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Published online by Cambridge University Press: 24 January 2025
The present threat to environmental resources world-wide, in terms of its significance for human survival, ranks second only to the dangers posed by a nuclear war ... Desertification, acidification of the environment, chemical pollution of air, water and soil resources, depletion of the ozone layer, the “greenhouse effect” of global warming, and the loss of genetic versatility are just a few of the phenomena that exemplify a growing imbalance between human enterprise and life-sustaining biosphere.
Concern for the environment is undoubtedly a “significant social and political force” within the international community. Where members of the international community once viewed environmental protection as a local or national issue, ther have now been compelled to see many environmental problems as global in scope. This change in attitude was exemplified in 1992 when the United Nations convened the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil, attended by representatives from 170 nations, including 130 heads of state and government. One of the outcomes of the conference was the adoption of the Rio Declaration on Environment and Development (Rio Declaration). The Rio Declaration is a declaration of internationally accepted fundamental principles on development and environmental protection. It declares that all nations have a right to development. However, this right must be exercised in such a manner as to “equitably meet developmental and environmental needs of present and future generations”.
This is an edited version of an honours thesis submitted in November 1994. I would like to acknowledge the assistance received in the preparation of this article from Mr Robert Watt, Senior Lecturer, School of Law, University of Technology, Sydney.
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4 Blay, K and Piotrowicz, R, “Biodiversity and Conservation in the Twenty-First Century: A Critique of the Earth Summit 1992” (1993) 10 EPLJ 450 at 450Google Scholar.
5 (1992) 31 ILM 874.
6 Ibid, Principle 2.
7 Ibid, Principle 3.
8 Ibid, Principle 4.
9 Ibid, Principle 10
10 Ibid, Principle 15. That is, where there are threats of serious irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
11 Ibid, Principle 16. That is, polluters should bear the economic cost of the pollution that they cause.
12 Ibid, Principle 17.
13 Ibid, Principle 13.
14 Reproduced in UNCED, Earth Summit: Agenda 21: the United Nations Programme of Action from Rio (1993). Other significant instruments agreed upon at the Rio conference were the Convention on Biological Diversity (1992) 31 ILM 818, the Framework Convention on Climate Change (1992) 31 ILM 849 and the Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (1992) 31 ILM 881.
15 UNCED, above n 14 at 3.
16 Ibid at 15, par 1.3.
17 Ibid at 68-69, pars 8.13-8.22.
18 UNGA res 47/191 (1992), par 3(a).
19 Ibid, par 3(b).
20 Crawford, J, “The Constitution” in Bonyhady, T (ed), Environmental Protection and Legal Change (1992) 1 at 2Google Scholar.
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22 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 19-20 per MasonJ.
23 Section 51(xxix).
24 (1972) 11 ILM 1358.
25 Commonwealth v Tasmania (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261 and Queensland v Commonwealth (1989) 167 CLR 232.
26 Commonwealth v Tasmania (1983) 158 CLR 1 at 129-130 per Mason J, at 171 per Murphy J, at 219 per Brennan J, at 258 per Deane J. It has also been suggested that the external affairs power extends to the obtaining of benefits or the assertion of rights under a treaty. See ibid at 130 per Mason J, at 258 per Deane J. Some judges have simply asserted that the external affairs power extends to the implementation of treaties per se. See ibid at 171 per Murphy J and Richardson v Forestry Commission (1988) 164 CLR 261 at 342 per Gaudron J.
27 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216 per Stephen J, at 231 per Mason J, at 260 per Brennan J. See also Commonwealth v Tasmania (1983) 158 CLR 1 at 259 per Deane J; Richardson v Forestry Commission (1988) 164 CLR 261 at 342 per Gaudron J; Horta v Commonwealth (1994) 181 CLR 183 at 195-196. However, it is difficult to see how it could ever be proved in a particular case that a treaty has been so used. See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 200 per Gibbs CJ; Zines, L, The High Court and the Constitution (3rd ed 1992) at 237-238Google Scholar; Hanks, P, Constitutional Law in Australia (1991) at 351-352Google Scholar; Lee, H, “The High Court and the External Affairs Power” in Lee, H and Winterton, P (eds), Australian Constitutional Perspectives (1992) 60 at 82Google Scholar.
