Speech: Upton - Environment

HON SIMON UPTON: SPEECH TO THE NZ BRANCH OF THE INTERNATIONAL LAW ASSOCIATION

CONFERENCE ON WEALTH, SECURITY AND SURVIVAL

8 - 10 JULY 1999

"SAVING THE PLANET": A NEW ERA OF COOPERATION OR DISPUTE?

Mr Chair, Ladies and Gentlemen.

In New Zealand it is easy to fooled into a false sense of security about our environment. Our ecological footprint, notwithstanding the damage done to our biodiversity, is still relatively light.

With our low density living we haven't generated crises on the order of magnitude that many other countries face (biodiversity excepted).

The picture is very different when we view it from the global level. The major environmental challenges facing the world today are all to do with serious instances of environmental degradation. They result from the way people go about living, or making a livelihood. Let me review the key problems: To my mind they are as follows:

· Using the atmosphere as a limitless sink for pollutants and greenhouse gases

· Steadily undermining the planet's biodiversity

· Treating the oceans as a dump for large volumes of waste

· Generating and accumulating a stockpile of hazardous waste which will remain hazardous, in human terms, effectively forever

· Polluting renewable resources so that they can no longer deliver inter-generational benefit.

These problems are all interrelated, and though others may differ, they represent to my mind a series of practical foci for thought and effort.

Atmosphere: Ozone, Climate Change

The atmosphere is to me the most significant challenge both by virtue of the truly global nature of the problem, but also by reason of the all-pervasive effects of responses to it.

Chlorofluorocarbons, long-lived chemicals once the mainstay of many industries as used in refrigeration, aerosols, solvents and fire suppressants, were identified some time ago as being primarily responsible for the progressive depletion of the stratospheric ozone layer. The most dramatic manifestation of this is the springtime ozone hole over Antarctica, first discovered in 1985. Artic ozone depletion is now also a concern. The major significance for man of this problem is the reduction of shielding against solar ultra-violet radiation, in particular UV-B.

Even with our action now, it's likely we will only see the concentration of stratospheric ozone returned to normal levels by sometime after 2050.

Climate change is an even more significant atmospheric phenomenon. There is a natural process of climate change that has been going on since the world began. There are also human induced, or anthropogenic, causes of climate change. Both stem from the warming effect of concentrations of the aptly named greenhouse gases - carbon dioxide, methane, nitrous oxide and others - in the lower atmosphere. These gases are given off in a wide array of human activities.

Atmospheric concentrations of greenhouse gases are now at their highest levels for around 400,000 years - as far back as the Vostok ice core data go - which is as long as homo sapiens has existed. Greenhouse gas concentrations are global temperatures are also very closely correlated.

The indications are that if current patterns continue, the temperature increase will be of the order of 3 degrees Celsius over the next 100 years. This in turn suggests, primarily because of the thermal expansion of the oceans, a rise in sea level of the order of 50 to 100 cms over the same time period. The effects of these changes in turn on the frequency of climatic disturbances and extreme weather events, on ocean currents, on patterns of rainfall and drought, on fauna and flora, disease and human health, cannot be determined with any precision. All we can say is that there are likely to be socially and economically disruptive consequences on a scale we have not previously experienced in such a short time frame.

Biodiversity

Biodiversity already has more than enough to cope with. Changes in natural ecosystems are occurring on a larger scale than ever before. It is something we in New Zealand should by rights be particularly sensitive to, because of the number of endangered species we host. The pressures come from land exploitation and habitat destruction, from pollution and invasive species. These bio-invaders now threaten some 20% of all endangered vertebrate species. Current extinction rates of flora and fauna are by some estimates between 100 and 1000 times what they were before man arrived on the scene. The quantum of the world's forests continues to shrink. Freshwater ecosystems are under tremendous pressure from agricultural chemicals, waste mismanagement and rapid rises in consumption. About a third of the world's population currently lives in conditions of moderate to high freshwater stress - shortage and pollution - and this will only get worse.

Oceans

The vital ocean ecosystem is subject to special stresses. Oversight, of resource exploitation or pollution, is weaker. By some estimates almost two thirds of the world's reefs, and a third of all fish species may be at risk from human activities. According to the FAO, two thirds of the world's most important fish stocks are in urgent need of management, meaning careful conservation. Meanwhile overfishing, much of it carried out by industrial-scale fleets subsidised by some of the world's richest countries, remains a subject of debate in the UN, while we in New Zealand try to protect ourselves from the spill-over in terms of illegal fishing in the Southern Ocean and unilateral exploitation of southern bluefin tuna.

