1 Introduction
Research investigating the historical provenance of sustainability, or sustainable development and participation is notoriously difficult.1 This is due to two underlying problems: Firstly, although precursors of both concepts have been around since early antiquity, both notions are relatively new. They entered common and especially international environmental language only in the 1970s and 1980s, when the Club of Rome, and thereafter Gro Harlem Brundtland, published their reports on the “Limits to Growth”2 and “Our Common Future”3. Secondly, sustainability, as well as participation, are not concepts applicable to any one particular scientific field. Instead, sustainability and participation are commonly used as a reference framework for various areas of research and science. They span the humanities, in particular the social sciences, such as political sciences, history, developmental studies and law, economics, but also the natural sciences, such as geography, biology or climatology.
Therefore, any attempt to trace the provenance of both concepts encounters methodological and disciplinary difficulties. Klippel and Otto have labelled the methodological problems as arbitrariness trap and anachronism trap. The arbitrariness trap describes the problem that because sustainability is found in so many aspects of human behaviour, its meaning often refers to not more than long-term-viability of human action and planning.4 The anachronism trap highlights the problem that sustainability, as well as participation, were coined only recently, ie from the 1970s onwards. Therefore, enquiries into the historical imprints of sustainability or participation predating those dates will
What is more, the history of sustainability (and participation) can also be told in various ways and from various disciplinary perspectives, resulting in different narratives. Often, this is due to the individual focus of the relevant discipline involved. Political and social scientists have addressed the history of sustainability referring to perceptions about progress, historical change,6 (economic) development and ecological thought.7 Economists have addressed the aspect of growth.8 Historians have described the concept as interaction of law and nature and culture9 or concerning the relationship of progress, resource consumption and ecological awareness.10 Legal scholars, in turn, addressed the nascence of the rules associated with both sustainability and participation during the world conferences for environment and development, starting with the Stockholm conference in 1972.11 All those approaches take a particular view on sustainability and participation, and they may very well leave out certain important perspectives. For example, they often exclude holistic views on advancement and progress,12 or the insight that economic development and growth are neither linear, nor need they be.13
Though many historical assessments have been made to evaluate national rules associated with sustainability (and participation),15 inquiry into sustainability and participation in early international environmental agreements has not yet been undertaken.16 This is surprising, given that the concept was in fact coined at the international level.17 In particular the Brundtland report formulated some distinct features of sustainable development and participation. According to the report, sustainability had to be regarded as process enabling and guaranteeing both future, human needs oriented environmental decision-making, in which information and prior participation of interested and affected parties were necessary elements.18
The present chapter therefore asks whether the relationship between sustainability and participation can be traced back to early international environmental law and practice. To address this question, this chapter will describe and analyse the international precursors and rules addressing sustainability and participation, predominantly in early international environmental treaty law. The chapter begins with a delineation and contextualisation of the particular notion of sustainability and participation formulated in the 1987 Brundtland report. This is followed by an overview of the existing historical
2 Sustainability through Participation: The 1987 Brundtland Report
The Report of the World Commission on Environment and Development – Our Common Future, edited by former Norwegian Prime Minister Gro Harlem Brundtland, is often referred to as the inauguration of “sustainable development” at the international level.22 And indeed, whereas the report was not the first declaration on the world environment – it was preceded by the Stockholm declaration of 1972, which highlighted the importance of improving the world’s environment for future generations23 – it is the first publication of an international institution utilising the term “sustainable development” when dealing with vital international environmental obligations of states.24
2.1 Sustainability, or Sustainable Development
Not surprisingly, the report was a product of its time. It was informed by the writings and conferences about the limits of growth, degrowth, and also sustainability, which had been concluded and convened nationally, and internationally, roughly since the Club of Rome had published its treatise on the Limits to Growth in 1972.25 In the Limits to Growth, the authors had introduced the idea that the world economy could not be based on an endless reservoir of resources26 and suggested a world system that was “1. Sustainable without sudden and uncontrollable collapse; and 2. capable of satisfying the basic material requirements of all of its people”.27 Hence, the term sustainability was in use well before the Brundtland report.28
Very similar to the Club of Rome authors, the Brundtland report defined sustainability as living within the self-perpetuating limits of the environment29 and sustainable development as development, which “meets the needs of the present without compromising the ability of future generations to meet their own needs.”30 The report focused on economic development, or “economic growth”.31 It acknowledged that economic growth and development had limits. The report explicitly stated sustainable development hinged on the “idea of limitations imposed by the state of technology and social organisation on the
The limits of the world’s biosphere were central to the concept of sustainable development in the Brundtland report. This was also due to the fact that, and perhaps even more so than in previous writings, the Brundtland report was formulated under the shadow of several large and catastrophic environmental disasters and crises with global impacts: the 1976 Seveso chemical catastrophe, the 1984 Bhopal pesticide plant explosion and the 1986 Chernobyl nuclear desaster in the former Soviet Union (now Ukraine).34 These incidences lent support to the view that almost every ecological disaster had transboundary and international implications. The Brundtland report framed the concerns raised over those tragedies as interlocking international crises. Therefore, it highlighted that global economic and environmental developments were interwoven phenomena, especially in the age of a beginning globalisation.35 Present generations lead unsustainable lives, using up the world’s resources and future generations – with “no financial or political power” –36 had no vote in this and thus they could not “challenge our decisions”.37
In addition, the Brundtland report underscored the point that sustainable development rested not only on the concept of limitations, but also on the “concept of needs, in particular essential needs of the world’s poor”.38 At the time, the needs concept was trending at international level. Also the Club of Rome had highlighted that human “basic material requirements” be recognised.39 At the level of the United Nations, the needs concept figured prominently in the so called Cocoyoc Declaration on “Patterns of Resource Use, Environment and Development Strategies” of 1974.40 However, developing and
Despite the strong emphasis of the Brundtland report on the underlying and entangled ecological, social, technological and environmental crises, the report did not propose a sustainable development formula. Neither did it define sustainable development in clear cut terms. In this, it differed from the Club of Rome report, which had introduced sustainability as a the state of a global equilibrium, in which population growth is stabilised, non-renewable resources are consumed less, economic preferences of society had shifted toward services and pollution had been reduced,45 such that population levels and capital were physically maintainable.46 Rather, the authors of the Brundtland report were convinced that sustainable development could have different preconditions in different settings and societies of the world.47 Accordingly, the report emphasised that “sustainable development is not a fixed state of harmony, but rather a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are made consistent with future as well as present needs.”48
The Brundtland report described a number of procedures and mandates, which led to realisation of sustainable development. For example, the term was to be understood as a mandate for national and international lawmakers. At the international level, this meant the adoption of a universal declaration for environmental protection and a subsequent convention, as well as “procedures for avoiding or resolving disputes on environment and resource management issues”.53 Furthermore, the report emphasised, that sustainability, or sustainable development, should move beyond the traditional field of “command and control” regulation of environmental law, and move into procedures that dominate both the private and public sector. Hence, it should be “built into taxation, prior approval procedures for investment and technology choice, foreign trade incentives, and all components of development policy”,54
2.2 Participation (for Sustainable Development)
Most interestingly, the report emphasised that decision-making regarding sustainability required certain procedures to be in place, which took economic, societal, environmental and technological implications into account. The report highlighted: “Sustainability requires the enforcement of wider responsibilities for the impacts of decisions. This requires changes in the legal and institutional frameworks that will enforce the common interest. ….”56 This recognition of common interests required “community knowledge and support, which entails greater public participation in the decisions that affect the environment. This was best secured by decentralizing the management of resources upon which local communities depend, and giving these communities an effective say over the use of these resources. It would also require promoting citizens’ initiatives, empowering people’s organisations, and strengthening local democracy.”57
Hence, the report viewed public participation as not only relevant to those affected communities and public associations, but also as key to representing common interests in environmentally sensitive decision-making. The report also highlighted additional ways in which common interests could be defended in those decisions. For example, by public inquiries and hearings, and by granting access to information, to enable informed decision-making by the public.58 The report also added that “When the environmental impact of a proposed project is particularly high, public scrutiny of the case should be mandatory and, wherever feasible, the decision should be subject to prior public approval, perhaps by referendum.”59 After all, the Brundtland report identified several, very concrete suggestions for participation in environmental decision-making as procedures which could be employed to ensure sustainable development.
