(4) Environmental Law

International Environmental Law Section A:General Aspects of International Environmental Law

 

IEL

From Stockholm to Johannesburg

The Stockholm Conference, and ensuing environmental legislation, was one of the first attempts to deal with environmental problems at a global scale. The result was a number of instruments that did not offer clear standards but, nevertheless, helped create state consensus that some environmental problems need to be tackled internationally.

The Rio Conference was a first attempt to deal with the complexity that many environmental problems present. The conventions that followed the Rio Conference are decidedly more elaborate instruments than those that preceded it. The Rio Conference created an impetus to include clear and enforceable standards in international instruments that states would be held accountable to implement. The instruments adopted after the Rio Conference present more resemblance to the command-and-control legislation of many developed countries.

The Rio Conference was significant because it was an attempt to find a common ground between what developed states wanted to accomplish and what developing countries stood for. Concepts such as sustainable development and common but differentiated responsibilities sounded initially like principles deprived of concrete content. In the aftermath of the conference, they have acquired strength and have defined many subsequent international and local developments. Today, the concept of sustainable development with its three pillars articulates successfully some of the conditions of sustainable growth. The social and economic pillars are as important as the environmental pillar. The concept has had an effect even on localities within developed countries with the enunciation of the concept of “sustainable communities.”

 The principle of common but differentiated responsibilities has found articulation in the climate change and ozone regimes through the provision of payments to developing countries in order to induce their compliance with international agreements. Overall, the Rio Conference provided an opportunity for developing countries to use the environmental agenda as a means to advance their concerns about development and growth. The WSSD promoted issues of social and economic development with a new sense of urgency. The conference has more to do with ensuring that countries accomplish a level of development than with providing for new environmental standards. Putting issues of development at the core of what was initially conceived as an environmental summit demonstrates the difficulty involved in isolating environmental concerns from the pursuit of growth. The WSSD has posed the question of the purpose of environmental protection in a world where many people are suffering still from poverty and disease. It is question worth asking.

Case Law

The development of international environmental law has been influenced by the decisions of the International Court of Justice and other tribunals that have tried to apply in practice the principles of international law.

The Corfu Channel case was brought before the ICJ by the United Kingdom in the aftermath of World War II. The case concerned the damage to ships and injuries to officers of the British navy by a minefield located in the Corfu Strait, allegedly planted by Albania. The United Kingdom claimed that the Albanian government knew about the minefield and failed to notify the British ships that were passing through the strait, exercising their right to innocent passage. The British government further claimed that the Albanian government should be required to make reparations because it breached its international obligation of notification. Albania, by contrast, claimed that it knew nothing about the minefield.

The Court concluded that the fact that the minefield had been recently laid and the fact that Albania had kept close watch on its territorial waters, during the time the minefield was set, rendered Albania’s lack of knowledge improbable. The Court took into account, as additional evidence of Albania’s knowledge, what happened after the minefield explosion – namely, that the Greek authorities had appointed a committee to inquire into the event whereas the Albanian government had not done so. The Court found that the Albanian government should have notified the British warships of the existence of the minefield. The Court mentioned that such an obligation was not necessarily based on an international treaty but: on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than war; the principles of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.

The pronouncement of the Court of every state’s obligation not to allow its territory to be used for acts contrary to the rights of other states has been repeated frequently in cases of polluting/hazardous activities that may have adverse affects on the territory of another state. Such obligation implies a duty of a polluting state to notify other states for acts that it knows happen within its territory and can adversely affect other states. The duty of notification, which has been repeated in many international environmental instruments, was initially articulated in the Corfu Channel case. It must be noted also that the Court referred to “elementary considerations of humanity” that made the conduct of Albania unlawful. Thus, humanity considerations, no matter how imprecise they sound, become a criterion for judging the behavior of states.

Another case with a clearer environmental focus is the Trail Smelter case. This case involved a dispute between the United States and Canada regarding the damage to United States territory inflicted by sulphur dioxide emissions from a smelting plant at the Consolidated Mining and Smelting Company of Canada at Trail, located in the British Columbia. In 1935, Canada and the United States agreed to submit the dispute to arbitration.

The tribunal concluded, after examining domestic and international law, that: under the principles of international law. . . no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.