Wastes and Hazardous Materials

The ocean is still the biggest dump for wastes generated by human civilisation. There is a particular threat from the build-up of long-lived pollutants, to coastal areas and to fauna and flora ocean-wide.

The problem is no less pressing on land or in freshwater bodies. Our small South Pacific neighbours have major problems with quantities of imported waste, and developing countries generally often have difficulty with dangerous wastes.

Sustainable Development

The core of the problem is what and how people produce and consume. This is a very difficult issue, because it impinges on the fundamental tenets of economic development, of aspirations that everyone has for a better life through increased economic means, and of the freedom and flexibility to explore and try things out. The challenge for us, and it is increasingly one of life and death, is to find ways of exploiting our natural and physical environment in ways that conserve its capacity for exploitation in the future.

Indeed, we should cease to think of 'exploiting' natural resources, and rather think in terms of working with natural systems in ways that are sustainable from generation to generation.

At bottom, we're currently involved in a large-scale process of gradually running down our natural capital stock and hoping that the human-generated capital stock we are building up will leave us better off in net terms. In principle, capital is substitutable - we can, for example, replace a wetland with a water purification system, or ocean fishing with fish farming. But the risks surrounding this process of substitution are high. The precautionary principle is relevant where there are risks of major or irreversible damage to the environment. I believe the application of that principle - which the New Zealand Government agreed to at Rio in 1992 and is embedded in the Government's Environment 2010 Strategy - is critical in all the areas I have mentioned.

State of Play

Need for New Tools

The tools we have to meet this challenge globally are not all that well developed. International relations up to this century have evolved largely to meet the needs of individual states in terms of acquisition or the prevention of acquisition - of territory, hegemony, trade rights and so on. This reflects a basic grab for resources and power. The idea that there might be something for every country to gain from international exchange, and that there should be economic stability to allow them a chance to gain it, is relatively recent, and is reflected in the Bretton Woods instruments and later the GATT.

One prime motivation was the need to find ways of reducing the sort of tensions that led to the Second World War, of setting the whole world on a path to economic development and prosperity that, it was hoped would minimise the chances of a nuclear Armageddon. The idea was to provide a global framework for economic development and, through the UN, for political security that would allow every country to pursue unmolested its sovereign interests in getting richer without impinging upon the freedom of others to do the same.

The idea that the rest of the world should be interested in what other countries do internally, leaving aside military build-ups and other possible threats to security, is also of recent origin. The interest in and opposition to ideological systems of government like Communism and Fascism that favoured aggressive proselytism and acquisition of territory and power, gradually extended to human rights abuses, one of the strongest generators, along with starvation and poverty, of political instability. The envelope of enlightened self-interest was being pushed further and further.

It is, however, quite a step from there to a willingness to recognise that the rest of the world might have a legitimate interest in the way individual countries pursue their sovereign interests in the economic activity that was the hope and focus of the post-war settlement. There are still many countries, and they include the world's most powerful country as well as many developing countries, where there is an unwillingness to recognise that the rest of the world could have a legitimate interest in these internal matters. The nature of the environmental issue is a prime cause of this resistance. Many problems are couched as risks rather than certainties. What is more, the benefits of remedial action are often also uncertain and lie in the future, so they tend to be discounted, while the action itself is usually seen to involve actual costs.

Moreover, it is increasingly clear that matters of international interest, which many environmental problems are, need to be tackled internationally. The principle of subsidiarity still applies - that local problems can best be addressed locally, and national issues at a national scale. But where 'externalities' (spill-over effects) go beyond national boundaries - as with truly international environmental issues - global solutions based on international cooperation are necessary.

Ozone: Montreal Protocol

The sense of feeling one's way into the future is reflected in the current state of action. Let me first summarise it quickly as follows. It is in some ways counter-intuitive to begin with action on ozone, because it represents one of the few likely success stories. Since the entry into force of the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, there has been an estimated 70% cut in consumption of ozone-depleting substances, and it is hoped that with the full implementation of the Protocol and its adjustments and amendments, the ozone layer will recover by 2050. It is predicted that in so doing, 20 million cases of skin cancer will have been avoided, along with other serious damage to human and animal health and terrestrial and aquatic ecosystems

Climate Change: UNFCCC, Kyoto Protocol

In climate change the picture is very different. The developed country parties in Annex 1 to the 1992 UN Framework Convention on Climate Change may well meet their non-binding commitment to reduce their green house gas emissions to 1990 levels by the year 2000 - in aggregate, if not individually. But the first steps in effective binding action must await the entry into force of the 1997 Kyoto Protocol, negotiated in 1997, and the first commitment period of 2008 - 2012.

