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International environmental law.

Module A: General aspects of international environmental law I.

Chapter 5: General principles of international environmental law.

Taxonomy
Viñuales citing Nicaragua v Costa Rica ICJ 2015 para 104: due diligence, prevention, cooperation (notification and consultation), env. impact assessment, confirming 1996 Advisory Opinion on Nuclear Weapons and 2010 Pulp Mills.

Dupuy and Viñuales chapter 3:
 * Principles and concepts: Iron Rhine (Belgium/Netherlands) 2005 Permanent Court of Arbitration
 * Prevention
 * Substantive principles
 * "No-harm" principle (+sovereignty; Stockholm 21, Rio 2)
 * Prevention principle (Stockholm 6, 7, 15, 18, 24; Rio 11, 14, 15)
 * Precautionary principle (approach; Rio 15)
 * Procedural principles
 * Cooperation, notification, consultation (Rio 19)
 * Prior informed consent
 * Environmental impact assessment (Rio 17)
 * Balance
 * Principles
 * Polluter-pays principle (Rio 16)
 * Common but differentiated responsibilities
 * Participation
 * Inter-generational equity
 * Concepts
 * Sustainable development
 * Common areas
 * Common heritage of humankind
 * Common concern of humankind

“... It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay”: [https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E191:EN:HTML Art. 191(2) TFEU].

Preventive principle
The obligation erga omnes to prevent, minimize/reduce, and control harm outside state jurisdiction is a rule of customary international law &rarr; due diligence, state-of-the-art/best practice. Distinguish from the stronger “no-harm” principle or prohibition of harmful activities, despite the maxim sic utere tuo ut alienum non laedas in Stockholm 21 (Nuclear Weapons ICJ), Rio 2, and UNCLOS Article 194(2).

Commentaries on draft 2001 Articles on Transboundary Harm by Intl Law Commission states “it does not guarantee that harm would not occur” (Art. 3; Part 2 para 7).

The scope of prevention may be even stronger, covering the environment in general, inside or outside the state.

Declarations
‘States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea’: Stockholm Principle 7 (also see 6, 15, 18, 24). ‘States should effectively cooperate to discourage or prevent the relocation and transfer to other states of any activities and substances that cause severe environmental degradation or are found to be harmful to human health’: Rio Principle 14 (also see 11, 15). &larr; cf. sovereignty and "no-harm" (Trail Smelter).

Treaties

 * 1982 UNCLOS Article 194(1)
 * Montreal Protocol (Preamble)
 * 1992 United Nations Framework Convention on Climate Change (Article 2).

Caselaw
"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." (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, pp. 241–242 para 29.

‘... 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’: Gabčíkovo–Nagymaros (Hungary/Slovakia) 1997 ICJ Reports 7 at p 78, para 140. Also see Iron Rhine paras 59, 222.

Pulp Mills on the River Uruguay (Argentina v. Uruguay): “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.” (Judgment, I.C.J. Reports 2010 (I), pp. 55-56, para. 101.)

“[T]o fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment [...]”: 2015 case pair Certain Activities carried out by Nicaragua in the Border Area and Construction of a Road in Costa Rica along the San Juan River ICJ at para 104, citing Pulp Mills.

“At the outset, the Tribunal notes that the obligations in Part XII apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it. Accordingly, questions of sovereignty are irrelevant to the application of Part XII of the Convention [UNCLOS]”: South China Sea PCA 2016.

Precautionary principle
This has not yet achieved the status of a customary rule of international law: more a licence to act (e.g. in trade contexts) than a command to act.

Declarations
‘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’: Rio Principle 15.

Treaties
More than 50 mention this, examples: ozone, biodiversity, climate conventions. ‘The contracting parties shall apply the precautionary principle, i.e. to take preventive measures when there is reason to assume that substances or energy introduced, directly or indirectly, into the marine environment may create hazards to human health, harm to living resources and marine eco-systems, damage amenities or interfere with other legitimate uses of the sea even when there is no conclusive evidence of a causal relationship between inputs and their alleged effects’: Article 3, para.2 (Fundamental Principles and Obligations) of the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention).

"Each Party shall strive to adopt and implement the preventive, precautionary approach to pollution problems which entails, inter-alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm": Article 4(3)(f) 1991 Convention on the Ban of the Import to Africa and the Control of Transboundary Movement of and Management of Hazardous Wastes within Africa (Bamako Convention).

Caselaw
Before ICJ it has been relied on (unsuccessfully) by Hungary in 1997 Gabčíkovo–Nagymaros, New Zealand in 1995 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests; mentioned by Judge Palmer in Nuclear Tests and Judge Weeramantry in the 1996 Nuclear Weapons.

