CHAPTER 10INTERNATIONAL ENVIRONMENTAL LAW

Sub: The law must be based on sound principles and the idea of a common good, and the best way to protect this good is to change our perspective, by reorienting individuals as well as institutions

PART I: The Story of Environmental Law

Sub: Effective environmental law is grounded on human rights, and must encourage sustainable development

IF A team from another planet would study the Earth today, they would come up with some alarming data. The hottest years in all of recorded history took place in the last quarter of the 20th century. In the last 50 years of the 20th century, up to 90% of the fishery resources of the Earth were depleted. Also, during those 50 years, up to 90% of Earth’s forests were denuded. Within the same 50-year period, up to 50,000 species of Earth’s plant and animal life are lost and rendered extinct every year. The chemical pollution that human beings caused are poisoning the very air that they breathe, the soil that gives them food, and the water that they drink.

Humans have grouped themselves into countries or nations. These groupings are largely based on certain commonalities, such as a shared locality, common language, shared history, common religion, and common culture. These groupings occupy a patch of Earth they call their “territory.” This territory, the people within it, and their government are collectively known as “country,” “nation” or “state.”

Like all the other animals on Earth, people have a system of social order. However, unlike the social organization of ants and bees, the social and political system of human beings is a little more complex. Their system includes a mechanism for the maintenance of peace and order, a system of choosing their leaders, and even a system of rules to follow in their

relationship with one another. The latter is what they call the law.

The nature of the lawThe law that governs the behavior of the people within the territory of a country is called its national law. These national laws include not only the set of rules to govern the people, but also a dispute resolution system. It is fairly easy to carry out, because within the territorial boundaries of a country there is a central government that has the power to resort to the use of force to compel people to comply with the rules.

As travel, communication, and trade relations grew between countries, there arose a need for rules to govern the conduct of nations in relation to one another. This later became known as international law or the “law between nations.” In the panorama of human history, it was not until the 19th century that international law began to develop. In fact, it was only in the 20th century that international law grew by leaps and bounds.

Truth to tell, it took human beings two world wars (World War I in 1914-1918 and World War II in 1939-1945) to finally awaken to the need for some sort of a global authority to at least moderate their inherently warring nature. It was not until October 24, 1945, when the United Nations was born, that the peoples of the world came together to proclaim an end to human suffering from the scourge of war. Since then, the United Nations has served as the main repository of international law.

International law is generally described as the rules of conduct that countries observe in their relationship with one another and with the entire global human community. They are based on the simple principles of good manners and right conduct, examples of which are non-aggression, cooperation, amicable settlement of disputes, etc. They are the fundamental principles that people generally observe in relation to each other in civilized society. These international rules of conduct are expressed in agreements entered into among countries, in the customary practice of states toward one

another, in common-sense principles of law observed by people in a civilized society, and in judicial decisions and the explications of highly qualified scholars.

International conventions and treaties are agreements entered into by and among states, which act as the parties to an agreement. Where there are only two parties, the agreement is generally referred to as a treaty (or a bilateral agreement). Where there are many parties, it is generally called a Convention or a multi-lateral agreement.

The word “custom” generally means habitual practice. In law, “custom” means that a behavior is such a common practice and tradition, and has been in usage for so long that it has established itself with the force or validity of law. To prove customary practice in international law, it is necessary to establish that a country has not only observed a particular conduct in its external relations, but that said country does so under a belief that it has the force of law. For example, allowing the free passage of merchant vessels through the sea lanes of a particular country is an established customary practice in the international law of the sea.

There are also matters that are so basic to human relations that they are considered mandatory standards of human conduct. In the language of International Law, they are known as peremptory norms. The standards of conduct against the act of genocide, the practice of slavery, and the habit of non-aggression are all examples of what fall under the category of peremptory norms.

A third source of international law is the general principles of law that apply in all jurisdictions of the world which observe the rule of law. Some of these basic principles are, for example, the principles of good neighborliness, of not using one’s property to harm others, and of being liable for damage caused to others. These are basic rules observed in a civilized society, and are meant to fill the gaps for acts or conduct not yet covered by treaty or

custom between States. In the Philippine Civil Code, for example, there is an entire chapter on human relations that expresses these basic rules.

Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Article 20. Every person who willfully or negligently causes damage to another, shall indemnify the (person damaged).

Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall (pay for the damage done). - Civil Code of the Philippines

International law may also be expressed through the judicial decisions of international courts and tribunals, and of national courts. It must be noted that a judicial decision is not, by and of itself, the international law. Rather, the judicial decision is said to be only an expression or an articulation of the principle of international law which is applied to a particular controversy or case at hand. In other words, it is not international law itself, but only evidence of the existence of the legal principle involved.

Now that we have a basic understanding of International Law and how it works, we can proceed to discuss the principles of international environmental law. The Stockholm Declaration on the Human Environment is said to be the watershed event in the growing awareness of the impact of human activities on the natural world on a global level. A number of regional and international conventions followed, such as the Rio Declaration of 1992, the Vienna Convention on the Protection of the Ozone Layer, the Biodiversity Convention, the Climate Change Convention and others.

Principles as basis for lawA principle is defined as a statement of general truth, which serves as the foundation for other truths. In the field of natural resources conservation and environmental protection, there are certain truths which, although not

yet widely accepted as a matter of practice by all states, are nonetheless true. These are self-evident truths expressed as a general statement derived from experience and common sense. They provide general guidance for the drafting of environmental legislation and in the resolution of environmental disputes.

For economists and policymakers, these principles are particularly useful when trying to integrate environmental concerns in development plans and programs of a particular country, or when dealing with international trade and global economic policy. They echo resemble the principles and fundamental civil rights of an individual, such as the right to be free from harm, to act with justice and good faith, to give everyone his due, as well as the other basic standards of good human relations.

The right to life is the most basic human right, enshrined in all international covenants and national constitutions. It is the broadest area of convergence between the field of human rights and the field of environmental protection. This includes the right against the arbitrary taking of human life without due process of law. In the Supreme Courts of both India and the Philippines, this right has been articulated with great eloquence. In India, the Supreme Court said that the natural environment is essential to the enjoyment of the right to life itself. In the Philippines, it has been interpreted as “a right that even predates all governments and constitutions … for it concerns nothing less that the right of self-preservation and self-perpetuation.”

The right to life has two aspects: the right to compensation in case damage results from the act or negligence of another, and the duty of the State to take positive steps to safeguard this right.

The right to health and the right to life are inextricably intertwined. When the air they breathe, or the water they drink is foul, the people’s health suffers. The convergence of the right to life, to health, and a wholesome environment finds expression in a number of international conventions. The

UN Commission on Human Rights specifically declares that the promotion of an environmentally healthy world contributes to the protection of the human rights to life and to health.