Obviously, the informed reader will recognise those suggestions in later international articulations and regulations about environmental decision-making:
2.3 Sustainability through Participation: Key Features Highlighted by the Brundtland Report
The Brundtland report formulated sustainability, or sustainable development, as a broad concept promoting harmony between humanity and nature, concentrating on human needs, and the preservation of natural resources for future generations. The report perceived sustainability as a “a process of change” addressing not only ecology, but investment, technological development, and institution building.64 Accordingly, the report envisaged policies and rules promoting sustainable development be formulated as processes. Although international and national law-making in environmental matters could promote those procedures, the Brundtland report stressed that sustainable development should be built into all relevant fields of law, technology, economics, ecology and society.
The report regarded participation in environmental decision-making as crucial in achieving sustainable development. In view of this, the report made some very concrete suggestions on how participation should be realised. For
3 Early Roots: Overview of Some Early European Rules Tackling Sustainability and Participation
As emphasised in the introduction to this chapter, there are many assessments, which trace sustainability or sustainable development and participation65 throughout history. They differ according to the discipline and perspective involved66 and cover different time spans.67 In order to provide a framework for the assessment of sustainability and participation in international environmental law, the following paragraphs will briefly summarise some of the main historical findings about national legal rules associated with sustainability and participation, starting with early antiquity. The focus is on European rules, as sustainability emerged as a reaction to unsustainable, North-American and European colonial industrial societies.68
3.1 Sustainability
Numerous writings have highlighted that sustainability as a term was coined in German and Swedish forestry laws, in the early 18th century.69 It is here, where “sustainability”, or rather the adjective “sustained” (translated from the German word “nachhaltend”) was mentioned for the first time. Von Carlowitz, a German official working for the Ministry of Mining in Saxony, used it in his treatise on forestry and the conservation of forests. As forests had been
Despite this referral to the term “sustainability”, rules dealing with the depletion of non-exhaustible natural resources and the prohibition of their degradation are probably as old as humanity. As Mebratu pointed out: “…hazards of pollution, deforestation, land degradation, and chemical food adulteration … have dogged humanity, to a greater or lesser extent, for most of its existence.”71 In light of this, especially in Europe, historians identified a plethora of sources concerned with the prevention of harm, the preservation of livestock or the preservation of freshwater from pollution, or the fight against the further decimation of forests, to name but a few important examples.72
Neighbour laws were among the first that forbade harming another’s territory.73 Deforestation was a problem already in early antiquity.74 Plato, for example, had suggested certain institutions and regulations to prevent deforestation in Athens.75 Similarly, Roman rules on usufruct of woods contained the rule that an usufruct on woods could only be exercised if the wood be reforested.76 Also rules on the preservation of certain livestock date back to the Roman age. In Roman law, an usufruct on a flock of animals entailed the rule that a beneficiary of the usufruct could not acquire ownership of the new-born. Rather, new-born animals should first be considered as a replacement for the deceased to keep flock numbers steady.77 Medieval rules did not address the
Concerning the preservation of freshwater, Aristotle argued that freshwater should be preserved (and separated from irrigation water, for example).82 Around 300 BC, Athens punished “water theft” and a Water Commissioner was a part of the city government.83 Specific regulations for the preservation of freshwater are known since the 13th century.84 In 1231, King Friedrich II enacted a Sicilian law forbidding the throwing of toxic plants into lakes and other freshwater resources because they poisoned the fish and also humans drinking from it.85 In 1302, Nuremberg enacted a law forbidding the emptying of general waste into the local river. At the same time, the town passed laws which forbade clothes being washed in the river. The town also prohibited the emptying of hard dirt into the river.86
An institutionalised form of water resource management and protection has existed since the early Middle Ages in the form of dike, dam or pond87 commissions or associations, for example in the Netherlands, and Germany.88 Those commissions or associations were collectives of users that were obliged to collectively decide and financially contribute to the maintenance of dams,
Rules on the conservation of nature, nor only for utilisation but for further enjoyment by humans were developed at the beginning of the 19th century in the epoch of nature-romanticism in North-America and Europe.90 With a growing awareness of the “beauty” of nature, the first nature reserves were declared. The first German nature reserve was the so called dragon rock, a very popular viewpoint on the river Rhine, established in 1836 to safeguard the area from quarrying.91 In North America, the Yosemite Park, established in 1864, was the first national park.92 Only a little later, national initiatives to protect natural objects as natural monuments around Europe93 and national, European and international associations for nature protection were founded.94
While the aforementioned rules evince different approaches to nature protection and preservation, sustainability is also concerned with the preservation of resources for coming and future generations. Those concerns were addressed in historical writings mostly from the beginning of the industrial age. Authors discussed the detrimental effects of uncontrolled human influence and behaviour on nature and natural resources, as well as on economic development.95 Malthusian concern about the unlimited population growth in Europe is a case in point.96 Also the responsible use and conservation of exhaustible natural resources – in particular coal – for future use became an issue.97 Jevons, researching the “coal question” therefore questioned the use of alternative energies, imports and the resulting economic losses, if coal reserves were exhausted in the British Isles.98
The exclusively anthropocentric character of those rules and underlying aims is unmistakable. Even the rules dealing with nature conservation addressed the conservation of the beauty of nature, as perceived by humans. This illustrates that the early rules on sustainability do not differ much from the notion of sustainability introduced by the Brundtland report. The concept of sustainable development presented in that report was mainly concerned with the continued availability and utility of nature and natural resources for future generations and thus is anthropocentric in character.99 This is underscored by the needs approach and the focus on economic development.
