Upload
others
View
1
Download
0
Embed Size (px)
Citation preview
JUS5520 – International Environmental Law (IEL)
History and General Principles
Aled Dilwyn Fisher
Doctoral Research Fellow
Department of Public and International Law
HISTORY OF IEL
4 periods of IEL
1. 19th century bilateral fisheries treaties to WWII
2. Foundation of UN to 1972 Stockholm Conference
3. Stockholm to 1992 Rio Conference
4. Rio onwards
History of IEL – key themes
• Evolution led by particular actors (also lawyers!) & organisations in particular areas – internally & dialectally related to ‘domestic’/regional politico-economic developments (particularly changing role of states)
• Increasing institutionalisation (UN & regional) & codification
• Tension between specialisation & integration
• Contradictory developments – conservation vs. ‘environmentality’
PRINCIPLES OF IEL
WHAT IS A ‘LEGAL PRINCIPLE’?
WHAT IS AN IEL PRINCIPLE?
Principles of IEL
• No UDHR or ICCPR/ICESCR, nor single
judicial authority
• IEL principles therefore rely on
– State practice (treaties, other legal acts)
– Tribunals’ interpretation
– Guidance documents
• Sources not hierarchical in development –
more iterative/dialectical process
Principles of IEL
• Some customary law, others are emerging
obligations, but must enjoy broad support
• Principles of general law? Principles of
international law? Principles of just IEL, or
areas of it? Highly context-specific
• Recent incorporation into treaties, e.g.
UNFCCC, though e.g. US opposed inclusion
of ‘Principles’ section & watered down
section
1. Sovereignty over natural resources
and prohibition of transboundary harm
1a. Sovereignty over natural resources
• Permanent sovereignty over natural
resources (1962 UN GA Res. 1803) – post-
colonial development, state-private relations;
customary law; rights and obligations?
• 1893 Fur Seal 1991 Tuna-Dolphin
• 1998 Shrimp/Turtle – recognised “sufficient
nexus” between migratory endangered
turtles, allowing US interest in conservation
1a. Sovereignty over natural resource
• Possible justifications for states to exercise
extra-territorial jurisdiction over
environmentally-harmful activities?
• E.g. “Nationality principle” (apply “home
state” standards to e.g. MNCs’ activities
abroad) but controversial, especially in trade
1b. Prohibition of transboundary harm
• 1939/1941 Trail Smelter
“No state has the right to use or permit the
use of territory in such a manner as to cause
injury by fumes in or to the territory of
another of the properties or persons therein,
when the case is of serious consequence
and the injury is established by clear and
convincing evidence”
1b. Prohibition of transboundary harm
• 1939/1941 Trail Smelter
“No state has the right to use or permit the
use of territory in such a manner as to cause
injury by fumes in or to the territory of
another of the properties or persons therein,
when the case is of serious consequence
and the injury is established by clear and
convincing evidence”
1b. Prohibition of transboundary harm
• 1939/1941 Trail Smelter
“No state has the right to use or permit the
use of territory in such a manner as to cause
injury by fumes in or to the territory of
another of the properties or persons therein,
when the case is of serious consequence
and the injury is established by clear and
convincing evidence”
1b. Prohibition of transboundary harm
• 1939/1941 Trail Smelter
“No state has the right to use or permit the
use of territory in such a manner as to cause
injury by fumes in or to the territory of
another of the properties or persons therein,
when the case is of serious consequence
and the injury is established by clear and
convincing evidence”
1b. Prohibition of transboundary harm
• 1939/1941 Trail Smelter
“No state has the right to use or permit the
use of territory in such a manner as to cause
injury by fumes in or to the territory of
another of the properties or persons therein,
when the case is of serious consequence
and the injury is established by clear and
convincing evidence”
1b. Prohibition of transboundary harm
• 1939/1941 Trail Smelter
“No state has the right to use or permit the
use of territory in such a manner as to cause
injury by fumes in or to the territory of
another of the properties or persons therein,
when the case is of serious consequence
and the injury is established by clear and
convincing evidence”
1b. Prohibition of transboundary harm
• Relates to good-neighbourliness principle
– UN Charter Art. 74
– ICJ 1949 Corfu Channel, 1957 Lac Lanoux, etc
• 1961 UNGA Res. 1629
“Fundamental principles of international law
impose a responsibility on all states
concerning actions which might have harmful
biological consequences for the existing and
future generations of peoples of other states”
• Follow-up in nuclear test ban treaties
1b. Prohibition of transboundary harm
• Stockholm Declaration Principle 21/Rio
Declaration Principle 2:
“States have… the sovereign right to exploit
their own resources pursuant to their own
environmental and development 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”
1b. Prohibition of transboundary harm
• Stockholm Declaration Principle 21/Rio
Declaration Principle 2:
“States have… the sovereign right to exploit
their own resources pursuant to their own
environmental and development 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”
1b. Prohibition of transboundary harm
• Few states have relied on rule as reflected in
Principle 21/2 – difficulty establishing state
practice
• But does reflect evolving practice in UNGA
resolutions, Charter of Economic Rights and
Duties of States Art. 30, & incorporation in
treaties e.g. UNFCCC
• 1995 – described as “well established”
customary law in NZ’s submission to ICJ; not
opposed by France & repeated in dissenting
opinion
1b. Prohibition of transboundary harm
• 1996 ICJ Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons:
“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”
1b. Prohibition of transboundary harm
• 1996 ICJ Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons:
“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”
1b. Prohibition of transboundary harm
• Application depends on environmental
damage, which kinds are prohibited,
standard of care, consequences of violation
(“serious”) etc – what can we do in absence
of international rules, e.g. climate change?
