CHAPTER 13
Gaps in environmental law on sustainable
socioeconomic development
L. Baqueiro Cárdenas & E. Baqueiro Cárdenas
Organization for Sustainable Development ODESU NGO, México.
Abstract
International environmental law aims to resolve and prevent environmental disputes between two or more countries, and solve environmental crises that damage
the health and economies of those affected. Although environmental legislation
aims to promote sustainable development, it is limited by several factors. These
factors range from lack of economic resources with which to implement laws,
corruption, lack of an established normative structure, and lack of commitment
by the countries involved, to restrain stemming from the economic and political
interests that determine legislation and governments. More fundamentally, the
essence of the law is permeated by, and emanates from, humankind’s philosophy
of dominance over all other species. International conferences, meetings, agreements, and treaties seek to preserve the environment and to promote sustainable
development. These include efforts to control hazardous materials, slow climate
change, prevent the extinction of species, and restore the health of oceans and
rivers. Inherent in these laws is the concept of the human species as the beneficiary of every other species on the earth. From an evolutionary point of view,
we are failed species, as we do not adapt to the environment, but rather have the
environment adapt us.
Important improvements have been made in International Environmental Legislation and its contribution to Sustainable Development, but a change of focus is
still required, from an anthropocentric to a holistic point of view, where the purpose should not be the well-being of the human species but the maintenance of the
Earth’s biotic equilibrium, in which individuals and societies participate.
Keywords: Adaptation, normative structure, international legislation, political
interests, holistic development.
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1 Limitations of environmental law for sustainable
development
In general terms, international environmental law seeks to solve environmental
conflicts between two or more countries, and to prevent environmental crises that
endanger health and resources. As a primary objective, environmental law seeks to
promote sustainable development; however, different constraints prevent achieving this objective. These constraints go from lack of law enforcement to the lack
of economic resources, authorities’ ignorance of the law, corrupt authority, the
absence of rules and regulations, sociocultural aspects and economic interests, and
above all, humans’ philosophy of dominating the environment and its resources for
immediate gains and satisfaction.
The meaning of ‘sustainable development’ has changed over time. The Rio Summit
stated: ‘Sustainable Development is one that meets the needs of the present generation without compromising the ability of future generations to meet their own needs”
[1]. This definition ignores the right of existence of all other species. In order to guarantee the survival of the human species, it has to be understood that humans are but
one species in the evolution of the biosphere and that the survival of one species – the
human – depends upon the stability of the environment, sustained by the ensemble of
every species. Therefore, a holistic view of sustainability has to replace the anthropocentric point of view. We therefore propose a definition that includes every species on
the planet: ‘Sustainable Development is one that meets the needs of every species on
the planet allowing their biological development and evolution without compromising the ability of future human generations to meet their own needs’.
International legislation starts with treaties between two or more nations. Those
signing the treaty commit to creating laws in their own countries to enforce the
agreements. These laws have to be enforced with norms and codes that state established parameters and obligations, as well as the sanctions for trespassing them.
The United Nations Organization supports this legislation through its Environment
Program (UNEP).
1.1 Objectives of the legislation
The first limitation on sustainable development lies within the objective of the
law itself. Laws are created to protect economic interests. As an example, international water treaties limit the exploitation of resources. The law does not explicitly
consider the needs of the species inhabiting those waters. It only seeks to prevent
disputes among nations and safeguard the resources for the benefit of the nation
with the rights over that water.
Another objective of environmental law that hinders sustained development is
remediation. Once resources have been damaged or destroyed, jeopardizing human
survival, health or general well-being, laws may be made that seek to recover the
lost resource to prevent the threat to humans, without considering the impact on
other species. Examples of this are the laws governing nuclear hazards and dangerous materials.
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1.2 Legislators
For an international agreement to become law, it must go through a legal process.
Lawmakers are a part of society, with cultural, political, and economic structures
that determine the course of legislation long before it is endorsed. They are ruled
by paradigms, implicit values, and social foundations that are immutable for that
social group. Any environmental agreement that represents a risk for those in
power is discarded a priori. This is not only true of totalitarian societies, it also
applies to democracies. Laws are made by those in power, and they will not legislate against their economic interests. Consumer societies convert all resources
and every species, including humans, into merchandise. Legislation supports the
values inherent in this perspective. Damage to the environment has a market cost.
An example is CO2 capture bonds, for which polluting countries can pay to keep
on polluting, while other countries reduce their emissions.
Corruption of individuals, responsible for applying sanctions when laws are
broken, is another limiting factor. The difference in laws between neighboring
countries opens the door for by-passing legislation forbidding international trade
of endangered species. Transparency International compares corruption among
180 countries, with the least corrupt country in first place. According to this index,
Somalia, Afghanistan, Myanmar, Sudan, and Iraq are among the most corrupt.