This conclusion of the tribunal has been cited frequently in international environmental law writings as evidence of the establishment of the concept of state liability for environmental harm. However, it must be noted that the tribunal carefully stated that state liability applies only when “the case is of serious consequence” and that additionally the injury must be established “by clear and convincing evidence.”

Furthermore, in the Trial Smelter case, Canada had in some way acquiesced to pay some damages by virtue of the fact that it had paid damages before 1932 and had agreed to put the issue to arbitration.

The tribunal recognized the payment of damages for concrete cases of environmental harm but was not receptive of general claims for damage to the environment. The tribunal recognized damages for cleared and uncleared land using the standard established by the U.S. courts in cases of nuisance and trespass – that is, the amount of reduction in “value of use or rental value” of the land caused by the fumes.

The market value of the land was the criterion that was used, therefore, to establish the amount of damages and not some sort of evaluation of natural resources damage. The tribunal did not award damages for pastured lands, damage to livestock, and property damage in the town of Northport. The tribunal did not award damages to business enterprises. The tribunal concluded that some of these damages were too remote and uncertain and that the parties failed to provide proof. The tribunal did not award any damages for the injurious effects of the disposal of waste slag in the Columbia river, thus rejecting explicitly, a claim for pure environmental damages.

Although the tribunal was conservative in the award of damages, it played a more decisive regulatory role. The tribunal ordered Canada to establish controls on the emissions of sulphur dioxide by providing for maximum permissible sulfur emissions including detailed requirements for hourly emissions.

The Trail Smelter case has launched a discourse in international law about whether a standard of state responsibility or strict state liability has been established for polluting activities. If such a standard has been established the question is what the prerequisites are for the success of a claim of strict liability in international incidents of pollution. As analyzed earlier, the tribunal required that the polluting acts must be “of serious consequence” and that the injury must be established by clear and convincing evidence. These requirements set a high threshold for the establishment of a standard of state liability. Policy makers must clarify two points:

• The polluting activities must be “of serious consequence.” Because some form of pollution is part of everyday life, the amount and nature of pollution that is significant for the establishment of a strict liability claim under international law must be clearly established.

• There must be clear and convincing evidence of harm. This is a difficult requirement to meet, as the Trail Smelter case itself demonstrates. Most of the damage to environment is hard to establish, as the scientific evidence is often inconclusive.

The Lac Lanoux case involved a decision taken by France (an upstream state) to build a barrage on the Carol River for the purposes of hydroelectricity production.

France intended to divert the waters of the Carol River before returning them to Spain, where they would be used for agricultural irrigation. Spain claimed that the diversion of waters by France was against its interests, despite the eventual restitution of waters to their original destination. Because the restitution of waters was dependent on the will of France, Spain claimed that one party was preponderant in water management. Such preponderance was against the equality of the parties established in the water treaties that had been signed between the parties.

The tribunal held that although France is entitled to exercise its rights, it cannot ignore Spanish interests. Spain is entitled to demand that its rights are respected and that its interests are taken into consideration. But the tribunal held that taking into account Spain’s interests does not mean that France must seek an agreement with Spain before constructing works on shared river resources. The tribunal held that subjecting a state’s right to use its watercourses to the completion of a prior agreement with another state would give that other state essentially “a right to veto” that paralyzes the exercise of territorial competence of one State at the discretion of another state. The tribunal further stated: the rule according to which States may utilize the hydraulic force of international watercourses only on condition of a prior agreement between the interested States cannot be established as a custom, nor even less as a general principle of law.

The tribunal took into account that France held negotiations with Spain after which its positions had “undergone greater re-adaptation and even transformation.” The tribunal held accordingly that no matter how inconclusive those negotiations had been France must still give “a reasonable place to adverse interests in the solution it adopts.”

In the aftermath of the Lac Lanoux case, a new bilateral treaty was signed between France and Spain. A six-member commission was established to ensure that the agreement would be implemented. If Electricit´e de France is not able to deliver the amount of water agreed to Spain, France can take all necessary measures to resolve the situation including making reparations.

The Lac Lanoux case has been heralded as establishing the principle of prior consultation with another state before undertaking a project that has transboundary effects. Such a principle has been repeated in a number of international instruments, including the Environmental Impact Assessment (EIA) Convention. Other important legal issues are the principle of equity among coriparian states and the hypothetical conclusion of the case if Spain had argued that the French project inflicted damages on its territory. With regard to a possible environmental claim, the tribunal seems to have indicated that Spain would have had a stronger argument if it had proven that the French project was harmful – in terms of the adverse effects of the composition or temperature of waters diverted to Spain’s agricultural fields. With regard to the equity among coriparian states, the tribunal supported the sovereignty and ensuing rights of upstream states. But the tribunal concluded also that such sovereignty is not untrammeled as an upstream state has the duty to take into account, at least, the interests of downstream states by means of negotiation.