In like manner, the 1989 Convention on the Rights of the Child also expressly states that the children of the world have the right to enjoy the highest attainable standard of health to combat disease and malnutrition. Thus, it is the duty of governments to protect the children, provide them with adequate, nutritious food, and clean drinking water, and to take into consideration the risks of environmental pollution.

On another level, linked to the rights to life and good health, is the right to privacy. It means that a person has the right to be free from undue interference in his home and in the use of his property. This right may be invoked against unnecessary and unlawful environmental interferences. Noise that affects the peaceful enjoyment of one’s home, the flooding of one’s farm by a nearby dam, or even changes in the microclimatic conditions of an area as a result of the heat generated by a power plant, are some examples of such interference.

This right can also be invoked against the location of garbage dumpsites in one’s neighborhood. Where the interference is of such intensity or degree that it results in a near total loss of the use of one’s property, it is tantamount to the taking of that property, and its owner is therefore entitled to reparation.

The right to be free from interference has always been subject to a test called the “balance of interests.” The test attempts to balance the right of the individual on the one hand, and on the other, the competing interests of the community. More often than not, the community (represented by the State) enjoys the wider latitude and takes precedence over the rights of an individual. For example, certain burdens may be imposed upon a person or his property for the good of the community-at-large.

However, when the burden placed upon the person exceeds a certain threshold, or when the imposition becomes undue or unnecessary, the individual is entitled to proper compensation. An example in point is a decision of the European Court of Human Rights finding that the toxic fumes emitted by a tannery violated the right to the quiet use of property of certain people living nearby. Applying the balance-of-interests test, the Court found that the state had placed an unfair and disproportionate burden on the individual and therefore had to compensate him for such imposition.

The other side of the coin is the responsibility of each state not to cause harm to another, directly or indirectly. A state causes harm to another state directly by outright acts of aggression. Indirectly, this harm is committed when a state allows its territory to be used for activities that result in harm to other states. This is similar to the principle of nuisance discussed earlier.

This principle found expression in one of the early cases on transnational pollution involving the neighboring states of Canada and the US. At the turn of the 20th century, American farmers along the border between these two countries noticed that their crops were being damaged by the fumes from a Canadian smelting plant located up north. It was also established that the health of the people in the vicinity was adversely affected by the toxic emissions from Canada’s smokestacks.

In the proceedings convened to amicably resolve the issue, the arbitration tribunal ruled in favor of the US. To support its decision, the tribunal stated that “… under the principle of international law… no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in, or to, the territory of another, or on the properties or persons therein…”

The obligation not to cause harm has been confirmed by the International Court of Justice (ICJ). Shortly after World War II, mines placed in the

waters of Albania damaged British warships and resulted in the loss of lives. When the Corfu Channel case was elevated to the ICJ, the Court ruled that: “The obligations of Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albania’s territorial waters. This obligation also consisted of warning the approaching British warships of the imminent danger, to which the minefields exposed them. Such obligations are based .…on certain general and well-organized principles, namely elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime navigation; and of the principle that every State has the obligation not to knowingly allow its territory to be used for acts contrary to the rights of other States.”

At the close of the 20th century, the 1996 advisory opinion of the World Court on the nuclear tests case stated that this obligation “not to cause harm” extends not only to the territory of other States but also to areas beyond the limits of any country’s jurisdiction. These are the areas known as the “global commons,” examples of which are the high seas, the Antarctic region, and outer space.

A necessary consequence of the obligation not to cause environmental harm is the corresponding responsibility to repair any damage resulting from a breach of the obligation. Let us recall a simple principle we learned in a provision of the Philippine Civil Code on Human Relations. It states that whoever causes damage to another in a manner that is contrary to morals, good customs and public policy shall be liable for the damage done. The principle of state responsibility in such a case is nothing more than an international law articulation of this basic principle of human relations. In the Charzow Factory Case, the Permanent Court of International Justice (predecessor of the ICJ) had occasion to say that “It is a principle of the international law….that any breach of an engagement involves an obligation to make reparation.…The Court has already said that reparation is the indispensable complement of a failure to apply a convention, and there is no

necessity for this to be stated in the convention itself.”

Every now and then, especially in the field of international law, we encounter the word “sovereignty.” It is important to fully understand the term because it has been a constant source of tension between states. On one hand, there is the interest of a state to protect its independence and right of self-determination (in short, to do what it wants). On the other hand, there is a growing recognition that cooperation among countries is indispensable if the world is to at all have a chance to avert the clear and present danger staring at humanity today.

“Sovereignty” is defined as the right of a State to exercise exclusive jurisdiction over its people and the resources of a particular patch of the Earth’s surface, i.e., its land and waters and the air space above it. The need for international cooperation in environmental issues of regional and global scale, however, requires states to limit their right to use their natural resources, or at least to limit certain activities within their respective territories.

The same is true for biodiversity conservation and forest and marine protection. Protecting these resources is important not only to the country that has the resources within its territorial boundaries but also for the rest of the world. To the extent that a “biological diversity region” contains the genetic pool of humankind as a whole, it belongs not only to the country where it is located but also to the whole world as a “common heritage of mankind.” Hence, by declaring it as such, the use of a forest or marine resource by the particular country must necessarily be limited.

It is now widely recognized that Earth’s environmental degradation respects no man-made and artificially marked “political” boundaries. In the natural order, the system of division into regions is quite different from the way human beings arbitrarily divide land through political boundaries. In the “State of Nature,” land is not divided by fences, posts, or other “territorial

boundaries.” Even when Nature divides a patch of land with a river running through it, the whole thing is a complete ecological system functioning as an indivisible whole.

This unity of ecosystems is clearer in the sea, where the natural demarcations fade. In the case of marine life, the divisions, if any, are not “zones of separation” but “zones of transition.” These are the zones where different life forms are interdependent and where nature lays down the rules of behavior.

In the case of nation-states, however, they lay claims of sovereignty based on artificially demarcated straight lines called national boundaries. In fact, all too often, these boundaries do not even respect the natural boundaries of ridges and rivers.

Efforts directed at international environmental management based on cooperation among States have been, until recently, sporadic and ineffectual. The cause of this ineffectiveness lies in the fact that countries claim to be independent of one another. Unlike the national scenario where the administrative structure is vertical with a centralized enforcement authority, in the international arena the structure is horizontal, in the sense that states generally do not recognize a higher authority and give undue emphasis to their own notions of sovereignty. Admittedly, states have the full and absolute power within their territorial boundaries.