Meanwhile, the World Conservation Monitoring Centre identifies 19 countries
that host megadiversity (the majority of the world’s species are located in these
countries). Many of these countries are highly corrupt, so it is likely they have
considerable difficulty in applying environmental law. Among the 19 megadiverse countries with high levels of corruption are El Congo and Venezuela (ranked
162 in corruption), Papua (154), Ecuador (146), Philippines (139), Indonesia
(111), Madagascar (99), Mexico (89), India (84), China (79), Brazil, Peru, and
Colombia (75).
1.3 Resources
Once an international treaty or agreement has been legislated, the country has to
establish procedures for the application of the law. Frequently, these are deficient
or unfeasible. For example, biosphere reserves should have a management program and the resources, economic and human, to implement it. But this is seldom
achieved; most reserves are in countries with the lowest income. UNESCO has 553
biosphere reserves throughout the world, in 107 countries. In Latin America there
are 104 reserves in 19 countries, in Africa there are 52 reserves in 22 countries, in
Asia 113 reserves in 22 countries.
1.4 Legislative gaps
It is true that some agreements and treaties have been made to preserve the biota
from predation by man. However, for these to be applied, the country has to
legislate norms and procedures. This is a slow process, more often than not left
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incomplete. No matter how well-intentioned agreements and deadlines may be,
without meaningful sanctions, they will only be good intentions.
1.5 Economic power
Those with economic power control the law, either at a national or an international
level. This is attenuated in democracies, in countries with low corruption and high
income per capita. Oil spills in the open ocean, like Macondo 252 that blew up
in April 2010 and was out of control until September, have a catastrophic impact
on the environment and the economic compensation for research and damage to
coastal human communities will never undo the impact on natural communities.
When environment protection affects economic interests, economic interests will
prevail over the environment.
1.6 Social-cultural factors
Other factors that limit sustainable development are related to uses and values of
minorities. These cultures are often hardly represented within the law. Frequently,
they are alienated from their culture, deprived of their resources, and generally
displaced from their traditional dwelling areas, inducing them to exhaust natural
resources in order to survive. Law and imposed governments leave them with no
other alternative.
2 International agreements and treatises on environmental
measures
International Environmental Law originates in the need to rule on human activities
that affect more than one country, either directly in their impact, or with respect to
prevention and/or transport.
The following events are subject to international ruling, as they frequently have
an impact beyond the boundaries of the country generating them: acid rain, salinization and pollution of international water bodies, radioactive emissions to the
atmosphere, hydrocarbons and radioactive dumping in the sea, hunting and fishing
in international waters, the emission of chemicals or by-products that affect the
ozone layer of the upper atmosphere, and gases that induce greenhouse effect.
The growing phenomenon of economic globalization that promotes movement
of raw materials, manufactured goods, residues and wastes from one country to
another, as well as increased migration of people from one country to another,
induced by the economic disparities generated by over-exploitation and mismanagement of resources in some regions, with the accumulation of wealth and wellbeing in others, has led to the establishment of international organizations to
supervise environmental issues: in particular The United Nations Environmental
Program (UNEP) and the Commission for Sustainable Development, Human
Settlements, and Energy of the United Nations.
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In the UN context, every international agreement and treaty requires a support
and management body that is represented by the Secretariat for bilateral, regional
and international treaties, and agreements or Secretary General of the United
Nations. The Secretary-General is based in New York, with offices throughout the
world for the different commissions responsible for specific issues: climate change
and desertification are located in Bonn; the commission for dangerous chemicals
and wildlife trade is in Geneva; the international whaling commission is based in
London; the Atlantic tuna commission is in Madrid; the commissions for biodiversity and biosecurity are in Montreal; the commissions of human settlements and
chemicals that affect the ozone layer of the atmosphere are in Nairobi; while the
Food and Agriculture Organization is based in New York. The institutions responsible for negotiating and financing these programs are the Organization for
Economic Co-operation and Development (Paris), the International Monetary
Fund and the World Bank (Washington D.C.).
With the purpose of unifying universally accepted criteria and making national
norms equivalent among countries, the International Standardization Organization
(ISO) publishes the norms for activities that impact the environment. These norms
are compulsory, and some countries have to adapt their legislation to the ISO standard. In the case of conflict with national law, it is the international norms that
prevail.
We have mentioned that the lack of adherence by some countries to the international agreements constrains Environmental legislation to promote Sustainable
Development.
We have also mentioned as a limiting factor, the lack of enforcement of international treaties; many agreements are never ratified, reducing them merely to good
intentions or moral commitments.
2.1 Climate
Human activity has affected ecosystems and basic resources to the extent that
we are modifying the world’s climate to levels unbearable for many species,
and threatening humankind itself. The greenhouse effect, depletion of the ozone
layer, desertification, and acid rain are some of the concerns of International
Environmental law.
