Netherlands International Law Review

, Volume 55, Issue 3, pp 323–341 | Cite as

Custodial Sovereignty: Reconciling Sovereignty and Global Environmental Challenges amongst the Vestiges of Colonialism

  • Werner Scholtz


International Environmental State Sovereignty International Economic Order Territorial Sovereignty International Legal System 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


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  1. 1.
    I. Brownlie, Public International Law, 7th edn. (Oxford, Oxford University Press 2008) p. 289. In general, three elements of sovereignty can be distinguished in contemporary public international law: international legal sovereignty, Westphalian or Vatellian sovereignty and domestic sovereignty. The first element implies that a judicially independent territorial entity has the right to conclude agreements. The second element is also known as the duty of non-intervention in relation to the exclusive jurisdiction of states. Domestic sovereignty refers to the institutions that govern a particular state. See S.D. Krasner, ‘The Hole in the Whole: Sovereignty, Shared Sovereignty and International Law’, 25 Mich. JIL (2003-2004) p. 1077. See also C. Schreuer, ‘State Sovereignty and the Duty of States to Cooperate — Two Incompatible Notions (Summary and Comments)’, in J. Delbrück, ed., International Law of Cooperation and State Sovereignty: Proceedings of an International Symposium of the Kiel Walther-Schücking Institute of International Law, May 23-26 2001 (Berlin, Duncker & Humblot 2002) p. 163. In general, sovereignty means that a state is not subjected to the jurisdiction of any other state. The state is, however, subjected to international law, which implies that the latter also might restrict and regulate the exercise of the sovereignty of a state. See also N. Walker, ‘Late Sovereignty in the European Union’, in N. Walker, ed., Sovereignty in Transition (Oxford, Hart 2003) pp. 3-32 at p. 6. See H. Steinberger, ‘Sovereignty’, in R. Bernhardt, ed., Encyclopaedia of Public International Law (Amsterdam, North-Holland 1987) p. 500 at pp. 501-511 for a brief discussion of the historical roots of sovereignty.Google Scholar
  2. 2.
    See, for example: A. Johnson, ‘International Environmental Law and State Sovereignty’, 3 Asia Pacific Journal of Environmental Law (1998) pp. 269–283.Google Scholar
  3. 3.
    J.A. Camilleri and J. Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Aldershot, Edward Elgar 1992) p. 192.Google Scholar
  4. 4.
    The issue of inequality has not received much attention as a theoretical concept in international law. See B. Kingsbury, ‘Sovereignty and Inequality’, 9 EJIL (1998) p. 599.CrossRefGoogle Scholar
  5. 5.
    No single universal definition of ‘developing countries’ exists. It must be kept in mind that the developing countries do not constitute a homogeneous group, but consists of a heterogeneous group that adheres to certain criteria of underdevelopment. A low level of GDP mostly is an important indicator of the poor economic growth of developing countries. See M. Bulajić, Principles of International Development Law: Progressive Development of the Principles of International Law Relating to the New International Economic Order, 2nd edn. (Dordrecht, Martinus Nijhoff 1993) pp. 168 et seq.Google Scholar
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    See R. Anand, International Environmental Justice: A North-South Dimension (Aldershot, Ashgate 2004) pp. 3 et seq.Google Scholar
  7. 7.
    A. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, 40 Harv. ILJ (1999) p. 22. See also ch. 2 of A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, Cambridge University Press 2004). According to the Cocoyoc Declaration of 1974: ‘Much of the world has not yet emerged from the historical consequences of five centuries of colonial control, which concentrated economic power so overwhelmingly in the hands of a small group of nations.’Google Scholar
  8. 8.
    Anghie 1999, supra n. 7.Google Scholar
  9. 9.
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  11. 11.
    Treaties that were concluded with indigenous people by way of coercion still are legally binding. The terra nullius doctrine is reinterpreted, rather than dismissed altogether on the basis of its racist application. See for instance the application of the doctrine in Western Sahara, ICJ, Advisory Opinion, 16 October 1975. Anghie argues that a mere reformulation of offending terminology is not enough to rid international law from the negative effects of colonialism. Anghie 1999, supra n. 7.Google Scholar
  12. 12.