3.2 The Role of Participation in Historical National Rules on Sustainability
It is clear that in the early conceptualisations of sustainability, participation, very broadly perceived as the involvement in public decision-making, does not play a major role. With regard to the national level, there are two main contexts, which may connect sustainability and participation: neighbour rights; and institutionalised participation. Neighbour participation, which has been traced back to the early 18th century,100 concerns a defined group of humans, who are immediately affected by decisions that have an impact on the environment.101 The main aim of provisions involving neighbours in decision-making, was to secure and respect established or historic rights of affected neighbours in administrative decision-making processes.102 Securing community interests or public scrutiny of the relevant decisions, as the Brundtlandt report emphasised,103 was not an aim outlined in those rules. By contrast, the
4 Historical Traces of Sustainability and Participation at the International Level
The late 19th century and the early 20th century mark the beginning of early international environmental multilateralism.104 Like the early national rules on environmental protection and sustainability, early international environmental agreements concerned aspects of transboundary pollution, or the pollution of common resources, (institutionalised) protection schemes for natural resources, in particular for hunting and fishing, and, about half a century later, also the protection of nature itself. Whereas they are often referred to as lending expression to good neighbourliness in international law,105 they also exhibit early conceptualisations of what later crystallised into sustainability, or sustainable development. This is illustrated further in the following paragraphs.
4.1 Animal (Stock) Conservation and Preservation for Future Use
There are a variety of historical treaties dealing with the preservation and conservation of animal stocks for future use. A very early agreement addressing those issues is the 1875 Convention between Baden and Switzerland Concerning Fishing in the Rhine.106 Already the preamble formulated the overall goal of the convention to preserve and reproduce fish in the Rhine and the Lake Constance, especially by regulating ways in which fish may be caught. In this regard, the Convention provided in art 1 that fish may not be caught by barriers
Consecutive agreements combined the two previous approaches (the restriction of methods and a temporal hunting ban) providing for a framework of species conservation. The Convention for the Preservation for the Fur Seal and Sea Otter in the North Pacific Ocean and Bering Sea is a case in point. It was modelled after a proposal formulated by the arbiter of the Pacific Fur Seals
Multiple conventions with the aim of preserving certain species addressed either fishing or hunting. The Convention Respecting Measures for the Preservation and Protection of the Fur Seals in the North Pacific Ocean of 1911 prohibited pelagic sealing120 and the sale of seal products belonging to seals
The Convention for the Regulation of Whaling of 1931, entered into force in 1935,127 established a killing ban for the, albeit limited, number of whales subject to its regulation.128 A further agreement dealing with whaling, the International Agreement for the Regulation of Whaling of 1937,129 forbade the killing or hunting of specified whales, which measured below certain lengths, as well as of calves and suckling whales.130 While it also established hunting bans and prohibitions, the convention did not include catch limits.131
Rules defining allowable catch and catchment methods can be found in many other regional fishing conventions concluded thereafter.132 Also protected areas were established as a method to guarantee species conservation. The Convention between Denmark, Norway and Sweden Concerning the
Where multilateral agreements on stock preservation were missing, states could – by way of customary international law – unilaterally pass fishing limitations to ensure preservation of the fish stocks. This was confirmed by the Permanent Court of International Justice (PICJ) in the North Atlantic Coast Fisheries Case.134 In its judgment, the Court held that states, where granted with fishing rights, could pass fishing restrictions, as long as they were appropriate and necessary for the preservation of fisheries and allowed for an equitable and fair regimen that did not disadvantage fishermen from either party.135
Regarding the diverse methods and rules aiming at species preservation, it is safe to conclude that by that time, the protection and preservation of individual species by rules, inter alia defining fixed quotas, hunting methods, protected areas or a however defined sustained yield136 was established international practice. Those rules were adopted with the aim to conserve the relevant species for future human use and consumption. And, adoption of the rules mostly became necessary because the species had been decimated by human behaviour (hunting, fishing) in the first place.
4.2 Institutionalized Livestock and Nature Protection
Institutionalized livestock and nature protection transpires as another approach to sustainability from early international treaty practice. Agreements foresaw the design and set up of designated institutions to oversee the protection and preservation of species, natural environments and the implementation of rules with that aim. An early example is the treaty of Versailles, which internationalised, amongst others, the river Oder,137 and established the International Commission for the River Oder to administer the rights of the riparian and non-riparian states parties.138 The International Convention
Subsequent conventions, such as the Agreement for the Establishment of a General Fisheries Council for the Mediterranean145 or the Convention for the Establishment of an Inter-American Tropical Tuna Commission included similar provisions.146 They institutionalise the protection of the resource in concern and underscored its sustainable use. The amended preamble to the Agreement for the General Fisheries Council for the Mediterranean, underlined that the states parties were “determined to ensure the long-term conservation and sustainable use of living marine resources and marine ecosystems in the area of application.” It also recognized the “economic, social and nutritional benefits deriving from the sustainable use of living marine resources in the area of application”.147 Furthermore, when describing the functions of the Council, the agreement provided, in its art III: “The purpose of the Commission shall be to promote the development, conservation, rational management
The Preamble to the Inter-American Tropical Tuna Commission underscored the “mutual interest in maintaining the populations of … tuna … in the eastern Pacific Ocean by reason of continued use have come to be of common concern … and to facilitate maintaining the populations of these fishes at a level which will permit maximum sustained catches year after year…”149 The general purpose of the Tuna Commission was to assess the abundance of tuna of the kind regulated by the convention and collect information relating to the populations of those fishes.150 Moreover, the Commission was commissioned with studying “methods and procedures for maintaining and increasing the populations of fishes covered by the Convention.”151 Also the preamble of the International Convention for the Northwest Atlantic Fisheries of 1949 referred to the overall aim to “make possible the maintenance of the maximum sustained catch”.