Relied on before the WTO by EU (Beef Hormones, Biotech cases). But WTO Appellate Body stated in Beef Hormones (paras 122 to 125): “the precautionary principle, at least outside the field of international environmental law, still awaits authoritative formulation”; “the precationary principle does not, by itself, and without a clear textual directive to that effect, relieve a panel from the duty of applying the normal (i.e. customary international law) principles of treaty interpretation [...]”; “precautionary principle does not override the provisions of [...] the SPS Agreement”.

Relied on before ITLOS by Ireland in 2001 MOX; by Australia & New Zealand in 1999 Southern Bluefin Tuna. ITLOS Seabed Disputes Chamber's Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area requested by the International Seabed Authority: ‘… the precautionary approach is also an integral part of the general obligation of due diligence of sponsoring States, which is applicable even outside the scope of the Regulations’ (para 131), “[t]he Chamber observes that the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law” (135), ‘… “due diligence” is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge’ (para 117); mining regulations on polymetallic nodules and sulphides explicitly require states and International Seabed Authority to apply Rio Declaration Principle 15; Pulp Mills ICJ referred to.

Polluter-pays principle
Beyerlin and Marauhn think this economic measure by taxation or liability could be a rule, more than just a principle, despite its unclear content and scope. It is not customary international law, but a rule within EU and OECD. Birnie et al. think this lacks normative character due to difficulty in attributing liability and allocating rights.

Declarations
‘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, with due regard to the public interest and without distorting international trade and investment’: Rio Principle 16. OECD Council has advocated such internalizing measures (taxation, charges, liability) since 1972, starting with domestic and EU law.

Treaties
See e.g. 1992 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, 2001 Stockholm POPs Convention. But “victim pays” the insurance or mitigation: e.g. 1960 Paris Agreement on Third Party Liability in the Field of Nuclear Energy, 1976 Rhine Chloride Pollution Convention &rarr; Rhine Chlorides case 2004.

Environmental impact assessment
The conduct of EIA is either not (yet) a norm, or it is a norm of customary international law without its content being well defined. 1987 UNEP Goals and Principles of Environmental Impact Assessment definition: ‘… an examination, analysis and assessment of planned activities with a view to ensuring environmentally sound and sustainable development.’ Cf. notification & consultation of affected states (Rio 18 emergency, 19) but no veto: Lac Lanoux arbitration tribunal.

Declarations
It started with the USA 1972 National Environmental Policy Act &rarr; Stockholm Principles 14, 15; 1975 UNEP Draft Principles (nr 5) &rarr; Rio 17: ‘Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.’

“Any decision in respect of the authorization of an activity within the scope of the present articles shall, in particular, be based on an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment”: Art. 7 Intl Law Commission 2001 draft Articles on Transboundary Harm. World Bank has EIA procedures.

Treaties
1991 UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention): EIA should involve public participation and adequate documentation, including other states &rarr; strategic environmental assessment (SEA) in 2003 Kiev Protocol on Strategic Environmental Assessment, Article 2(6): ‘“Strategic environmental assessment” means the evaluation of the likely environmental, including health, effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan or programme.’ Similarly 1982 UNCLOS Article 206 (&rarr; MOX Ireland/UK ITLOS 2001, S China Sea arbitration PH/CN PCA 2016) and Antarctic Protocol.

Caselaw
Earlier, it was relied on by New Zealand in 1995 Request ... Nuclear Tests ICJ. The Court in Gabčíkovo–Nagymaros held that EIA and monitoring form a continuum of duty of diligence.

Citing the above, ‘... due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party ... did not undertake an environmental impact assessment on the potential effects of such works’ (para 204ff); ‘once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken’: 2010 Pulp Mills ICJ.

Confirmed in 2015 Costa Rica/Nicaragua ICJ: “If the environmental impact assessment confirms that there is a risk of significant transboundary harm, the State planning to undertake the activity is required, in conformity with its due diligence obligation, to notify and consult in good faith with the potentially affected State, where that is necessary to determine the appropriate measures to prevent or mitigate that risk.” (Judgment, para. 104.) ‘the obligation to conduct an environmental impact assessment requires an ex ante evaluation of the risk of significant transboundary harm, and thus “an environmental impact assessment must be conducted prior to the implementation of a project”’ (para 161).

This was confirmed as equally applicable to common heritage (para 148) by ITLOS Seabed Disputes Chamber in 2011 Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, in addition to being obligation under UNCLOS: “the obligation to conduct an environmental impact assessment is a direct obligation under the Convention and a general obligation under customary international law.” (para 145). Again confirmed in South China Sea; see also Land Reclamation, Southern Bluefin Tuna.