,
employment, and so on.
3. Third-Generation Rights: These are collective or group rights
and include language rights, cultural rights, minority rights,
aboriginal rights, and women's rights.
This classification primarily reflects the temporal order in
which the types of rights appeared, with the first generation
rights as the earliest set of rights. The classification also
reflects the degree of priority accorded the different types of
rights in each category, where civil and political rights have
generally been accorded a higher priority than rights in the
other categories. Others attempt to prioritize human rights by
distinguishing so-called 'basic rights' (e.g., right to life, food,
and shelter) from non-basic rights. Debates over the content of
human rights underscore the priority accorded different types of
rights.
Issues of Debate Over the Content of Human Rights
Two main sets of debates have informed the global discourse on
human rights: First, the debate over Negative and Positive
rights; second the debate over Universalism and Cultural
Relativism. We discuss each in turn.
Negative and Positive Rights
Negative Rights are rights you enjoy when someone else
(usually the government and its enforcement apparatus) refrains
from doing something to you. These rights deal with personal
liberties and require that others refrain/abstain from certain
courses of action (i.e. they require acts of omission and that is
why they are 'negative' rights). Negative rights are usually
expressed as 'freedom from' (negative liberty) and entail the
acquisition of immunities. In terms of content, the first
generation civil and political rights are in the form of negative
rights, e.g. freedom from torture, arbitrary arrest and detention,
etc.
Positive Rights are rights you enjoy when others provide certain
services/goods in order that the right may be claimed, or create
the conditions such that you can provide them yourself (i.e. they

32. require acts of commission). They thus entail the 'freedom to'
do something (positive liberty) or the acquisition of capacities
to do something and that is why they are positive rights.
Positive rights correspond to the second-generation Economic
and Social rights.
The debate here is over whether negative rights take priority
over positive rights (or vice versa). This issue arises because
many western societies, led by the USA, give priority to
negative civil and political rights as true human rights. The
USA in particular has strongly resisted recognizing of positive
economic and social rights. Many non-western developing states
in the Global South, in contrast, argue that positive economic
and social rights are logically prior to negative rights.
Developing countries point to the so-called 'liberty-growth
trade-off' in support of their argument for prioritizing positive
rights. The argument goes like this: premature recognition of
civil and political liberties (i.e. democratization) would lead to
economic chaos because distributional coalitions (e.g. interest
groups) would lobby for their own selfish interests to the
detriment of the wider society. In other words, prioritizing
negative rights would impede the socio-economic development
of their states. Chinese leaders, for example, are quoted as
saying, "what use is free speech if you are starving?"
The counter-argument is that "if you had free speech, you would
not be starving" which rejects the 'liberty-growth trade-off, and
suggests that recognition of negative rights would actually
facilitate not impede socio-economic development.
To date, the debate between negative rights and positive rights
remains unresolved. But it is worth noting that the Universal
Declaration of Human Rights, passed by the UN General
Assembly in 1948 contains both positive and negative rules
(articles. 3-22 are negative rights; and articles 23-26 are
positive rights).
Universalism and Cultural Relativism
Proponents of Universalism argue that human rights apply to all
human beings as individuals. There are universal standards of

33. 'right' and 'wrong' to which all human beings subscribe and
hence culture differences are largely irrelevant to the validity of
moral rights and rules. Standards of morality and hence human
rights are universally applicable, irrespective of cultural
differences.
Proponents of Cultural Relativism stress the importance of
regarding social and cultural phenomena from the perspective of
the participants/adherents of that culture. No culture's
values/beliefs dominate all others, and that all moral standards,
including human rights are culturally determined. They further
argue that adopting a universal standard of human rights would
undermine their cultures. There are certain cultural practices
that are worth preserving. Cultures are so varied that it is
impossible to evolve a shared moral vision of what constitutes a
life of dignity and of the means to realize full human potential.
A key aspect of the debate has centered on disagreements on the
relationship between the individual and the community in
recognition of human rights. A brief summary of some key
issues of debate is as follows:
The Individual
In the individualistic conception of human rights that underpins
Universalism, which is informed by western liberalism, the
individual is prior to society. Liberalism argues that
individuals, not communities, are autonomous sources of moral
ends. From a moral point of view, communities are abstractions,
individuals are concrete entities, and territorial boundaries are
legal fictions.
1. If states have any rights, these are derived from the moral
attributes of the individuals who comprise the collective.
Excessive focus on the community may obscure instances of the
violations of individual rights. Human Rights, therefore, are
inherent rights enjoyed by individuals prior to the creation of
society – the true state of nature. Society and government are
artifacts created by individuals. The rights of individuals,
therefore, are prior to the rights of society/community. When
the rights of the individual and the rights of the community