Sustainable development and progressThe drive for development has become synonymous with the meaning of economic progress. Its indicators are measured by numbers reflective of the GNP, GDP, and the growth in per capita income. We say, for example, that an economically progressive country is one that has a GNP growth of 7% per annum and continually increasing. We also say that a “developed” country is one where per capita income is, say, $70,000 per year, and continuously growing.

In the second half of the 20th century, people began to belatedly realize that the conventional pattern of economic development being pursued by countries worldwide could not be sustained in the long run. This kind of economics was found to be too costly in terms of its impact on the natural world and the elements that sustain all life forms. This belated but shining realization gave birth to the environmental movement.

For about 30 years (circa 1960-1990) economic development and environmental protection sat at opposite ends of the table, in apparent contradiction to each other. In the beginning, it seemed that if the environment were to be protected, it would mean there could be no economic development. On the other hand, if economic development were to be pursued vigorously, the environment would suffer. This conventional theory placed economics directly at odds with ecology.

Today, there is no question as to whether we should, or should not, protect the environment. It is in the realm of a peremptory norm, a basic truth and principle of life. On the other hand, human beings must be lifted out of poverty.

To accommodate and harmonize these two seemingly conflicting needs, a thinking pattern had to be invented. Thus, was born the concept and principle of sustainable development.

Although the idea has been discussed by academics since the early 1970s, it was only when the United Nations commissioned a global panel of experts in the 1980s to come up with broad recommendations that the term attracted worldwide attention. In 1987, the World Commission on Environment and Development (popularly known as the Brundtland Commission) prepared a report that described the concept of sustainable development. It was defined as development that meets the needs of today without compromising the ability of those coming tomorrow to meet their own needs. Shorn of its

more formal language, it simply means “using natural resources without using them up, so that others who come after us will have something to use.”

The principle of sustainable development figured in the case of Hungary vs. Slovakia decided by the International Court of Justice (ICJ) in September 1997. In a separate opinion by then Vice President of the ICJ, Judge C.G. Weeramantry expressed the opinion that sustainable development is more than a mere concept; it is a principle of behavioral value. The concept of sustainable development is a principle accepted not merely by the developing countries but also by the world in general.

“The principle is, thus, a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community. It would not be wrong to state that the love of nature, the desire for its preservation and the need for human activity to respect the requisites for its maintenance and continuance are among those pristine and universal values which command international recognition.”

The term “sustainable development” has become the slogan of every conference, article, and speech by environmentalists, government officials, and now increasingly, even businessmen. This is a good sign because it shows the beginnings of a shift in the thought structure and meaning of “progress” and “development.” At the very least, economic development is now beginning to incorporate the idea of environmental protection as a necessary component of doing business. Indeed, it is a term so “brilliantly ambiguous that it is easily acceptable to all sectors industrialists, politicians, policymakers, and citizens alike.”

More than half of the Earth’s surface area lies beyond the control of any sovereign state. The high seas and international waters, the seabed, the continent of Antarctica, the stratosphere, outer space, and even the moon are all part of what is known as the “global commons.” In the past, the resources in these regions were conventionally governed by the “right of

capture.” It followed the basic principle in the rules of acquiring private property, that possession is the first mode of acquiring ownership.

However, this conventional approach, the notion of capture or the “principle of first touch,” seemed unfair to the less technologically advanced countries, or to landlocked countries which did not have access to these areas. To accommodate their concerns, a new approach had to be developed. The new concept was that these areas, places, and resources are not “owned” by any individual country but by humankind as a whole. In short, these should be considered as “a common heritage of humankind.”

This principle has been applied to the continent of Antarctica, outer space, and the moon. Although some of the technologically advanced countries have explored these regions, it has been resolved that these are “held in common” by humankind as a whole.

This principle has also been applied to certain cultural and natural landmarks of which the UNESCO Convention on World Heritage is the principal international law on the matter. It declares that certain areas and sites are of such great cultural and natural significance that they must be preserved for all time. These sites are so valuable and so important, not just for the country where they are located but to the whole world, that the deterioration or disappearance of these World Heritage Sites would be an impoverishment of the cultural and natural treasures of the whole world at large.

Such structures as Angkor Wat of Cambodia, the pyramids of Egypt, and the Great Wall of China are some examples of man-made landmarks. The Tubbataha Marine Park, Banaue Rice Terraces, the Puerto Princesa Underground River,(all found in the Philippines) and the Great Barrier Reef of Australia are other examples of the natural wonders of the world. Fortunately, they have also been declared as world heritage sites. All of them represent a unique and outstanding natural and cultural significance that gives us today, and will give our children tomorrow, a glimpse of what

Earth is made of in its natural state, and of the achievements of human civilization.

Neil Armstrong, the first man to land on the moon in 1969, said that it was “a small step for man, but a giant leap for mankind.” Without belittling the aeronautic achievement, 30 years later we realized that the small step was just that, after all. We now have confirmed evidence of what we have known since the telescope was invented and we were able to peek at the moon—that the moon is incapable of supporting life. With all the sophisticated technology it took to journey to the Moon, we found that upon landing there it was made of nothing but rock, rock and more rocks.

Despite the absence of life on the moon and seeing that it was “useless” anyway, countries of the world entered into an agreement as to what to do with it. In 1979, certain States entered into an Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (often referred to as the Moon Treaty).

Applying the principle of “a common heritage of mankind,” it provides for the peaceful exploration and exploitation of the Moon for the benefit not just of the country conducting the activity, but of all humankind, including future generations.

Shared treasuresThe principle of a global commons has four dimensions:

1. Non-ownership—Although the resources in the area declared as a global commons are open for peaceful uses, the area itself is not subject to ownership by any state.

2. International management—To allow a single country to exclusively manage such an area would, in effect, give it total control and exclusive dominion. To avoid this, the global commons are subject to “common” management. The actual workings of this “management of the commons” (Antarctica, the high seas, and moon) are generally the subject of an

elaborate system of protocols and treaties. In the case of the high seas, for example, the system has even advanced to the level of judicialized resolution of disputes.

3. Shared benefits—Theoretically, the countries that lack the technology to access resources of the “global commons” should also share in the benefits from any exploitation conducted in the area. Making this concept work in realpolitik is, however, much more difficult than the theoretical abstract. The more powerful countries have never fully accepted this principle. In fact, the US signed the Law of the Sea Convention only after the provisions on shared benefits were deleted. Even then, as of the close of the 20th century, the US had still not ratified this most basic UN instrument that practically the whole world had signed and ratified.

4. Reserved for peaceful uses—Global commons are supposed to be used only for peaceful purposes. The Outer Space and Moon Treaty have specified that these places can only be used for the ends of peace. The 1970 Sea-Bed Arms Control Treaty outlawed implanting the seabed with nuclear weapons or weapons of mass destruction.