• Lack of state practice – general principle,
rather than custom?
• Allows adverse effects on states’ own
environments?
• Is this an environmental principle?
2. Cooperation
• UN Charter Art. 74
• State practice & inclusion in treaties,
especially hazardous activities
• Stockholm Principle 24, Rio Principle 27,
underscored in numerous cases, etc
• General obligation to cooperate and specific
techniques of cooperation, e.g. participation
in decision-making, information sharing, etc
2. Cooperation
• Central issue in ICJ 1997 Gabcikovo-
Nagymaros – but ICJ did not address
detailed obligations principle entails
• ITLOS 2001 MOX – Ireland complained UK
had failed to cooperate under UNCLOS;
ITLOS affirmed duty to cooperate under
treaty & general international law; ordered
consultations between countries on
exchange of information, monitoring &
prevention measures
3. Common heritage of (hu)mankind
• Areas beyond national jurisdiction & aspects
of humanity’s common environmental &
cultural heritage should be held in trust for
future generations
• Non-appropriation (state or private),
international management & peaceful (e.g.
scientific) use
• Relates to commons – e.g. internet
3. Common heritage of (hu)mankind
• 1959 Antarctica Treaty preamble: In the interest of all mankind…
• 1967 Outer Space Treaty preamble: Recognizing the common interest of all mankind…
• 1982 UN Convention on the Law of the Sea Art. 136 under “Principles governing the Area” (seabed, ocean floor & subsoil thereof): The Area and its resources are the common heritage of mankind
• Atmosphere? “Common concern of (hu)mankind” (UNFCCC preamble)
4. Polluter pays principle
• 1972 OECD Council Recommendation –
limited to costs of public measures to protect
environment, e.g. reflected in goods/services;
subsidies to offset measures not allowed
• 1975 – EC Council Recommendation;
applied to measures to “eliminate” or
“reduce” pollution
• 1989 OECD Council Recommendation –
extended to costs of measures to
prevent/control accidental pollution
introduced prior to accidents, e.g. taxes
4. Polluter pays principle
• 1986 – amendment to EEC treaty
• Especially civil/state liability from
nuclear/hazardous waste treaties – “general
principle” of IEL in e.g. 1992 Industrial
Accidents Convention
• Tension between ‘prevention’ & ‘cure’
• Many states see it as applying domestically,
not internationally
5. Preventative action
• PCA 2005 Iron Rhine – “principle of general
international law”
• ICJ 2010 Pulp Mills – to “avoid” significant
damage customary rule; “due diligence”
includes monitoring of public & private
operators
• Takes transboundary harm principle further –
minimising environmental damage goal in
itself; can also prevent environmental
damage within states’ own jurisdictions
6. Precautionary principle
• Referred to as “precautionary approach” by
e.g. US – have watered down treaties
• Rio Principle 15:
“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”
• CBD does not require “serious” or
“irreversible” damage – but UNFCCC does,
and mentions “cost effective” measures
6. Precautionary principle
• Referred to as “precautionary approach” by
e.g. US – have watered down treaties
• Rio Principle 15:
“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”
• CBD does not require “serious” or
“irreversible” damage – but UNFCCC does,
and mentions “cost effective” measures
6. Precautionary principle
• Referred to as “precautionary approach” by
e.g. US – have watered down treaties
• Rio Principle 15:
“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”
• CBD does not require “serious” or
“irreversible” damage – but UNFCCC does,
and mentions “cost effective” measures
6. Precautionary principle
• Referred to as “precautionary approach” by
e.g. US – have watered down treaties
• Rio Principle 15:
“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”
• CBD does not require “serious” or
“irreversible” damage – but UNFCCC does,
and mentions “cost effective” measures
6. Precautionary principle
• Referred to as “precautionary approach” by
e.g. US – have watered down treaties
• Rio Principle 15:
“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”
• CBD does not require “serious” or
“irreversible” damage – but UNFCCC does,
and mentions “cost effective” measures
6. Precautionary principle
• Shifts burden of proof to polluters? 1992
OSPAR Convention, ICJ 1995
Weeramantry’s dissenting opinion, etc – but
rejected in Pulp Mills
• Invoked in Gabcikovo-Nagymaros by both
states – concerned law as it was in 1989,
when precautionary principle was
underdeveloped, & judgment conceded
correct application of law from 1989 or 1992
could be miscarriage of justice in 1997
6. Precautionary principle
• ITLOS open to principle
– MOX – judgment had precautionary character
referencing prudence etc
– Advisory Opinion on Responsibilities and
Obligations in the Area – applies to certain
substances; suggested principle’s inclusion in
treaties has “initiated a trend towards making this
approach part of customary international law”
6. Precautionary principle
• WTO Appellate Body Beef Hormones – EU
argued precautionary principle is customary
law or at least general principle of law; US
rejected this; panel refrained from opinion on
precautionary principle, said it did not
override SPS Agreement Articles 5.1 & 5.2
• Risk/impact assessment?