The United Nations Conference on the Environment and Development, June
1992 [2] also known as the Earth Summit, has been promoting actions and legislation to protect the environment with commitments known as Agenda 21. Agenda
21 represented the culmination of two decades of focused attention, which began
with the United Nations Conference on the Human Environment, held at Stockholm
in 1972. The World Conference on Human Rights, held in Vienna in 1993 [3],
underscored the peoples’ right to a healthy environment and the right to development. The World Summit on Sustainable Development 2002, held in Johannesburg,
sought to fulfill the goals set in Agenda 21. The World Summit 2005, held in New
York, recognized the serious challenge posed by climate change and agreed to create a worldwide early warning system for all natural hazards. The Earth Summit
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also requested that the United Nations initiate talks to halt the rapid depletion of
certain fish stocks and prevent conflict over fishing on the High Seas.
The G8, originally formed by The United States of America, Japan, Germany,
Italy, France, United Kingdom, Canada and Russia, has generated an action plan,
the ‘Gleneagles plan of action for climate change, clean energy, and sustainable
development’ [4]. This has led to Ministerial talks among nations and has
produced significant agreements, resulting in laws to establish the foundations of
sustainable development.
2.2 Ozone
Flour carbonate products produced by industry, cooling systems and sprays
destroy the stratospheric ozone layer that prevents the penetration of UV radiation,
harmful to all living creatures on earth, with serious impacts on human health.
Legislation to protect the Ozone layer was generated by The Vienna Convention
for the Protection of the Ozone Layer [5] in 1985 and 1987. The Montreal Protocol
on Substances that Deplete the Ozone Layer [6], approved in 1987, was not regulated by the United Nations until 2001. Thanks to this initiative, the output of
products harmful to the ozone layer has diminished significantly.
2.3 Acid rain
Acid rain is produced by the combination of pollutants and water vapor in the
atmosphere. The pollutants can be of natural origin, for example from volcanic
activity, or generated by human activities, mainly the burning of fossil fuels, which
contain sulfur and nitric by-products. These produce sulfuric and nitric acids when
mixed with atmospheric water. Falling as acid rain and snow, these pollute the
ground and bodies of water and damage plants and man-made constructions.
To reduce acid rain and harmful by-products, the Basel Convention on the
Control of Trans-boundary Movements of Hazardous Wastes and their Disposal
[7] was adopted by the conference of the plenipotentiaries on 22 March 1989. The
Stockholm Convention on Persistent Organic Pollutants [8] held in 2001 rules on
this issue, and the Rotterdam Convention [9] regulates the use of certain hazardous
chemicals and pesticides in the international trade. These agreements are the basis
for national regulations and for the regulation of the trade, movement, and final
disposal of hazardous chemicals.
2.4 Radioactivity
Radioactive damage is generated by atomic tests or accidents at nuclear plants
or other infrastructures that release large amount of radioactive elements into the
environment. Radioactive pollution falls from the atmosphere as radioactive rain
or as dry debris, often several miles away from polluting sources. Its effects remain
on the earth, in animals, and agriculture products (vegetables, meat, milk, eggs,
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etc.), for a long time. It affects living organisms for generations through genetic
mutations, frequently impeding organisms’ reproductive capabilities.
The United Nations has created an organism to enhance the peaceful use of
atomic energy and to limit or ban its use for military purposes, providing technical
advice and supervision to prevent accidents. Several conventions and treaties have
been signed to prevent the proliferation of nuclear weapons, to limit and regulate
trade in radioactive materials, and to supervise the safety of projects for peaceful
applications. These include security norms to protect human health and to reduce
risks to life and property.
The first steps were taken with the Treaty Banning Nuclear Weapons Tests in the
Atmosphere, Outer Space and Under Water, Moscow [10]. Later conventions have
addressed safety in the use and disposal of radioactive products (Joint Management
Convention on Nuclear Safety; Convention on Physical Protection of Nuclear
Material [11]), and for early warning of nuclear accidents and compensation for
damage (Convention on Supplementary Compensation for Nuclear Damage;
Vienna Convention on Civil Liability for Nuclear Damage [12]). Nonetheless,
accidents with continental consequences have occurred, and the threat of atomic
war is an everyday issue.
2.5 Desertification
One of the outcomes of the Rio Summit was the United Nations Convention to
Combat Desertification [13], particularly in Africa, a priceless instrument of international cooperation to promote national, regional, and global initiatives to prevent the advancement of desertification and extreme poverty in rural and suburban
regions. Unfortunately, it was just stated as a code of practice without a supporting
ruling or norm.
