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RRojas Databank Journal/ January 1997
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CONCEPTS AND PRINCIPLES OF INTERNATIONAL LAW:
AN INTRODUCTION
by David Hunter, Julia Sommer and Scott Vaughan
This paper describes basic concepts and principles of international
environmental law to assist policymakers in reconcling the critical goals of
environmental protection and trade liberalization
FOREWORD
The 1992 "Earth Summit" found common ground upon which human development can
be put on an environmentally sustainable footing. In 1993, completion of
negotiations for the Uruguay Round set the course for a further
liberalisation of international trade. One of the most pressing and complex
challenges facing our generation is the search for a workable synthesis of
the two, of economic relations and environmental realities.
We must embark upon this course, not because it is easy, but because it
is necessary. Our planet's ecological vital-signs continue to warn us of an
accelerating rate of degradation -- depletion of the ozone layer that shields
us from harmful solar radiation, erosion of productive soils needed to grow
food, contamination of freshwater with hazardous wastes, depletion of fish
stocks, the massive loss of biodiversity, the threat of climate change and
global warming.
An important challenge identified at the Earth Summit is ensuring that
trade and environment are "mutually supportive." It is hoped that this
series, providing analysis on selected environmental issues of relevance to
the environment - trade debate, will contribute to the search for solutions
now underway.
Elizabeth Dowdeswell
Executive Director
THE AUTHORS
This background paper was prepared by DAVID HUNTER, Center for International
Environmental Law (CIEL), JULIA SOMMER, University of Hamburg, University of
Geneva and Institut des Hautes Etudes Internationales, Geneva, and SCOTT
VAUGHAN, United Nations Environment Programme (UNEP), with additional
assistance from PAUL ORBUCH, KATHY TOGNI and DURWOOD ZAELKE, CIEL. The
authors also thank Louis Sohn, Peter Sand, Charles Di Leva and Ralph
Osterwoldt for their helpful comments on this paper. The authors, of course,
remain responsible for any errors.
THE CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW
The Center for International Environmental Law (CIEL) was founded in
Washington, D.C. in 1989 to strengthen and develop international and
comparative environmental law, policy and management throughout the world.
CIEL provides legal assistance in both international and comparative
environmental law, including independent research, advice and advocacy, and
education and training.
CIEL's Trade and Environment Program provides legal counsel and policy
support to other nongovernmental organizations, national and sub-national
governments, and international organizations as they attempt to understand
and address the interplay of trade and the environment.
For further information contact:
CIEL
1621 Connecticut Ave., N.W.,
Suite 300
Washington, D.C. 20009-1076
Phone: 202-332-4840
Fax 202-332-4865
E-Mail: cielus@igc.org.
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CONTENTS
1. Introduction
2. The International Law of Sustainable Development
- An Anthropocentric View of Environmental Protection,
- Integrating Economics and the Environment,
- The Importance of Ecological Interdependence,
- Intergenerational Equity and Responsibility,
- Sustainable Use of Natural Resources,
- Common but Differentiated Responsibilities,
- Financial and Technical Transfers,
- Increasing Local Decisionmaking and Public Participation,
- National Implementation of Sustainable Development,
- Conclusion,
3. The Duty to Cooperate
- Exchange of Information in General,
- Cooperation in Scientific Research and Systematic Observations,
- Prior Notification,
- Consultation,
- Prior Informed Consent,
- Notification in the Case of an Emergency,
- Principle of Emergency Assistance,
4. The Duty to Avoid Environmental Harm
- The General Duty to Prevent Environmental Harm,
- Non-Discrimination Between States,
- Pollution Prevention and Waste Minimization,
- The Precautionary Principle,
- Environmental Impact Assessment,
5. The Duty to Compensate for Harm
- State Responsibility,
- State and Civil Liability,
- The Polluter Pays Principle,
- Equal Access to Administrative and Judicial Proceedings,
6. Legal Status of Natural Resources and Common Areas
- Permanent Sovereignty Over Natural Resources,
- Shared Resources,
- Common Heritage of Humankind,
- Common Concern of Humankind,
7. Conclusion
8. Endnotes
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1. INTRODUCTION
In June of 1992, over 100 government leaders, representatives from 170
countries, and some 30,000 participants met in Rio de Janeiro at the U.N.