Now that we are more comfortable with some of the basic terms in international law, we can take a small step forward and try to understand some other emerging principles in international environmental law. One of them is the idea of “common but differentiated responsibility.”

It is said that industrialized countries, which make up 25% of the world population, release 75% of the global emission of carbon dioxide. On the other hand, 75% of the population emits only 25% of carbon dioxide. While everyone in the world has a responsibility to reduce the carbon dioxide emissions into the air that we breathe, the burden of limiting the emissions is not equal. Naturally, those who emit more have a greater responsibility to do more. Thus, while the responsibility is common to all countries, the burden to be assumed is not the same.

This concept also takes into consideration the unequal levels of socio-economic and technological development of the different countries of the world. That is why the word used is not “different” but “differentiated”: While the responsibility is common, the burden of bearing the responsibility is differentiated according to their capabilities and contribution to the degradation.

Let us focus on the example of greenhouse gases. Among the guiding principles of the Climate Change Convention (9 May 1992) is that the developed countries or “consumptive” societies must take the lead in combating climate change and its adverse, almost calamitous, effects on humankind.

This is as it should be because the industrialized countries are the ones who emit the larger proportion of the greenhouse gases. They are also in a better financial position to do so. On the other hand, a financially-poor but ecologically-wealthy country like the Philippines bears a heavier responsibility to protect its rich forests and even richer marine resources than, say, an ecologically-poor country like Afghanistan with a barren, mountainous terrain. The responsibility, therefore, is not just “different” according to the conditions of a country; it is also “differentiated” according to its particular circumstances and capabilities.

No doubt this is a controversial, although plainly common sense, principle. In recognition of the truth of this principle, the 1992 Rio Declaration states that: “In view of the different contributions to global environmental degradation, the 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 that they command.”

The concept of intergenerational responsibility is really quite simple. It is the reason why human beings take care of their children and provide for their welfare, as the principle follows the basic instincts of self-preservation and self-perpetuation.

So long as humans can conceive of a future generation of their own kind, there must be enough supply of the vital life-support systems that will make their lives possible. This is the instinctive foundation of the concept of intergenerational responsibility, the responsibility of this generation to the generations yet unborn. This responsibility is to ensure that when their time comes, the beneficiaries (our children and future generations) will still have enough natural resources to fill their needs up to a horizon of reasonable perpetuity.

This principle is also referred to as intergenerational “equity” or “fairness to future generations.” It is founded on the belief that decisions made today must take into account the well being not only of our children, but also of the unborn.

Prevention is better than cureAn element of the precautionary principle is proper and timely information. Years ago, before it was fully ascertained that smoking adversely affected one’s health, the labels of cigarette packs contained the following warning: “Smoking may be hazardous to your health.” The word “may” conveyed a certain degree of doubt in the statement. It also indicated that there was a risk in smoking, which, although not yet fully validated, nevertheless posed a threat to human health. Common sense would, therefore, dictate that a smoker exert efforts to stop smoking. Any person who would go ahead with smoking anyway would be doing so knowingly, rationally, and voluntarily, with both eyes open and fully aware of the consequences.

Used at a global level, however, the precautionary principle takes on a complexion that calls for a fuller explanation. When applied to the law or

Conventions on environmental protection, it becomes a little more complicated.

What science can often detect at any given time are only the symptoms of an ecological malady. The chocolate-colored water that runs through the rivers during a heavy rainfall is, for example, symptomatic of severe soil erosion. Erosion is itself a symptom of another ecological malfunction, of serious land degradation resulting from deforestation.

Recording methods have, for example, detected that the price of fish has increased astronomically over the last 30 years. By itself, this is a symptom indicating that fish and marine life are getting increasingly scarce. The fact that drinking water is now being sold in plastic bottles, at prices higher than gasoline in many places, is a symptom of the growing scarcity of clean drinking water. The presence of garbage along the roadside, creeks, and rivers is also a symptom indicating that there is too much waste.

The full impact of soil and marine resources degradation on the food security of the children and grandchildren of humankind is quite difficult to predict with the fullest scientific certainty. It is also difficult to determine with utmost exactitude how the increasing loss of potable water will affect human health in the next 20-50 years. It is impossible to determine today with mathematical precision what kinds of diseases will grow to epidemic proportions when the crisis finally unravels, and how many will die from cholera, dysentery, gastroenteritis, skin diseases, and other ailments.

However, because of the appearance of symptomatic manifestations, humans are being given an inkling that certain undesirable results are going to happen. Exactly when and to what extent the damage will be, and just how many will die or be injured, are eventualities that cannot be predicted with certainty.

When the people of Ormoc City in the Philippines deforested their

mountains between the 1950s and the 1970s to plant sugarcane, no one ever imagined or predicted that one day in November 1991, an unusually heavy rain would fall on a mountain that was bare of forest vegetation. They could also not predict that without that vegetation, the waters would simply cascade down into an almost dry river with such ferocity that it would carry away 5,000 people to a watery grave in a matter of 30 short minutes.

To cope with anticipated damage and ecological surprises, the precautionary principle was conceptualized. A preventive approach to ecological problems became necessary. When applied to global environmental problems, the precautionary principle simply states that where there is some evidence that serious ecological damage may result from a pattern of existing activity, humankind must exercise proper care and caution. This would mean having to either stop the activity altogether or, at least, to design effective policy and legal responses to prevent a potential environmental threat. As articulated in the Rio Declaration, the precautionary principle states that:

“In the face of serious or irreversible damage, measures to prevent environmental degradation must not be postponed simply because of the lack of full and complete scientific proof.” (Principle No. 15)

What is the relevance of the precautionary principle in the legal process? Under ordinary circumstances, he who claims a fact must prove it by presenting evidence that will establish the allegation as true. In legal language, this is the burden of proof.

The precautionary principle reverses the situation. In the context of an actual legal battle, where there is evidence that serious and irreversible damage may result from a certain activity, the precautionary principle shifts the burden of proof from the person who seeks to stop an activity to the person who desires to continue with the activity. The burden of proof is transferred to him in the sense that he must prove that the activity he is carrying out is safe and that it will not cause the alleged damage.

In Pakistan, the principle found expression in a case involving an electricity provider that was constructing a power grid station in a residential area. The petitioners, residents of the nearby community, alleged that the electromagnetic field created by the high voltage transmission lines at the grid station would pose a serious health hazard to them.

In resolving the case, the Supreme Court of Pakistan said that “At present, the scientific evidence regarding the possibility of adverse biological effects from exposure to high power frequency fields....is inconclusive. The remaining question is how the legal system, including both the judiciary and the various regulatory agencies, should respond to this scientific uncertainty. In such a situation, the precautionary principle should be applied. To stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence and precaution.”

