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NEW TENDENCIES IN THE DEVELOPMENT OF INTERNATIONAL
LAW, AT THE BEGINNING OF THE 21ST
CENTURY, REGARDING THE
ENVIRONMENTAL PROTECTION
Mădălina Virginia ANTONESCU, PhD
 Comunicare științifică (rom., engl.), publicata cu titlul New tendencies in the development of
international law, at the beginning of XXIst century, regarding the environmental protection, la
conferințainternațională”Complexitateași dinamismul mediului de securitate”, organizată de
Centrul de Studii Strategice și Apărare, UNAP, 11-12 iunie 2015, București,
http://www.strategii21.ro/index.php/ro/sectiunile-conferintei-3
Abstract: In the present paper, we attempt to briefly analyze certain directions of development in
international law, resulted fromthe necessity to enhance legal protection regarding the environment, in
the context in which the economic gap and, generally, the development gap between the Southern and
Northern countries deepens, aswell as in the context in which a way of life based on the philosophy of
consumption spreadsat global level, a philosophy through which the terrestrial ecosystem, of which the
man is an intrinsic part,suffersseriousdamages, irreparable at times. The need to change the paradigm
of the manner in which the human and human civilization relatesto the overall terrestrial ecosystem, by
disseminating the model of eco-societies at global level,also leadsto the need to adjust and develop the
international law. In particular, the international environmental law represents a branch of the
international law, for which we explore possible developments, in the present paper.
Key words: international law, environment, terrestrial ecosystem, environmental law, rights of nature,
global right of environment

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Introduction:
At the beginning of the 21st
century, the international law (defined more as an inter-state law,
with the states as main actors and sovereign, original, principal subjects of law, in relation with other
entities) acknowledges new lines and directions of development, under the impulse of recent doctrine
evolutions, of introducing new paradigms and concepts. Among them, we mention durable development,
human development, human security, environmental security, new fourth generation human rights, such
as the human right to housing, the right to happiness etc. A more recent part of the doctrine already
introduces ambitious innovations in the environmental law,through the created connection with human
security and environmental security, extremely innovative legal concepts, for the (already) classic
international law (seen as inter-state law). The issue in question is the necessity for the legal protection of
nature (a more comprehensive legal concept than the phrase “environment”, which resumes the
inheritance concept of the French Civil Code, dating back to 1804), through special representatives, as
well as granting a special legal status in relation to the state, with the corporations and individuals, in the
international legal order of the 21st
century. From the status of object, submitted to exploitation down to
its irreparable destruction, nature is reconsidered and redefined depending on an integrating relation (not
a schizoid one, as it has been so far), through which man reoccurs as part of the terrestrial ecosystem,
unique and fragile ecosystem, the existence and quality of which is a vital condition for the human
existence and civilization. In the present paper, we specifically explore the directions that lead to a change
in the current international environmental law into a global law, representing a superior stage of
evolution, in relation to the current legal concept of the man-nature relation.
1. Towards a Global Environmental Law
Through the very phrase “environmental law” to which it refers (a pleonasm), the definition of
the environment reflects a limited vision of nature, reduced to a set of elements “surrounding it”, with
which the human being (from the rigorous interpretation, close to the original sense of the phrase) does
not consider that he/she interacts,does not considerto be directly and inherently connected. This phrase
only reveals a schizoid attitude, born from the forming of developed capitalist societies1
(and, from other
perspectives, even from the first societies based on the cult of male war deities2
, encountered also in
medieval or imperialist societies, in full process of conquering their colonial empires3
, also being a
concept encountered in small, peripheral societies, which had to defend against large imperial predators) –
general perception which led in history to destructive behaviours of the strongholds, states or empires,
against other urban settlementsand against nature, also by using destructive tactics in order to guarantee
victory in a war – burning down grass lands, poisoning wells, draining or deviating the river flows etc.
1 David Held, Anthony McGrew, David Goldblatt, Jonathan Perraton, Transformări globale. Politică, economie și
cultură, translated by Ramona-Elena Lupașcu, Adriana Ștraub, Mihaela Bordea, Alina-Maria Turcu, Ed. Polirom,
Iași, 2004, pp. 428-430.
2 David C. Korten, Marea Cotitură. De la Imperiu la Comunitatea terestra, translated by Mihnea Columbeanu, Ed.
Antet XX Press, 2007, s. l., p. 83-90.
3 David Held et alii, quoted op., p. 429.

