Principles in IEL (in particular sustainable development,

sovereignty over natural resources and the prohibilition of transbundary harm)

Christina Voigt

International Environmental Law

Recap 2nd lecture

1. Give examples of (at least) three challenges that environmental law has to deal with.

2. What was the Trial Smelter Arbitration about?

3. Which binding and non-binding documents were the results of UNCED?

4. Give three examples of cases decided/ advisory opinions given (or contentious) by the ICJ that deal with environmental disputes.

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What are Principles?

• Norms of general application

– Do not necessitate an outcome/decision/action

– Must be taken into account as a consideration

– Interpretation

– Impact on future development

– In treaty law: guide the implementation of that treaty (Art. 3 UNFCCC, Art. 3 CBD) and the negotiation of further protocols/COP decisions

…and where are they?

1. Customary principles (opinio juris + state practice)

– Prohibition of transboundary harm (Nuclear Weapons, 1996)

“29. The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes 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.”

…and where are they?

– Prevention (Pulp Mills, 2010)

• “101. The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this obligation “is now part of the corpus of international law relating to the environment” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29).»

…and where are they?

2. General principles

• «the concept of a “recognized” general principle seems

to conform more closely than the concept of custom to the

situation where a norm invested with strong inherent

authority is widely accepted even though widely violated’. (B.

Simma and P. Alston, ‘The Sources of Human Rights Law:

Custom, Jus Cogens and General Principles’ (1991) 12 AYbIL,

102)

• Examples: Good faith, pacta sunt servanda, prohibition of

transboundary harm (?), sustainable development (?)

…and where?

• 3. Treaties:

– Art. 2 UNFCCC, Art. 3 CBD (read!)

Principles in IEL

1. Sustainable Development

2. Common Heritage of Mankind

3. Common Concern

4. Common But Differentiated Responsibilities

5. Polluter Pays Principle

6. Precautionary Principle

7. Sovereignty over Natural Resources

8. Prohibition of Transboundary Harm (sic utere)

9. Prevention

Principles in IEL

• Sustainable Development

«Development that meets the need of the present without compromising future generations to meet their own needs»

CASE CONCERNING

THE GABCIKOVO-NAGYMAROS PROJECT

(HUNGARY/SLOVAKIA)

JUDGMENT OF 25 SEPTEMBER 1997

“140. The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.

Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.

For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.”

Sustainable Development

• Intergenerational equity

• Sustainable use

• Equitable use or intragenerational equity

• Principle of integration

“perhaps it is inevitable that content and contours of an integrative concept such as that of sustainable development which was endorsed by the world community as a whole, lacks the kind of clarity of articulation of concepts one might be accustomed to in a more limited, homogenous group of States. However, that needs not necessarily be considered a disadvantage. Indeed, it may well have been the very lack of conceptual rigor which permitted the entire world community to embrace it.” (B. Simma, ‘Foreword’ in N. Schrijver and F. Weiss (eds.) International Law and Sustainable Development: Principles and Practice (Leiden: Martinus Nijhoff, 2004) vi.)

Please discuss!

1. Prior to this course, where have you heard about sustainable development?

2. In your opinion, can sustainable development be a meaningful and effective principle?

3. What do you think about its potential as a legal principle?

• Common Heritage of Mankind

• Common Concern of Humankind

• Common But Differentiated Responsibilities and Respective Capabilities

• Polluter Pays Principle

Precautionary principle

• Art. 15 Rio Convention

• «Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental damage.»

Permanent Sovereignty over Natural Resources

• Each state has exclusive jurisdiction within its territory and people to - adopt laws (legislative sovereignty) - enforce them - administer the territory - judge disputes that arise therein - exclude other states from exercising - sovereign rights (unless agreed on by contract)

• Evolution

• Natural Resources/economic principle

• Conflict of interest between capital exporting and capital importing nations

• Focus on natural resource management, UN Resolution 1803 (1962): “the right of peoples and nations to permanent sovereignty must be exercised in the interest of their national development and of the well-being of the people of the State concerned”, “The exploration, development and disposition of such resources as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable”; “inherent and overriding right of a state to control the exploitation and the use of its natural resources”

Rights under the Principle

– to dispose freely of the natural resource

– to freely explore and exploit natural resources

– to regain effective control and to compensation for damage

– to use natural resources for national development

– to manage natural resources pursuant to national environmental policy

– to an equitable share in benefits of transboundary natural resources

– to regulate foreign investment

– to expropriate or nationalize foreign investment (right to determine the conditions of nationalization and the amount of compensation)

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Duties under the Principle: • Exercise permanent sovereignty over natural resources

for national development and the well-being of the people (UN Res. 1803/XVII, 1962)

• Respect the rights and interests of indigenous people • Co-operate for international development? • Equitable sharing of transboundary natural resources • Fair treatment of foreign investors • Conservation and Sustainable Use of natural resources

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Prohibition of Transboundary Harm

“[u]nder the principles of international law as well as of the law of the United States, 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 state or the persons or properties therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” Trail Smelter Arbitration (US v. Canada) (1939) 33 AJIL 182 and (1941) 684

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“29. The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes 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.” ICJ: 8 July 1996, LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS, Advisory

Opinion

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Principle 21 Stockholm Declaration:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

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Principle 2 Rio Declaration: “States have, in accordance with the Charter of

the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

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3 conditions : - The harm must result from human activity - Must cross national boundaries - Must be significant or substantial

Relationship between the two principles?

• Can pull in different directives

• No absolute sovereignty (Sovereignty pervaded with environmental concerns)

• No absolute prohibition of transboundary harm (threshold: serious harm)

• Balance between rights and responsibilities of states

• Evolution into a commitment to co-operate for the good of the international community

• Protection of the State’s own environment?