34. clash, the rights of the individual should prevail. For liberals,
there is no need to recognize special rights for groups. Group
rights would be protected indirectly by guaranteeing basic civil
and political liberties to all regardless of group membership.
2. Guided by this individualistic philosophy, the UN
Commission on Human Rights established in 1946 under the
leadership of Eleanor Rosevelt, deleted all references to group
rights (minority rights) in the UNDHR in 1948. Instead, the
doctrine of human rights put forward in the UDHR is based on
the premise that groups/minorities whose members enjoy
individual equality cannot legitimately demand facilities for the
maintenance of group rights.
3. If any arrangements are to be made to recognize group rights
these are to be considered temporary. Liberals argue that
recognizing group rights can be used to justify all kinds of
abuses such as apartheid. The problem is group-differentiated
rights cannot easily be subsumed under traditional HR.
The Community & Culture
The argument here is that the community is prior to the
individual. Although individuals create communities the
community as a whole acquires an identity that is separate from
the identities of the individuals that comprise it. Communities
are embodiments of cultural values. The identity of the
individual cannot be defined separately from the community,
and hence when the rights of the individual and the community
clash, the rights of the community should prevail.
Communitarian perspectives make the following kinds of
arguments in their rejection of individualism:
1. It reflects the atomistic and possessive individualism of
liberalism in the West.
2. The focus on individuals could result in outcomes that are
detrimental to the society as a whole.
3. A focus on individuals obscures and obfuscates instances
where the abuse of rights applies not necessarily to individuals,
but to collectives as in the examples of racism, sexism, and
heterosexism. In these instances, the source of the

35. abuse/discrimination is not individualistic but collective, and
thus dealing effectively with these issues requires an approach
that recognizes group rights.
4. Fallacy of composition: "The whole is greater than the sum of
its parts" hence although communities are created by
individuals, once created, the community has an identity that
cannot be reduced to that of its individual members.
5. Liberal views of deny relevance of constitutive
attachments that help to define an individual's identity.
Constitutive attachments, such as cultural values, enable and
constrain the capacity of individuals to make choices – they
influence the options available, and the values attached to those
options – which are pre-conditions for choices.
The debate over universalism and relativism continues, with
many non-western developing countries in Africa and Asia
emphasizing community (as a primary source of culture),
whereas as individualism is championed by western countries.
The International Human Rights Regime
The International Human Rights Regime (IHRR) consists of
substantive component – the body of principles, norms and
rules; and a procedural component – the institutions and
procedures developed to implement international standards of
human rights and to promote respect for human rights on a
worldwide basis. These institutions exist within the United
Nations Organization, and in regional organizations, and
include several prominent INGOs such as the ICRC and
Amnesty International. We first outline the broad features of
this regime before discussing some key challenges to enforcing
human rights.
Substantive Human Rights Laws: The Principles, Norms and
Rules
Table 2 summarizes some of the main sources of human rights
standards in descending order of importance:
Table 2: Major Sources of Human Rights in International Law