The Behring Sea Seals cases were the first cases that dealt with the protection marine mammals as early as in 1893213 and 1902. The question that was put in front of the tribunal was whether states had jurisdiction to enact conservation measures for the protection of marine mammals in the high seas. The tribunal rejected claims that states had such jurisdiction and declared the freedom of the high seas. However, the decision is interesting in that the tribunal encouraged states to adopt regulations to protect the seals. The tribunal actually proposed regulatory measures that prompted states to conclude agreements for the management of seal stocks.

The 1893 Behring Sea arbitration case arose out of years of controversies regarding the need to protect fur seals in the high seas in order to make conservation measures meaningful in the territorial waters. The United States decided to assert its claim against the United Kingdom for the protection of seals in the high seas by seizing British ships. The United States claimed that the industry that exploited seals had property rights over the seals and that these rights could be defended in the high seas by exercising the United States’ right to self-defense. The British government claimed that seals in the high seas, like other fisheries resources, could be exploited by all according to the principle of freedom of the high seas which includes the freedom of fishing. The tribunal sided with the United Kingdom, affirming the freedom of the high seas and denying state property rights on common property resources, but the tribunal mandated regulatory standards for the protection of seals. Later tribunals have been more willing to recognize more extensive rights of coastal states for the protection of high-seas fisheries.

The Oder and Meuse cases involve disputes regarding the use of transboundary rivers. The Oder case, which was brought before the Permanent Court of International Justice in 1920, examined the extent of jurisdictional reach of the International Commission of the River Oder put together by the coriparians to regulate the use of the river. According to the Polish position, the jurisdiction of the Commission stopped at the Polish border and did not extend to sections and tributaries of Oder that were situated within the Polish territory. The Court held that the basic concept that dominates this area of law, namely, navigable use of international watercourses, is that “of a community of interests of riparian States.” This community of interests leads in itself to a common legal right. The basic features of such a common right “are the perfect equality of all riparian States” in the use of the whole watercourse and “the exclusion of any preferential privilege of any one riparian state in relation to the others.” The Court held that the jurisdiction of the International Oder Commission extended to sections of Oder located within the Polish territory. The facts of the case restrict the case to the navigational uses of international watercourses. The case has been viewed, nevertheless, as a precursor of the principle of equitable utilization of water resources that was enunciated later in the 1997 UN Watercourses Convention.

Another case that deals with the apportionment of shared water resources is the Meuse case.In 1863, the Netherlands and Belgium had signed a treaty that would settle permanently and definitely the use of the Meuse for the purposes of canal irrigation and navigation. The treaty provided for one intake in the Netherlands territory that would be the feeder for all canals situated below the town of Maastricht. As the developmental needs of the two states became more acute, the parties tried unsuccessfully to enter into a new agreement in 1925. After the failure to reach an agreement, the Netherlands proceeded with the construction of new canals and barrages on the Meuse, and Belgium did the same. In their submissions to the Court, the parties asked the Court to declare each other’s works on the river to be in violation of the 1863 treaty. The Netherlands claimed that the treaty provided for the construction of only one intake that allowed it to control all intakes, including those located in the Belgian territory. The Court held that this would place the parties in a situation of legal inequality. In the absence of a treaty that establishes explicitly such inequality, the claim of the Netherlands, the Court argued, must be rejected. Eventually, the Court rejected both the claims of the Netherlands and the counterclaims of Belgium, and held that: As regards such canals, each of the two States is at liberty, in its own territory, to modify them . . . provided that the diversion of water at the treaty feeder and the volume of water to be discharged therefrom to maintain the normal level and flow . . . is not affected” [emphasis added].

The concurring opinion of Judge Hudson elucidates further the conclusions of the majority as he explicitly refers to the principle of equity between coriparian nations. The judge stated: “A sharp division between law and equity . . . should find no place in international jurisprudence. Based on the principle of equity, the Netherlands cannot ask Belgium to discontinue the operation of its lock when Netherlands is free to operate its own lock.

