Download 3. Principles

Principles in IEL
Christina Voigt
International Environmental Law
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 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
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Sustainable Development
Common Heritage of Mankind
Common Concern
Common But Differentiated Responsibilities
Polluter Pays Principle
Precautionary Principle
Sovereignty over Natural Resources
Prohibition of Transboundary Harm (sic utere)
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.”
“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.)
Discussion on Rio+20
• Soft law document
• No new international law
• Importance of sustainable development
– Integration
– Balancing
• Institutional Arrangements: Commission on
Sustainable Development /UNEP/General
Assembly
• Common Heritage of Mankind
• Common Concern
• Common But Differentiated
Responsibilities
• 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: “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
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to dispose freely of the natural resource
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to freely explore and exploit natural resources
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to regain effective control and to compensation for damage
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to use natural resources for national development
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to manage natural resources pursuant to national
environmental policy
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to an equitable share in benefits of transboundary natural
resources
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to regulate foreign investment
to expropriate or nationalize foreign investment (right to
determine the conditions of nationalization and the amount of
compensation)
Duties under the Principle:
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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) AJIL 684
19
“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
20
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
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Relationship between the two
principles?
• Can pull in different directives
• No absolute sovereignty (Sovereignty pervaded with
environmental concerns)
• No absolute territorial integrity
• Balance between rights and responsibilities of states
• New concepts such as economic security, ecological
protection and SD involve a redefinition of
sovereignty
• Evolution into a commitment to co-operate for the
good of the international community
• Protection of the State’s own environment?