    Art. 38(1)(c) refers to the ‘general principles of law recognized by civilized nations’. The reference to ‘civilized states’ is, of course, not political correct and it seems that it is treated as non-existent. Cassese, for instance, discusses this source of international law under the heading of ‘General principles of international law recognized by the community of nations, as a subsidiary source’. The community of nations of course consisted of Europe and the USA. Cassese recognizes this on p. 190. See A. Cassese, International Law, 2nd edn. (Oxford, Oxford University Press 2005) pp. 188 et seq.Google Scholar
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    See Schreuer, supra n. 1, p. 164; Anghie 1999, supra n. 7.Google Scholar
  14. 14.
    See G. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge, Cambridge University Press 2004) pp. 26 et seq. According to Simpson sovereign equality entails three forms of equality. These are formal equality, legislative equality and existential equality.CrossRefGoogle Scholar
  15. 15.
    Prior to 1945 the principle of equality was affirmed in the Peace of Westphalia of 1648, but this only applied to Christian states. After the Congress of Vienna (1814-1815), the ‘Great Powers’ dominated other European states. See B. Fassbender, ‘Sovereignty and Constitutionalism in International Law’, in Walker, ed., supra n. 1, at p. 121. See also the discussion of the drafting history of the inclusion of ‘sovereign equality’ in the UN Charter. Fassbender, ibid., pp. 125 et seq.Google Scholar
  16. 16.
    The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations, hereafter the Friendly Relations Declaration. See UN GA Res. 2625 (XXV) of 20 October 1970. The Declaration furthermore states that: ‘In particular, sovereign equality includes the following elements: (a) States are juridically equal; (b) Each state enjoys the rights inherent in full sovereignty; (c) Each state has the duty to respect the personality of other states; (d) The territorial integrity and political independence of the state are inviolable; (e) Each state has the right freely to choose and develop its political, social, economic and cultural systems; (f) Each state has the duty to comply fully and in good faith with its international obligations and to live in peace with other states.’Google Scholar
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    See Fassbender, supra n. 15. The permanent membership of the five members and the right of veto in terms of Art. 27(3) of the UN Charter is an exception to the sovereign equality of states in the UN. Other exceptions also exist, such as weighted voting in certain international organizations. These exceptions are, however, not constructed as contradicting the principle of sovereign equality as they have been voluntarily consented to. Steinberger, supra n. 1, p. 515. See also Simpson, supra n. 14, p. 48. See, however, T.M. Franck, The Power of Legitimacy Among Nations (Oxford, Oxford University Press 1990) p. 177.Google Scholar
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    See Simpson, supra n. 14. Equality before the law refers to formal equality. See Simpson, ibid., pp. 42 et seq. Jackson, however, views sovereign equality and the one-nation, onevote system as ‘anti-democratic’ in comparison to a system that takes into account factors such as population. J.H. Jackson, ‘Sovereignty-Modern: A New Approach to an Outdated Concept’, 97 AJIL (2003) p. 795.CrossRefGoogle Scholar
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    S. Lee, ‘A Puzzle of Sovereignty’, 27 California Western ILJ (1997) p. 255. The problem is that legal positivists make a distinction between law and non-law which results in a situation where the inequalities in the international system become mere social facts and not legal facts. Kingsbury, supra n. 4, p. 609. See also Camilleri and Falk, supra n. 3, p. 186. Third World countries may be dependent on richer countries and do not always interact on the basis of equality with these states. This results in a situation where poor states may make poor choices that harm the environment. Camilleri and Falk cite the acceptance of toxic chemicals from developed countries as an example.Google Scholar
  20. 20.
    Kingsbury, supra n. 4. Simpson is, however, of the opinion that ‘(t)he doctrine of sovereign equality … is compatible with an array of tolerated social inequalities’. Simpson, supra n. 14, p. 56. He is not ‘concerned with the banal contrast between juridical equalities and material inequalities’. Simpson, ibid., p. 17.CrossRefGoogle Scholar
  21. 21.