Because the natural resources of the Earth are limited, whatever resources are used must be fully paid for. The price for the use must not only be limited to the cost of production of goods in conventional economic terms (labor + capital + raw materials) but must also take into account its hidden costs. These costs are seemingly imperceptible but nonetheless real, and in fact higher.

Accounting for the costs of production in purely fiscal terms has proved to be faulty and inadequate when it involves the use of environmental resources. In the discipline of economics, this would be called a “failure in the price mechanism.”

In addition to the costs of labor, capital, and raw materials, the environmental cost should also be properly accounted for. These would include, among others, the cost of the forgone use by future generations (in case of non-renewable resources); the cost of eliminating the pollution resulting form the manufacturing process; and the cost of rehabilitating the

degraded resource (e.g., reforestation, re-vegetation of mined out areas, etc.). This is the emerging science known as “environmental accounting.” If properly applied, the user/polluter pays principle would slow down the ongoing frenetic consumption of nature’s materials in the manufacture of “consumer products.”

Beyond our own backyardThe principle of good neighborliness is nothing more than the practice of good manners and right conduct between neighbors. Public custom requires neighbors within a community to be good neighbors and to cooperate with one another in addressing common problems.

The principle of prior consultation is a natural offshoot of good neighborliness. It is one’s duty to notify one’s neighbor if there is any activity to be undertaken by one that will affect the other. This is something people practice in their everyday life. It is already ingrained as part of people’s customary practices.

At the level of states, the scale is just expanded, but the principle remains the same. The principle of prior notification and consultation carried out in the spirit of good faith and neighborliness includes the duty to inform all neighboring states that may be affected by a particular state’s activity within its own territory. This duty includes giving all the necessary information on the intended activity or action and any potential impact of these activities on the neighboring states. This would enable the potentially affected states to take the necessary precautions to prevent or minimize damage to their own territory and people.

One example of this practice is the Transboundary Movement of Hazardous Substances treaty. It requires that prior notice of the shipment of hazardous waste be properly given to the receiving state. In another example, it was the duty of the government of the former USSR to immediately inform its neighboring states of the Chernobyl Nuclear Power accident in 1986.

This principle of subsidiarity states that decisions are best made to rest on the lowest appropriate level of a social or political organization that stands to be affected by the decision. Thus, before undertaking a project such as a mining operation, or building a dam, this principle requires that the community affected should be consulted. They are the persons most affected by the decision, such as, for example, when their mineral resources are extracted and irretrievably used. The people “on the ground” know the local conditions better than anyone, and they are in the best position to assist in the implementation of any preventive or mitigation plan. They also stand to suffer the consequences of any wrong decision taken.

The principle of subsidiarity, therefore, necessarily requires that where decisions to irrevocably commit natural resources are made, two things need to be done. First, is to consult the people who will be most affected, and second, to study the environmental impact of the proposed activity or project.

A natural offshoot of the principles discussed, here is the need to carefully examine and study the environmental impact of a particular development project or undertaking. It is only when human beings are aware of the anticipated consequences of their actions can they make an informed, intelligent, and voluntary decision to proceed, or not to proceed, with a proposed action. This process of carefully trying to identify the impact of a proposed undertaking is called the Environmental Impact Assessment (EIA) System. It is the principal tool used in development planning to account for and address the environmental issues of a proposed project.

The duty to assess the environmental impact is finding local application in the national legal systems of a growing number of states. Several countries in the world have adopted EIA legislation and have begun implementation. In the Philippines, the EIA system as a planning tool has been legislated as a regulatory instrument known as the ECC (Environmental Compliance Certificate). Before any project is implemented, the law requires a study and

certification by the DENR that the undertaking is environmentally sound.

The EIA system is now being applied in the project design systems of donor institutions such as the World Bank, the Asian Development Bank, the Bank of Japan, and other international development agencies. In the World Bank for example, its operational directive on Environmental Assessment provides explicitly that environmental consequences should be recognized in the early stages of a project cycle. The Asian Development Bank (ADB) also has detailed policy guidelines on the assessment of the environmental impact of their infrastructure projects.

There are three aspects in the duty to assess environmental impact. The EIA must be conducted to scientifically assess the natural resource requirements and environmental implications of a project. The persons whose resources and environment will be affected must be notified of the proposed project and informed of its impact. This naturally also includes the duty to give the affected community an opportunity to express its concerns. Finally, it is not enough that the concerns are given a chance to be heard. They must also be considered, and where valid, properly addressed.

In the arena of international environmental law, the duty to assess environmental impact plays out at different levels. A clear example of a global impact study is that being conducted to monitor worldwide trends and data in climate change. The effort, however, has been largely reactive to emerging global environmental problems.

With an increasing number of countries sharing fresh waterways and with air and wind currents floating across neighboring States, governments are duty bound to assess the environmental impact of their economic activities, on their neighboring countries. Failure to properly address this duty has led to the now famous transboundary environmental disputes such as the Trail Smelter and the Gabcikovo dam cases.

CHAPTER 10PART II: Strategies Against Crisis

Sub: A paradigm shift and a change in institutional thrust are needed to avert global danger, and an environmental ombudsman must be tasked with the job of looking out for the Earth

AT no other time in Earth’s history has it been faced with an ecological crisis of global scale and proportions. Earth’s air supply system is changing rapidly. The delicate balance of gases in the air is being interfered with, and for the worse. The 10 hottest years in all of recorded human history have taken place in the last quarter of the 20th century.

The water supply system of the Earth is in even graver danger. The sea and its resident marine lives have been subjected to extreme abuse. Fishery resources are down by as much as 90%. The problem is a result of “too much”—too much dirt is being thrown into the sea, and too much fish and aquatic life being taken from it.3 As for their freshwater, its supply system is more bleak. Human earthlings seem to have discovered and taken over all the supply of fresh water. They have used it for their needs as well as their whims, and are wasting it in colossal volumes.

The land, which makes up only 1/3 of Planet Earth, contains so much life in varying forms, shapes, colors, sizes and characteristics. Humans have no idea how many species actually exist. What is clear, however, is that these life forms are becoming extinct at a rate unprecedented in all of Earth’s history. Recorded evidence indicates that in a matter of 100 years, human beings have removed as much as 90% of Earth’s forests. In many places on Earth, the rich soil that once grew variegated plant life has now been washed away. Worse, many large patches of land are now even heavily contaminated with salt or toxic chemicals.

Man: Mammal or virus?Humans now dominate the Earth. This animal seems to have traveled and

touched every square inch of the Earth’s land surface. When mammals —be they elephants, monkeys, horses—live in a certain place, they use only what they need. In fact, in their natural state, mammals even return their wastes into the soil to enrich it further. In contrast, humans are quite different. Wherever they go, they use up their entire surroundings and recklessly throw their dirt away.

