International Environmental Law Part 2 pdf

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Historical Evolution 37

• reducing by 2015 the mortality rates for infants and children under five by two￾thirds and maternal mortality by three-quarters, using as a baseline the 2000

mortality rate;181

• reducing the HIV/AIDs infection among young people aged fifteen to twenty￾four by 25 percent in most affected countries by 2005, and globally by 2010, and

supporting a global fund to fight AIDs, malaria and tuberculosis;182

• ensuring that by 2015 all children will be able to complete a full course of primary

schooling;183

• developing integrated water resources and water efficiency plans by 2005184

(including the support of water allocation based on human needs, para. 25 (c));

• encouraging by 2010 the application of the ecosystem approach to the manage￾ment of the oceans;185

• maintaining or restoring fish stocks to levels that produce maximum sustainable

yield by 2015;186

• achieving significant reduction of the current loss of biological diversity by

2010;187

• encouraging the adoption of a harmonized system for the classification and label￾ing of chemicals by 2008;188

• aiming to achieve by 2020 the use and production of chemicals that led to the

minimization of adverse effects on human health and the environment.189

The Implementation Plan refers to the TRIPs (Trade-Related Intellectual Property

Rights) agreement, which was adopted as a subsidiary agreement to the treaty that

established the WTO. The controversy that surrounded the TRIPs agreement is

analyzed in more detail in Chapter 9. The TRIPs agreement was viewed by many

in the developing world as an agreement designed to protect the interests of large

pharmaceutical corporations residing in the North at the expense of the health

of people in the developing world. The Implementation Plan, therefore, provides

specifically that

the TRIPs Agreement does not and should not prevent WTO members from taking

measures to protect public health. Accordingly, while reiterating our commitment to

the TRIPs Agreement, we reaffirm that the Agreement can and should be interpreted

in a manner supportive of WTO’s members’ right to protect public health and in

particular to promote access to medicines for all.190

Overall, the social and economic provisions included in the Implementation Plan

overwhelm the strictly environmental provisions. Reading through the Plan, one

181 Para. 46(f), id.

182 Para. 48, id.

183 Para. 109(a), id.

184 Para. 25, id.

185 Para. 29(d), id.

186 Para. 30(a), id.

187 Para. 42, id.

188 Para. 22(c), id.

189 Para. 22(a), id.

190 Para. 94, id.

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38 Introduction to International Environmental Law

gets the impression of going through an economic and social declaration rather than

a stricto sensu plan of environmental implementation.

During the WSSD, certain partnerships were fostered among NGOs. According

to some commentators, the WSSD strengthened the commitment of states to provide

financial sources for the cause of sustainable development.191

4.4. From Stockholm to Johannesburg

The Stockholm Conference, and ensuing environmental legislation, was one of

the first attempts to deal with environmental problems at a global scale. The result

was a number of instruments that did not offer clear standards but, nevertheless,

helped create state consensus that some environmental problems need to be tackled

internationally.

The Rio Conference was a first attempt to deal with the complexity that many

environmental problems present. The conventions that followed the Rio Confer￾ence are decidedly more elaborate instruments than those that preceded it. The

Rio Conference created an impetus to include clear and enforceable standards in

international instruments that states would be held accountable to implement. The

instruments adopted after the Rio Conference present more resemblance to the

command-and-control legislation of many developed countries.

The Rio Conference was significant because it was an attempt to find a common

ground between what developed states wanted to accomplish and what developing

countries stood for. Concepts such as sustainable development and common but

differentiated responsibilities sounded initially like principles deprived of concrete

content. In the aftermath of the conference, they have acquired strength and have

defined many subsequent international and local developments. Today, the concept

of sustainable development with its three pillars articulates successfully some of the

conditions of sustainable growth. The social and economic pillars are as important

as the environmental pillar. The concept has had an effect even on localities within

developed countries with the enunciation of the concept of “sustainable commu￾nities.”192 The principle of common but differentiated responsibilities has found

articulation in the climate change and ozone regimes through the provision of pay￾ments to developing countries in order to induce their compliance with international

agreements. Overall, the Rio Conference provided an opportunity for developing

countries to use the environmental agenda as a means to advance their concerns

about development and growth.