    This refers to material equality. This notion should, however, not be taken to the extreme whereby equality implies absolute equality. Material equality is necessary to ensure that all human beings are subjected to fair living conditions. I. Seidl-Hohenveldern, International Economic Law (The Hague, Kluwer Law International 2000) p. 21.Google Scholar
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    See J.L. Cohen, ‘Whose Sovereignty? Empire Versus International Law’, 18(3) Ethics and International Affairs (2004) p. 20.CrossRefGoogle Scholar
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    F.X. Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (The Hague, Kluwer Law International 2000) p. 95.Google Scholar
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    See in this regard Bulajić, supra n. 5, and 262 et seq.Google Scholar
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    See the Declaration on the Establishment of a New International Economic Order (Res. 3201-S.VI of 1 May 1974) and the Charter of Economic Rights and Duties of States (Res. 3281- XXIX of 12 December 1974). Art. 2 of the latter resolution deals with permanent sovereignty as it states that ‘[e]very State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities’. K. Hossain, ‘General Principles, the Charter of Economic Rights and Duties of States, and the NIEO’, in K. Hossain, ed., Legal Aspects of the New International Economic Order (London, Pinter 1980) p. 1 at pp. 2 et seq. See also the discussion in R.P. Anand, Confrontation or Cooperation? International Law and the Developing Countries (Dordrecht, Martinus Nijhoff 1987) pp. 103-128. The Declaration on the Progressive Development of the Principles of Public International Law Relating to a New International Economic Order, which was adopted during a plenary session of the ILA Conference on 30 August 1986, also referred to permanent sovereignty. Para. 5.1 affirms permanent sovereignty as a principle of international law, which emanates from the principle of self-determination. Although various General Assembly resolutions were adopted in relation to the NIEO, these were never really implemented in full and the concept has become nearly obsolete.Google Scholar
  26. 26.
    It is important to recognize that permanent sovereignty is not absolute as it also has the same limitations as sovereignty. Permanent sovereignty, for instance, creates a duty to respect other states’ sovereignty over their natural resources. This means that states should not use their natural resources to such an extent as to cause transboundary harm. Perrez, supra n. 23. No uniform agreement exists regarding the exact scope and content of the notion. See also K. Hossain and S.R. Chowdhury, eds., Permanent Sovereignty over Natural Resources in International Law: Principle and Practice (New York, St Martin’s Press 1984) p. 1. Permanent sovereignty has been formulated and reflected in various resolutions in the General Assembly of the UN. The landmark resolution in this regard is Res. 1803 which affirms the right of states to permanent sovereignty over natural resources but, in addition, requires that permanent sovereignty has to be exercised in the interest of the people and subject to general international law. See UN GA Res. 1803 (XVII) of 14 December of 1962. Other resolutions are, inter alia: UN GA Res. 523 (VI) of 12 January 1952; UN GA Res. 626 (VII) of 21 December 1952 and UN GA Res. 2158 (XXI) of 25 November 1966. The Earth Charter of 2000 supports this idea as principle 2 states that ‘with the right to own, manage and use natural resources, comes the duty to prevent environmental harm and to protect the rights of the people’. See also N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge, Cambridge University Press 1997) pp. 120 et seq. The legal status of permanent sovereignty is dubious. Chowdhury is of the opinion that permanent sovereignty has jus cogens status in international law. S.R. Chowdhury, ‘Permanent Sovereignty and its Impact on Stabilization Clauses, Standards of Compensation and Patterns of Development Co-operation’, in K. Hossain and S. R. Chowdhury, eds., Permanent Sovereignty over Natural Resources in International Law: Law and Practice (New York, St Martin’s Press 1984) p. 1 at p. 38. It is, however, a view that is not shared by all scholars. See J. Makarczyk, Principles of a New International Economic Order (Dordrecht, Nijhoff 1988) p. 352.Google Scholar
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    Perrez, supra n. 23. This is also not a viewpoint shared by all scholars as they perceive economic sovereignty only as a part of the struggle for economic independence. G. Brehme, Souveränität der jungen Nationalstaaten über Naturreichtümer. Die ständige Souveränität über die natürlichen Reichtümer und Hilfsquellen (Völkerrechtliche Probleme des Kampfes der jungen Nationalstaaten um ökonomische Unabhängigkeit) (Berlin, Staatsverlag der Deutschen Demokratischen Republik 1967) p. 8, fn. 9. Brehme acknowledges, however, that he has followed this approach in previous scholarly contributions.Google Scholar
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    Perrez, supra n. 23.Google Scholar
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    This is of particular importance in relation to the North-South relationship in the WTO. The fears of developing countries that wealthy nations may use trade measures to prohibit the import of goods that are produced according to different environmental standards often are referred to as ‘eco-imperialism’. See for instance J.H. Jackson, The Jurisprudence of GATT and the WTO (Cambridge, Cambridge University Press 2000) pp. 431 et seq.Google Scholar