The judicial decisions on the use of watercourses demonstrate the importance of the principle of equity in the development of international law. The equity principle is certainly a fluid principle because what is equitable is determined by taking into account the circumstances of each case. Despite its fluidity, however, or because of it, the principle has played an important role in shaping perceptions of legitimacy in the allocation of common resources.

An ICJ advisory opinion on the legality of the use of nuclear weapons has been cited frequently as an affirmation of the principles of international environmental law stated in the Trail Smelter case. The General Assembly of the United Nations asked the Court to give an advisory opinion on the legality of use of nuclear weapons.

The Court rejected the argument that the use of nuclear weapons infringed on the right to life as stated in the Covenant on Civil and Political Rights. According to the Court, the arbitrary deprivation of life cannot be judged by simply using the Covenant but by referring also to the law applicable in armed conflict. States have  the right to self-defense, a right that does not preclude the use of nuclear weapons.

Having said that, the Court emphasized that: the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment.

The Court stated that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.

The Court further stated that, although environmental treaties do not deprive states of their right to self-defense, states: must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.

The Court concluded that international environmental law does not specifically prohibit the use of nuclear weapons but provides important environmental factors to be taken into account in the implementation of principles that apply to armed conflict. The Court stated that it could not reach a decision with regard to the legality or illegality of the use of nuclear weapons by a state in an extreme circumstance of self-defense in which the very survival of a state would be at stake. But the Court held that a threat of use or the use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and, in particular, to the principles and rules of humanitarian law. Thus, in addition to asserting the obligation of states to respect the environment of other states, when engaging in activities under their jurisdiction and control, the Court underlined the importance of environmental considerations in informing the principles of proportionality and necessity in the pursuit of armed conflict.

The Nuclear Tests cases have influenced the development of international environmental law, not for the eventual conclusions of the Court, but because of the dicta included in the Court’s ordering of provisional measures and the pleadings of the parties. In the Nuclear Tests cases, France was challenged by New Zealand and Australia for conducting nuclear testing in the Pacific that had allegedly adverse effects on their territory. In more detail, the governments of Australia and New Zealand asked the Court to declare that carrying further atmospheric tests in the South Pacific was not consistent with the rules of international law and violated their rights under international law. France did not appear in the proceedings and did not file any pleadings. France challenged the jurisdiction of the Court. During the course of Court deliberations on the jurisdictional issue, France declared its intention to stop atmospheric testing “under normal conditions” and to shift its operations underground. New Zealand and Australia objected that France’s declaration on the cessation of atmospheric testing did not offer sufficient assurance that nuclear testing would cease. Despite these objections, the Court concluded that the unilateral declaration of France to stop nuclear testing constituted an undertaking of an erga omnes obligation to stop such testing. The Court held that the dispute no longer existed and that proceeding with the case would have no meaning. Thus, the Court did not decide on the legality of nuclear testing.

Before proceeding with the question of jurisdiction, Australia and New Zealand had asked the Court to issue provisional measures for the cessation of atmospheric testing, which the Court did, putting a temporary injunction on nuclear testing. In taking these provisional measures, the Court took into account the claims of Australia and New Zealand regarding their right to “be free from atmospheric nuclear tests by any country.” In ordering the interim measures, the Court noted the claims formulated by the government of Australia, namely: (i) The right of Australia and its people, in common with other States and their peoples, to be free from atmospheric nuclear weapons tests by any country . . . ; (ii) The deposit of radioactive fall-out on the territory of Australia and its dispersion in Australia’s airspace without Australia’s consent: (a) violates Australian sovereignty over its territory; (b) impairs Australia’s independent right to determine what acts shall take place within its territory and in particular whether Australia and its people shall be exposed to radiation from artificial sources; (iii) interference with ships and aircraft on the high seas and in the superjacent airspace, and the pollution of the high seas by radioactive fall-out, constitute infringements of the freedom of the high seas [emphasis added].

Thus, one can detect from the claims of Australia an expectation that a state must obtain the consent of potentially injured states in the conduct of what may be perceived as ultra hazardous activities. And this is despite the claims of France that radioactive fallout from nuclear testing was so infinitesimal that it may be regarded as negligible. One of the dissenting judges in the case, Judge De Castro, stated that the case involves an application of the principle articulated in the Trail Smelter case according to which no state has the right to use its territory for activities that would cause injury in another state.

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