[ This work was done in 2007, I'm so much grateful to Fauzia Apu, It'd not be possible without her help. ]
RUMANA REZA
RUMANA REZA
ID-4647
IR,
2nd year, CU
Though ‘law’ is abided by
the people, but it ,nevertheless has been created by the men themselves.
because it is the inherent characteristics of the human beings, that is, to
‘transgress’ unlike the animals. So though being possessed with rationality,
they often do some irrational acts, which other beings can never do. Therefore, they
necessarily have to establish rules
and are to follow them well. Environmental law is also such kind of
man-made procedure’ which involves the act of protection, preservation
and maintaining the balance among the
environmental resources . Here we are supposed to talk on Malcolm Shaw’s
opinion about it .
Malcolm
Shaw has discussed mostly
about how the ‘ international environmental law’ has
come into being and its approach of implementation in the state perspective. Here, he has identified that, the problem of
implementation of environmental law is
caused by the states. He has evaluated
it in the way that, if the states intend to keep peace with there neighboring
countries. They will observe the
‘international environmental law’ more than those who do not intend to do so.
Moreover, to ascertain such state actions as to be one of the causes of the
major environmental problems, is not very easy. because the particular ‘source’
always remain unidentified.
Besides, although there are
some peace –treaties between the
neighboring or ‘antagonistic’ countries, but the approach of application is
less true to the origin, which Malcolm Shaw terms as “peace-meal”
or ‘arbitrary fashion’. Therefore, he infers
that “the approach of dealing with environmental matters, has shifted from the
bilateral state responsibility paradigm to the establishment and strengthening
of international co-operation.”
INTERNATIONAL CO-OPRATION:
Thus, according to Malcolm
Shaw, the involving states can hardly be impartial to observe or implement the
international environmental law from
their own urge. Therefore, as Malcolm Shaw has brought before us , in details,
several principles of different
declaration. For example-principle 24
of the Stockholm declaration
1972 noted that, ‘International matters concerning the protection and
improvement of the environment should be handled in a co- operative spirit,’
while principle 7 of the Rio Declaration of 1992 emphasized on the
co-operation in a ‘global partnership
spirit’.
In 1988 OECD
(Organization for Economic Co-operation
and Development) adopted a decision that, states must provide information for
the prevention of and the response to accidents at hazardous installations.
Even in 1992 declaration ,principle 18
provides that states should
immediately notify other
states of any natural disaster which are
likely to harmful for them. Principle 19 suggests for prior consultation with
the invasion Malcolm Shaw also mentions that
“article-5”, which makes an
obligation for warning a victim state,
might happen to be an increasing source
of environmental pollutions, due to wars.
For the above complicities,
the world organization realize the need to make an obligatory
environmental impact assignment. The
question was raised by
Weeramanty in his dissenting opinion in the 1974 neuclear test case.
Principle 15 of Rio declaration states that, “in order to protect the
environment, the precautionary approach shall be widely applied by states
according to there capabilities.” So
that, undeveloped but potentially victim countries should have costly
measures to prevent ‘Environmental degradation’. In this way, several other legal norms also were
formed to its aid.
Afterwards, recognition has
also emerged of the special responsibility of developed states in the
process of environmental
protection, so that developed countries would have the lead in combating climate change. Later there
comes the topic of “sustainable development regarding the development of
international environmental law. Another
principle, which is more widely accepted in some countries –
“The costs of pollution should be paid by the polluter.” Malcolm Shaw
equally suspects, whether or how far it would actually be applied. Later
Malcolm Shaw discusses the topic as being
entitled with “Atmospheric pollution”. OECD has defined pollution as to
employ energy into environment
which takes a heavy toll of life,
endanger human health . The core obligation in customary international law
with regard to atmospheric air pollution . It means no state has the right to
use or permit the use of its territory in such a way as to cause
injury by fumes to another state. Malcolm
Shaw also provides the obligation undertaken by the
Geneva Convention that, “States shall endeavor
to limit ……and prevent
air pollution including long range transboundary air pollution.” He
adds, “the question of state liability
for damage …..is not addressed.” Later Malcolm Shaw depicts the names
of several protocols
that were adopted
by the contracting parties of the
convention in order to monitor and
evaluate the long –range transmission of air pollutions in Europe. Malcolm
Shaw has maintained specially of ‘protocols of 1985’, ‘1988’ and
also ‘protocols of 1994’ specifying sulphur
emission cillings for parties
for the years 2000,2005 and 2010. Malcolm
also adds that the ‘Article 212’ of ‘the Law of
the Sea’ convention of 1982
requires states to adopt laws and regulations to prevent, reduce and control atmospheric pollution of the marine environment, although no
specific standards are set. In this way,
Malcolm Shaw has just brought about the factual perspectives of the
environmental pollution, and hints about
the condition regarding their implementation. Admittedly, he doesn’t go on to
give any further suggestion or steps regarding the discussed
issues.
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