By some stroke of good fortune, the human walks upright. With his hands freed from the burden of walking or climbing, the human started to tinker with his surroundings. In time, and with his hands working in close coordination with his brain, he discovered the use of fire and made tools with which to exploit his environment. Man is the prime suspect in this ongoing crime of global arson. Because human earthlings have the freedom of will, they can choose either to go on, even as human historical records show that famine, pestilence, and war are the inevitable consequences when there is intensive competition for resources. Or, they can collate their collective wisdom and change course.

Selling the idea of changeMan must begin to veer away from “extractive economics” and move on to “regenerative economics.” Everything begins with the mind. Gradually, humans are beginning to understand that they cannot go on recklessly wasting away the resources of their only home.

In the early part of the 20th century, humans hardly talked of the environment. Parts of the natural world—forests, fish, waters, air and soil—were all labeled as studies on natural resources, viewed simply as something to be converted as soon as possible into money.

Today, however, the Environment and studies on “Environmental Protection” are regarded as legitimate subjects of inquiry and action. In fact,

in the highly conservative legal profession, there is such a thing called Environmental Law. Human beings are finally beginning to recognize the symptoms of ecological malfunction. Between rampaging floods, forest fires, a changing climate, and the depleted seas, humans are finally beginning to realize that their activities adversely affect the life-systems of the Earth.

Aside from formal schooling, there is an alternative form of education and of inculcating in people socially desirable values. This is the called social marketing. Like any marketing campaign, it seeks to sell something. In social marketing, however, what is being sold is a particular pattern of social conduct. Whereas financial profit is the object of consumer marketing, desirable behavioral change is the object of social marketing.

As with consumer marketing, the message needs to be conveyed to the broadest base, in the quickest time possible. Humans have invented sophisticated communication technologies that today have a global reach, and are aptly called mass media. In undertaking social marketing, the role of mass media, especially broadcast media, cannot be over-emphasized. Unlike any other medium, broadcast communication has the reach needed to penetrate the human psyche. Moreover, among the many ways information can be disseminated, the depth of penetration is even better when messages are imparted as stories. With a good social marketing program, mass media has an indispensable role to play in causing or accelerating change.

To be sure, there are growing signs of media sensitivity to the disturbing ecological trends in the world today. Among the global television networks that now feature environmental matters as part of their regular programming are two news channels: the BBC (British Broadcasting Corporation) and CNN (Cable News Network). Two nature channels also dedicate their entire program to environmental education. Their contribution to making the beauty of nature and information about Planet Earth accessible to a mass audience, especially to children, is of immeasurable significance.

The re-engineering of human behavior in raising awareness about the environment involves several aspects—social, financial, physical and the game international governance.

Social engineering is forward-looking, and its time frame is measured in decades. It is the end product of a generation or two of effective social marketing. It entails change in the beliefs deeply rooted in the individual psyche of every man, woman, and child.

To the extent that it is a good example of correct environmental behavior, consider the city-state of Singapore. No one litters or vandalizes public walls, and the crime rate is low compared to other cities of the world. Moreover, it ranks high in the “development index” of countries in Southeast Asia despite a lack of natural resources.

One may say that it is easy to manage Singapore because it is a small territory. However, government has succeeded in making its people realize that it is precisely because of its size and limited resources that it is important to take good care of their small and fragile home.

The first task of mass education is to make people realize that similarly, the Earth is very small and that it has very limited natural resources. Only when humans begin to realize that these resources are fast running out will they finally begin to take the needed, often painful, action. This will involve having to consume less, and to preserve and restore more.

Creating the political will on a global scale will require a lead institution. Great movements do not come about by spontaneous combustion but by sustained and guided leadership. The logical place to serve as launching pad for this leadership role is the United Nations.

The inhabitants of Earth have a common denominator in carrying out their

business transactions, and it is called money. Money is the oil that lubricates the machinery of human society, so it can therefore be used to make people move.

Today, the behavior of governments toward their natural resources is that of a predator. Natural resources are seen mainly as possessions to be removed as soon as possible and transformed into cash. However, with the social marketing effort at mass education of the young, a mind-shift can begin to take place in the next 10-20 years or so. By then, world governments will begin to see the value of their resources and shift their economic direction from extraction to conservation.

Among the immediate benefits of such a planning mode would be the generation of employment. The number of jobs that will be required for this new economy is almost unlimited. Unemployment then will be a thing of the past. There are so many bald mountains, parched lands, dirty waters, and degraded seas that need to be restored. In time, in a short period of time in fact, it will be possible to restore the damaged ecosystems to a productive condition.

With a paradigm shift to conservation and restoration of the environment, and with decreasing aggression around the world, the relevance of military power will begin to fade. Two options are available: to use available military resources for CPR activities, and to cut the military budget by half and use the windfall to pump-prime the financial engines of restorative economics.

In the early 1900s, the US was faced with two economic and ecological threats of crisis proportions. One was the economic depression where millions of people lost their fortunes and their jobs overnight. The other was the phenomenon of the Dust Bowl where, because of intensive agriculture, the soil of the Great Plains of the American Midwest turned into dust.

Fortunately, they had a wise and bold leader then. Franklin Delano

Roosevelt’s Civilian Conservation Corps planted trees, shored up overgrazed banks of streams and rivers, and generally acted as an army to restore agricultural ecosystems. It gave jobs to three million Americans, created 44 wildlife sanctuaries in America and planted two billion trees on the ground.

Today, greater feats of conservation and restoration are needed, and are possible. Hundreds of millions of people will be needed to repair the damage done to Earth’s natural systems on a global scale. Tens of millions of people will be needed to replant eroded lands, put up marine sanctuaries, open up greenbelts and aquatic parks in urban areas, and generally restore destroyed ecosystems around the world. Restored ecosystems mean restored productivity.

Global debtPractically all governments spend more than they earn in deficit spending. Financially-disadvantaged (FD) countries owe tremendous amounts of money to financially-advantaged (FA) countries. In countries like the Philippines, Argentina, Mexico, Peru, Zambia and others, the debt service uses up between 30% and 60% of their annual budgets. Zambia, for example, pays 40% of its budget to debt servicing and only 7% goes to basic social services. The Philippines spends 30% of its budget for debt service, an amount equal to half of its entire government collections.

Financially-disadvantaged but resource-rich countries view their natural resources—their forests, fisheries, and mineral resources—as something to be immediately extracted, transformed into cash, and converted into the scarce foreign currency to pay the debt. For cash-strapped countries, the term “foreign exchange earnings” has become the chant of every economic policymaker, the seeming end-all and be-all of national existence.