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    See J.G. Speth, ‘International Environmental law: Can it Deal with the Big Issues?’, 28 Vermont L Rev. (2004) p. 789.Google Scholar
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    A distinction can be made between environmentalism of the South and environmentalism of the North, which may be translated into a difference between ‘environmental problems of poverty’ and environmental problems deriving from the ‘excess of affluence’. See A distinction can be made between environmentalism of the South and environmentalism of the North, which may be translated into a difference between ‘environmental problems of poverty’ and environmental problems deriving from the ‘excess of affluence’. See J. Ntambirweki, ‘The Developing Countries in the Evolution of an International Environmental Law’, 14 Hastings International and Comparative L Rev (1990/91) p. 907.Google Scholar
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    M. Sanwal, ‘The Sustainable Development of All Forests’, 1 Review of European Community and International Environmental Law (1992) p. 289.CrossRefGoogle Scholar
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    The Montreal Protocol on Substances that Deplete the Ozone Layer of 1987 serves as a good example.Google Scholar
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    Para. 1.4 of the Founex Report reads: ‘The developing countries would clearly wish to avoid, as far as is feasible, the mistakes and distortions that have characterized the patterns of development of the industrialized societies.’Google Scholar
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    M. Bowman, ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law’, in M. Bowman and C. Redgewell, eds., International Law and the Conservation of Biological Diversity (The Hague, Kluwer Law International 1996) p. 5 at p. 15. Beyerlin is of the opinion that ‘[s]taatliche Souveränität und internationale Zusammenarbeit stehen zumal dann in einem Spannungsverhältnis, wenn es um wichtige Gemeinschaftsinteressen geht, die sich nur befriedigen lassen, wenn einzelne Staaten … ihre eigenen nationalen Interessen hintanstellen’. U. Beyerlin ‘Staatliche Souveränität und internationale Umweltschutzkooperation: Gedanken Zur Entwicklung des Umweltvölkerrechts’, in U. Beyerlin, et al., eds., Recht zwischen Umbruch und Bewahrung. Festschrift für Rudolf Bernhardt (Berlin, Springer 1995) p. 937. See also K. Odendahl, Die Umweltpflichtigkeit der Souveränität: Reichweite und Schranken territorialer Souveränitätsrechte über die Umwelt und die Notwendigkeit eines veränderten Verständnisses staatlicher Souveränität (Berlin, Duncker & Humblot 1998) pp. 96 et seq.Google Scholar
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    Schreuer is of the opinion that sovereignty is ‘ubiquitous’ and ‘elusive’. See Schreuer, supra n. 1, p. 163.Google Scholar
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    L. Henkin, ‘That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera’, 68 Fordham L Rev. (1999/2000) pp. 1 and 2.Google Scholar
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    See in this regard: A-M. Slaughter, A New World Order (Princeton, NJ, Princeton University Press 2004). Cohen delivers a worthwhile examination of this thesis in order to redeem the discourse on sovereignty in international law. Cohen, supra n. 22, pp. 1-24. Cohen rightly rejects this thesis from a normative as well as empirical perspective. Cohen, ibid., pp. 11 et seq. Schrijver also finds that sovereignty is far from irrelevant. N. Schrijver, ‘The Changing Nature of State Sovereignty’, 70 BYIL (1999) pp. 65 and 83. See also A. van Staden and H. Vollaard, ‘The Erosion of State Sovereignty: Towards a Post-territorial World?’, in G. Kreijen, ed., State, Sovereignty, and International Governance (Oxford, Oxford University Press 2002) p. 165 at p. 182; and M.R. Fowler and J.M. Bunck, Law, Power, and the Sovereign State (University Park, PA, Pennsylvania State University Press 1995).Google Scholar
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    Cohen, supra n. 22. Jackson warns against this as it may result in a situation where sovereignty is replaced by ‘pure power’. Jackson, supra n. 18, p. 801.CrossRefGoogle Scholar
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    Cohen, supra n. 22. The acceptance of a decentred cosmopolitan world order may introduce an imperial project. The USA is extremely hostile towards the UN as well as international law and is the sole superpower of the world with unprecedented military power which it sees fit to invoke in order to enforce human rights and democracy. See M. Hardt and A. Negri, Empire (Cambridge, Mass., Harvard University Press 2001) pp. xii, xiv. See also Anghie 2004, supra n. 7, p. 279.CrossRefGoogle Scholar
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    This statement is in accordance with the idea that sovereignty implies that states have a responsibility to protect their own citizens from avoidable catastrophe, but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states. See the Report of the International Commission on Intervention and State Sovereignty (ICISS, ‘The Responsibility to Protect’ (2001), available at <>).