Parties to the UNFCCC have not yet worked out what long-term concentration level of gases is safe and therefore what transition path they should follow towards a global envelope covering the needs of all. Many developing countries are strongly resisting the prospect of having to take action in future, but so are many in the developed world. There is a variety of reasons for this, as I have outlined earlier. Climate change is still a risk, albeit a high risk, rather than a certainty. Greenhouse gas reduction involves no absolute future benefit - the benefit would be damage avoided rather than any net increase in wealth or well-being; it involves actual and ongoing costs - except for those quick enough to position themselves to advantage. It will affect all important areas of economic activity.

Biodiversity

In respect of biodiversity we have rather a mixed bag. Prior to the 1992 Convention on Biological Diversity there were already a number of multilateral environment agreements - MEAs - addressing problems of species loss and the need for conservation at both the regional and global levels.

These instruments have had some success but at best can only be considered work in progress. The Convention on Biological Diversity involves an attempt to draw the various strands of species and habitats into a composite global whole. However the CBD's problem has been in then defining what it should do that will make a difference, and then knuckling down to do it. The highest priority for a majority of parties to the CBD was the negotiation of a Protocol on Biosafety, that gradually turned into preoccupation with the products of biotechnology in general. Talks on the Protocol are officially suspended. Meanwhile the CBD, while it has defined programmes in various areas, has yet to make any real difference to the continued global loss of biodiversity.

Marine Environment: UNCLOS System

The pressing need for remedial action in respect of the marine environment was one of the most important issues before the 7th Session of the Commission on Sustainable Development which I chaired this year. The problem here is not that there is not a coherent legal framework - there is, provided by the UN Convention on the Law of the Sea; or a lack of attention to particular issues and risks. Rather, the problem is that there is no overall oversight of the management of the world's oceans and the effects that it is having. The problem was illustrated graphically for a number of fellow CSD members during my visits to the major continents, by this chart.

(DISPLAY CHART)

You will note the complexity of the system that has been built up over the decades to deal with the two key problems - pressure from the exploitation of living marine resources, and marine pollution, including land-based sources. It is further illustrated by the fact that when it came time for the UN system to publish a report on the state of the world's oceans and their management prior to CSD7, the various agencies concerned tended to pass the buck. The report that finally appeared was far from adequate.

This system has not dealt with the problem of overfishing which remains a major international environmental problem. The activities of subsidised industrial fleets from the world's richest countries distorts the global resource balance away from the needs of developing countries often dependent on small-scale fisheries. In the long run we face the prospect of an environmental disaster and threats to peace and security.

Wastes and Hazardous Materials

In terms of pollutants, wastes and other hazardous materials, various instruments have been or are in the process of being developed based on the broad principles of safety, environmentally sound management and the control of transboundary movements. In addition to the 1989 Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and Their Disposal, attention has focussed on:

· marine pollution from ships

· land-based sources of marine pollution, which account for some 80% of marine pollution and degradation

· the handling of dangerous chemicals (the just concluded Prior Informed Consent Convention)

· long-lived chemical pollutants (the Persistent Organic Pollutants Convention negotiations)

· and nuclear safety.

Land-based sources of marine pollution are a particularly pressing problem but the Global Programme of Action addressing them has lost momentum. The Basel Convention may well have complicated its task with the 1995 amendment, yet to come into force, banning trade in hazardous wastes between OECD countries and non-OECD countries. This does not seem to be a useful or productive distinction to make in terms of promoting the environmentally sound management of hazardous wastes.

Sustainable Development: CSD, OECD, WTO etc

I have dealt earlier with some aspects of the need for more sustainable patterns of production and consumption. It was, in fact, another key theme of the CSD session I chaired, but I cannot claim that what resulted was particularly helpful to any who are looking for the keys to making modern, open economies, and closed, inefficient ones too, more sustainable in the long term. It is the core business of the Commission on Sustainable Development and Agenda 21, the 1992 Rio Programme of Action on Sustainable Development, which the CSD is charged with following up. That body, I discovered, had lost its way. It needs to become again a forum for political-level exchanges, and I tried to head it back in that direction.