It was not until 2003, in the Sixth Conference of Parties to the convention, held
in La Habana, Cuba that draft legislation was presented to prevent desertification
[14]. Among the main agreements was the designation of the World Environmental
Fund (GEF) as the financing agency for the Convention. Several Regional
Coordination Units (RCU) were created and the United Nations Convention to
Prevent Desertification was signed, to promote actions in those countries severely
affected by drought. However, these activities have been no more than symbolic,
with a continuous advancement of desertification and poverty in underdeveloped
countries.
2.6 Forests
In 2000, the Economic and Social Council (ECOSOC) established the United
Nations Forum on Forests (UNFF) as an institution to promote sustainable forest management, through policies applicable in all countries. Forum activities
follow the guidelines of the United Nations Conference on Environment and
Development [2] and on the working Intergovernmental Panel on forests (1995) y
el World Forest Congress (1997), which lack judicial enforcement.
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Although this Forum has been working since 2001, it has accomplished few
agreements. Several countries, including Mexico, support the adoption of such an
instrument and propose the establishment of a World Forest Fund to integrate all
regulations, at this point dispersed throughout international instruments, to rationalize resources and avoid duplication. However, the consensus is that an international judicial instrument would restrict national sovereignty in the management
of forestry resources. Therefore, a more flexible code of conduct has been
proposed.
2.7 Biodiversity
Biodiversity has been recognized as a source of wealth for the future. With
advances in science and technology, new uses and applications are being found
for organisms that at present are considered useless or even a threat to human
health and well-being. More and more frequently, patents are issued for processes
or products derived from microorganisms, either in their natural state or modified through selection, hybridization, or genetic engineering. These patents are
frequently registered to countries that are not host to the organisms in question,
but which have the economic resources to develop new technologies, depriving
the source countries the benefits of their own resources. Frequently, the source
countries even have to pay royalties to use their native organisms. This has led
to complaints from developing countries, which host the greatest biodiversity.
The Agreement on Biological Biodiversity Convention on Biological Diversity
(Agenda 21) [2], signed in Rio de Janeiro, Brazil in June, 1992, guarantees economic participation in the benefits and uses of biodiversity to the countries of
origin. This agreement motivated the 1995 Cartagena Meeting, which elaborated
the Protocol on Biotechnology and the Biosafety Protocol [15]. This was finally
signed in Montreal in 2000. The Protocol provides an international framework to
allow the benefits of biotechnology with a minimum risk to the environment and
human health. The Cartagena Convention recognizes the right of every country to
the benefits obtained from biotechnology and their products.
Nonetheless, technologically developed wealthy countries retain control of
seeds, research and even exploitation through transnational corporations, using
poor countries as their resource sources. Once more, economic power limits
sustainability.
Biodiversity is basically threatened by overexploitation and habitat destruction.
The Johannesburg Declaration on Sustainable Development [16] states that biodiversity and genetic diversity are the properties of humanity, with the right of
exploitation and benefits for local people, provided they commit to preservation
and sustainable management.
Among the most recent commitments, with the possibility for a significant
impact on protection and preservation of Biodiversity is the Global Transboundary
Protected Areas Network [17]. Biological corridors create connectivity among
protected areas with significant biodiversity, with the objective of diminishing
habitat fragmentation. An outstanding example is the Mesoamerican Biological
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Corridor proposed in 1996 [18], which involves the southeast of Mexico and
Central America: Belize, Costa Rica, El Salvador, Guatemala, Honduras,
Nicaragua, and Panama. Yet – once again – its objectives have been limited by the
lack of funding.
The Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES – 1973) [19] lists endangered species and those whose commerce should be controlled to prevent their extinction. While there are efficient
controls at the level of international trade, these are lacking at the local level.
Migratory birds and wetlands have been the subject of special attention from international groups. These groups give emphasis to the protection of habitats through
the migratory routes of aquatic birds.
The United Nations Program for the Environment (UNEP) [20], the Convention
on Migratory Species (UNEP/CMS) [21], and Nature World Wide Fund (WWF)
[22] highlight Latin America and the Caribbean as the regions with the highest
biodiversity on earth, given that they host several mega-diverse countries. Together
they hold 70% of all living creatures and 41% of the birds of the world. A group of
international nongovernment organizations presided by Wetlands International
[23] and Birdlife International [24] have set up the project Wings Over Wetlands
(WOW) [25], the largest initiative of wetland and migratory birds preservation in
Africa and Eurasia. The Convention on wetlands of international importance especially as waterfowl habitat (Ramsar Irán, 1971) [26] was adopted with the support
of the International Union for the Conservation of Nature (IUCN), Wetland
Research Inc. and Birdlife International.
2.8 The Seas
2.8.1 Resource exploitation
Countries with coasts have defended their right to the seas and continental border.