191 During the WSSD, a number of countries made commitments for the furtherance of the goals of the

summit. An agreement was made, for instance, to replenish the GEF with the amount of $3 billion.

The UN received thirty-two partnership initiatives with $100 million in resources for biodiversity and

ecosystem management, twenty-one partnerships for water and sanitation with at least $20 million

in resources, and thirty-two partnerships for energy projects with $26 million in resources. The EU

announced that it would increase its development assistance by more than 9 billion annually from

2006 onward. The United States announced $970 million in investments over the next three years for

water and sanitation projects and Japan announced 250 billion donation for education over a five-year

period.

192 The concept of sustainable communities has been applied in some communities in the United States,

see infra note 275.

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The WSSD promoted issues of social and economic development with a new sense

of urgency. The conference has more to do with ensuring that countries accomplish

a level of development than with providing for new environmental standards. Putting

issues of development at the core of what was initially conceived as an environmental

summit demonstrates the difficulty involved in isolating environmental concerns

from the pursuit of growth. The WSSD has posed the question of the purpose of

environmental protection in a world where many people are suffering still from

poverty and disease. It is question worth asking.

4.5. Case Law

The development of international environmental law has been influenced by the

decisions of the International Court of Justice and other tribunals that have tried to

apply in practice the principles of international law.

The Corfu Channel case was brought before the ICJ by the United Kingdom in the

aftermath of World War II.193 The case concerned the damage to ships and injuries

to officers of the British navy by a minefield located in the Corfu Strait, allegedly

planted by Albania. The United Kingdom claimed that the Albanian government

knew about the minefield and failed to notify the British ships that were passing

through the strait, exercising their right to innocent passage. The British government

further claimed that the Albanian government should be required to make reparations

because it breached its international obligation of notification. Albania, by contrast,

claimed that it knew nothing about the minefield.

The Court concluded that the fact that the minefield had been recently laid and

the fact that Albania had kept close watch on its territorial waters, during the time

the minefield was set, rendered Albania’s lack of knowledge improbable. The Court

took into account, as additional evidence of Albania’s knowledge, what happened

after the minefield explosion – namely, that the Greek authorities had appointed

a committee to inquire into the event whereas the Albanian government had not

done so. The Court found that the Albanian government should have notified the

British warships of the existence of the minefield. The Court mentioned that such

an obligation was not necessarily based on an international treaty but:

on certain general and well-recognized principles, namely: elementary considerations

of humanity, even more exacting in peace than war; the principles of the freedom

of maritime communication; and every State’s obligation not to allow knowingly its

territory to be used for acts contrary to the rights of other States.194

The pronouncement of the Court of every state’s obligation not to allow its territory

to be used for acts contrary to the rights of other states has been repeated frequently

in cases of polluting/hazardous activities that may have adverse affects on the terri￾tory of another state. Such obligation implies a duty of a polluting state to notify

other states for acts that it knows happen within its territory and can adversely affect

other states. The duty of notification, which has been repeated in many international

193 Corfu Channel Case, (UK v. Albania), April 9, 1949, (1949) ICJ Reports 4.

194 Id. at 22.

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40 Introduction to International Environmental Law

environmental instruments,195 was initially articulated in the Corfu Channel case. It

must be noted also that the Court referred to “elementary considerations of human￾ity” that made the conduct of Albania unlawful. Thus, humanity considerations, no

matter how imprecise they sound, become a criterion for judging the behavior of

states.

Another case with a clearer environmental focus is the Trail Smelter case.196 This

case involved a dispute between the United States and Canada regarding the damage

to United States territory inflicted by sulphur dioxide emissions from a smelting plant

at the Consolidated Mining and Smelting Company of Canada at Trail, located in

the British Columbia. In 1935, Canada and the United States agreed to submit the

dispute to arbitration.

The tribunal concluded, after examining domestic and international law, 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 persons therein, when the case is of serious consequence

and the injury is established by clear and convincing evidence.197

This conclusion of the tribunal has been cited frequently in international environ￾mental law writings as evidence of the establishment of the concept of state liability

for environmental harm. However, it must be noted that the tribunal carefully stated

that state liability applies only when “the case is of serious consequence” and that

additionally the injury must be established “by clear and convincing evidence.”198

Furthermore, in the Trial Smelter case, Canada had in some way acquiesced to pay

some damages by virtue of the fact that it had paid damages before 1932 and had

agreed to put the issue to arbitration.199

The tribunal recognized the payment of damages for concrete cases of environ￾mental harm but was not receptive of general claims for damage to the environment.

