The duty to protect the environment
Alongside the right to live in a healthy environment, the duty to protect the environment constitutes the second pillar of our vision. These first two articles immediately set the tone and dynamic that the text seeks to establish. Environmental protection is a right, but it also involves duties, which must be assumed both individually and collectively, and at all levels.
Gaps in international law also appear with regard to the general obligation to protect the environment. This is affirmed in certain existing texts, but in a partial or incidental way. It is first found in texts without legal significance. Thus, the Stockholm Declaration makes numerous references to the concept of duty of care. Its principle 2 provides that natural resources “must be preserved in the interest of present and future generations through careful planning or management as necessary”. Its principle 3 states that “[t]he globe's capacity to produce essential renewable resources must be preserved and, wherever possible, restored or enhanced”. Its principle 4 then recognizes the responsibility of man in the safeguarding and management of natural heritage, and requires the consideration of nature conservation in planning for economic development. Finally, its principle 7 requires States to take “all possible measures to prevent pollution of the seas”. Within the Rio Declaration, this requirement is posed in the context of relations between States, with a cross-border dimension. Thus, under Principle 2, States have a duty to ensure that activities on their territory or within their areas of control respect the environment of other States. In its principle 7 then, the Declaration provides that States must cooperate to “conserve, protect and restore the health and integrity of the terrestrial ecosystem”.
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Certain sectoral conventions have formulated a duty of environmental protection for the States parties, but limited to certain specific areas. The Convention on Long-Range Transboundary Air Pollution, for example, imposes in Article 2 an obligation for Contracting Parties to “limit and, as far as possible, gradually reduce and prevent air pollution, including transboundary air pollution at long distance ". The Montego Bay Convention on the Law of the Sea establishes a general obligation to “protect and preserve the marine environment” (article 192). Finally, the Rio Convention on Biological Diversity states in its preamble that “States are responsible for the conservation of their biological diversity and the sustainable use of their biological resources”.
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Case law, for its part, does not establish a general duty to protect the environment but only a customary obligation to prevent transboundary damage. It is therefore only indirectly that this obligation of prevention could be interpreted as including, implicitly, the need to protect the environment – when the latter falls within the territory of other States. The International Court of Justice thus considered, on the occasion of the Advisory Opinion on the legality of the threat or use of nuclear weapons of 1996, that “[t]he general obligation that States have to ensuring that activities carried out within their jurisdiction or under their control respect the environment in other States or in areas beyond national jurisdiction is now part of the body of international law.”
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Initiatives from civil society have taken note of this general duty to care for the environment and have integrated it into most of the instruments developed. The New Delhi Declaration on Principles of International Law Relating to Sustainable Development, the IUCN Draft International Compact on Environment and Development, the Oslo Principles on Global Obligations for Climate Change, the Draft The International Covenant on Human Rights to the Environment developed by the International Center for Comparative Environmental Law and the IUCN Global Declaration on the Environmental Rule of Law all formulate, although in varying terms, an obligation to protect the environment.