Both debtor and creditor countries must begin to seriously think about the global debt condition. For their part, debtor countries need to return to the

basics of financial discipline passed on to them by their ancestors: “Do not spend more than what you earn.” Debt repudiation has been suggested in the world community. This suggestion is neither morally nor economically correct; debts incurred must be paid as a matter of contract and a question of honor. However, nowhere does it say that the payment terms and conditions cannot be re-negotiated and restructured to more favorable terms

What if one day, five of the largest debtor countries in the world got together in a room and decided to stop borrowing money, restructure their outstanding foreign loans, commit the money freed up from the payment of interest and restructured principal payments to pursue CPR projects of the country’s natural capital, and agree that the fruits of the restored naturalcapital be used to pay for the principal owed to the creditor?

In the financial and economic arena, the above proposals are blasphemy of the first order. Without the power to foreclose the territory of a country, the creditor is not left with many options. However, it is within its power and its duty to recover the principal amount loaned and ensure that the money freed up from foregone interest and restructured principal payments will be used well and wisely for CPR economics.

To ensure that the funds are used for the stated purpose, the creditor countries may, for example, form an international monitoring team under the supervision of the United Nations. In case of diversion of funds by the debtor country, the loan could be declared in default, with the full payment becoming due and demandable.

Innovative financial initiatives on the global debt have been carried out along similar lines. One of these is called the debt-for-nature swap. In the international financial markets, the promissory notes (or IOUs) of countries are bought and sold on a daily basis in the financial market. Like any commodity in the market, it has a price. The price of the IOU is affected by the certainty, or uncertainty, of payment of the loan by the debtor. So, an

IOU of Country X, for example (a “third world” country) in Southeast Asia may carry a discount of up to 80%. Put differently, if one were to go out into the international financial market today and buy a bond of Country X, one would only have to pay only the amount of 20% of the bond’s face value. Thus, a bond of country X with a face value of $1 million dollars payable in the year 2020 may be bought today for only $200,000. In the market place of finance this is considered a fair deal.

Now, what if a buyer wants to help Country X put up marine sanctuaries? He puts up $200,000 and proceeds to buy the $1 million bond of Country X. With the bond in hand, he goes to the Ministry of Environment of Country X and says, “Mr. Minister, I have just inherited some money from my rich father. I happen to be a passionate environmentalist. I also scuba dive and have seen how rich and beautiful are the seas of Country X.

“I have in my possession an IOU of your government where it is obliged to pay $1 million in the year 2020. Instead of collecting the entire $1 million from your government in the year 2020, I will collect only half of the half the amount, today. Of the remaining $500,000 you owe me, you can pay $250,000 in the year 2020. However, you will devote the amount equivalent to $250,000 within the next five years to put up marine sanctuaries in your country.”

This has actually been done before. As David Malin Roodman reports in “Ending the Debt Crisis” in State of the World 2001:

“In August of 1987, a US group called Conservation International (CI) bought from international commercial banks promissory notes of the country of Bolivia with a face value of $650,000. Because the banks viewed the Bolivian promissory notes as practically worthless, the banks agreed to a sale price of only $100,000 (a discount of about 85%). CI then turned around and informed Bolivia that $400,000 of its debt would be cancelled. The balance of $250,000 was then donated by CI to Bolivia to be used to

protect the 15,000 sq km Beni Biosphere Reserve.

“In effect, Bolivia was able to pay for its foreign loan by protecting the country’s forests. Instead of exporting trees to pay for the foreign debt, Bolivia ‘exported’ the ecological services of its forests.

“Soon other environmental groups joined in, making deals with Costa Rica, Madagascar and the Philippines. To date, donors have retired some $7 billion in debt and freed up more than $1 billion dollars in environmental projects. In the same vein, UNICEF has bought or received donations with a face value of $200 million which it used to finance debt-for-development projects ranging from providing clean water in Sudan to helping street children in Jamaica.”

All of a sudden, the idea of debt-restructuring for CPR projects does not seem so blasphemous after all. The example of debt-for-nature-swaps proves what creative financial thinking can achieve if the will to do it is there.

Institutional reengineeringEarthlings are beginning to realize that their Earth is a single ecosystem made up of a delicate mantle of soil, air, and water that knows no political boundaries. In the eyes of nature, human politics is, to use the language of the courtroom, “immaterial and irrelevant.” Furthermore, if it is accepted that Earth is a single living being, it must be treated as such

The end of the 20th century gave birth to the concept of globalization in international transactions. In international relations, “globalization” means the unrestricted flow of consumer products around the world. It requires the liberalization of trade between countries in ways that drive the latter to produce more and more material goods. Fortunately, humans are now beginning to realize that the drive to produce more requires extractive economics. This paradigm is, by definition, incapable of continued growth. “Extractive economics” however is not self-sustaining and is, in fact, a

contradiction of terms.

Globalization may be quite convenient to help facilitate international cooperation for ecological goals. Some global structures and institutions, for example, have achieved a degree of sophistication that it can be used as a model of sorts for international cooperation. An example is the World Trade Organization (WTO) which was established in the closing decade of the 20 th

century. It is the closest thing to an institution that seeks to govern international trade relations through the rule of law.

The final text of the WTO Agreement, also referred to as the Uruguay Round, contains a massive 26,000 pages of rules governing international trade relations. In contrast, Agenda 21, the most extensive statement of non-binding principles of environmental conduct among nations, contains only of 273 pages. The WTO also has the most sophisticated enforcement and dispute resolution machinery. In the city of Geneva sits the Appellate Body of the WTO, which resolves trade disputes arising between nation-states.

If the Earth has to be managed as a whole, it requires full-time management by an institution with enough powers to make a difference. As it is today, the only global agency that has the mandate for environmental management is the severely under-funded UN Environment Programme (UNEP). It is an institution with a noble mission. However, a mandate without the commensurate power and resources leads to anemic results.

The idea of a World Environment Organization has been floated. The concept is to pattern the institution after the WTO, with equal powers. Mainstream thinkers have been quick to dismiss it as an ill-conceived proposal of radical environmental activists. The fact of the matter, however, is that the idea has been proposed by the very organization tasked with facilitating global trade, the WTO itself.

In a high-level symposium convened in 1999 to examine the impact of

global trade on the environment, it was the WTO Director General who spoke of the need to create an institutional and legal counterpart of the WTO to deal with environmental protection. Even the conservative Washington Post argued in its editorial nine months later that: “Trade these days is so entwined with social issues … the health of the WTO may turn out to require something like a world environment organization.”

The actual configuration of the proposed World Environment Organization will have to be thought through by ingenious humans. What must be emphasized is that there should be a vehicle for global ecological governance. It must be endowed with enough legal power and financial resources to correct the present treatment of the Earth by humans.