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The “environment” phrase,which we consider inadequate, limited and functionalist, expresses a
flawed relation, an attitude of breaking from nature (with the human being “protected” from nature, in an
artificial, urban habitat, made of concrete and cement). Nature means “the great wild space, yet to be
urbanized and domesticated, which surrounds the human metropolises” (perception generated from the
realistic, profound interpretation of the phrase).
There is a multitude of definitions of the “environment” phrase, preferred in the legal doctrine,
instead of the more comprehensive definition of “nature” (which does not have the functionalist,
desacralized, consumerist connotation, specific to secular industrialized societies, that of “environment”,
which means to suggest a breakdown of nature into “various components and energy, physical, biological
conditions, surrounding a being – the being in this case is the human being, n.n.” – or the groups of
beings – in this case, human societies, n.n.)4
We note here the heritage-based conception of environment, given by the decision of the Italian
Constitutional Court, on December 30th
1987, according to which the environment is regarded as “an
immaterial item”, unitary with its various components, each of them being able to separately represent an
object of protection, while all the components represent a unity, in their totality”. The same concept
reflecting an inevitable functionalist and heritage-based perspective of nature also occurs in definitions
included in international documents, in the field of international environmental law, documents such as
the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment,
adopted under the aegis of the European Council, at Lugano, open for signing on June 21st
1993. The
environment is here defined as formed of “natural resources both abiotic and biotic, such as air, water,
soil, fauna and flora and the characteristic aspects of the landscape5
” (where nature is reduced to either a
landscape or to resources to exploit, be they biotic or abiotic, either to cultural goods, or to all these
aspects, in their totality).
A comprehensive definition, in which the human being is no longer considered a being with
unlimited absolute property rights – in the sense of absence of correlative responsibilities – over nature,
but a being in close and permanent relation with nature, from within which he/she cannot withdraw
without having his/her very existence and civilization threatened, is also de definition enshrined by the
Council Directive EC 85/337 EEC, dated June 27th
1985, which stipulates that “the environment includes
the human being,the flora and fauna, the soil, water,air, climate and landscape, the interaction among the
mentioned factors, the material goods and cultural heritage”.
In another view of nature, the human being is again separated from it; it is not considered that the
human being is part of nature (which is a mere framework surrounding the human being); there is also a
distinction between the natural environment and a perception environment (or cultural, artificial). Thus,
4 If we only quote the first part of the definition given to the environment, for example, by scientist Emil Racoviță (it
is interesting that only in the second part of the definition do we find the necessary balance between the functionalist
approach to nature - in relation to the man who withdraws as an active elementm with exclusive role of
domination, exploitation of nature – and the holistic approace, finally acknowledging that man is closely connected
to nature and that this connection is vital, unique, irreplaceable, a condition for the very human existence on this
Earth...” on which their fate depends and whose actioncauses a rection in the so-called being” (Emil Racoviță, citat
în Ștefan Vancea, Curs de ecologie generală, Univ. Al. Ioan Cuza, Iași, 1972, p. 17, quoted in Daniela Marinescu,
quoted op., p. 55).
5 Daniela Marinescu, quoted op., p. 45.

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the environment represents “the totality of elements which, in the complexity of their relations, represent
the framework, environment and conditions of human life, as such or as perceived”6
.
A global comprehensive definition (which is not freed from the predominantly functionalist
tendencies) is the one given by the Romanian lawmaker (through GEO 195/2005, approved by Law
265/2006), where the “environment”, as a legal concept, incorporates a complex reality, consisting of
atmosphere, biosphere, geosphere, sociosphere and cosmos. The living beings, human being included,
are elements included in the definition of environment, together with “the conditions that can influence
the wellbeing and health of the human being” or “the quality of life”7
.
At the same time, the doctrine draws attention on the fact that the “environmental legislation” is
more comprehensive that the “actual environment protection legislation”, starting from the premise that
the environmental policy must be treated by the governments as having the same importance as the
economic policies of the states.
In the 21st
century societies, the concept of “environment” is acknowledged as a dynamic one,
being enriched as the social and technological progress is recorded, as well as due to the evolution of
human views on the relation with nature and through the understanding of the uniqueness and fragility of
the terrestrialecosystem. We estimate that this concept will be more and more widely interpreted fromthe
legal standpoint, during the 21st
century, reaching the point in which it incorporates, as the doctrine notes,
“all the aspects of human activity, in the human being-nature relation, on the same planet Earth, while
permanently acquiring new meanings”8
.
Concerning the occurrence and development in the 21st
century of an authentic global
environmental law (or, better said, “of nature”), we must start from the wide doctrine view on the
environmental law, which, although a distinct branch of the law, adds its concepts and principles to
numerous other branches of law (international law, real estate law, business law, EU acquis law, peace
law etc.), thus creating a multitude of interconnection among them. Moreover, the doctrine has noted the
horizontal character of this law (covering various sectors of law, such as the private and the public
sector), as well as its interactive nature, as it tends to influence all the other sectors of law, to introduce
the term “environment”9
. In addition, the doctrine acknowledges the “conceptual, structurally systemic
unity”, derived from “the environmental uniqueness and indivisibility of Earth’s environment”, between
the national and international dimension of the environmental law10
. Thus, through its content and
through the nature of the terrestrial ecosystem, the environmental law exceeds the strict westphalian
concept¸ that of the world divided into states with sovereign territories, aiming at a global protection of
nature, obtained by means of trans-national instruments and regulations. Terms such as “progress” or
“poverty” “North-South divide” actually reflect the global view on the environment11
, strongly and
6 Michel Prieur, Droit de l’environnement, citat în Daniela Marinescu, quoted op., p. 45.
7 Daniela Marinescu, quoted op. p. 45-46.
8 Daniela Marinescu, quoted op., p. 47.
9 Idem, p. 49-50.
10 Ibidem, p. 50.
11 Ibidem, p. 47.