They claim the right to the sea and underwater land as an extension of their territory. This has been defined by the International Law of the Seas of the United
Nations through the Geneva Convention of 1962 to 1966 [27]. International
Law recognizes three levels of sovereignty on the coastal waters: Territorial Sea,
12 nautical miles from the lowest sea level off the coast; Contiguous zone, an
extension of 12 more miles after the Territorial zone; and the Patrimonial Sea
or Zone of Economic Exclusivity, 200 miles from the coast. In the first two, the
bordering country has sovereignty over all living and nonliving resources, with
the rights and obligations for preserving the environment and sustainable management. In the Patrimonial Sea, the bordering country can make use of the resources,
but has to allow other countries in if it is unable to do so. Beyond the Patrimonial
Sea, the oceans are free from sovereignty of any state. This is known as the High
Sea and includes both the water and ocean floor.
The exploitation of resources from the ocean floor and underground of the High
Sea has been of special interest to many countries. International law as defined by
the United Nations considers them a Human Legacy, and states that their exploitation has to be justified by peaceful uses. Any economic benefits should be used to
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promote actions in the common interest, favoring in particular the poorest countries of the world. However, for this agreement to become mandatory, the signed
consent of 60 countries is required. It has not been signed by the principal industrialized countries, leaving it as merely another good intention.
Pollution of the oceans is a serious threat for the survival of the human and many
other species. To combat this, different agreements have been signed: the Ethical
Principles for Medical Research Involving Human Subjects (1972) [28, 29], the
Barcelona Agreement (1976 and 1980) for the Mediterranean sea [30], and the
Agreement for Coastal Nations of the Persian Gulf (1978) [31]. The United Nations
Organization counts with a consulting expert board, the Group of Experts on
Scientific Aspects on Marine Pollution (GESAMP) [32] in charge of evaluating
present and future threats to the marine environment.
The present situation is summarized as tolerable, with a clear imprint of chemical and solid pollution, declaring the High Seas as relatively clean, with low levels
of lead, organic compounds and artificial radionuclides; sailing routes show oil
stains and solid trash [33]. But recent reports have noted the accumulation of large
quantities of solid debris in the central North Pacific and the Sargasso Sea [34]. On
the other hand, coastal waters and Mediterranean seas are collapsing as a consequence of habitat degradation on land, industrial and urban sewage, and agricultural runoff. There are large quantities of organic chlorides in tropical and
subtropical waters. Severe damage has been caused by eutrophication and bacterial pollution of coastal lagoons, as well as increasing industrial and oil pollution.
2.8.2 Hydrocarbons
Oil and hydrocarbons are the largest pollutants of the seas. In addition to everyday spills from fixed sources and sailing vessels, as exploitation goes deeper into
the ocean and larger tankers are produced, accidents are more frequent and have
a greater impact. Two sad examples are the pollution created by the Persian Gulf
War in 1991, where over 1,500,000 barrels of oil were spilled, and the most recent
deep sea accident at Macondo well in the Gulf of Mexico in 2010, where five thousand million barrels spilled in a relatively short period of time.
To prevent and attenuate damage by oil spills, two international agreements
have been signed: the International Convention Relating to Intervention on the
High Seas – Oil Pollution Casualties [35] and the International Convention on Oil
Pollution Preparedness, Response and Cooperation [36]. Large sums of money
have been imposed on those responsible for spills, but they usually cover only
economic damage, and finance rescue actions that have little effect on damaged
ecosystems.
2.9 Fisheries and marine protected species
Aquaculture and fisheries topics are discussed and examined at FAO by the
Advisory Committee on Fishery Research (ACFR) [37]. This is an advisory
board for national governments, regional fishery organizations, fishermen, and
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international organizations. Due to international civilian pressure, rulings have
been issued for the management and protection of tuna, dolphins, turtles, and
whales. Protection of these species has been possible given their migratory nature,
but other species, including all Pinnipeds (seals, walruses, sea lions, and sea elephants) that reside in coastal waters, are still massacred.
2.9.1 Tuna
The International Convention for the Conservation of Atlantic Tuna (CIAT) [38] is
an international cooperation organization responsible for the conservation of tuna
fisheries and other species captured by the tuna fishing fleet. It was created on the
recommendations of the Standing Committee on Research and Statistics (SCRS),
responsible for the scientific opinions to apply management strategies for tuna
resources. In 2003, CIAT approved an International Plan of Action to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA IUU),
and the sanctions to be applied to offending countries.
2.9.2 Dolphins and porpoises
The Inter-American Commission on Tropical Tuna (CIAT) manages the
International Program for the Conservation of Dolphins (APICD) [38], which
has the objective of protecting dolphin populations from the tuna fishing activity.
A certification system has been approved that promotes tuna fishing with strict
protection of dolphins, named Tuna Dolphin Safe APICD. Nevertheless, a lot of
tuna is sold without this label.