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    It must be borne in mind that Westphalian sovereignty only related to European states. See, however, Simpson, supra n. 14.CrossRefGoogle Scholar
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    According to Walker, ‘we may answer the charge of actual or anticipated redundancy by suggesting that the dynamic of transformation within late sovereignty will involve the continuous evolution rather than the demise of sovereignty’. Walker, supra n. 1, p. 28. Jackson also opines that traditional sovereignty concepts should evolve rather than disband the notion of sovereignty. See Jackson, supra n. 18, p. 801. Schrijver views sovereignty as a dynamic concept which ‘can have a different meaning in different historical periods although certain essential characteristics remain’. Schrijver, supra n. 39, p. 70. Van Staden and Vollaard opine that sovereignty has undergone change and that at present it entails duties and obligations towards the subjects of a state, other states and other bodies. Van Staden and Vollaard, supra n. 39, p. 182.Google Scholar
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    Sovereignty is absolute, but not power. See Lee, supra n. 19. See also in this regard Steinberger, supra n. 1, p. 518 which states: ‘The problem of “absoluteness” of sovereignty is ultimately a problem of the source of the validity of international law.’ Jackson in this regard states: ‘The old “Westphalian” concept in the context of a nation-state’s “right” to monopolize certain exercises of power … has been discredited in many ways.’ Jackson, supra n. 18, p. 801. See also Schrijver, supra n. 39, p. 71.Google Scholar
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    See P. Mische, ‘National Sovereignty and Environmental Law’, in S. Bilderbeek, ed., Biodiversity and International Law: The Effectiveness of International Environmental Law (Amsterdam, IOS Press 1992) pp. 105–114.Google Scholar
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    T. Johnston, ‘The Role of Intergenerational Equity in a Sustainable Future: The Continuing Problem of Third World Debt and Development’, 6 Buffalo Environmental Law Journal (1998/99) pp. 36–83. Johnston discusses factors that are responsible for the inequitable relationship between the North and South and convincingly argues that third world debt plays a major role in this regard.Google Scholar
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    The CBD is the first international instrument which expressly affirms the sovereign rights of states over their genetic resources. The Preamble of the UNFCCC also affirms the notion of sovereignty of states.Google Scholar
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    The focus is on the positive obligations. However, this statement does not imply that states have no independence. States still must be able to invoke sovereignty where another, for instance, attempts to exploit its natural resources.Google Scholar
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    F. Biermann, ‘“Common Concern of Humankind”: The Emergence of a New Concept of International Environmental Law’, 34 Archiv Des Völkerrechts (1996) p. 431. See also A.S. Timoshenko, ‘Responses to Environmental Challenges: UNEP Experience’, in N.M. Al-Nauimi and R. Meese, eds., International Legal Issues Arising under the United Nations Decade of International Law (The Hague, Nijhoff 1995) pp. 169-170.Google Scholar
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    Para. 3 of The Hague Recommendations on International Environmental Law, Peace Palace, The Hague of 16 Augustus 1991. In Bilderbeek, ed., supra n. 50.Google Scholar
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    Financial assistance pertaining to the elephant issue refers to the compensation for forgoing the sale of ivory of elephant, which die naturally and the confiscation of ivory as well as costs of the measures of conservation.Google Scholar
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    I previously have coined the term in relation to the issue of elephant culling but have not expanded on the theoretical premises of this notion in international law as the previous article for the most part dealt with the application of the notion in relation to the casus of elephant culling. See W. Scholtz, ‘Animal Culling: a Sustainable Approach or Anthropocentric Atrocity: Issues of Biodiversity and Custodial Sovereignty?’, 2 Macquarie Journal of International and Comparative Environmental Law (2005) pp. 9–30. Other authors have also developed theories concerning the role of sovereignty and the threat to the global environment. See A.D. Tarlock, ‘Exclusive Sovereignty versus Sustainable Development of a Shared Resource: The Dilemma of Latin American Rainforest Management’, 32 Texas ILJ (1997) pp. 37-66. See furthermore: P. Birnie, ‘The Role of International Law in Solving Certain Environmental Conflicts’, in J.E. Carroll, ed., International Environmental Diplomacy: The Management and Resolution of Transfrontier Environmental Problems (Cambridge, Cambridge University Press 