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predominantly under the negative influence of the activities performed by industrial and consumption
societies, which tend to globalize themselves12
.
In other words, the occurrence and development of a global environmental law is a response to
the global challenges generated by the spread of the consumption society and the capitalist societies
model (societies that are not limited or actually competed against by environmental models of societies;
instead, they neighbour so-called “anti-capitalist” societies, which also fail to propose an environmental
approach to their environmental policiesand to all the human activities, in relation to the requirement of
environment protection and preservation). More precisely, the globalization of economy and capitals, the
increasing influence of corporations belonging to the large powers or the transnational corporations, the
wars, underdevelopment, accumulation of profit at global scale, consumption societies and global
warming cause irreparable damages to the nature and human civilization overall, also creating a real
survival problem for the human species, in the terrestrial habitat, unless the human conception of nature
and on the relation to nature changes.
The global law regarding nature, in the 21st
century, should comprise a precise set of rules,
regulations, global legal statuses and global institutions,applicable to the main actors of the 21st
century
global society (states, corporations, global mass media). This law shall develop a real environmental-
legal responsibility of these actors, towards ensuring the uniqueness and integrity of the terrestrial
ecosystem, based on a model of post-corporate, post-consumerist human society, built on a relation of
harmony and protection of nature, not on a relation of exploitation/domination/destruction of nature, as it
has been so far.
The global environmental legislation would comprise “the entire environmental framework, in
which the quasi-totality of human activities are performed13
”, as proposed by the doctrine.
The global environmental lawwould include, besidesits unification to the component of global
ethics regarding the environment14
, the current international legal status, which currently forms the
international environmental law: for example, the series of treaties and international conventions signed
and ratified by the states, in the field of protecting various environment components, such as the
UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage/Paris, 1972;
the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters/1998; Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and their Disposal; the Ramsar Convention on Wetlands of International
Importance/1971, especially as habitat of the aquatic birds etc.15
We consider that the set of legal or declarative documents, which can be progressively developed
in a body of global regulations regarding the environment, is the following: the Stockholm
Declaration/1972, the Rio Declaration on Environment and Development/1992 and Agenda 21, also
12 David Held et alii, quoted op., p. 437.
13 Daniela Marinescu, quoted op., p. 46.
14 As noted in the doctrine, no human society can withhold in the absence of certain moral principles, of ethics
defining the essence of a harmonious society. See Confucius’ conception, quoted as representing one of the ancient
conceptual grounds, for the current philosophy of human rights, in Irina Moroianu Zlătescu, Human rights. A
dynamic and evolving process, Ed. Pro Universitaria, București, 2015, p. 14
15 David Held et alii, quoted op., p.432-433.