2.9.3 Whales
The International Whaling Commission (IWC) [39] established by the International
Convention for the Regulation of Whaling (1946) in 1982 prohibited the commercial capture of whales for a 10-year period. When this period ended, the establishment of a whale sanctuary on the Antarctic Ocean was proposed, generating bitter
polarization between whaling countries such as Japan, and those opposing whale
hunting. In accordance with these policies, Mexico promoted the conservation
of whales through the Berlin Initiative [40] to enhance the scientific standard for
sustainable use of whale stocks. Backed by 20 more countries, this created the
conservation committee that promotes the consideration of scientific aspects during debates on conservation and exploitation.
During the 2006 IWC meeting, 33 nations adopted the St. Kitts and Nevis
Declaration [41], expressing their interest to take the original functions of the
Whaling commission from the 1946 International Convention for the Regulation
of Whale Hunting. This convention ignores the scientific data on the exploitation
of whales, arguing that whales contribute to the diet of coastal communities and
that posterior agreements are based on sentimental reasoning. This does not mean
that the moratorium on whale hunting adopted in 1982 has been lifted, because
this would require an IWC resolution approved by a minimum of three-fourths of
its members. Nonetheless, hunting permits are issued for scientific objectives, with
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Japan as the principal benefactor. Japan is accused of using these permits for commercial purposes.
2.9.4 Sea turtles
The Inter-American Convention for the Protection and Conservation of Marine
Turtles was created in 1996 [42]. It was intended to establish a multilateral cooperation strategy for the protection of marine turtles, eliminating the possibility of
unilateral sanctions. The Convention proposed the application of scientific information for management and preservation. These measures have not prevented the
consumption of turtle meat and eggs.
2.10 International freshwater bodies
Pollution and the abuse of freshwater bodies provoke international conflicts
between neighboring countries. This has prompted several bilateral treaties,
agreements, and judgments as part of the international law recognized by United
Nation. Examples are the Treaties for the Protection of the Rhine River [43] among
Germany, France, Luxembourg, The Netherlands, and Switzerland; the Treaties on
the San Lorenzo River [44] between Canada and the United States of America,
where some principles are recognized that are the foundation for international
agreements, such as the principle of no damage (Alterum non laedere) and the
obligation not to pollute; and the treaty between Mexico and the United States on
the Colorado river basin salinity control [45], which establishes the right to the
same water quality along the whole course of the river.
2.11 Dangerous materials
Some industrial activities use raw materials dangerous for the environment and
human health. Others generate dangerous by-products. To reduce risks, legislation
regulates the transport, handling, importation, exportation, and final disposal of
dangerous material. Material with corrosive, reactive, explosive, toxic, flammable,
or infectious properties is considered dangerous.
The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal [7] is a global agreement on dangerous byproducts. Its objective is to protect human health and the environment from adverse
impacts from the generation, processing, movement, and disposal of these products. By 2010, it had been ratified by only 67 countries. The Board of Dangerous
Goods in Transit from the Economic and Social Council of the UNO published in
1856 its recommendations for the transport of dangerous goods [46]. These recommendations have been reviewed frequently. Regulations have been published to
regulate the transport of materials and residues by air, sea, and land. Nonetheless,
large quantities of dangerous by-products are improperly disposed of, creating
risks to the environment and to human health. They are exported to countries
without proper facilities, and in countries at war there is no control over these
dangerous goods.
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3 The human race as a failed species
If there is a regulatory framework for preservation and sustainability, the question
arises: Why are species being destroyed and ecosystems modified, when there is
plain knowledge this is leading us to self-destruction? We have identified several
factors that prevent the application of environmental laws or even of common
sense. But self-destruction is implicit in the nature of the human species.
The biosphere is a living entity, and each of its components has an evolutionary
function. Life as we know it is the result of this evolution. For 2000 million years,
blue–green algae thrived in a reducing atmosphere of methane and carbon dioxide.
They were so efficient that they modified the atmosphere, changing it into the
oxidizing environment that we now know, making their environment inhabitable
for them and causing their total extinction. It was through the process of adaptation
and evolution that other life forms adapted to that toxic environment. This adaptation and evolution continued as the natural process for species evolution, with
countless examples of failed species that through specialization became so efficient in a given environment they could not survive environmental pressures
caused by natural phenomena.
Humans are the result of this evolution and a good example of the failure of
species. Unfortunately Homo sapiens stopped evolving when it started to modify
the environment, rather than evolving with a changing environment or with the
diverse environments it colonized. The evolution of H. sapiens somehow continued in some isolated populations that had adapted to their environment. A few
examples of them remain, but globalization and the adoption of the ‘modern technological’ way of life is reducing these populations every day.
Living in society is a means of adaptation selected by many living creatures to
confront environmental pressures. Good examples of this are ants and bees. There
are attributes in social species that are not present in individualistic ones; one of
the more evident is ‘altruism’ or the sacrifice of the individual for the community.
