What International Concern for the Environment Means
Chapter Forty-Nine
Syllabus topic 3, "International Concern for Environment Protection"
Pages 144 to 146 of 663
In one line
International concern is the move by which a matter stops being nobody's business but the State's own, and MU makes it a printed topic because everything in Modules II, III and IV depends on that move having been made.
In exam wording: international concern for environmental protection is the recognition that the condition of the environment within a State's own territory is a matter of legitimate interest to the international community as a whole, expressed through the concepts of the common heritage of mankind, the common concern of humankind and common but differentiated responsibilities, and institutionalised through the United Nations Environment Programme, the conferences of 1972, 1992, 2002 and 2012, and the treaty regimes they produced.
The obstacle the concept had to overcome
Article 2, paragraph 7, of the Charter of the United Nations. Nothing in the Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State.
That provision is the answer a State gives when told how to manage its own forests, its own rivers or its own emissions. The whole of MU's topic 3 is the story of how international law got around it.
The three concepts, and they are not the same
Students confuse these three constantly. They are different ideas with different legal consequences.
| Concept | Applies to | Legal consequence | Instrument |
|---|---|---|---|
| Common heritage of mankind | Areas beyond national jurisdiction: the deep seabed, the Moon | No State may appropriate it; it is managed by an institution for all, with benefit sharing | Article 136 of the Law of the Sea Convention 1982 |
| Common concern of humankind | Things inside national territory: the climate system, biological diversity | Sovereignty is preserved; the international community acquires a legitimate interest and a right to be involved | Preamble to the Framework Convention on Climate Change 1992; preamble to the Convention on Biological Diversity 1992 |
| Common but differentiated responsibilities | The obligations of States | Shared duty, unequal extent | Rio Principle 7; Framework Convention article 3, paragraph 1 |
The middle row is the important one and it is the one MU's topic names. "Common concern" was drafted precisely because "common heritage" was unacceptable: no State would agree that its forests or its atmosphere were the heritage of mankind, because heritage implies non-appropriation and shared management. Concern implies neither. It says only that the matter is legitimately of interest to everybody, which removes the Article 2, paragraph 7, objection without touching sovereignty.
The drafting history is worth a sentence in an answer: the biodiversity convention's preamble affirms that the conservation of biological diversity is a common concern of humankind, and its Article 3 immediately reaffirms the sovereign right of States to exploit their own resources. The two sentences sit together on purpose.
What International Concern for the Environment Means
How the concern was institutionalised
- A conference. Stockholm 1972, Rio 1992, Johannesburg 2002, Rio+20 2012. Each produced a declaration and a programme.
- A body. The United Nations Environment Programme, created by General Assembly resolution 2997 (XXVII) of 1972.
- A treaty regime for each problem, with a conference of the parties, a secretariat, subsidiary scientific bodies, a financial mechanism and a compliance procedure.
- Reporting. Every regime requires its Parties to report on what they are doing inside their own territory, which is the practical form the concern takes.
That fourth item is the one to notice. The concrete legal content of "international concern" is mostly an obligation to tell the others what you are doing at home.
Worked example
State R clears a large area of primary forest for agriculture. No other State suffers direct harm.
- Is this a breach of international law? Not of the prevention rule, because there is no transboundary harm.
- Is it a matter of international concern? Yes. The Convention on Biological Diversity's preamble affirms that the conservation of biological diversity is a common concern of humankind, and R is a Party.
- What follows in law? R is bound by Article 6 to develop national strategies, by Article 7 to identify and monitor, by Article 8 to establish protected areas, and by Article 26 to report. It is not bound to keep any particular forest standing.
- Can anyone complain? Any other Party may raise it at the Conference of the Parties. There is no compulsory adjudication.
- What would change if the forest were common heritage? R could not appropriate it at all and an international institution would manage it. No State has ever accepted that for territory.
That worked example is the whole distinction between concern and heritage, and it is the best answer to MU's printed topic 3.
What it does NOT mean
It does not create a right of intervention. Article 2, paragraph 7, stands. Concern is a basis for negotiation, reporting and review, not for coercion.
It does not make the environment the common heritage of mankind. That phrase belongs to areas beyond national jurisdiction and using it for the climate or for forests is a marked error.
It is not confined to the environment. Human rights made the same move earlier, and the environmental version borrowed the technique.
Quick revision
- The obstacle is Article 2, paragraph 7, of the Charter: domestic jurisdiction.
- Three concepts, and they are different: common heritage of mankind, common concern of humankind, common but differentiated responsibilities.
- Common heritage: Article 136 of the Law of the Sea Convention, for areas beyond national jurisdiction.
- Common concern: the climate and biodiversity convention preambles, for things inside territory, with sovereignty expressly preserved.
- Institutionalised through four conferences, UNEP, the treaty regimes, and above all through reporting.
What International Concern for the Environment Means
Test yourself
1. Distinguish common heritage from common concern. Common heritage applies to areas beyond national jurisdiction, forbids appropriation and puts management in an international institution with benefit sharing. Common concern applies to matters inside a State's territory, preserves sovereignty entirely, and gives the international community a legitimate interest expressed through reporting, review and negotiation.
2. Which Charter provision had to be overcome, and how was it? Article 2, paragraph 7, on domestic jurisdiction. It was overcome not by denying it but by using "common concern", which asserts an interest without asserting a power.
3. What is the practical legal content of international concern? Chiefly an obligation to report to the other Parties on what a State is doing within its own territory, together with participation in a conference of the parties that reviews implementation.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.