The first thing that needs to be re-oriented in the legal arena is the way law is understood. The conventional understanding of the law is that it is a system designed to coerce human behavior towards a particular direction. However, law is also a system to facilitate human behavior towards a particular direction. The present system of the law, as practiced by human beings, does not seem to be working well. Many of the countries on planet Earth have very many laws. In the area of international environmental law, there are now more than 300 agreements for the care of the Earth and its life-systems. If humans complied with even half of these international laws, they would not be in the ecological rut they have find themselves in today.

Enforcement comes in many forms. The common form of enforcement is reactive in that it is set in motion only after there is a violation. Since the Earth cannot suffer any more damage than it already has, reactive enforcement must be avoided as much as possible. A greater effort at proactive enforcement is therefore necessary. The proposed ‘world environment organization can, for example, conduct an annual survey of the state of the Earth. The output of the survey would be a “compliance matrix.” The left column of the table would contain the international standards of environmental behavior that a country has committed to; the right column

would reflect the status of compliance.

Governments are sensitive to publicity. Mere public knowledge of continuing environmental violations will awaken those concerned, ordinary men and women, to the unacceptable state of things. When they have been sensitized enough, they will demand change from their governments, and also begin to change their own behavior. If the information on the state of the Earth within its territory is made public, such as when done through global news networks, a reaction from the government is to be expected.

The mechanisms for this are already in place. Once again, harnessing the power of mass media is a strong option. The BBC, CNN, and other news organizations now have a global reach. Most of the scientific information is available in databases of NGOs and governmental institutions, e.g., World Conservation Union (IUCN), World Resources Institute (WRI), Worldwatch Institute, World Wildlife Fund (WWF), UNEP, WHO and others.

Using the Environmental Compliance Matrix, governments will have the chance to correct their environmental behavior. These governments may be given, say, 730 days to begin to reverse the trend of destruction or neglect of their ecosystems. At the end of the period, if a government has not done anything substantial, the infraction, violation, or official neglect may then be broadcast in global news networks. Loss of face is an effective form of behavioral modification.

An environmental watchdogAnother idea is that of an Environmental Ombudsman. An ordinary ombudsman is a public official to whom an aggrieved citizen whose rights have been infringed by the government may report to and appeal for help. The Ombudsman is empowered by law to investigate the complaint and help redress the wrong. Thus, where human rights are violated, society has an appointed spokesperson to speak and act on its behalf.

If there is any single reason to justify the idea of an Environmental Ombudsman, it is that nature requires a spokesperson. She needs someone to speak for her, to act for her, and in the event her laws are broken, to vindicate her.

In the case of the Earth’s environmental problems, while there is so much to be done, there is no single international authority that has the resources to take on the leadership role. UNEP is essentially a coordinating body, and has struggled to maintain its annual budget of a scant $100 million.

The following are some possible functions of an Environmental Ombudsman. As a marketing manager, the Ombudsman must design and implement a socio-legal marketing program taking into account the “Five Ps” in the art of marketing: people, product, place, price and promotions. He or she must also implement the strategy in cooperation with country representatives.

As a surveyor, the Ombudsman must conduct a periodic survey of the state of the Earth in various countries, using existing databases of government and non-government institutions. He or she must also disseminate the survey report to countries concerned.

As financial engineer, the Ombudsman must find, leverage, and mobilize human and financial resources. As socio-economic engineer, he or she must veer away behavior from extractive economics to restorative economics (ecological economics) and identify areas for countries to undertake CPR projects.

As diplomat, the Ombudsman must conduct diplomatic missions to dialogue with presidents, prime ministers, rulers, and key leaders of countries to inform them of the state of their respective patch of the Earth. He or she must offer technical and financial assistance to governments for socio-legal marketing campaigns and on-the-ground CPR projects, but must be able to

very gently say “or else…”

The concept of the legal strike force is like that of international a crack team of enforcement operatives. It is an “environmental special forces” of world-class technical and legal professionals also can be deployed any time to conduct a legal fact-finding mission or, when necessary, to initiate legal action against recalcitrant countries or use meta-legal, extra-legal, and ultra-legal means of pressure.

For example, photographic and testimonial evidence reveal that country X allows illegal fishing practices to continue in its territorial waters. Despite offers of technical and financial assistance, country X persists in its behavior. Some of the remedies available to the Environmental Ombudsman would be to lodge a complaint before the U. N. General Assembly, to initiate a case before the International Tribunal for the Law of the Sea or other legal/

quasi-legal tribunals, and to explore creative ultra-legal sanctions. For example, the market of the country’s fish exports could be identified and persuaded to launch an embargo.

Because money is the oil that lubricates the machinery of human society, the Office of the Environmental Ombudsman needs to ensure that it has enough of it to get things done. Moreover, it must be from a reliable and independent source, i.e., devoid of vested interests. In a world where money is accepted as a consideration for taking action, he who has it can make things happen.

The total monetary wealth of the 7.1 million millionaires in the world amounts to 26 trillion dollars. What if one thousand of them got together and decided to put up one hundred billion dollars? They decide that the amount will be used to put up an endowment fund. As an endowment, the amount of $100 billion will be placed in a trust fund to be kept forever intact.

Under the terms of the trust, only the interest income of this amount will be

used to fund the establishment of a World Environment Organization and the Environmental Ombudsman. The office will thus have a sustained and reliable source of funding. At a conservative earnings rate of 5% per year, the income of this endowment fund will translate to about $5 billion dollars per annum. This amount is much more than the annual budget of many of the countries in the world, and 50 times more than the present budget of UNEP. Of course, the UNEP itself may be reinvigorated with this working capital infusion. In fact, the World Environment Organization may well be under the umbrella of the UNEP and the United Nations.

Is this magnanimity of spirit of rich human beings unthinkable? In the 1990s, a very rich man who had the vision to create a global broadcasting network struck upon an idea. One day Ted Turner decided to donate $1 billion to the United Nations. What made this act most meaningful is not only the size of the amount bequeathed, but the boldness and bravado that sent a message to ripple around the world: Generosity, after all, is possible.

With the growing environmental awareness today, disputes between countries on shared natural resources will increase. A dispute resolution system is a necessary component of the idea of a world environment organization. There must be an avenue whereby countries quarreling over natural resources can ventilate their grievances and resolve their differences. In civilized society, this is done with use of the thinking tool called the rule of law.

Today, the International Court of Justice has, in fact, a chamber for environmental controversies. It does not have a single case in its docket. Perhaps it is time to activate this chamber.

In the next five years is the final window of opportunity for humans to reverse the trend of global arson. If their recklessness persists, we can safely conclude that they do not care about their Earth after all.