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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 1 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 2 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 3 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” 4 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” 5 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 6 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 7 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 8 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 9