After all, by that time, the establishment of international institutions to determine “maximum sustained catches” had become an accepted method of resource and nature preservation. In comparison to previous approaches, which defined the methods or schemes to achieve a sustained yield in the international treaty itself, institutionalised protection offered a more flexible way of monitoring the reproduction and vulnerability of the species in question. It empowered the respective institutions to adapt their actions for preservation and protection to the actual facts on the ground, ie to stock size and conditions. Still the preservation of stocks for future human consumption was the main aim of institutionalized protection schemes.
4.3 Nature Protection from Harm/Pollution
There are a number of international awards and treaties dealing with pollution prevention. Concerning international treaties, the Provisions Relating to the Belgian-German Frontier Established by a Boundary Commission Composed of Representatives of the United Kingdom, France, Italy, Japan, Belgium and Germany following the Provisions of the Treaty of Versailles provide an early example.152 Those provisions explicitly dealt with the water resources in the
An example, which lead to the crystallisation of an international customary rule dealing with transboundary pollution of natural resources, is the famous Trail Smelter arbitration of 1941.155 The Trail Smelter arbitration dealt with the emissions from a smelter in Canada that caused environmental degradation and harm in US territory, especially of forests. In the case, the arbiter established that States are responsible for transnational environmental damage, if the emissions could be attributed to a certain public or private enterprise under the control of the State.156 The case serves as a leading example for the customary no harm rule in international environmental law.157
4.4 Nature Conservation and Preservation as an Aim in Itself
Probably the most controversial rules on nature conservation are those that establish the conservation of certain natural resources as an aim in itself. They often evince a utilitarian, anthropocentric and colonial158 approach, which was to preserve nature for the benefit of man. It ran counter to ecocentric conservationist approaches, where nature is protected as an aim in itself.159 One of the first conventions – sometimes hailed as the “world’s first international environmental agreement”160 – which is representative of that approach, is the Convention Designated to Ensure the Conservation of Various Species
Right about that time, the topic of genuine nature preservation and concerns for the common natural heritage gained momentum.165 States concluded the Founding Treaty for a Consultative Commission for the International Protection of Nature,166 a scientific lobbying organisation for the global protection of nature. The Commission was founded upon the initiative of the Swiss Paul Sarasin,167 who headed the commission for the protection of natural monuments in Switzerland.168 According to the treaty, the mandate of the Commission concerned the international protection of nature,169 the collection of data relative to the international protection of nature, as well as the promulgation
The Commission for the International Protection of Nature was a predecessor to the International Union for the Conservation of Nature (IUCN), the now largest non-governmental organisation for the conservation of nature, with observer status in many international organisations. IUCN’s Statutes were concluded in 1948.171 Already the preamble to the IUCN Statutes included language commonly associated with sustainable development. It called for the realisation of man’s “close dependence upon those natural resources and recognize the need both for the preservation of these resources and for exploiting them only with careful management in such a way as to conduce to the future peace, progress and prosperity of mankind.”172 Also, art I, which defined the objects of the Union, highlighted the “conservation of natural resources with a view to their wise utilization.”173 The preservation of (natural) resources for future use looms prominently behind those formulations, although sustainability, or sustainable development, is not used as a reference framework.
A very early treaty concerned with the international protection of a particular world region was the Spitzbergen Treaty. It established an international regime for the exploitation of the natural resources of the island of Spitzbergen, rendering Norway sovereign rights over Spitzbergen. At the same time, it guaranteed other States parties equal access and non-discrimination rights, similar to the mandate system of the League of Nations.174 To that end, the treaty instituted Norway as administrator of that island and conferred her with the competence to institute “measures to ensure the preservation and, if necessary, the re-constitution of the fauna and flora of the said region, and their territorial waters”.175
Natural parks as a means of nature conservation were established about a decade later, starting with the Convention Relative to the Preservation of
Finally, the General Agreement on Tariffs and Trade (GATT), concluded in 1947, defined a new chapter in nature and resource protection. It saw nature and resource protection as a cross-sectoral topic and task, which reached into fields other than environmental law, and which was to be fulfilled by other fields and areas of law. Its art XX included a general exception, which recognized the protection of human, animal or plant life or health,185 as well as the conservation of exhaustible natural resources.186 The cross-sectoral approach to sustainability is an idea highlighted in the Brundtland report. Yet, it had been voiced long before its publication. Only in those late environmental agreements, the protection of nature as an end in itself had found its way into international environmental regulation.
4.5
There are few instances which evidence the existence of participation procedures in early international environmental agreements. If procedures exist, they mostly address either indigenous, ancestral or small scale fishing or hunting rights and exempt the respective communities from the protection schemes established by the agreements. The following examples may illustrate this: already the Pacific Fur Seals Arbitration foresaw an exemption for indigenous populations from the protection regimen established in the award.187 Also the Convention Respecting Measures for the Preservation and Protection of the Fur Seals in the North Pacific Ocean of 1911 allowed for exceptional hunting by indigenous populations, with traditional measures (canoes) etc.188 Likewise, the International Convention for the Regulation of Whaling also included an exception for “aborigines dwelling on the coasts of the territories of the High Contracting Parties”.189 Those aborigines were permitted to whale given that they only utilized “native craft propelled by oars or sails”,190 did not carry firearms, were not employed by other persons, and were not contracted to whale by third persons.191 Finally, the Spitzbergen Treaty foresaw certain hunting privileges for occupiers of law with recognised title to that land.192
Sometimes, participation was also deliberately non-existent, although there clearly were communities, which should have been involved either the
Finally, there is no international parallel to the institutionalised protection schemes developed for dams and dikes at national levels. Although there was an increasing number of international treaties which foresaw institutionalised protection and preservation of nature and natural resources, through international commissions, or trustees like Norway, those commissions and frameworks only enabled the recognition of the interests of states parties to the relevant agreement. They did not include rules that enabled participation of communities or individuals affected by their decisions.
5 Conclusion
Historical international agreements contain a number of elements and considerations associated with and identified as sustainability or sustainable development in the Brundtland report. They show that sustainability or sustainable development, is not a concept which was born at the time of writing of the report. Sustainability, or sustainable development, has a long history in national and international rules on resource preservation and protection and nature protection. Even the term “sustained” was used in international agreements long before the report. As others have shown in their assessments of sustainability or sustainable development at the national levels, the chapter demonstrated that sustainability also transpires from early international rules dealing with resource and species preservation. In particular, it is central to rules that address either their future availability or existence, establishing and
Despite those early traces of sustainability, the early international environmental agreements scrutinised in this chapter fall short of rules that precede the particular role and importance of participation, which the Brundtland report outlines. Given the scarce rules associated with participation, early international environmental agreements predating the report could not have served as a blueprint for the particular role that the report foresaw for participation in sustainability. Thus, further research must identify the whereabouts of the particular connection of sustainability and participation, which the report evinces.