Conference on Environment and Development (UNCED or the "Earth Summit").
There, they formally recognized the need to integrate economic development
and environmental protection into the goal of sustainable development. UNCED
also affirmed the growing importance of international environmental law as a
mechanism to help codify and promote sustainable development.
Under traditional views, public international law comes from one of four
sources: (i) international conventions, (ii) customary law, (iii) general
principles of law recognized by "civilized" nations, and (iv) judicial
decisions or the writings of the most qualified publicists.1 Each of these
categories has been critical in the development of international
environmental law. For example, more than eight hundred bilateral and
multilateral agreements contain provisions dealing with one or more aspects
of the environment, ranging from sub-regional and regional to global
environmental issues. A number of basic environmental principles and concepts
may also be emerging as customary international law.2
As a relatively new and growing field, international environmental law
and policy are also developing from other less traditional, and less binding,
sources. For example, resolutions and declarations, issued by international
organizations like the United Nations Environment Programme, the World Health
Organization or the International Atomic Energy Agency, have played a very
important role in the development of international environmental principles,
even though they are often non-binding. Through repetition and subsequent
state practice, including incorporation into domestic legal systems, such
principles or standards may emerge as customary law.
This paper identifies and introduces the emerging principles, standards
and other forms of soft law that form an increasingly comprehensive set of
principles for guiding international society toward sustainable development.
Although states may currently differ on the legal status of specific
principles discussed in this paper (i.e., whether a principle is on the
continuum of emerging international law or generally recognized as existing
international law), these principles nonetheless frame the current debate for
international environmental policymaking and are increasingly important for
discussions of trade and the environment. Part 2 of this paper describes the
development of the sustainable development concept and its implications; Part
3 describes the duty to cooperate in environmental protection; Part 4
describes the duty to avoid environmental harm; and Part 5 describes the duty
to compensate for environmental harm. Part 6 describes the status of natural
resources within national boundaries and the global commons.
.
"Just as sustainable development
requires integrating environmental costs into the
economic system, it also requires integrating
citizens into the political process."
2. THE INTERNATIONAL LAW OF SUSTAINABLE DEVELOPMENT
Sustainable development is now widely accepted as a primary goal of economic
and social activity. Despite some past recognition, sustainable
development's recent widespread popularity began with the 1987 publication of
Our Common Future (also known as the Brundtland Report) issued by the World
Commission on Environment and Development. Sustainable development formed the
cornerstone underlying the Earth Summit and dominated the Rio Declaration on
Environment and Development.1 Perhaps most importantly, the Earth Summit
adopted Agenda 21, a five-hundred page blueprint detailing the "new global
partnership for sustainable development" in the 21st century.2 The Earth
Summit not only affirmed the goal of sustainable development, but through the
Rio Declaration and Agenda 21 it added meaning and substance to the concept.
The Brundtland Report defined sustainable development as "development
that meets the needs of the present without compromising the ability of
future generations to meet their own needs."3 Following that report, UNEP's
15th Governing Council clarified that sustainable development implies
"progress towards national and international equity, as well as the
maintenance, rational use and enhancement of the natural resource base that
underpins ecological resilience and economic growth."4 The term still
requires further elaboration. As discussed next, however, it is increasingly
accepted that the shift toward sustainable development clearly has several
critical implications for development policy, economic policy and social
policy.
AN ANTHROPOCENTRIC VIEW OF ENVIRONMENTAL PROTECTION
Sustainable development suggests that the primary focus of environmental
protection efforts on the international level should be to improve the human
condition. As stated in Principle 1 of the Rio Declaration, "Human beings are
at the centre of concerns for sustainable development."5 According to this
"anthropocentric" approach, the protection of wildlife or other natural
resources is not a goal in itself, but rather a necessity for ensuring a
higher, sustained quality of life for humans. Environmental protection and by
extension international environmental law must relate to the protection of
human welfare, and wildlife and other natural resources must be available to
use for this purpose. The competing "biocentric" approach values nature for
its own sake, protecting it irrespective of any utility to humans. The
biocentric approach has been adopted in some important declarations,6 but it
was rejected at the Earth Summit and is not yet firmly rooted in
international environmental law.