Those understandings can build on work or debates in other international bodies and fora. The OECD itself is devoting increased attention to the core issues of sustainable development. Debate in the WTO's Committee on Trade and Environment continues, with no resolution in sight to the question of the relationship between MEAs, the use of trade measures to enforce environmental protection requirements, and the responsible free-trade ethic of the WTO. The Intergovernmental Forum on Forests is also worth mentioning as an instance of an approach to promoting sustainable management practices in a high-profile economic sector of environmental significance. There is ongoing debate in the IFF about the need or otherwise for a binding global convention on forests.

Summary: Effectiveness of Action

However, let us not confuse activity with effective action. On climate change we are taking the first tentative steps in the dark. Our action to eliminate ozone-depleting substances may be producing results, but we may have reckoned without the impact of increasing greenhouse gases offsetting the gains of such action by thinning out the stratospheric ozone layer. We continue to lose species and habitats. We do not even know how many, nor how important they may be. We are fishing out the world's oceans, and progressively destroying the marine habitat through the wastes and pollutants we dump on land or in the sea. This is one reflection of the basic fact that we have yet to find and live by the paradigm of sustainable development.

Obstacles to More Effective Action

First, it is the nature of environment issues that we are so often dealing with trying to stop and then repair, if possible, environmental degradation caused by the unsustainable use of natural and physical resources. There is a strong perception of costs, but the benefits are often not perceived as appropriable, or near enough at hand to weigh in the balance against the economic cost.

Second, we are usually talking about risks and uncertainties rather than certainties. Climate change is the classic case: it would all be so easy if there was scientific certainty about the impacts and effects of anthropogenic greenhouse gas emissions, but there is no certainty.

These can be seen as good arguments on narrow economic or commercial grounds to discount the value of present action. And this is especially so when the counter-driver may not be greed for more, so much as the need to relieve basic poverty.

Third is the tendency to exaggerate the costs of action. I mean this not only in the sense of overestimating these costs, but also in the sense of actually influencing developments so that the costs are inflated beyond what is essential.

Fourth, the lack of capacity particularly in many developing countries is a real limitation on their ability to participate positively and fully in international action on the environment. This is often exacerbated by weak or undeveloped systems of resource governance, where once again the priority may be food for survival or other basic needs. Good governance, and improved capacity to balance the needs of the environment and development will not in itself feed, house or clothe people. But it may prevent further deterioration of their plight.

Fifth is the perennial problem of poor communication. Thinking and policy is still too compartmentalised along distinct environmental and economic lines. Too often governments fail to achieve a whole-of-country-interest approach, and few manage the all-important synthesis of sustainable development.

The problem is strongly exacerbated by the deep-seated distrust and suspicion between the countries of the North and the South. This can at times seem like a convenient device to avoid the need for action on the part of so-called developing countries that are really nothing of the sort, Singapore being the obvious example. But there is also, despite funds like the Global Environment Facility, a perception of failure to live up to expectations of wealth transfer. Given the outlook for international aid transfers, we must find ways of doing so that better fit a world where government is shrinking itself so that the forces of commerce and industry can expand.

What Can We Do About It?

What can we do to advance the cause of arresting the degradation of the environment, and implementing the paradigm of sustainable development?

There is no simple answer. A new, ponderous piece of international bureaucracy in the form of a world environment authority or organisation is not the answer. The battle is not won, and until it is or is near being so, such proposals only seem to me to divert attention from the real issues.

The need is, to continue the hard grind on a number of fronts. Work must continue on the various components of an overall system that will, in time, be fittingly capped by an authority or an organisation capable of sustaining the momentum towards sustainable development. There is undoubtedly a need for improved networking amongst existing institutions. There may be a need for improved mandates, although one should not underestimate the political difficulties of winning agreement to these. I have a great deal of sympathy for Klaus Toepfer's efforts to reform and revitalise UNEP but his bid for UNEP to assume a stronger role in coordinating the major international environmental institutions and fora must run the gauntlet of the United Nations General Assembly.