The present chapter will refer to sustainability and sustainable development interchangeably.
Donella H Meadows, The limits to growth: A report for the Club of Rome’s project on the predicament of mankind (A Potomac Associates book, 12th edn, Universe Books 1973).
United Nations Environmental Programme, Report of the World Commission on Environment and Development, Our Common Future, UNEP/GC.14/13, 14.04.1987; Jeremy Caradonna, Sustainability: A history (First paperback edition, Oxford University Press 2014// 2016), 3.
Diethelm Klippel and Martin Otto, ‘Nachhaltigkeit und Begriffsgeschichte’ in Wolfgang Kahl (ed), Nachhaltigkeit als Verbundbegriff (Recht der nachhaltigen Entwicklung vol 2. Mohr Siebeck 2008) 42.
ibid 41.
Jacobus A Du Pisani, ‘Sustainable development–historical roots of the concept’ (2006) 3(2) Environmental Sciences 83; Desta Mebratu, ‘Sustainability and sustainable development: historical and conceptual review’ (1998) 18(6) Environmental Impact Assessment Review 493, 497 ff.
Du Pisani (n 6)
Enric Tello-Aragay and Gabriel Jover-Avellà, ‘Economic History and the Environment: New Questions, Approaches and Methodologies’ in Mauro Agnoletti (ed), The basic environmental history (Environmental history vol 4. Springer 2014), 31.
Christopher Schliephake, Natascha Sojc and Gregor Weber, ‘Einleitung’ in Christopher Schliephake, Natascha Sojc and Gregor Weber (eds), Nachhaltigkeit in der Antike: Diskurse, Praktiken, Perspektiven (Geographica Historica vol 42. Franz Steiner Verlag 2020); Caradonna (n 3), 12, 14, 16.
Du Pisani (n 6), 86.
Peter H Sand, The history and origin of international environmental law (The international library of law and the environment 1, Edward Elgar 2015); Katja Gehne, ‘Historische Grundlagen des Nachhaltigkeitsbegriffs’ in Wolfgang Kahl (ed), Nachhaltigkeit als Verbundbegriff (Recht der nachhaltigen Entwicklung vol 2. Mohr Siebeck 2008), 11; Klippel and Otto (n 4), 41 (with reservations regarding the feasibility of this approach).
Mebratu (n 6), 498.
ibid, 495; Donald Hughes, An Environmental History of the World (Routledge 2001), 39, referring to the Egyptian culture, which perceived the processes of nature as operating in cycles.
See this chapter, section 2.1, below.
See the literature and footnotes assessed in section 2 of this chapter.
A very rough scheme of the historical roots of sustainability provides Duncan French ‘Sustainable Developmnet’ in Malgosia Fitzmaurice, David M Ong and Panos Merkouris, Research handbook on international environmental law (Research handbooks in international law, Edward Elgar 2010), 52 ff.
United Nations Environmental Programme, Report of the World Commission on Environment and Development, Our Common Future, UNEP/GC.14/13, 14.04.1987.
See this chapter, section 2.1 below.
https://iea.uoregon.edu, last accessed 6 March 2023.
Bernd Rüster and Bruno Simma, International Protection of the Environment (series) (Oceana Publications, Inc. 1975).
Mostly those compiled by Cairo A R Robb, International Environmental Law Reports: Early Decisions (International Environmental Law Reports I, Cambridge University Press 1999).
Ulrich Grober, Deep roots - a conceptual history of ‘sustainable development‘ (Nachhaltigkeit) (Wissenschaftszentrum Berlin für Sozialforschung, Discussion Paper, No. P 2007-002, Berlin 2007), 3, 5.
Gehne (n 11), 30; United Nations Conference on the Human Environment, Stockholm, 16.06.1972, Declaration on the Human Environment, UNGA 2994/XXVII, 2995/XXVII and 2996/XXII, 15.12.1972, principle 1.
The Stockholm Declaration mentioned only the preservation of Earth’s capacity “to produce vital renewable resources” (Principle 3); the “responsibility of man to wisely manage the heritage of wildlife” (Principle 4), the non-exhaustion of non-renewable resources (Principle 5).
Caradonna (n 3), 17, 136 ff. Compare: James C Coomer, Quest for a sustainable society: Woodlands Conference on Growth Policy (Pergamon Press 1979); Meadows (n 2). See also Samuel H Ordway, ‘Possible Limits of Raw-Material Consumption’ in Libby Robin, Sverker Sörlin and Paul Warde (eds), The Future of Nature: Documents of Global Change (Yale University Press 2013), 31–35.
Meadows (n 2), 23; James C Coomer, ‘Introduction: The Nature of the Quest for a Sustainable Society’ in James C Coomer (ed), Quest for a Sustainable Society: Woodlands Conference on Growth Policy (Pergamon Press 1979), 9.
Meadows (n 2), 158. Emphasis added.
Compare Coomer, ‘Introduction: The nature of the Quest for a Sustainable Society’ (n 25), 1.
Compare Coomer (n 25), 1, 9.
Our Common Future, 14.04.1987, summary, para 27.
Our Common Future, 14.04.1987, summary, para 28.
Our Common Future, 14.04.1987, ch 2, para 1.
Our Common Future, 14.04.1987, summary, para 27. Emphasis added.
Compare Gehne (n 11), 27.
Our Common Future, 14.04.1987, summary, para 15. “Ecology and economy are becoming ever more interwoven – locally, regionally, nationally, and globally – into a seamless net of causes and effects.”
Our Common Future, 14.04.1987, summary, para 25.
Our Common Future, 14.04.1987, summary, para 25.
Our Common Future, 14.04.1987, ch 2, para 1.
Meadows (n 2).
UNGA, the Cocoyoc Declaration adopted by the participants in the UNEP/UNCTAD Symposium on “Patterns of Resource Use, Environment and Development Strategies” (Second Committee), 1 November 1974, UN Doc. A/C.2/292, 1 and 2.
Gehne (n 11).
ibid
ibid, 23.
Coomer (n 25), 6. Emphasis added.
Meadows (n 2).
Ibid.
Our Common Future. 14.04.1987, ch 1, para 51. “No single blueprint of sustainability will be found, as economic and social systems and ecological conditions differ widely among countries. Each nation will have to work out its own concrete policy implications. Yet irrespective of these differences, sustainable development should be seen as a global objective.”