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adopted in 1992, following the United Nations Conference for Environment and Development in Rio, the
Development Objectives of the Millennium, adopted through the GA.UN Resolution 55/2, the
Johannesburg Declaration on Durable Development/2002 etc.
2. Rights of Nature and Their Protection in Relation to the Human Rights
The environment can be defined in the international relations, as being “the totality of natural and
artificial environments, in which the human being is installed, which the human being exploits and sets
up, as well as the totality of non-anthropized environments, required for his/her survival”16
. Concerning
this definition, we note that it is one considering that the human being is a supreme value in relation to
nature, as the human being is self-placed on a superior hierarchical position, in relation to nature, on a
position of command and exploitation of nature, modifying it, according to his/her interests and visions,
as an expression of the materialistic ideologies (communist, capitalist), in which the human being
considers himself/herself a master of nature and little (or at all) a being in intrinsic connection with
nature, being part of the same fragile and complex ecosystem. For many centuries, especially after the
rise of the occidental industrial civilizations, the human being hasknowingly altered the delicate balance
of nature, to change the natural environment inhabited, according to the human requirements concerning
the industrial civilization, deforesting huge surfaces, in order to make way for railroads, industrial cities,
agricultural plots, changing the river courses and polluting the natural habitats, hunting animals on a large
scale, for fangs and furs, polluting nature with industrial and domestic waste products, many of them non-
recyclable or toxic17
.
The great industrial civilizations, which have reached their peak point towardsthe end of the 20th
century (although they are currently more and more faced with new concepts of eco-cities and eco-
societies), have represented the triumphant expression of the materialistic thinking, lacking in the sacred
perception and respect for nature. Objectives that today are starting to be considered more and more often,
in elaborating the public policies and even represent important discussion points, on the global agenda, at
the summits of the large industrialized powers, objectives such as environment preservation and
protection, have been ignored, minimized or despised by the public actors (developing states, advanced
industrial states) and by the private actors (multinational corporations, national corporations which have
represented true empires of economic exploitation or have represented real international trade networks
with exotic species, rare metals, their exploitation and hunting deeply and sometimes irreversibly
changing natural habitats, in the non-Occidental regions of the globe18
), during the rise of these industrial
civilizations.
Only at the beginning of the 21st
century, the materialistic model, based on the irrational
exploitation of nature, by the human being, self-considered master with unlimited rights over nature,
which he/she is free to use as he/she pleases, abusing the power (in the fever of advancement, these
16 Marie Claude Smouts, Dario Battistella, Pascal Vennesson, Dictionnaire des relations internationales, Dalloz,
Paris, 2006, p. 201.
17 Daniela Marinescu, quoted op., p. 9-11.
18 David Held et alii, quoted op., p.428-429.

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industrial societiesor societies in process of industrialization mistook possessing nature for destroying
nature19
) begins to be discussed by more and more voices, at national, regional and international level.
From the (legal, political, social) role of “object” (of the will, action, interests of the human
being), in the innovative views of the eco-politics, ecology, eco-theo-politics, international environmental
law, nature becomes more and more a distinct legal subject, beside the classic subjects (natural person,
legal entity – i.e. the same corporation).
In the classic view (now brought to discussion by the national and international environmental
movements), the right to property (of the natural person and especially of the legal entity – state or
corporation) was presented by the jurists as a sacred,absolute right, plena in re potestas (Justinian’s view)
or expressing an individualist liberal logic, taken to the extreme (View of the 1804 French Civil Code).
Not only the liberalism, but also the materialistic communist, Marxist of socialist views, centred on
progressat any cost, have created distorted perceptions of nature, justifying the right of the human, of the
state,of the collectivity to freely exploit nature, in the absolute sense, without taking responsibility for the
future generations, for the current and future quality of the environment. Lack of responsibility in
exploiting and changing nature on a large scale, by the states, corporation (be it in the name of economic
liberalism, of profit accumulation and new markets, be it in the name of the people and of an unlimited
right to development of the peoples) has progressively led to serious, often irreversible changes in the
environment.
The very “environment” phrase, a pleonastic phrase, is inadequate, as it reflects the limitations
in thinking and perception of an exploitation and consumption age, aimed at nature. The human being is
“surrounded” by nature, but the human being does consider that he/she interacts with nature, or that
he/she is influenced by nature. The man of the 19th
-20th
century industrial societies falsely considers
himself to be isolated from nature, in his artificial habitat20
. His interaction with nature is one of
permanent exploitation,domination and destruction of nature, using it without limits and liability, as well
as using its living elements (even the pigeons in the lofts, the bees in the beehives and the house rabbits
are considered “floating assets”)21
.
The entire flawed view and actions of the human being, in relation to nature, dominating the 19th
and 20th
century and being discussed only at present, starts from the conception of the human right to
property (of the state, of the corporation, of the people, of the collectivity) over nature, as an absolute,
sacred, intangible, inviolable and indefeasible right, envisaging any “natural or manufactured, alive or
dead, tangible or intangible asset”. As shown in the doctrine, the spread of the flawed conception of the
French Civil Code and of the Roman right (right to property) over the property has led to a change in all
the elements of nature into goodswith a well-determined commercial value. Thus, the 1804 French Civil
Code stipulated that “property is the right to enjoy and dispose of goods, in an absolute manner, on
19 Mircea Duțu, Andrei Duțu, Dreptul la proprietate și exigențele protecției mediului, Ed. Universul Juridic,
București, 2011, pp. 29-30.
20 Coord. Radovan Richta, Civilizația la răscruce. Implicațiile sociale și umane ale revoluției științifice și tehnice,
Editura Politică, București, 1970, pp.130-131.
21 Mircea Duțu, Andrei Duțu, quoted op., p. 29.