The tribunal recognized damages for cleared and uncleared land using the standard

established by the U.S. courts in cases of nuisance and trespass – that is, the amount

of reduction in “value of use or rental value” of the land caused by the fumes.200

The market value of the land was the criterion that was used, therefore, to establish

the amount of damages and not some sort of evaluation of natural resources damage.

The tribunal did not award damages for pastured lands, damage to livestock, and

property damage in the town of Northport. The tribunal did not award damages to

business enterprises.201 The tribunal concluded that some of these damages were too

remote and uncertain and that the parties failed to provide proof. The tribunal did

195 See Chapter 3, Section 2.2. 196 Trail Smelter Case, (United States v. Canada), April 16, 1931, March 11, 1941, 3 UN Reports of

International Arbitral Awards 1905 (1941).

197 Id. at 1907.

198 See also William A. Nitze, Acid Rain: A United States Policy Perspective, in International Law and

Pollution 329, 338 (Daniel Barstow Magraw, ed., 1991).

199 Samuel Bleicher, An Overview of International Environmental Regulation, 2 Ecology Law Quarterly

1, 22 (1972).

200 Trial Smelter case, supra note 196, at 1907.

201 Id.

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not award any damages for the injurious effects of the disposal of waste slag in the

Columbia river, thus rejecting explicitly, a claim for pure environmental damages.202

Although the tribunal was conservative in the award of damages, it played a more

decisive regulatory role. The tribunal ordered Canada to establish controls on the

emissions of sulphur dioxide by providing for maximum permissible sulfur emissions

including detailed requirements for hourly emissions.

The Trail Smelter case has launched a discourse in international law about whether

a standard of state responsibility or strict state liability has been established for pol￾luting activities. If such a standard has been established the question is what the

prerequisites are for the success of a claim of strict liability in international incidents

of pollution. As analyzed earlier, the tribunal required that the polluting acts must

be “of serious consequence” and that the injury must be established by clear and

convincing evidence. These requirements set a high threshold for the establishment

of a standard of state liability. Policy makers must clarify two points:

• The polluting activities must be “of serious consequence.” Because some form

of pollution is part of everyday life, the amount and nature of pollution that is

significant for the establishment of a strict liability claim under international law

must be clearly established.

• There must be clear and convincing evidence of harm. This is a difficult require￾ment to meet, as the Trail Smelter case itself demonstrates. Most of the damage to

environment is hard to establish, as the scientific evidence is often inconclusive.

The Lac Lanoux case203 involved a decision taken by France (an upstream state) to

build a barrage on the Carol River for the purposes of hydroelectricity production.

France intended to divert the waters of the Carol River before returning them to

Spain, where they would be used for agricultural irrigation. Spain claimed that the

diversion of waters by France was against its interests, despite the eventual restitution

of waters to their original destination. Because the restitution of waters was depen￾dent on the will of France, Spain claimed that one party was preponderant in water

management. Such preponderance was against the equality of the parties established

in the water treaties that had been signed between the parties.204

The tribunal held that although France is entitled to exercise its rights, it cannot

ignore Spanish interests. Spain is entitled to demand that its rights are respected and

that its interests are taken into consideration.205 But the tribunal held that taking

into account Spain’s interests does not mean that France must seek an agreement

with Spain before constructing works on shared river resources. The tribunal held

that subjecting a state’s right to use its watercourses to the completion of a prior

agreement with another state would give that other state essentially “a right to veto”

202 For an extensive analysis of the Trial Smelter case, see Edith Brown Weiss et al., International Environ￾mental Law and Policy 245–62 (1998).

203 Lac Lanoux Arbitration, (France v. Spain), Nov. 16. 1957, 12 UN Reports of International Arbitral

Awards 281 (1957).

204 The three treaties at Bayonne on Dec. 1, 1856, April 14, 1862, May 26, 1866. According to Spain, the

French scheme establishes “a preponderance which is repugnant to the spirit of equality which inspires

[the treaty between the parties].” See Lac Lanoux case, pleadings of Spain, id.

205 Para. 24, id.