A Common Response to a Common Concern: Integrating Solidarity in Environmental Law
From the systemic perspective of international environmental law, two general principles of environmental law developing in the international legal space should be defined to strengthen the processes of implementing environmental law and the instruments of international environmental governance. Firstly, a correct legal formula needs to be found to recognize the environment as a common concern of humankind; secondly, there is a need to formally recognize the principle of solidarity, which already now plays the role of a qualifier for the classic principle of cooperation in the field of environmental protection.
1. A Common Concern of Humankind
The phenomenon of constitutionalisation of environmental law clearly indicates the universal nature of the opinion shared by the international community that the environment needs to be protected as a good requiring common care. No one has any doubt today that the environment has a global character and that a piecemeal approach to its protection does not contribute to its conservation and protection for the present and future generations (see the White Paper, Draft Global Pact for the Environment). The protection of climate, water resources, biodiversity and many other elements of the environment, which make up the concept of the natural environment, requires the cooperation of the international community at the level of solidarity-based and mutual assistance in solving the problems which are intrinsically global.
By referring to the notion of a common concern of humankind in doctrinal concepts and treaties of international environmental law, it can be concluded that this is an issue relating to common problems and actions beyond national jurisdictions and involving the joint responsibility for their solution. This idea is expressed by the word “common”, which intrinsically also means jointly sharing the responsibility. The word “concern” means something that has not been resolved and requires a joint solution based on the principle of international cooperation.
The concept of a common concern was expressed, inter alia, in the content of Principle 7 of the Rio Declaration calling on states to cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. Also the International Law Association 2002 New Delhi Declaration of Principles of International Law Relating to Sustainable Development states that climate system, biological diversity and fauna and flora of the Earth are the common concern of humankind (UN GA doc./57/329, p. 1.3). The concept of common concern of humanity has been also included into the IUCN Draft International Covenant on Environment and Development (art.3, IUCN Environmental Policy and Law Paper No. 31 Rev.4).
In turn, the term “common concern of humankind” was used in the preamble to the 1992 United Nations Framework Convention on Climate Change and in the 1992 Convention on Biological Diversity (see. Ch. Bowling, E. Pierson, S. Ratte, The Common Concern of Humankind: A Potential Framework for a New International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity in the High Seas). The preamble to the 2015 Paris Agreement on Climate Change also referred to common concern of humankind. In this context, one can also recall the provisions of the 1985 Vienna Convention for the Protection of the Ozone Layer and the 1987 Montreal Protocol to that Convention which implicitly refer to the concept of common concern of mankind.
From the perspective of the cited provisions, this concept indicates the existence of a special approach to legal obligations beyond the now classic obligation to engage in international cooperation, establishing the requirement for states to cooperate in solving environmental problems. The concept of common concern of humankind is already a new approach to treaty negotiations, as evidenced, for instance, by international climate protection law.
2. The Principle of Solidarity in International Environmental Law
The classical principle of cooperation in environmental protection which has been embraced in international law continues to be of key importance. Yet, in international environmental law, particularly in climate protection law, one can see a tendency emerging towards the development of the solidarity paradigm as a catalyst facilitating the uptake of the principle of qualified cooperation of states to protect the common concern of humankind.
In the doctrine, there is a quite common belief that the concept of a general principle of solidarity is used as a prerequisite for effective environmental protection (see e.g., P.G. Carozza, L. Crema, On Solidarity In International Law, Caritas In Veritatis Foundation, 2019 p. 3 ff.). In general terms, as a principle of international environmental law, solidarity involves the recognition as a legal norm of the behaviour based on the belief that each member of the international community which uses the benefits of the protection of the good (the environment) by the entire international community acts with the conviction that by protecting common goods it protects individual goods.
The practice of international relations provides the ground for placing the principle of solidarity within the structural dimension of the general principles of international relations, which affect the structure and content of international relations, and thereby the implementation and effectiveness of environmental law. Examples of the effectiveness of the application of such a perspective include the restriction on the complete freedom of a state to dispose of its resources as introduced by the environmental imperative of environmental protection in international relations and the principle of responsibility for the conservation of the environment for the future generations (see D. Shelton, Equity, in: D. Bodansky, J. Brunee, H. Hey, The Oxford Handbook of International Environmental Law, Oxford 2006, p. 640 ff.).