Our Common Future, 14.04.1987, summary, para 30. Emphasis added.
Gunther Teubner, Dilemmas of Law in the Welfare State (de Gruyter 1988); Rudolf Wiethölter, ‘Proceduralization Of The Category Of Law’ (2011) 12(1) German Law Journal 465, 472, www.cambridge.org/core/article/proceduralization-of-the-category-of-law/4175046E8901DD561DDD15B448629A03; Rudolf Wiethölter, ‘Materialization and Proceduralization in Modern Law’ in Gunther Teubner (ed), Dilemmas of Law in the Welfare State (de Gruyter 1988); Günther Handl and others, ‘The environment: International rights and responsibilities’ (1980) 74 Proceedings of the Annual Meeting (American Society of International Law) 223, 221.
United Nations Conference on the Human Environment, Stockholm, 16.06.1972, Declaration on the Human Environment, UNGA 2994/XXVII, 2995/XXVII and 2996/XXII, 15.12.1972.
Such as the duty to prevent harm/not to cause damage to the transnational environment, Handl and others (n 48), 224; see also: Jutta Brunnée, ‘Procedure and Substance in International Environmental Law’ (2020) Publications of The Hague Academy of International Law 75
Brunnée (n 51).
Our Common Future, 14.04.1987, summary, para 97.
Out Common Future, 14.04.1987 ch 2, para 79.
Our Common Future, 14.04.1987, ch 2, para 81.
Our Common Future, 14.04.1987, ch 2, para 76.
Our Common Future, 14.04.1987, ch 2, para 77.
Our Common Future, 14.04.1987, ch 2, para 78.
Our Common Future, 14.04.1987, ch 2, para 78.
Principle 10, UNGA, Report of the United Nations Conference on Environment and Development Rio de Janeiro, 12 August 1993, A/CONF.151/26 (Vol. I).
United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), entered into force 30 October 2001 in the Danish city of Aarhus, 2161 UNTS 447.
Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement), entered into force 22 April 2021 in the Costa Rican city of Escazú, C.N.196.2018 TREATIES-XXVII.18 of April 2018.
See Aarhus Convention (n 61); Escazú Agreement (n 62) above.
Our Common Future, 14.04.1987, summary, para 30. Emphasis added.
Gehne (n 11), 44–45.
For example, assessments highlight growth, development, progress or change, depending on the underlying discipline and perspective. Compare: Mebratu (n 6), 506 f, 511; Carl Mitcham, ‘The concept of sustainable development: its origins and ambivalence’ (1995) 17(3) Technology in society 311, 313.
Christopher Schliephake, Natascha Sojc and Gregor Weber (eds), Nachhaltigkeit in der Antike: Diskurse, Praktiken, Perspektiven (Geographica Historica 42, Franz Steiner Verlag 2020).
Caradonna (n 3), 20.
Grober (n 22), 2, 3.
“Wird derhalben die größte Kunst, Wissenschaft, Fleiß, und Einrichtung hiesiger Lande darinnen beruhen, wie eine sothane Conservation und Anbau des Holzes anzustellen, daß es eine continuriliche beständige und nachhaltende Nutzung gebe weil es eine unentbehrliche Sache ist, ohne welche das Land in seinem Effe nicht bleiben mag”. Hans C von Carlowitz, Sylvicvltvra Oeconomica (Braun 1713) 105; see eg Grober (n 22), 4.
Mebratu (n 6), 495.
For an overview: Günter Heine, ‘Umweltbezogenes Recht im Mittelalter’ in Bernd Herrmann (ed), Umwelt in der Geschichte: Beiträge zur Umweltgeschichte (Kleine Vandenhoeck-Reihe vol 1544. Vandenhoeck & Ruprecht 1989), 120, 122; Joachim Radkau, Natur und Macht: Eine Weltgeschichte der Umwelt (Beck 2000), 166 f; Heike Bilgenroth-Barke, Kriminalität und Zahlungsmoral im 16. Jahrhundert (Edition Ruprecht 2010), 120 ff; Donald Hughes, Environmental Problems of the Greeks and Romans (Johns Hopkins University Press 2014), 85 f, 102 f.
See, for an example: John L Innes, ‘Sustainable forest management - from concept to practice’ in John L Innes and Anna V Tikina (eds), Sustainable forest management: From concept to practice (The Earthscan forest library, First published. Routledge an imprint of the Taylor & Francis Group earthscan from Routledge 2017), 9.
Caradonna (n 3), 23.
Hughes (n 13), 64.
Digesten 7, 1, 10 - 12 pr.
Digesten 7, 1, 68 pr. 2.
Innes (n 73), 9 illustrating the 1217 Charter of the Forest of England, which did not address the future preservation of English woods.
Wolfgang Stromer von Reichenbach, ‘600 Jahre Nadelwaldsaat, die Leistung des Peter Stromer von Nürnberg’ in Georg Sperber, Die Reichswälder bei Nürnberg, aus der Geschichte des ältesten Kunstforstes (Frankenverlag 1968), 25.
Heine (n 72), 123; Gustav Hermann Zeller, Sammlung der württembergischen Regierungsgesetze (Fues 1841), 133.
Antiquarische Gesellschaft in Zürich, Die Zürcher Stadtbücher des 14. Und 15. Jahrhunderts (vol 1. Verlag von S Hirzel 1906), 146.
Hughes (n 13), 60.
ibid, 60.
Heine (n 72), 114.
ibid, 114.
ibid, 114.
On this compare Joseph Bongartz, ‘Miszellen. Zur Geschichte der Dürener Papierindustrie’ (1904) 78 Annalen des Historischen Vereins für den Niederrhein 142, 144.
Pieter Hendrik Gallé, ‘Protected existence; characteristic legal features concerning water control during the Middle Ages in the south-west Netherlands and main elements in the history of dike management in this area (1200–1963)’ in Pieter Hendrik Gallé, Beveiligd bestaan. Grondtrekken van het middeleeuwse waterstaatsrecht in Zuid-West Nederland en hoofdlijnen van de geschiedenis van het dijksbeheer in dit gebied (1200–1963) (1963), 372.
Bongartz (n 87), 145.
Gottfried Zirnstein, Ökologie und Umwelt in der Geschichte (Ökologie und Wirtschaftsforschung vol 14, 2nd edn. Metropolis-Verlag 1996), 212 f.
ibid, 212.
ibid, 213.
ibid, 224 f.