28 Birnie, P and Boyle, A, International Law and the Environment (1992) at 11Google Scholar.
29 Article 38(1) of the Statute of the International Court of Justice has been generally regarded as a complete statement of the traditional sources of international law:
“The Court, whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a)international conventions, whether general or particular, establishing rules expressly recognised by the contesting states;
(b)international custom, as evidence of a general practice accepted as law;
(c)the general principles of law recognised by civilised nations;
(d)subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”
See Polyukhovich v Commonwealth (1991) 172 CLR 501 at 559 per Brennan J.
30 Netherlands National Committee for the IUCN, Biodiversity and International Law (1992) at 83.
31 Ibid. That is, nations must not be motivated to practise the custom merely by a sense of comity. See P Birnie and A Boyle, above n 28 at 15.
32 There are various High Court dicta which support the view that a law which fulfils an obligation imposed upon Australia by customary international law is a law with respect to external affairs. See, eg, Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 234 per Mason J; Commonwealth v Tasmania (1983) 158 CLR 1 at 171 per Murphy J, at 258 per Deane J; Polyukhovich v Commonwealth (1991) 172 CLR 501 at 556-561 per Brennan J. However, one of the difficulties with relying upon customary international law is that establishing the existence of such law can be quite a formidable task. See Rothwell, D, “The High Court and the External Affairs Power: A Consideration of its Outer and Inner Limits” (1993) 15 Adel LR 209 at 231Google Scholar.
33 Handl, G, “Environmental Security and Global Change: The Challenge to International Law” in Lang, W, Neuhold, H and Zemanek, K (eds), Environmental Protection an International Law (1991) 59 at 63Google Scholar.
34 Kiss, A and Shelton, D, International Environmental Law (1991) at 110Google Scholar.
35 Ibid.
36 Ibid.
37 Industrial Relations Act 1988 (Cth), Part VIA. For express judicial support of such use of the external affairs power, see R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687 per Evatt and McTiernan JJ and Commonwealth v Tasmania (1983) 158 CLR 1 at 171-172 per Murphy J, at 258 per Deane J.
38 A Kiss and D Shelton, above n 34 at 111.
39 Ibid.
40 Ibid.
41 Ibid.
42 Ibid at 112.
43 Gruchalla-Wesierski, T, “A Framework for Understanding 'Soft Law"' (1984) 30 McGill LJ 37 at 46Google Scholar.
44 Chinkin, C, “The Challenge of Soft Law: Development and Change in International Law” (1989) 38 ICLQ 850 at 851CrossRefGoogle Scholar.
45 P Birnie and A Boyle, above n 28 at 26.
46 Ibid. See also Danilenko, G, Law-Making in the International Community (1993) at 20-21CrossRefGoogle Scholar.
47 Remarks by Handl, G, “A Hard Look at Soft Law” (1988) 82 ASIL Proceedings 371 at 372Google Scholar.
48 P Birnie and A Boyle, above n 28 at 16.
49 Ibid at 26.
50 Ibid at 27.
51 T Gruchalla-Wesierski, above n 43 at 58.
52 Ibid.
53 Schachter, O, “The Twilight Existence of Nonbinding International Agreements” (1977) 71 AJIL 296 at 304CrossRefGoogle Scholar.
54 T Gruchalla-Wesierski, above n 43 at 59.
55 Palmer, G, “New Ways to Make International Environmental Law” (1992) 86 AJIL 259 at 269CrossRefGoogle Scholar.
56 G Handl, above n 33 at 63.
57 P Birnie and A Boyle, above n 28 at 27.
58 In this context it is important to note that the articulation itself of a principle as soft law in written form cannot satisfy the material element for a rule of customary international law based upon the articulated principle. While the articulation of a principle in written form is an act, it is only an act which establishes the material element for a custom which obliges nations to write words. The writing itself of words cannot establish the material element for a custom obliging nations to act in the ways which the writing describes. See T Gruchalla-Wesierski, above n 43 at 53.
59 C Chinkin, above n 44 at 857.
60 Schachter, O, International Law in Theory and Practice (1991) at 99CrossRefGoogle Scholar.
61 A Kiss and D Shelton, above n 34 at 115. Transboundary pollution is pollution originating in one nation which has harmful effects on the environment of another nation.