International environmental law refers explicitly and implicitly to the principle of solidarity in various types of documents and legal acts. In the literature on the environment, examples of the cases related to the origin of the development and application of the solidarity standards primarily refer to the context of the principles addressing the environmental damage in other states (see e.g. the Trail Smelter case: Trail Smelter Arbitration, United Nations v. Canada, 1941, 3RIAA, 1905) or the Lake Lanoux case (Lac Lanoux Arbitration, France v. Spain, 24 ILR 101, 1957.) The theses of the decisions of arbitration courts in these cases were later expressed in the content of Principle 21 of the Declaration of the 1972 United Nations Conference on the Human Environment (the Stockholm Declaration), repeated in Principle 2 of the 1992 Declaration on Environment and Development (the Rio Declaration), and also in the Draft Global Pact for the Environment (Article 5). The practice of states demonstrates that the concept of the principle of solidarity in international environmental law has been expressed in different forms, in the processes of law making, compliance with law and its enforcement.
Another example of the effectiveness of such an approach to the concept of solidarity is the principle of cooperation of states, which is one of the fundamental systemic principles of contemporary international environmental law. It has been expressed by the principles laid down in the provisions of Principles 21 and 22 of the Stockholm Declaration, Principles 5, 7, 9, 12, 14 and 27 of the Rio Declaration, the provisions of the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (18 ILM 1442), the provisions of the 1985 Vienna Convention for the Protection of the Ozone Layer (26 ILM 1529), the provisions of the 1992 United Nations Framework Convention on Climate Change (31 ILM 849), the 2015 Paris Agreement on Climate Change and the 2017 Draft Global Pact for the Environment. A review of those provisions indicates a tendency emerging towards the development of qualified standards of international cooperation based on reference to solidarity.
An example of a clean reference to the concept of solidarity in environmental law is the development of the concept of sustainable development, based on the principle of intergenerational and intragenerational equity and the general belief that misuse of the environment in a manner depriving the future generations of the ability to satisfy their needs and aspirations is the choice of the wrong development alternative which is inconsistent with the principle of global justice (see E. Brown Weiss, Our Rights and Obligations to Future Generations, AJIL 1990, Vol.84, passim).
3. Solidarity as a Qualifier of the Principle of International Cooperation in Environmental Protection
The belief of the international community in the imperative of the protection and conservation of the environment, expressed in a number of acts of soft and hard law, is evidence to the development of the principle of solidarity in environmental law as a qualifier of the principle of cooperation of states, as indicated by the current stage of the development of that principle in international climate protection law. This is evidenced, inter alia, by the practice of the functioning of a system of agreements making up the climate protection law established by the UNFCCC. As the negotiations indicated, reference to the principle of solidarity effectively contributed to the adoption of the 2015 Paris Agreement.
From an operational perspective, the principle of solidarity is contained in many other general principles of environmental law, including the standards of common but differentiated responsibilities; the flexible mechanisms and the financial mechanisms established to implement the provisions of agreements on the tackling of climate change.
From the legal perspective, the system of European Union law is an interesting example of the functioning of the standards of the principle of solidarity as a qualifier of cooperation to solve problems arising from the principle of environmental protection since it includes solidarity in the catalogue of the values on which the EU is founded (Article 2 of the Treaty on the European Union).
4. Concluding Remarks
The 2022 Declaration is an excellent occasion to renew our approach to international environmental law and international environmental governance. Finding a correct legal formula to recognize the environment as a common concern of humankind can become an instrument to protect it more effectively. It draws its legal values from the standards of principles such as the responsibility for transboundary damage, early warning, common but differentiated responsibilities, intergenerational and intragenerational equity, due diligence etc.
Solidarity as a general principle of international environmental law creates a specific context for the principle of cooperation of states which takes the form of qualified cooperation. It should be emphasized that this approach to the principles of cooperation does not violate the qualitative standards of the concept of sovereignty. On the contrary, in the case of the protection of a common concern of humankind, which the natural environment of humankind undoubtedly is, sovereignty is a vehicle for its protection.
There is no doubt that the effects of the absence of cooperation of states at the qualified level introduced by the standards of the principle of solidarity result in irreversible changes in the environment, which have destructive impacts on the human environment, irrespective of the individual policy position of a given state.