JUS5520 International Environmental Law (IEL) History and … · JUS5520 – International Environmental Law (IEL) History and General Principles Aled Dilwyn Fisher Doctoral Research

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”















































• 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


• 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”


• 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”


• 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


• 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”


• 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”


• 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


















































• 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


• 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”


• 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?


• 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

https://youtu.be/GQfa-htZVC0

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

http://www.theguardian.com/environment/2014/nov/19/conservationists-slam-plans-to-dump-mining-waste-into-norwegian-fjord

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


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”


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

Documents

JUS5520 International Environmental Law (IEL) History and … · JUS5520 – International Environmental Law (IEL) History and General Principles Aled Dilwyn Fisher Doctoral Research