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condition that they are not used in a manner forbidden by law or by other regulations” (conception
disseminated in most of the 19th
century civil codes)22
.
Thus, nature wasno longer seen asanything more than an object,which was in turn divided into
a series of elements, each with determined fix commercial value, over which the human being (as well as
the legal entity, such as the state, collectivity, corporation) had the right, as owners, to possess, exploit,
dispose of, in an absolute, exclusive and perpetual manner.
In the 19th
– 20th
century industrial civilizations, both the advanced and the developing
civilizations, serious, often irreparable abuses were committed against nature, only on behalf of
exercising this conception of the right to property. The human being (as well as the state, collectivity,
corporation) become owners with real absolute rights, masters of nature, being entitled, according to the
law codes sanctioning such legal vision, to alienate, buy, use the natural resources, freely dispose of them
(down to polluting them, changing their nature, irrationally exploiting them, draining the resources of the
planet). Thus, the human right to property over nature is converted into an absolutist right to own nature
down to the point of freely destroying the unique elements of nature and modifying natural habitats, in the
name of accumulating profit,of the objective of conquering new consumption markets or of economic
development.
Only at the end of 19th
century, following the threats to the public goods (including the natural
resources of the soil, subsoil) caused by intensive agriculture and chemical fertilizers, the legal conception
of “public field” started to form, with the latter requiring protection, for the general interest. Thus, for the
public interest, the state assumed the right to restrict the scope of private property23
.
Currently the evolution of conceptions regarding the right of property, in relation to the
environment, tends to favour a social and ecologic function of the right to property, by virtue of which
the holder must exercise this right mainly taking into consideration the general interest in protecting and
preserving nature, as well as the imperative of ensuring the survival of the human species o this planet24
.
To this end, there is a consolidation of the international statuses regarding the protection and preservation
of the environment, which connects to the concept of “sustainable development”, the concept of
“environmental security” and the concept of “good global governance”. All this concepts, innovative for
the 21st
century, tend to pay special attention to the common resources, which are in danger of being
over-exploited,down to depletion, because they do not fall in the jurisdiction of the private property
legislation.
Far from assuming another flawed conception (that of privatizing the entire environment, in order
to avoid the destruction of common goods), global governance, sustainable development and
environmental security, as well as global eco-politics pay a closer look at the development of new legal
and political methods and means, adequate for the need for enhance protection of nature.
Thus, giving juridical personality to the nature was a suggestion, in the sense of granting to it the
quality of “legal entity”, at national, regional and international level, with “nature” benefiting from
specific institutions and representatives, acting on its behalf in court, by bringing to justice states,
22 Idem, p. 29.
23 Ibidem, pp. 30-32.
24 Ibidem, p. 33.

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corporations or individuals who failed to adequately exercise their property right. A truly effective
protection, which actually balances the legal relation between the human being (but also the state,
corporation, collectivity) and nature, takes the direction of grating a set of specific rights, to a legal entity,
through which these rights of nature receive acknowledgement and concrete protection, in a court of law
and at any level (regional, national, global), against the rival interests of corporations, states and
individuals25
.
Conclusions
The anthropocentric conception of nature as “an object” of the property right of the
individual/state/corporation, conception which places the individual (and therefore the state or
corporation, as representatives of certain collective, public or private interests), in a position superior to
nature, a position of command and control, however without developing an environmental ethic, a set of
moral values and legal-political responsibilities, which limit this position of command and control over
nature, has led to the development of a systematic, abusive, deeply harmful action against nature, for
centuries. Currently, to fix a global situation of injustice and severe damaging of nature, the jurists have
proposed a series of environmental rights, to protect nature, which would be categorized as third
generation human rights, the so-called “solidarity rights”. From this viewpoint, the jurists propose a
limitation of the individual rights, in relation to the environmental rights (regarded as collective rights).
However, the individual rights are not the only ones that should be limited or strongly marked by
the legal dimension of responsibility regarding the environment; such limitations should include property
rights (public and private) of the state and of other actors (corporations) which, through their public or
private policies, have direct, significant impact, even if not major, on nature. At this point, global
regimens of environment protection, global institutions of nature protection, with representatives
independent from the states and corporations can be consolidated, to exclusively supervise the protection
of nature’s rights, in the framework of a global environmental law and a law protecting the planet, as an
unique ecosystem.
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25 Ibidem, pg. 33.

10. Page10
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