62 Starke, J, Introduction to International Law (10th ed 1989) at 404Google Scholar.
63 Stockholm Declaration on the Human Environment (1972) 11 ILM 1416, Principle 1.
64 Ibid, Principle 2.
65 Ibid, Principle 3.
66 Ibid, Principle 5.
67 Sohn, L, “The Stockholm Declaration on the Human Environment” (1973) 14 Harv Int'l LJ 423 at 515Google Scholar.
68 J Starke, above n 62 at 406.
69 For example, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) 11 ILM 1294; the United Nations Convention on the Law of the Sea (1982) 21 ILM 1261; the Convention for the Protection of the Ozone Layer (1987) 26 ILM 1529; the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989) 28 ILM 657.
70 See generally, P Birnie and A Boyle, above n 28 at 28-30.
71 L Sohn, above n 67 at 492.
72 This is not to say that there is no hard law concerned with the protection of environments located solely within the jurisdiction of one nation. For example, the Convention on Biological Diversity (1992) 31 ILM 818 imposes obligations with respect to the preservation of biodiversity, even though “its habitat, and for that matter its control”, is within the national jurisdiction of individual nations. See K Blay and R Piotrowicz, above n 4 at 451.
73 Ibid at 462.
74 P Birnie and A Boyle, above n 28 at 123.
75 Ibid.
76 Endre, H, “Legal Regulation of Sustainable Development in Australia: Politics, Economics or Ethics?” (1992) 32 Nat Res J 487 at 511Google Scholar.
77 Ibid. Economic differences are particularly significant in the environmental context. For a discussion on the relationship between developed and developing nations with respect to sustainable development, see Sanwal, M, “Sustainable Development, the Rio Declaration and Multilateral Cooperation” (1993) 4 Colo J Int'/ Envtl L & Pol'y 45Google Scholar.
78 P Birnie and A Boyle, above n 28 at 124.
79 G Palmer, above n 55 at 269.
80 (1983) 158 CLR 1 at 127.
81 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 237 per Murphy J.
82 For example, Commonwealth v Tasmania (1983) 158 CLR 1 at 131-132 per Mason J, at 171-172 per Murphy J, at 222 per Brennan J, at 258-259 per Deane J; Richardson v Forestry Commission (1988) 164 CLR 261 at 322 per Dawson J; Queensland v Commonwealth (1989) 167 CLR 232 at 237-239; Polyukhovich v Con:imonwealth (1991) 172 CLR 501 at 560-562 per Brennan J, at 657 per Toohey J. See also L Zines, above n 27 at 252-253.
83 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 217 per Stephen J.
84 Ibid at 229-231.
85 (1983) 158 CLR 1 at 125.
86 (1982) 153 CLR 168 at 258-259.
87 (1983) 158 CLR 1 at 219.
88 Ibid at 125 per Mason J. See also ibid at 219 per Brennan J.
89 D Rothwell, above n 32 at 229-230.
90 (1982) 153 CLR 168 at 218-220 per Stephen J, at 238-242 per Murphy J. It should be noted, however, that it appears that the existence of the International Convention on the Elimination of all Forms of Racial Discrimination (1967) 6 ILM 360 was essential to Stephen J's conclusion, whereas Murphy J was prepared to state that the matter of racial discrimination was one of international concern “even in the absence of the Convention”.
91 (1983) 158 CLR 1 at 174-177.
92 Rio Declaration on Environment and Development (1992) 31 ILM 874, Preamble.
93 Commonwealth v Tasmania (1983) 158 CLR 1 at 226 per Brennan J.
94 (1991) 172 CLR 501 at 562.
95 Ibid at 561.
96 UNCED, above n 14 at 65, par 8.3.
97 Ibid at 68, par 8.13.
98 (1983) 158 CLR 1 at 258.
99 Ibid at 310. Unlike the other dissenting judges, (Gibbs CJ and Wilson J), Dawson J was prepared to assume that the treaty obligations were effectively hard law obligations. On the other hand, Gibbs CJ and Wilson J effectively treated the obligations as being soft law and therefore outside the scope of the external affairs power as their Honours understood that scope to be. See ibid at 87-92 and 102 per Gibbs CJ, at 188-196 and 199 per Wilson J.