1990) p. 95 at p. 104. She accordingly proposes that sovereignty should be replaced by the concept of ‘planetary citizenship’. Another suggestion is that of ‘decentralized planetary sovereignty’ which means the acceptance of functional sovereignty instead of territorial sovereignty. This idea makes provision for the internationalization of resources on the basis of the common heritage of mankind (CHM). International organizations have a very important role to play in this regard. See J. Tinbergen, Reshaping the International Order: A Report to the Club of Rome (London, Hutchinson 1977) para. 5.8. Another interesting approach to the management of global environmental resources is the application of the ‘public trust’ doctrine. See P.H. Sand, ‘Sovereignty Bounded: Public Trusteeship for Common Pool Resources?’, 4 Global Environmental Politics (2004) pp. 47-71. See also: T. Gebel, Der Treuhandgedanke und die Bewahrung der biologischen Vielfalt. Einschränkung der territorialen Souveränität durch treuhänderische Verwaltung von lebenden Umweltressourcen? (Sinzheim, Pro Universitate Verlag 1998) and V.P. Nanda and W.K. Ris, Jr., ‘The Public Trust Doctrine: A Viable Approach to International Environmental Protection’, 5 Ecology Law Quarterly (1975/76) pp. 292-319. It is not possible to discuss the differences between my suggestion and the above. The main difference is, however, that ‘custodial sovereignty’ is found on the acknowledgement of the colonial history of international law as well as the inequality that exists between states.Google Scholar
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    Cullet defines differential treatment ‘as the instances where the principle of sovereign equality is sidelined to accommodate extraneous factors, such as divergences in levels of economic development or unequal capacities to tackle a given problem’. P. Cullet, ‘Differential Treatment in International Law: Towards a New Paradigm of Inter-state Relations’, 10 EJIL (1999) p. 551. See furthermore: L. Rajamani, Differential Treatment in International Environmental Law (Oxford, Oxford University Press 2006) and D. French, ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’, 49 ICLQ (2000) p. 46.CrossRefGoogle Scholar
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    It is not my intent to provide a detailed analysis of this issue. Rather, I shall present examples and briefly reflect on this issue. See L. Gündling, ‘Compliance Assistance in International Environmental Law: Capacity-Building Through Financial and Technology Transfer’, 56 Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht (1996) pp. 796–809. His discussion on the difficulties relating to technical and financial assistance is of particular importance. See F. Biermann, Financing Environmental Policies in the South: An Analysis of the Multilateral Ozone Fund and the Concept of ‘Full Incremental Costs’ (Berlin, WZB 1996). See also: UNEP, Handbook for the International Treaties Protecting the Ozone Layer (Nairobi, UNEP 2003). Various international treaties contain provisions pertaining to financial and technical assistance. Art. 10 of the Montreal Protocol establishes a Multilateral Fund which makes provision for financial and technical assistance, including the transfer of technologies, to developing countries. The UNFCCC also contains numerous provisions concerning the transfer of finances and technology. Arts. 4(3)- (5) provide for the assistance of developing countries in the fulfilment of their obligations through financial resources, the transfer of technology and know-how. Art. 16 of the CBD reads that ‘transfer of technology … to developing countries shall be provided and/or facilitated under fair and most favourable terms, including on concessional and preferential terms’. Under Art. 18(2) technical and scientific cooperation, in particular with developing parties, shall be promoted. Art. 19 deals with the handling of biotechnology and distribution of its benefits and also makes mention of developing countries. Arts. 20, 21 and 39 of the CBD deal with the transfer of financial resources. Art. 39 designates the GEF as the interim institutional structure for the period between the entry into force of the CBD and the first meeting of the Conference of the Parties. In terms of Decision I/2 of the Conference of Parties, the GEF shall remain the institutional structure to operate the financial mechanism.Google Scholar
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    See S.A. Silard, ‘The Global Environment Facility: A New Development in International Law and Organization’, 28 George Washington Journal of International Law and Economics (1995) pp. 607–654. Other funds may also be of importance in this regard. See B.B. Röben and V. Röben, ‘Institutional Aspects of Financing Sustainable Development After the Johannesburg Summit of 2002’, 63 Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht (2003) pp. 517-520.Google Scholar
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    I borrow the term ‘global environmental resources’ from Glennon. See Glennon, supra n. 59, pp. 1-43.Google Scholar
  69. 69.