This characteristic is imprinted in the genetic code of ants and bees [47].
In humans, altruism is so rare, that the sacrifice of one individual for others is a
matter of tribute. The norm is that the existence of the individual prevails over
anything else. We see the same phenomenon at the level of societies. Human societies evolved by adapting to the different environments they colonized. But in
contrast to other social species, which never destroy other colonies of their same
species, the characteristic that marks the history of humankind is the destruction of
other societies, usually through the annihilation of individuals.
From the beginning of its evolution, H. sapiens started to modify its surroundings to satisfy its basic needs for subsistence. As its technical abilities developed,
the degree of modification intensified. As the number of population groups
increased and migrations were restrained by other population groups, humans
were forced to develop techniques to satisfy their requirements. This prompted the
beginning of agriculture and animal husbandry. In turn, this allowed for development of larger population groups, creating still greater pressure on, and irreversible modifications to, the environment.
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236 Ecological Dimensions for Sustainable Socio Economic Development
The 18th century industrial revolution accelerated the race to modify and control the environment, ignoring the fact that humans are but one piece within the
biosphere and that every component has a role to play in its continued operation.
Modifying its components modifies its performance, affecting man himself.
Three thousand million years of adaptation to the new atmosphere has led to a
complex mechanism of auto-correction, or homeostasis, where nature has the possibility to regenerate, up to certain limits. Beyond these limits, a new cycle or state
may begin with the emergence of new life forms that adapt to the new environment.
Human activities are modifying the environment beyond threshold limits. Humans
are the result of evolution, of adaptation to existing environments; but the application of technology has flipped this equation around, adapting the environment to
humans, inhibiting human evolution. This limits the possibilities for adaptation to
a changing environment. This process was accelerated with social evolution.
Human society has evolved through different stages. During the process it has
been homogenizing and destroying other ‘primitive’ cultures, which had reached
equilibrium with their environment. Biologically speaking, modern society can be
considered an infection, which will kill its host, the biosphere. We are sickening
the Earth by demanding much more resources than it can provide, and polluting its
air, water, and soil. This is an attitude deeply lodged in human conscience and supported by religions that place men over every other living creature, with rights of
use and displacement.
Every living creature has a function in the evolution of the biosphere. If we want
to continue to be a part of it, we have to reintegrate and live in equilibrium with its
processes.
Most laws are made to protect resources for the benefit of humankind, not for
the protection of the species themselves. However, the sole fact of their existence
gives other species the right to live with us in this world.
Five thousand years ago, we stopped evolving as a species; we have taken the
option of evolving as a society at the expense of the biosphere and every other
society that has adapted to its environment. From a biological point of view we are
a failed species.
4 Mexico, pioneer in ecological law yet limited in sustainable
development
Mexico is a Democratic Republic composed of 32 states. In Mexican Law, international treaties and conventions have the same importance as the National constitution and constitute International Law. The dispositions of international law
are mandatory for every authority at the Federal, State, or municipal level and for
any person living within Mexican territory, air space, and territorial waters [48].
Mexico is one of the 19 megadiverse countries that house 60–70% of all living
creatures. Mexico has subscribed to international treaties in several areas: environmental protection, natural resources, sustainable development, climate change,
desertification, forests, protection of migratory birds, dolphins, turtles, whales,
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Gaps in Environmental Law
237
and other endangered species; biological diversity, ozone layer protection, dangerous residues, genetically modified organisms, nuclear arms control, and coastal
countries. Mexico has adhered to most international agreements and conventions,
with a commitment reflected in laws, codes, and norms that accord with ISO standards. It has been pioneer and leader in several international environmental initiatives. Since 1991, it has been an active member of CITES [49].
Mexico has a governmental agency responsible for Environmental issues, the
Secretaria del Medio Ambiente y Recursos Naturales (SEMARNAT) and has a
framework environmental law La Ley del Equilibrio Ecológico y Protección al
Ambiente. The scientific authority is the Comisión Nacional para la Conservación y
Uso de la Biodiversidad (CONABIO) and the control agency is the Procuraduria
Federal de Protección al Ambiente (PROFEPA), with representation in every state of
the Mexican republic. Most Mexican environmental regulations follow international
ISO standards. Citizen participation is an integral part of the operating mechanism
of Semarnat; the general public participates broadly in discussions relating to the
creation and implementation of environmental law. Citizens’ denunciations of environmental crimes receive priority attention, and citizens’ demands for environmental protection have led successfully to the creation of parks, reserves, and so on.
Mexico has international environmental agreements with Guatemala: ‘Acuerdo
sobre la Protección y Mejoramiento del Ambiente en la Zona Fronteriza (1988)
[50]’ and Belize: ‘Convenio entre los Estados Unidos Mexicanos y Belice sobre la
protección y mejoramiento del ambiente y conservación de los recursos naturales
en la zona fronteriza’ [51]; one more on ‘Prevention and Attention to Natural
Disasters’ (1991) [52] with Canada, and an Intention Letter on Cooperation in
Information Technology on Forest Fires; with the United States of America, several environmental agreements have been signed but not ratified [53].
