Download 1 INTERNATIONAL ENVIRONMENTAL LAW V. Key Concepts of

Prof. Dr. Nele Matz-Lück
WS 2013/2014
INTERNATIONAL ENVIRONMENTAL LAW
V. Key Concepts of International Environmental Law
1. “No harm”

each State has the sovereign right to exploit its own natural resources

in principle, if not subject to restrictions of international environmental law
entered into by the relevant State, this includes damages to the environment,
i.e. a State can allow for the (over)exploitation of fish in a national lake even if
that results in irreversible damage to the lake’s ecosystem; likewise a State can
mine and process oars and metals on its territory, even if that includes the
destruction of the soil and results in fumes with local or national (in any case
non-transboundary) damage

originally – based upon absolute territorial sovereignty – the Harmon Doctrine
allowed the use of a State’s territory even in a way that harmed the territory of
its neighbours

the Trail Smelter arbitration is a milestone in the recognition of a prohibition
of significant transboundary damage resulting from the use of a State’s
territory
o Facts:

Canada operated a zinc and lead smelter on its territory since
1896

the operation resulted in fumes that caused damage to US
territory

case brought to arbitration in 1935

the arbitral tribunal had to answer inter alia the questions
whether damage caused by the Trail Smelter occurred in the
State of Washington after January 1932 and to what extent
there should be compensation if the answer was positive

final settlement in 1941
o With regard to permissible conduct on a State’s own territory the
tribunal finds: “that the above decisions, taken as a whole, constitute
an adequate basis for its conclusions, namely, 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
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persons therein, when the case is of serious consequence and the injury
is established by clear and convincing evidence.”
o while the decision was restricted to “fumes” the underlying principle
was accepted for any kind of serious harm to neighbouring States

where the arbitration award in the Trail Smelter case speaks of a prohibition of
“serious” transboundary harm, this notion later evolved into a prohibition of
“significant” transboundary harm

some scholars trace its history back to the Roman principle sic utere tuo ut
alienum non laedas

while the Stockholm Declaration in Principle 21 (= Principle 2 Rio
Declaration) repeats the findings of the Trail Smelter Arbitration it adds that
activities on the territory of a State shall neither cause damage to areas beyond
national jurisdiction
o 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.”

the essence of the principle of “no harm” is today widely recognized as
customary international law, yet– as in Trail Smelter – not all damages are
prohibited but only those qualified as “serious” or “significant”; these terms
are open to interpretation

the principle has generated a variety of procedural duties, e.g. the obligation to
immediately warn the neighboring States if environmental disasters occur on
one’s territory which can have a transboundary effect (e.g. in the case of the
pollution of rivers, the sea or in the case of nuclear accidents); the duty to
perform environmental impact assessment (EIA) in the planning phase of
projects with likely transboundary implications (see below)
2. Polluter pays

Rio Principle 16: “National authorities should endeavour to promote the
internalisation of environmental costs and the use of economic
instruments, taking into account the approach that the polluter should, in
principle, bear the costs of pollution.“

the principle that the polluter pays finds its roots in the Trail Smelter
arbitration as well

while the idea seems persuasive its implementation is not as easy many as one
would think initially
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
the identification of the polluter may be difficult, particularly if different
polluters contribute and evidence for causation is lacking

the polluter may not be able to cover the costs

damages to the environment may be hard to numeralize if not amounting to
economic damage (e.g. to fishermen or losses by the tourism industry);
Examples: What is the value of an ecosystem that has been destroyed? What is
the value of birds dying because of oil pollution? Who should get
compensation which exceeds the costs for clean-up activities? How can
irreversible damages be compensated? (If the polluter does not have to pay for
irreversible damages, e.g. because clean-up is impossible, he would have an
advantage over a polluter that causes serious but not irreversible damage and
has to cover the relevant costs!)
3. Precautionary principle

the history of the precautionary principle starts in northern European policies
in the 1970s and culminated via the European Union into Rio Principle 15:
“In order to protect the environment, the precautionary approach shall
be widely applied by States according to their capabilities. 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 degradation.”

the principle consists of a so-called tripod of threat of environmental harm,
uncertainty and action

it serves as a basis for early action to address potentially serious
environmental damage in the light of scientific uncertainty with regard to the
threats to the environment

in other words: activities can be prohibited to save the environment even if it
has not ultimately been proven that there is a causal link between the behavior
and the damage; this is particularly important on the national level when the
State has to justify prohibitions and restrictions imposed on industrial
processes or other behavior by non-state actors

formulated in a weak way, the principle might also be called “precautionary
approach” and the Rio Declaration as well as decisions by international
tribunals have done so to avoid indications that the principle is a rule of
customary international law; it seems however questionable if there are
substantial differences between a principle and an approach with regard to the
quality as binding law which is a question not depending upon the
denomination