INTEGRATING ECONOMICS AND THE ENVIRONMENT
Sustainable development implies the integration of environmental and social
concerns into all aspects of economic policy. As stated in Principle 4 of the
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.7
Injecting "sustainability" concepts into development policy has broad
implications for both macro and microeconomics. Regarding macroeconomic
policies, the move toward sustainable development requires, for example, that
traditional national accounting systems be changed to better measure overall
quality of life. Such new accounting systems would exclude from calculations
of gross national product (GNP) pollution control efforts as well as
environmental damages caused by pollution. A related approach emphasizes a
separate set of natural resource accounts that reveal in non-monetary units
the status of resources in a given country. Mining extractions, for example,
would not simply be reflected in increased GNP, but also in the reduction in
natural resource "wealth."8
In microeconomics, the shift toward sustainable development requires,
for example, imposing the costs of environmental damage on the producer
causing the damage.9 Pricing of natural resources should reflect
environmental costs, and other costs "external" to an unregulated market.
Market-based mechanisms such as pollution fees and tradeable permits can be
used to "internalize" external costs, leading to market prices that better
reflect the true costs of production, including social and environmental
costs.
THE IMPORTANCE OF ECOLOGICAL INTERDEPENDENCE
During the past three decades, scientific understanding of the ecological
interdependence of the planet has increased dramatically. To some extent
recent international agreements, declarations and resolutions have begun to
reflect this broader understanding of human reliance and dependence on the
environment.10 For example, the World Charter for Nature acknowledges in its
preamble that:
Mankind is part of nature and life depends on the uninterrupted
functioning of natural systems which ensure the supply of energy and
nutrients.11
Although explicit recognition that humankind is dependent on nature is
still somewhat new, most international environmental agreements have been
responding at least implicitly to a recognition of ecological
interdependence. For example, the ecological interrelationship of States
sharing a natural resource is one of the major underlying reasons for the
development of rules about shared natural resources and transboundary
pollution. More generally, acknowledgment of the ecological limits and
interconnectedness of the planet underlies the relatively new concept of the
common concern of humankind, which provides much conceptual support for
international efforts to conserve biodiversity and prevent climate change.12
INTERGENERATIONAL EQUITY AND RESPONSIBILITY
Sustainable development, as defined in Our Common Future, is closely
associated with the goal of intergenerational equity. Sustainable development
recognizes each generation's responsibility to be fair to the next
generation, by leaving an inheritance of wealth no less than they themselves
had inherited. At a minimum, meeting this goal will require emphasizing the
sustainable use of natural resources for subsequent generations and avoiding
any irreversible environmental damage.
The concept of intergenerational responsibility has been important since
the 1972 Stockholm Conference. The first principle of the Stockholm
Declaration, for example, provides that:
Man ... bears a solemn responsibility to protect and improve the
environment for present and future generations.
After being repeated in many different contexts,13 intergenerational
responsibility was reaffirmed at UNCED as a central component of the shift to
sustainable development. Principle 3 of the Rio Declaration confirms that:
The right to development must be fulfilled so as to equitably meet
development and environmental needs of present and future generations.
SUSTAINABLE USE OF NATURAL RESOURCES
The early roots of sustainable development can be found in the promotion of
the sustainable use or yield of natural resources. For example, as a result
of the 1974 Icelandic Fisheries case, States were obligated to cooperate in
the conservation and sustainable utilization of the global commons, including
the living resources, of the high seas.14 Other legal regimes dealing with
the conservation of marine resources, wildlife, habitat protection,
protection of cultural and natural heritage, protection of the Antarctic, and
others intended to protect international/global environmental resources,
suggest that the sustainable use of natural resources is widely accepted at
the international level.