100 Ibid at 132-133 per Mason J, at 178 per Murphy J, at 225 per Brennan J, at 261 per Deane J.
101 Ibid at 135. See also at 226 per Brennan J, at 263 per Deane J.
102 See, for example, Kovar, J, “A Short Guide to the Rio Declaration” (1993) 4 Colo J Int'l Envtl L & Pol'y 119Google Scholar, for an account of the intricate negotiations leading up to the adoption of the Rio Declaration.
103 See Rio Declaration on Environment and Development (1992) 31 ILM 874, Principle 27.
104 J Kovar, above n 102 at 120.
105 See L Zines, above n 27 at 250.
106 Ibid.
107 Ibid.
108 Ibid.
109 Rio Declaration on Environment and Development (1992) 31 ILM 874, Principle 11.
110 Commonwealth v Tasmania (1983) 158 CLR 1 at 131 per Mason J, at 172 per Murphy J. See also Richardson v Forestry Commission (1988) 164 CLR 261 at 310 per Deane J, at 347-348 per GaudronJ.
111 Ibid at 289 per Mason CJ and Brennan J. See also ibid at 300 per Wilson J, at 311 per Deane J, at 336 per Toohey J, at 342 per Gaudron J.
112 (1983) 158 CLR 1 at 260. See also Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312 per Deane J, at 346 per Gaudron J. The “reasonable proportionality” test has been applied by the Court in other contexts. See South Australia v Tanner (1989) 166 CLR 161; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436.
113 P Hanks, above n 27 at 350. See also L Zines, above n 27 at 248; H Lee, above n 27 at 82-83.
114 L Zines, above n 27 at 253.
115 See Wootten, H, “Environmental Dispute Resolution” (1993) 15 Adel LR 33 at 66Google Scholar. This point is brought out in Agenda 21, see UNCED above n 14 at 66, par 8.4.
116 Richardson v Forestry Commission (1988) 164 CLR 261 at 327 per Dawson J.
117 Ibid at 310 per Deane J.
118 Ibid at 312. Compare this with the following statement of Murphy J in Commonwealth v Tasmania (1983) 158 CLR 1 at 161: “An Act of Parliament is the authentic expression of the
will of the people through their elected representatives. There is a strong presumption of the constitutionality or validity of every Act.” Murphy J went on to note however, at 167, that this presumption “has often been overlooked” in Australia: “[This] may help to explain
the considerable number of laws, extraordinary by the standards of other national courts, which have been held by this Court to be beyond the powers of Parliament.”
119 Richardson v Forestry Commission (1988) 164 CLR 261 at 317.
120 Ibid at 347-348. See also Commonwealth v Tasmania (1983) 158 CLR 1 at 236-237 per Brennan J, at 266-267 per Deane J.
121 Rules of customary international law may also evolve.
122 (1988) 164 CLR 261 at 327.
123 See D Rothwell, above n 32 at 229.
124 See L Zines, above n 27 at 253. See also Polyukhovich v Commonwealth (1991) 172 CLR 501 at 556-562 per Brennan J, where his Honour examines prevailing international concern with respect to the seeking out and bringing to trial of persons alleged to have committed war crimes in Europe during World War II.
125 (1967) 6 ILM 360.
126 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 242.
127 (1983) 158 CLR 1 at 131-132.
128 L Zines, above n 27 at 253.
129 (1988) 164 CLR 261 at 325.
130 L Zines, above n 27 at 253.
131 Ibid.
132 D Rothwell, above n 32 at 229. See also Commonwealth v Tasmania (1983) 158 CLR 1 at 261 per Deane J. International agreements with respect to the environment usually involve considerable compromise. For example, internationally agreed environmental standards are often a compromise between standards advocated by developed nations and those advocated by developing nations. See Price, K, “Linking Global Environmental Protection and International Trade: What are the Options after the US-Mexico GATT Panel Decision?” (1993) 27 UBC L Rev 313 at 320Google Scholar.
133 (1983) 158 CLR 1 at 258.
134 (1936) 55 CLR 608 at 687.
135 Ibid at 681.