Mexico, Canada, and The United States of America signed a Free Trade
Agreement in 1993. One outcome was an Agreement on Environmental Cooperation
for North America, to preserve and improve the environment including wildlife
protection, with the promotion of laws, polices, and environmental practices to
prevent pollution. Prior to the FTA Mexico and the United States had a bilateral
agreement establishing a Comisión de Cooperación Fronteriza (Commission for
Bilateral Cooperation) y del Banco de Desarrollo de América (American
Development Bank), which addressed environmental issues on the border zone.
Mexico has been one of the main promoters of the International Code of Good
Fishing Practice (FAO 1995), which was the background for the International
Action Plan on Undeclared and Unregulated Illegal fishing [54]. This agreement
aimed at striking equilibrium between the interests of developed and underdeveloped countries, in particular, in relation to duties and technical barriers on trade in
fishing products. Mexico promoted a Regional Declaration from the Latin
American and Caribbean Delegations (GRULAC) requesting more equal treatment from FAO on the financial assignment and regional actions on fisheries topics. It also promoted a Memorandum between the Convention on International
Trade of Endangered Species of Wildlife (CITES), and the FAO (1991), with the
objective of coordinating actions on aquatic biota.
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238 Ecological Dimensions for Sustainable Socio Economic Development
Although Mexico, as a developing country, is not required to reduce its CO2
emissions, it has promoted projects for carbon capture in both forestry and energy.
In this area, it has signed operating instruments within the framework of the Clean
Development Mechanisms Agreement with the governments of Germany, Austria,
Canada, Denmark, Spain, France, Italy, The Netherlands, and the Japanese Bank
of International Cooperation. In addition, Mexico cooperates bilaterally, with
those countries that have not signed the Kyoto Protocol. One example of this is the
joint action with the United States of America to Introduce Methane to the Markets
(2010) [55].
In relation to desertification, Mexico has led a movement to promote actions
for equal participation among the developed and underdeveloped countries to
deal with the desertification problem throughout the world. It signed, and was
the first to ratify (1995), the United Nations Convention against Desertification in
Countries Affected by extreme drought and desertification [14]. Desertification is
considered a priority subject in Mexico as it affects close to 80% of the territory
with different levels of degradation. Mexico was the driving force behind the creation of regional groups: Africa, Asia, The North Mediterranean, Latin America,
and the Caribbean [56].
Mexico joined the Ramsar Convention (1986). It has registered 65 wetlands with
an extension of 5,263,887 ha. In relation to the protection of dolphins, Mexican
regulations are considered among the strictest on the East Pacific, including the
obligation to take observers on board of every (100%) of the tuna fleet, the prohibition on night hauls and the use of explosives, and a limit on dolphin mortality.
Mexico joined the International Whaling Commission in 1949, committing to
total protection of marine mammals. At the Convention, Mexico voted against the
St. Kitts and Nevis Declaration. It also actively promoted the protection of the
leatherback and hawksbill turtles.
Mexico has been pioneer on environmental issues at the international level. It
has implemented national laws, norms, and codes to make good on its commitments, and has an administrative authority with the capacity to support it.
Nevertheless, it cannot be said that Mexico has implemented a strategy toward
Sustainable Development. Political and economic interests, within and from
abroad, poverty and social unevenness, corruption, and insecurity are factors that
work against Sustainable Development in Mexico.
5 Conclusions
Although prior to 1972, there were some international environmental agreements;
it was not until the creation of the United Nations Environmental Program (UNEP)
that important advances began to take place. Legislation has been implemented to
mitigate climate change, protect endangered species, forests, rivers, and the marine
environment. However, lack of normativity and economic resources impede effective implementation of environmental legislation, and the degradation of the planet
continues at an alarming pace. Notwithstanding agreements, conventions, and legislation, there is no clear path to sustainable development.
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The most powerful factors that work against effective normativity are, on one
hand, social and economic: poverty, corruption, and overall political and economic
interests that control legislation, legislators, and the application of laws. On the
other hand, we identify humanity’s self-concept as sole owner and only benefactor
of the biosphere and all resources on Earth.
It is only through society, independent and organized, that the limiting factors
that withhold the application and creation of laws can be overcome. It is society
that promotes legislation and confronts political and economic interests. Society
supports research, education, and exposes the problems and possible solutions. It is
through nongovernment organizations that the human conscience has to be changed.
Acknowledgments
The authors are most grateful to Samantha Sparks for her exhaustive review of the
English manuscript and precise suggestions to the text that make our ideas appear
clear and without misunderstandings.
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