36. 1
Peremptory Norms (Jus Cogens)
These are norms accepted and recognized by the international
community as whole as norms from which no derogation is
permitted, and which can be modified only by a subsequent
norm of general international law having the same character.
While some disagreement exists regarding the precise content of
these norms, most observers agree they include prohibitions
against genocide, slavery, and institutionalized racial
discrimination (apartheid).
2
General Customary Law
Rules that afford protection for individuals (e.g., state
responsibility and the rights of aliens).
3
Multilateral Treaties
The UN Charter
Specific UN Charter provisions that deal with human rights are
found in the following articles:
· 1(2) and 1(3) – purposes of the UN
· 13(1) – the General Assembly
· 55(c) and 56 – pledge for joint and separate action
· 62 – the ECOSOC
· 68 – the ECOSOC Commissions
· 73 – non self-governing territories
· 76(c) – trusteeship system
Other Treaties
A brief sample includes:
· 1948 – Convention on Genocide
· 1952 – Convention on the Rights of Women
· 1957 – Standard Minimum Rules for the Treatment of
Prisoners

37. · 1961 – Convention on the Elimination of all forms of Racial
Discrimination
· 1966 – Covenant on Civil and Political Rights
· Optional Protocol a (1966): allows for individual complaints.
· Optional Protocol b (1989): abolishes the death penalty.
· 1966 – Covenant on Economic, Social and Cultural Rights
· 1967 – Protocol Relating to the Status of Refugees
· 1979 – Convention on the Elimination of all forms of
Discrimination against Women
· 1984 – Convention against Torture and other Cruel and
Inhumane or Degrading Punishment
· 1989 – Convention on the Rights of the Child
· 1990 – Convention on Migrant Workers
Regional Treaties
· 1953 – European Convention for the Protection of Human
Rights
· 1961 – European Social Charter
· 1969 – American Convention on Human Rights
· 1981 – African Charter on Human and People's Rights
4
Resolutions and Declarations of International Organizations
These are characterized as 'soft law' (non-binding). For
example:
· 1948 – Universal Declaration of Human Rights (UN General
Assembly). Some argue that the UDHR is part of general
customary law.
Procedural Human Rights Law: The Institutional & Decision
Making Procedures
Table 3 summarizes some of the major IGOs and procedures for
implementing Human Rights in international law.
Table 3:Institutions & Procedures on Human Rights

38. International Tribunals
For example, the ICJ's rulings on Namibia, and South Africa;
Decisions on War Crimes and Crimes against Humanity by
various tribunals
International Criminal Court
(ICC) est. 2002 by Rome Statute, the first permanent, treaty
based, international criminal court established to help end
impunity for the perpetrators of the most serious crimes of
concern to the international community. The ICC is an
independent international organization, and is not part of the
United Nations system. Its HQ is at The Hague in the
Netherlands.
UN System
UN Security Council
Although the Security Council is not a human rights body some
of its resolutions have important human rights implications,
such as its resolutions on apartheid in South Africa; and on
Rhodesia unilateral declaration of independence.
General Assembly
The General Assembly has played a significant role in the
development of human rights through various resolutions the
most well-known being the 1948 UDHR and resolutions against
apartheid in South Africa
Non-Treaty based Bodies in the UN
Human Rights Council (HRC) – established in 2006. The HRC
replaces the Commission on Human Rights (UNCHR) which was
established in 1946. The HCR is the most important human
rights body in UN system. It has two mechanisms for
monitoring human rights: Resolution 1235 (1967) and 1503
(1970) procedures for investigating and reporting HR
violations. HRC also has Special Procedures and Mandate
Procedures to promote HR and rationalize mandates of various
HR initiatives.
· (UN) CSD – Commission for Social Development.
· (UN) CSW – Commission for the Status of Women.