Raf de Bont, ‘“Primitives” and Protected Areas: International Conservation and the “Naturalization” of Indigenous People, ca. 1910–1975’ (2015) 76(2) Journal of the History of Ideas 215, 219.
Caradonna (n 3), 62.
Thomas R Malthus, First Essay on Population (Macmillan 1798, reprinted 1926).
Consider, for example: William S Jevons, The Coal Question: An Inquiry Concerning the Progress of the Nation, and the Probable Exhaustion of our Coal Mines (vol 69, 2nd edn. Macmillan 1866); Du Pisani (n 6), 86.
William S Jevons and Paul Warde, ‘The Coal Question (1865)’ in Libby Robin, Sverker Sörlin and Paul Warde (eds), The Future of Nature: Documents of Global Change (Yale University Pres 2013), 79 f.
Compare: Gehne (n 11), 31.
Pascale M Cancik, ‘Die Erfindung der Beteiligung im Verwaltungsverfahren’ in Wolfgang Hoffmann-Riem (ed), Innovation und Recht – Recht und Innovation (Mohr Siebeck 2016); Pascale M Cancik, Verwaltung und Öffentlichkeit in Preußen: Kommunikation durch Publikation und Beteiligungsverfahren im Recht der Reformzeit (Mohr Siebeck 2007)
Cancik, ‘Die Erfindung der Beteiligung im Verwaltungsverfahren’ (n 100), 112.
ibid, 112.
Peter H Sand, ‘Introduction’ in Peter H Sand (ed), The history and origin of international environmental law (The international library of law and the environment vol 1. Edward Elgar 2015), xiii.
ibid, xiii.
Convention Between Baden and Switzerland Concerning Fishing in the Rhine and its Influxes as well as in Lake Constance, signed on 25 March 1875 in Basel, Martens, Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international, deuxième série, vol 2, 60, 64. Followed by two Declarations Dated November 30/December 5, 1875, and a Convention Between the two Initial Parties and Alsace-Lorraine, Mulhouse summary and original text (additional Convention and final protocol 1884).
Art 2, Convention between Austria-Hungary, Baden, Bavaria, Liechtenstein Switzerland and Wurttemberg, Decreeing Uniform Regulations for Fishing in Lake Constance, Including a Final Protocol, signed on 5 July 1893 in Bregenz, ST/LEG/SER.B/12 403.
Art 1, Convention between Switzerland, The Grand Duchy of Baden, And Alsace-Lorraine, Establishing Uniform Provisions on Fishing in the Rhine and Its Tributaries, Including Lake Constance, With Final Protocol, signed on 18 May 1887 in Lucerne, ST/LEG/SER.B/12, 397.
Art 1, Convention Between Russia And Sweden And Norway, Regulating The Salmon Fishery In The Tornea, signed on 23 February 1897 in Parry, The Consolidated Treaty Series, vol 184, 229.
Art 4, Convention Between Russia And Sweden And Norway, Regulating The Salmon Fishery In The Tornea, 1897.
ibid, art 6, “1. il ne sera pas permis d’établir des appareils fixes de pêche qu’au nombre de 8 tout au plus, et leur emplacement, ainsi que l’étendue seront déterminés d’un commun accord par les hautes Parties contractantes à la suite d’un examen préalable effectué par des experts. Toutefois au printemps jusqu’à l’époque où la pêche, au moyen d’appareils fixes, aura commencé, il sera permis d’employer aussi d’autres engins servant à la pêche du saumon et du poisson dit «taimen», dont l’emploi est admis par le règlement en vigueur;”
Treaty concerning the Jan Mayen Seal Fishery, British Order in Council of 28 November 1876, The Seal Fishery Act, 1875, 38 Vict. c. 18.
Award of the Arbitral Tribunal established under the Treaty signed in Washington, on the 29th of February 1892, between United States and Her Majesty the Queen of United Kingdom of Great-Britain and Ireland, decision of 15 August 1893, Reports of International Arbitral Award (‘RIAA’) ST/LEG/RIAA/28, 263–276. See French (n 16); ‘Man saved from deportation after pollution plea in French legal “first‘’’ The Guardian (12 January 2021) www.theguardian.com/world/2021/jan/12/bangladeshi-man-with-asthma-wins-france-deportation-fight last accessed 12 January 2021.
RIAA, (n 113), 267.
ibid, 270.
ibid, Art 1.
ibid, Art 2.
ibid, Art 4.
ibid, Arts 3, 6.
Entered into force on 15 December 1911 in Washington, [1913] Australian Treaty Series (ATS) No. 6. Art. 1 of the Treaty.
ibid, Art 4
Agreement between Denmark, Free City of Danzig, Germany, Poland and Sweden, Regarding the Regulation of plaice (Pleuronectes Platessa) and Flounder (Pleuronectes Flesus) Fishing in the Baltic Sea, 1929, File S648bis/78/48 - No.2679 Treaties Collection Vol 115.
ibid, Art 2.
ibid, Art 3.
ibid, Art 4.
Art 2, Convention between Denmark, Norway and Sweden, Concerning the Preservation of Plaice and Dab in the Skagerrak, Kattegat and Sound, with Final Protocol, signed on 6 September 1937 and entered into force on 23 March 1938, 186 League of Nations Treaty Series (LNTS) 419 (No. 4326).
Convention for the Regulation of Whaling, entered into force on 16 January 1935, adopted on 24 September 1931 in Geneva, 155 LNTS 349 (No. 3586). https://iea.uoregon.edu/MarineMammals/engine/Documents/0-1394-1399.htm last accesssed on 6 March 2023.
ibid, Art 4.
International Agreement between South Africa, USA, Argentina, Australia, Canada, Germany, UK, Ireland, Mexico, New Zealand, Norway, For the Regulation of Whaling, entered into force on 1 July 1937 in London, 190 LNTS 79 (No. 4406).
Ibid, Arts 5, 6.
Jochen Braig, ‘Whaling’ (2013 Max Planck Encyclopedia of Public International Law, para 3.
Compare Arts 5, 8, 9, Convention for the Regulation of the Meshes of Fishing Nets and the Size Limits of Fish, concluded on 5 April 1946 and entered into force on 5 April 1953, 231 UNTS 199 (No. 3221).
Convention between Denmark, Norway and Sweden, Concerning the Preservation of Plaice in the Skagerrak, Kattegat and Sound, signed on 31 December 1932 and entered into force on 22 June 1933, 139 LNTS 189 (No. 3210).
Permanent Court of Arbitration (PCA) (PICJ), North Atlantic Coast Fisheries Case (USA v. Great Britain), decision of 7 September 1910, 11 RIAA 167.
ibid 189.