States should take precautionary measures according to their capabilities; the
precautionary principle is therefore a due diligence obligation
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
The Convention on the Protection of the Ozone Layer and its Montreal
Protocol are examples of the implementation of the precautionary principle
because they required action on part of the states before the causal link
between ozone depletion and CFCs had been conclusively demonstrated.

other treaties in which the principle is reflected: Art. 3(1) London Dumping
Convention; Preamble to the 1994 Sulphur Protocol; Preamble Convention on
Biological Diversity; Art. 3(3) United Nations Framework Convention on
Climate Change

the principle can have implications for the burden of proof:
o generally courts have taken the view that a party alleging a risk of
serious environmental harm has to adduce enough evidence to
establish at least a prima facie case (see Pulp Mills case before the
International Court of Justice)
o the precautionary principle could modify the duties of the party

there are circumstances where activities become impermissible unless it can
be shown that they will not cause harm to the environment (1996 Protocol to
the London Dumping Convention; Moratorium on Whaling in the Schedule to
the International Convention on Whaling)

problems of the concept:
o there is still uncertainty about whether the precautionary principle is a
rule of customary international law, although the 2011 Seabed Dispute
Chamber advisory opinion of the International Tribunal for the Law of
the Sea points certainly in that direction.
o there are still uncertainties as to the meaning, application and
implementation and questions relating to what level of risk is socially
acceptable and which measures shall be adopted
o some dilemmas cannot be solved by reference to the precautionary
principle, e.g. the question whether to engage in geoengineering (one
perspective would be to prohibited any human intervention into
climate patterns by referring to the risk of irreversible damage even if
scientific evidence is lacking, while the reverse perspective could be to
take all possible measures to prevent further global warming even if
evidence on the risks are lacking because potentially a further rise in
global temperature bears irreversible damage)
4. Sustainable development

the Brundtland Commission stated in its report “Our Common Future” that
sustainable development is a process that “meets the needs of the present
without compensating the ability of future generations to meet their own
needs”
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
the idea consequently has an anthropocentric basis with an intergenerational
component

the 2002 World Summit on Sustainable Development in Johannesburg
clarified that sustainable development consists of economic development,
social development and environmental protection

Principle 3 Rio Declaration: “The right to development must be fulfilled so as
to equitably meet development and environmental needs of present and future
generations”

Principle 4 Rio Declaration: “In order to achieve sustainable development,
environmental protection shall constitute an integral part of the development
process and cannot be considered in isolation from it.”

elements of sustainable development:
o integration of environmental protection and economic development
(e.g. Principle 4 Rio Declaration, Principle 13 Stockholm Declaration,
Johannesburg Declaration)
o right to development (e.g. Principle 3 Rio Declaration)
o conservation and sustainable use of natural resources: co-operation in
order to avoid over-exploitation and permanent loss of some categories
of internationally significant resources (e.g. World Charter for Nature,
Convention on Biological Diversity)
o intergenerational equity: fair allocation of costs and benefits along
future generations (e.g. Principle 3 Rio Declaration; Art. 3(1) UN
Framework Convention on Climate Change; Brundtland Report; the
Convention on the Protection of the Ozone Layer as a whole is also an
expression of the concept)
o intragenerational equity: redressing the imbalance in wealth and
economic development between the developed and developing worlds
by giving priority to the needs of the poor (recognized e.g. by Principle
5 Rio Declaration; Art. 15(7) Convention on Biological Diversity)

the main problem of concept seems to be the lack of consensus on the exact
meaning, on the weighing of factors, on how to give it concrete effect in
individual cases

cases where the concept has been invoked:
o ICJ, Gabčikovo-Nagymaros Case (Hungary vs. Slovakia)

in the Gabčikovo-Nagymaros case the ICJ considered
sustainable development as an expression of the “need to
reconcile economic development with the protection of the
environment”
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
In the view of the court the parties to the case should “together
… look afresh at the effects on the environment of the
operation of the Gabčikovo power plant”.

in substance, however, the Court preferred to address questions
such as the equitable allocation of water flow and applicability
of international environmental standards in the operation of the
hydroelectric system
o African Commission on Human and People’s Rights, “Ogoniland”
case

Art. 24 of the African Charter on Human and Peoples Rights
knows a right to “a general satisfactory environment favorable
to their development”

in 2001, the African Commission on Human and Peoples’
Rights concluded the consideration of a communication under
Article 55 of the African Charter on Human Rights and
Peoples’ Rights which dealt with alleged violations of human
rights of the Ogoni people in Nigeria.