Definitions of sustainable use vary somewhat, but typically reflect
concepts of intergenerational equity. For example, the 1992 Biodiversity
Convention defines sustainable use of biological resources as:
the use of components of biological diversity in a way and at a rate
that does not lead to the long-term decline of biological resources,
thereby maintaining its potential to meet the needs and aspirations of
present and future generations.15
Although sustainability is perhaps most easily understood with respect
to renewable resources, it also has critical implications for nonrenewable
resources:
The non-renewable resources of the earth must be employed in such a way
as to guard against the danger of their future exhaustion and to ensure
that benefits from such are shared by all mankind.16
COMMON BUT DIFFERENTIATED RESPONSIBILITIES
Sustainable development poses a common challenge to all countries, but,
because of different development paths, industrialized countries may be asked
to carry more of the immediate burden. In one of the most controversial
provisions of the Rio Declaration, developed countries explicitly acknowledge
their central responsibility for existing environmental degradation and its
remediation.
The developed countries acknowledge the responsibility that they bear in
the 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.17
This differential responsibility is reflected in many recent
international environmental agreements. For example, the Climate Change
Convention's guiding principles ask developed countries to take the lead in
combating climate change and its effects, while giving full consideration to
the needs and special circumstances of disproportionately burdened developing
countries.18 Similarly, the Montreal Protocol on Substances that Deplete the
Ozone Layer allows dispensations for developing countries.19
FINANCIAL AND TECHNICAL TRANSFERS
As one practical consequence of their greater responsibilities and
opportunities, developed countries have pledged to assist developing
countries in making the shift toward sustainable development. Virtually all
major environmental treaties in recent years have included important
provisions providing financing, technical assistance, or technology transfers
to developing countries.20 New funding mechanisms, such as the Global
Environment Facility21 and the Montreal Protocol Multilateral Fund,22 have
been established to assist developing countries with the transition towards
sustainable development.23 New approaches to technology transfer have also
been explored, although no consensus has yet been reached on the best
specific methods for such transfers.24 As a result, technology transfer has
emerged as one of the priority areas, requiring additional research and
policy elaboration by the new U.N. Commission on Sustainable Development.
INCREASING LOCAL DECISIONMAKING AND PUBLIC PARTICIPATION
Just as sustainable development requires integrating environmental costs into
the economic system, it also requires integrating citizens into the political
process. The Brundtland Report recognizes this and concludes that:
the pursuit of sustainable development requires ... a political system
that secures effective citizen participation in decisionmaking.25
Citizens are after all directly affected by environmentally damaging
development decisions and are thus often the most zealous and effective
defenders of the environment.
Principle 10 of the Rio Declaration clarifies what is meant by effective
public participation:
Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each
individual shall have the appropriate access to information concerning
the environment that is held by public authorities, including
information on hazardous materials and activities in their communities,
and the opportunity to participate in decisionmaking processes. States
shall facilitate and encourage public awareness and participation by
making information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be
provided.26
The principle of public participation thus obligates governments to
establish a process for citizens and nongovernmental organizations (NGOs) to
obtain environmental information, comment on environmental information,
develop and submit their own information, have their submissions considered,
and have remedial procedures available to them.27
NATIONAL IMPLEMENTATION OF SUSTAINABLE DEVELOPMENT
The goal of sustainable development has major implications for national
policymaking. On one level, sustainable development can be seen as a
modification, or at least a clarification of, the "right to development."28
As the Rio Declaration affirms:
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future
generations.29
After Rio, many countries began substantial planning efforts to move
toward sustainable development by implementing Agenda 21. Many different
approaches are being adopted. For example, several countries beginning with
the Philippines and, more recently, the United States, have created high-
level national councils on sustainable development. Chile is implementing
Agenda 21 in part through a series of consultative meetings held throughout
the country. Environmental laws are increasingly integrating sustainable
development at the national level; the first and still one of the most
innovative is the 1991 New Zealand Resources Management Act. National policy
plans for sustainable development are also becoming increasingly common, for
example Canada's 1990 Green Plan.