39. Treaty-based Committees in the UN
· (UN) CAT – Committee Against Torture (est. by the 1984
Convention Against Torture)
· (UN) HRC – Human Rights Committee (est. by the 1966
Convention on Civil and Political Rights)
· (UN) CESR – Committee on Economic and Social Cultural
Rights. (est. by the 1966 Convention on Economic, Social and
Cultural Rights)
· (UN) CEDAW – Committee on the Elimination of
Discrimination against Women. (est. by the 1979 Convention on
the Elimination of all forms of Discrimination Against Women).
UN Functional Offices and Agencies
· UNHRC – UN High Commissioner for Refugees
· ILO – International Labour Organization
· UNESCO – UN Educational, Scientific and Cultural
Organization.
· UNICEF – UN International Children's Emergency Fund
· WHO – World Health Organization
The Enforcement of International Human Rights
We conclude with a brief discussion of some key challenges to
the enforcement of international human rights. The goal of the
International Human Rights Regime is to make states meet
certain internationally defined standards in the treatment of
their own nationals, and make them do so from outside that
state's domestic political and legal system. This creates two sets
of problems:
First, any attempt to enshrine protection of international human
rights essentially involves exceptions to, or derogations from,
state sovereignty. Traditionally, only states are subjects of
international law entitled to enjoy rights enforceable by law, as
distinct from mere benefits. International law is generally only
applicable to states, and does not normally create rights directly
enforceable by individuals in courts. The question then is how
can human rights be enforceable when individuals are not
subjects of international law? Currently it is only within the
human system of the Council of Europe (est. 1949) where

40. individuals within the 47 member states have rights they can
directly enforce in court. In all other regions of the world,
individuals have to rely on states/governments to enforce
international human rights, but in many cases it is these very
states/governments themselves that are the violators of human
rights. The irony is that international human rights standards
can only be effective if each state makes these rules part of its
own domestic laws. Thus, whatever human rights exist in
international law, as with other aspects of the law that deal with
individuals, these rights are at best derivative rights that can
only be conferred by states (through treaty/custom).
However, the difficulties sovereignty creates for the
enforcement of human rights should not be overstated. We have
also noted in this course that the concept of sovereignty is not
an absolute concept. A notion of sovereignty that treats it as
absolute makes that concept useless. Sovereignty is a
constitutive principle that defines the state, confers certain
rights, and imposes certain obligations on states. To understand
how sovereignty does this, we have to break the concept up into
the specific rights and obligations it confers on states. We have
noted how the concept of sovereign statehood on one hand
created certain rights for states including the right to be free
from external interference in matters that were essentially
within their domestic jurisdiction. We also noted, on the other
hand, that within this body of international law (customs and
treaties) there were important exceptions that derogate from the
notion of exclusive sovereignty by limiting what states could do
within their domestic jurisdiction, including
a. jus cogens;
b. state responsibility;
c. treatment of aliens;
d. collective security measures authorized by the UN.
Thus, even within traditional international law, rules of law
recognized important limitations on a state's right to exclusive
sovereign jurisdiction.
The reality is that any state that ratifies a treaty is by the very

41. fact of ratification derogating part of its sovereign authority to
make unilateral decisions, and grants its treaty partners a right
to intervene in the event that it fails to uphold its treaty
obligations. Thus, even within the confines of traditional
international law, there is room for international human rights.
As noted in section 2.1, the real issues are political and moral --
whether human rights treaties provide enough incentives for
states to take necessary actions against other states that violate
the provisions of human rights treaties they have ratified.
The second set of challenges to the enforcement of human rights
arises because human rights claims pit the individual against the
state and against society. Human rights abuses, therefore, can
be committed by the state or can result from societal/cultural
practices that may not necessarily be endorsed or controlled by
the state/government. International human rights law, however,
focuses on the state as the medium through which human rights
legislation and protections are to be upheld, and this may not
always be effective, even if the state in question is willing to
comply and makes human rights rules part of its own domestic
laws.
The problem is, if human rights abuses result from
societal/cultural beliefs and practices, the fact that a state
enacts legislation prohibiting those practices may not achieve
the desired effect. In such cases, is that state in violation of
international law? For example, certain beliefs and practices
such as the preference for male children in some parts of the
world, have led to abuses of young girls including acts of
infanticide. In many of the countries where these practices
occur, governments have passed legislation banning the practice
(e.g., India). Yet the practice still occurs. The point here is that
in discussing the issue of enforcement of international human
rights, attention needs to be paid to those acts that are state-
sanctioned, and those acts that are society-sanctioned. Yet there
is nothing in international human rights law that draws this
distinction. This issue alerts us to the limits of law by itself as
an instrument of social change.