Clearly improved communication must be a big part of the answer. We achieved, at times anyway in the CSD, something approaching a real dialogue, enough to wet the whistle of a number of fellow ministers who were clearly as frustrated as I was with the rigid and stupefying routines that had made the CSD for many a complete non-event. New Zealand can also work bilaterally and in multilateral fora to engage the interest of other relevant sectors where there is clearly a disjunction between the environment and other important concerns.

A key objective in working on improving communication will be to advance understanding of the link between the environment and development. There are gaps in knowledge and techniques in many sectors about how to manage and develop resources in a sustainable way. Many of these can be overcome by the sharing of information in or through specialised fora. The CSD can and should articulate the vision of sustainable development, portrayed in Agenda 21, as it progresses through its treatment of sectors and themes.

There is now a strong focus on sustainable development in the OECD and we can expect that organisation to devote a good part of its analytical skills to the issue.

Will the WTO follow the aspirations of retired head Renato Ruggiero and do the same? The WTO is criticised by NGOs in particular for being devoted to free trade to the exclusion of all other concerns. Leaving aside for the moment the environmental benefits of free trade objectives like the elimination of agricultural and fishing subsidies, the WTO itself has had a bad press. A WTO agreement like the Sanitary and Phytosanitary Agreement is in fact a basic instrument of international environmental protection.

The link needs to be understood and acted on in capitals first and foremost: officials often seem to argue inconsistently as between the WTO and environmental fora.

That problem may in part be overcome by improved resource governance in countries that lack it. Well-directed, environmentally integrated development assistance will continue to be of importance. I also look forward to a rapid development of the ability of the Global Environment Facility to offer capacity-building assistance not just to enable basic assessments to be made, but also to allow countries to build up their participation in the response to global environmental problems. New Zealand has pushed for this in the GEF, particularly with regard to its South Pacific neighbours, and has also assisted directly through NZODA, for example with climate change adaptation. More needs to be done to ensure that the big development institutions like the World Bank integrate sustainability criteria into their development assistance.

I cannot overstate the importance of science, which is the lynchpin. We owe what we know already about the degradation of our natural and physical resources to science. Is it too much to hope that one day science will develop a generally agreed picture, in sufficiently useful detail, of the state of the world environment? Some countries, including New Zealand, have made a start with their own environments. We are also pushing for such a scheme for the globally vital Antarctic environment. UNEP is developing elements of a global scheme.

A Global Pact on the Environment?

Could this provide a basis for a new global agreement on the management of natural and physical resources? This would complement the global pact on the maintenance of international peace and security and to the global pact on the benefits of free trade and exchange. Innovative financing mechanisms may be needed. To break the impasse in the climate change negotiations over Russian hot air, I suggested that returns from the sale of Russian hot air should be used for cleaning up the Russian environment. This was not dismissed out of hand.

The Role of Law

Building on its solid track record to date, the law can play an important role in ensuring that sustainable development is the new foundation of cooperation in the international community, rather than the cause of terminal strife. That is by way of sound, fair, rules-based systems that promote responsible environmental management and leaves less and less room for irresponsibility. I said earlier that I thought that the tools of environmental remediation and sustainable development were not yet well developed. Perhaps the exception is the Montreal Protocol, where there is a broadly coherent framework including an effective interface between science and policy, realistic commitments with flexibility as to how they are met by individual parties, universality of involvement and cooperation amongst key groups of stakeholders - developed and developing countries on the one hand, and government and industry on the other. The Montreal Protocol shows how a well-balanced system can get traction and momentum; however, it may be that ultimately it will not succeed without at least a degree of compliance enforcement. Therein lies the rub.

Furthermore, the challenges facing us, particularly in climate change and oceans, are likely to be far greater than any posed by the need to eliminate ozone-depleting substances. It will need all the skill of lawyers, diplomats and politicians to develop rules-based systems with the right balance and sequencing to ensure that countries are not deterred from joining in collective action, and are prepared to apply progressively tighter constraints in what are for the most part at the present time matters of individual sovereign prerogative.

Above all it will require will, and goodwill. In this regard, I would like to conclude by underlining the challenge of overfishing on the high seas. This is an area where there are applicable laws, but the question is do governments have the will to enforce them? If governments are not prepared to stand up to industry pressure in this area and take their obligations under the Law of the Sea Convention seriously then there is a strong risk that the peaceful order for oceans so painstakingly negotiated in that Convention will unravel, opening up the prospect of threats to international peace and security. The law will not work unless there is a commitment to making it work; order will not prevail in the face of behaviour that devastates the bases of human life.