6. Precautionary principle
• Inter-American Commission on Human
Rights – precautionary measures in 2003
San Mateo de Huanchor vs Peru
• European Court of Human Rights 2009 Tatar
vs Romania – invoked in Article 8 violation
• Indian Supreme Court 1996 Vellore –
essential feature of sustainable development
& thus customary law
• State practice suggests customary status,
especially EU; still concern over implications
7. Sustainable development
• 4 elements:
– Intergenerational equity
– Sustainable use
– Equitable use (intragenerational equity)
– Integration of environment & development
• No well agreed definition or status – custom?
• Procedural (Gabcikovo-Nagymaros “looking
afresh”) & substantive elements
• WTO preamble – Shrimp/Turtle
7a. Future generations
• Trusteeship – Fur Seal & treaties
• Stockholm Principle 1 – link to rights
• Rio Principle 4 – link to right to development
• Advisory Opinion on the Legality of the
Threat and Use of Nuclear Weapons –
“generations unborn”
• Future generations’ rights used to enhance
legal standing of present generation; e.g.
Urgenda climate action in the Netherlands
7b. Sustainable use
• Rio linked environmental with economic &
development law – explicit in UN Millennium
Declaration/MDGs
• Links to terms “conservation,” & “rational,”
“wise,” “sound,” “optimal” or “appropriate”
use
• Again, not absolutes & require interpretation
– e.g. fjord dumping in Norway
7c. Equitable use (intragenerational
equity)
• “Conveniently flexible means of leaving the
extent of rights & obligations to be decided at
a subsequent date” – explains frequent use
• Equity in emissions rights seen in Montreal
Protocol & UNFCCC, while also mentioned in
terms of sharing genetic resources’ benefits
in CBD
7d. Integration of environment &
development
• Iron Rhine – confirmed requirement
• Most justiciable aspect?
• Requires environmental information, impact
assessments, PPP etc
• Different commitments based on historic
responsibility?
• 1949 UNCCUR made first link between
conservation & development
7d. Integration of environment &
development
• Stockholm Principle 13 – “integrated & co-
ordinated approach”
• Addresses “constitutional problem” of UN
set-up – after Rio Principle 4, World Bank,
WTO, investment law, etc address
environmental issues
• Right to development as compromise?
– US opposed
– UNFCCC Art. 3(4) – “a right to and should,
promote sustainable development”
7d. Integration of environment &
development
8. Common but differentiated
responsibilities (CBDR)
• Stems from commons principles, equity,
states’ PPP-based admission etc
• Article 3(1) of UNFCCC:
Parties should protect the climate system…
on the basis of equity and in accordance with
their common but differentiated
responsibilities and respective capabilities…
developed country Parties should take the
lead…
8a. Common responsibilities
• Earlier treaties noted e.g. fish were “of
common concern” to states
• 1992 UNFCCC preamble:
… Change in the Earth's climate and its
adverse effects are a common concern of
humankind…
8b. Differentiated responsibilities
• Stockholm – avoided standards valid for
‘developed’ but difficult for ‘developing’ states
• 1974 Charter of Economic Rights and Duties
of States – link to ‘developing’ states
• Reflected in less stringent obligations; grace
periods, financial & technological transfer etc
• Key in Rio Declaration, UNFCCC & CBD
8b. Differentiated responsibilities
• ITLOS Advisory Opinion on Responsibilities
and Obligations in the Area – rejected
general applicability of differentiated
responsibility to avoid MNCs relocating to
areas of lower standards
• Blamed for lack of progress in UNFCCC
• “Respective capabilities” forgotten?
CONCLUSION
Conclusion
• Principles contested because:
– Recent emergence
– Divisions over meaning in practice
– State practice still evolving nationally and
internationally
• Principles that will determine IEL’s role in
international relations:
– Sustainable development’s principle of integration
– Precautionary principle