    This means that fossil fuels are excluded from this definition. Incorporating fossil fuels in this definition will be met by fierce resistance from oil producing countries and may serve as the basis for further interventionist policies by developed countries. It must be borne in mind that nonrenewable resources also can become depleted if they are used in an unsustainable manner. See J.M. Conrad, Resource Economics (Cambridge, Cambridge University Press 1999) p. 1.CrossRefGoogle Scholar
  70. 70.
    Biological resources are the tangible biotic components of ecosystems. Art. 2 of the CBD states that biological resources ‘include genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity’. Examples of biological resources are real entities, such as maize, elephants, elephant tusks or fish. In contrast, biodiversity is not the sum of ecosystems, species and genetic material, but rather the variability within and among them. Biodiversity is an attribute to life. L. Glowka, et al., A Guide to the Convention on Biological Diversity (Gland, IUCN, the World Conservation Union 1994) p. 15.Google Scholar
  71. 71.
    I have considered if one should not declare the components of the biosphere in the broadest geophysical sense as global environmental resources. This, then, would include the global ecological system integrating all living beings and their relationships, including their interaction with the elements of the lithosphere (rocks), hydrosphere (water) and atmosphere (air). This is, however, stretching things too far as this merely means that ‘everything’ is a global environmental resource.Google Scholar
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    F. Biermann, Saving the Atmosphere: International Law, Developing Countries and Air Pollution (Frankfurt-on-Main, Lang 1995) p. 5.Google Scholar
  73. 73.
    The sovereignty over territorial airspace is not unrestricted as it is limited in height and extends to the point where the airspace meets space itself. The Outer Space Treaty of 1967 (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) does not establish a precise boundary between airspace and outer space. The Moon Treaty of 1979 (Agreement Governing the Activities of States on the Moon and Other Celestial Bodies), which has recalled the latter, also does not clearly define this issue. See P. Sands, Principles of International Environmental Law (Cambridge, Cambridge University Press 2003) p. 14.CrossRefGoogle Scholar
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    Vogler, however, treats it as part of the global commons. J. Vogler, The Global Commons: A Regime Analysis (Chichester, Wiley & Sons 1995) pp. 2 et seq. This also seems to be the approach that the International Law Commission favours. See Report of the International Law Commission, supra n. 57, p. 118. The problem further is illustrated by the Vienna Convention for the Protection of the Ozone Layer of 1985. Art. 1(1) defines the ozone layer as ‘the layer of atmospheric ozone above the planetary boundary layer’. It is difficult to apply the notions of sovereignty or shared resources in this regard.Google Scholar
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    See in this regard Biermann, supra n. 72, pp. 9-10.Google Scholar
  76. 76.
    I think that one indeed may view the atmosphere as a natural renewable resource as it consists of, inter alia, 20.95 per cent oxygen, which is listed as a renewable resource.Google Scholar
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    See in this regard K. Ginther, E. Denters and P.J.I.M. de Waart, Sustainable Development and Good Governance (Dordrecht, Nijhoff 1995).Google Scholar

Copyright information

© T.M.C. Asser Press 2008

Authors and Affiliations

  • Werner Scholtz
    • 1
    • 2
    • 3
  1. 1.PU for CHESouth Africa
  2. 2.Leiden UniversityNetherlands
  3. 3.North-West UniversitySouth Africa

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