See: Grober, (n 22), 7.
Arts 332–337, Treaty of Versailles (Treaty of peace with Germany), adopted on 28 June 1919 and entered into force on 10 January 1920, LNTS No. 37.
On the legality of the establishment of this commission compare: PCA (PICJ), Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder, Publication of the Permanent Court of International Justice Series A – No 23 (1929), 26–29.
International Convention for the Regulation of Whaling, signed on 2 December 1946 and entered into force on 10 November 1948, 161 UNTS 72 (No. 2124), https://archive.iwc.int/pages/download.php?ref=3607&size=&ext=pdf&k=&alternative=-1&usage=-1&usagecomment= last accessed on 6 March 2023.
ibid, Art III, 1.
ibid, compare the preamble of the Convention; Braig (n 131), para 9.
ibid, art V, 1. Emphasis added.
ibid, Preamble; Compare: French ‘Sustainability’ in Fitzmaurice, Ong and Merkouris (n 16), 52.
ibid, Preamble. Amendment, entered into force on 11 October 1949, 161 UNTS 100. Emphasis added.
Agreement for the Establishment of General Fisheries Council for the Mediterranean, signed on 24 September 1949 and entered into force on 20 February 1952, 126 UNTS 237 (No. 1691).
Convention for the Establishment of an Inter-American Tropical Tuna Commission (IATTC), signed on 31 May 1949 and entered into force 1950, 80 UNTS 3 (No. 1041).
Agreement for the Establishment of a General Fisheries Council for the Mediterranean, (n 145), Preamble.
ibid, Art III, 1. Emphasis added.
Convention for the Establishment of IATTC, (n 146), Preamble. Emphasis added.
ibid, Art II, 1.
ibid, Art II, 3.
Treaty of Versailles, (n 137)
No 2, Provisions Relating to the Belgian-German Frontier Established by a Boundary Commission Composed of Representatives of the United Kingdom, France, Italy, Japan, Belgium and Germany, signed and entered into force on 6 November 1922, 3897 IEA.
ibid, No 4.
Trail Smelter Arbitration, Award, 11 March 1941, 3 RIAA 1905.
ibid, 1965.
Subsequent international cases which affirmed that rule are: ICJ, Legality of the Threat of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, para 29; ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997, ICJ Reports 1997, para 53; ICJ, Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment, 16 December 2015, ICJ Reports 2015, para 162
Sigrid Boysen, Die postkoloniale Konstellation (Mohr Siebeck 2021), 47.
Sand (n 104); Zirnstein (n 90), 210.
Boysen (n 158).
Convention between the United Kingdom, Germany, Spain, Congo, France, Italy and Portugal, Designed to Ensure the Conservation of Various Species of Wild Animals in Africa, which are Useful to Man or Inoffensive (the London Convention of 1900), concluded and signed on 19 May 1900, it never entered into force, British Parliamentary Papers, 1900, Cd 101., vol 56, 825–837.
ibid, Art II, para 1.
Convention between Austria, Belgium, France, Germany, Greece, Hungary, Liechtenstein, Luxembourg, Monaco, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, For the Protection of Birds useful to Agriculture (the 1902 Paris Convention), concluded on 19 March 1902 in Paris and entered into force on 6 December 1905, Amtliche Sammlung (Schweizerische Eidgenossenschaft) Ausgabe 22 611; IUCN ELC, 08.2005.
ibid, Art 1.
Sand, (n 104).
Acte de Fondation d’une Commission Consultative Pour La Protection Internationale De La Nature, signed 1913 in Berne, Ruster and Simma, vol IV, 1631ff.
Bont (n 94), 219.
Zirnstein (n 90), 225.
Acte Foundation (n 166), Art 1.
ibid, Art 6, No 1 a und 2.
Statutes Of The International Union For Conservation Of Nature And Natural Resources, 5 October 1948, as amended in September 1958.
ibid, Preamble.
ibid, Art I, 1 lit b.
Christopher R Rossi, ‘A unique international problem: The Svalbard Treaty, equal enjoyment, and terra nullius: Lessons of territorial temptation from history’ (2016) 15 Washington University Global Studies Law Review 93, 97.
Art 2, Treaty concerning the Archipelago of Spitsbergen, signed on 9 February 1920 in Paris and entered into force on 14 August 1925, 2 LNTS 7 (No. 41).
Convention between Belgium, Egypt France, India, Italy, Portugal and South Africa, Spain, Sudan, Tanzania, United Kingdom, Relative to the Preservation of Fauna and Flora in their Natural State, Annex and Protocol, signed on 8 November 1933 in London and entered into force on 14 January 1936, 172 LNTS 241 (No. 3995).
ibid, Art 1.
ibid, Art 3.
ibid, Art 4.
See: Boysen (n 158,) 49.
Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, signed on 12 October 1940 in Washington and entered into force 1942, 161 UNTS 193 (No. 485).
ibid, Art II.
ibid, Art.III.
ibid, Art IV.
Art XX lit b, General Agreement on Tariffs and Trade (GATT), signed on 30 October 1947 in Geneva and entered into force on 1 January 1948, 55 UNTS 187 (No. 814).
ibid, Art XX li. g.
RIAAA (n 113), 271, Art 8. “The regulations contained in the preceding articles shall not apply to Indians dwelling on the coasts of the territory of the United States or of Great Britain, and carrying on fur seal fishing in canoes or undecked boats not transported by or used in connection with other vessels and propelled wholly by paddles, oars or sails and manned by not more than five persons each in the way hitherto practised by the Indians, provided such Indians are not in the employment of other persons and provided that, when so hunting in canoes or undecked boats, they shall not hunt fur seals outside of territorial waters under contract for the delivery of the skins to any person.“
Convention respecting Measures for the Preservation and Protection of the Fur Seals in the North Pacific Ocean (n 120), Art 4 provides: “It is further agreed that the provisions of this Convention shall not apply to Indians, Ainos, Aleuts, or other aborigines dwelling on the coast of the waters mentioned in Article 1, who carry on pelagic sealing in canoes not transported by or used in connection with other vessels, and propelled entirely by oars, paddles or sails, and manned by not more than five persons each, in the way hitherto practiced and without the use of firearms; provided that such aborigines are not in the employment of other persons, or under contract to deliver the skins to any person.”
International Convention for the Regulation of Whaling (n 139), Art 3.
ibid, Art 3, para 1.
ibid, Art 3, paras 2–4.
Treaty concerning the Archipelago of Spitsbergen (n 175).
Bont (n 94).
ibid, 231 ff.
ibid.
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