Facts: the Nigerian State oil company formed a joint
venture with Shell whose activities in the Ogoni region
caused environmental degradation and serious health
problems among the Ogoni people, resulting from the
contamination of the environment

in March 1996, a complaint was lodged by two nongovernmental organisations

the complaint alleged that the military government of
Nigeria had been directly involved in irresponsible oil
development practices in the Ogoni region.

the Commission found that right of peoples to freely dispose of
their natural resources had been violated as well as their right to
an “ecologically sustainable development”

in dealing with the communication, the Commission was
praised for taking a firm and dynamic approach that was
expected to contribute to a better and more effective protection
of economic, social and cultural rights in Africa
5. Common but differentiated responsibilities

this principle finds its origin in the post-colonial divide between North and
South
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
it developed after the 1972 United Nations Conference on the Human
Environment in Stockholm within the setting of the New International
Economic Order of the 1970s

Principle 7 Rio Declaration lays down the principle as follows:
o “States shall cooperate in a spirit of global partnership to conserve,
protect and restore the health and integrity of earth’s ecosystem. In
view of the different contributions to environmental degradation,
States have common but differentiated responsibilities. The developed
countries acknowledge the responsibility that they bear in their
international pursuit of sustainable development in view of the
pressures their societies place on the global environment and of the
technologies and financial resources they command.”

the Framework Convention on Climate Change provides that the parties
should act to protect the climate system „on the basis of equity and in
accordance with their common but differentiated responsibilities and
respective capacities“.

two elements:
o common responsibility for the protection of the environment at the
national, regional and global level
o differing circumstances in regard to contribution and ability to
prevent, reduce and control the threat

many international treaties recognize that certain resources or spaces are of
common concern and require the acceptance of common responsibilities, e.g.
recognition of fish stocks as a common concern, waterfowl as international
resource, natural heritage as part of the world heritage of mankind as a whole,
plant genetic resources as a heritage of mankind

the principle of common but differentiated responsibilities represents an
equitable balance between developed and developing States in two senses:
o different standards for developing states on the ground that developed
states have contributed most to causing global environmental problems
and that they possess greater capacity to respond (Art. 4 United
Nations Framework Convention on Climate Change; Art. 5 Montreal
Protocol)
o already the Stockholm Declaration in Principle 23 acknowledged the
need to consider “the applicability of standards which are valid for the
most advanced countries but which may be inappropriate and of
unwarranted social costs for the developing countries”
o performance of developing states is dependent on the provision of
solidarity assistance by developed states
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o some MEAs contain a clause on obligatory assistance (Art. 4(5) United
Nations Framework Convention on Climate Change; Art. 10A
Montreal Protocol, Art. 16 Convention on Biological Diversity).
o conditionality: obligations of the developing states to comply with
Conventions will depend upon the effective implementation of
provisions relating to financial assistance and transfer of technology by
developed states (Art. 4(7) United Nations Framework Convention on
Climate Change; Art. 10 Montreal Protocol; Art. 20(4) Convention on
Biological Diversity, Agenda 21 Chapter 17(2))
o the principle does not find any application in treaties where common
international standards are essential for international regulation, such
as: MARPOL 73/78; 1996 London Dumping Convention; 1973
Convention on International Trade in Endangered Species

further examples for different standards:
o many environmental treaties qualify obligations with regard to
States’ capabilities, e.g. the CBD, UNCLOS preamble
o differing legal standards e.g. grace periods concerning compliance or
reporting requirements
o Kyoto Protocol: distinction between so-called “Annex I States” and
other States because of historic contributions and capabilities → in the
light of pressing problems with global warming such differentiations
are difficult to balance with common responsibilities; the variety of
funds in the climate change regime, e.g. the Climate Change
Adaptation Fund for the financing of projects in developing countries
to cope with a changing environment due to a rise in global
temperature, are examples for standards that differentiate between
developed and developing countries
6. Environmental Impact Assessment

one of the procedural obligations stemming from the „no harm“-rule

ESPOO-Convention on EIA in a Transboundary Context (1991)

relevant on the national level and in a transboundary context

in essence a State has to evaluate the (transboundary) impacts of a large-scale
project and evaluate possible alternatives with lesser impacts and other options
to minimize negative effects

the more important a project is economically, the more likely a project will be
realized despite significant environmental impacts, e.g. if alternatives have
been evaluated but the only economically feasible place for a paper mill which
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is vital for the State’s economy is in the woods, the project can be realized
despite the need to deforestate and destroy the habitat of rare species

the procedure of an EIA is rather to balance economic interests against
environmental considerations and identify the option with relatively minimal
impacts than to prohibit industrial projects already in the planning phase

the ICJ in the Pulp Mills on the River Uruguay Case emphasized that there is a
duty under customary international law to undertake an EIA for a project
likely to result transboundary effects
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