CONCLUSION
Further elaboration is required to implement sustainable development.
Nonetheless, as discussed next, there are a growing number of discrete
principles and concepts that are important for achieving sustainable
development. Some of these are emerging independently as customary law, while
others are best thought of as guiding principles. For the purposes of this
paper, they are organized under three broad categories: principles relating
to the duties to cooperate, to avoid environmental injury, and to compensate
for environmental injury.
--------------------------
"The Vienna Convention has become an
important model for the was international
efforts to coordinate scientific research can help
lawmakers and policymakers respond to
complex and urgent environemntal
issues in a shorter time."
3. THE DUTY TO COOPERATE
Much of international environmental law relates to a general obligation of
States to cooperate in investigating, identifying, and avoiding environmental
harms. Within the obligation to cooperate are more specific duties relating,
for example, to the exchange of information, the need to notify and consult
with potentially affected States, and the requirement to coordinate
international scientific research.
EXCHANGE OF INFORMATION IN GENERAL
Virtually every international environmental treaty has general provisions
requiring cooperation in generating and exchanging relevant information.
Examples include the Vienna Convention for the Protection of the Ozone Layer,
which facilitates the exchange of scientific, technical, socio-economic and
commercial data, as well as legal information;1 the 1982 U.N. Convention on
the Law of the Sea, which describes the exchange of data related to pollution
of the marine environment;2 and the Biodiversity Convention, which requires
information exchange on the conservation and sustainable use of biological
diversity.3
In addition to increasing our understanding of environmental issues, the
exchange of information through specific, periodic reporting requirements is
one of the most important tools for monitoring the domestic implementation of
international environmental obligations. Thus, for example, countries are
obligated to report on a broad range of activities, including efforts to curb
wildlife trade;4 reduce greenhouse gas emissions;5 reduce levels of ozone
destroying substances;6 and conserve biological diversity.7
The exchange of information will continue to be a critical aspect of
environmental protection in the future. Recent conventions have
institutionalized the collection and distribution of information by creating
separate international bodies with explicit information generating and
distribution functions. For example, the Climate Change Convention created a
subsidiary body to:
provide the Conference of the Parties information and advice on
scientific and technological matters relating to the Convention.8
COOPERATION IN SCIENTIFIC RESEARCH AND SYSTEMATIC OBSERVATIONS
Due to the critical importance of scientific knowledge in driving
international law and policy, many environmental treaties include special
provisions for guiding and facilitating the research, analysis and
dissemination of scientific research. Agreements to cooperate in
international scientific research and monitoring are contained in a wide
range of conventions, from those addressing marine pollution9 and changes in
the atmosphere,10 to the preservation of cultural heritage sites.11 Although
many of the provisions on scientific research are very general, some provide
specific and detailed direction for research necessary to identify and
clarify the nature and extent of environmental problems. In addition to
coordinating and focussing scientific research in a way that assists
international lawmakers and policymakers, some efforts to promote cooperation
in scientific research and systematic monitoring promote the transfer of
technical and financial assistance from developed to developing countries.
The Vienna Convention has become an important model for the way international
efforts to coordinate scientific research can help lawmakers and policymakers
respond to complex and urgent environmental issues in a shorter time.
The Vienna Convention calls for international research on a set of
complex issues critical to understanding, and forming policy responses to,
ozone depletion.12 An annex elaborates in great detail those areas needing
coordinated scientific research, including issues relating to atmospheric
physics and chemistry, the potential consequences of increased ultraviolet
radiation on human health and the environment, and the concentrations of
certain gases. The Vienna Convention's ability to coordinate scientific
research is a major reason for the ultimate success of the Parties in phasing
out ozone destroying chemicals in the Montreal Protocol and subsequent
revisions.13
PRIOR NOTIFICATION
The principle of prior notification obliges any State planning a potentially
damaging activity to provide to potentially affected States all necessary
information in time for the latter to prevent damage to its territory and, if
necessary, enter into consultation with the acting State.14 Principle 19 of
the Rio Declaration confirms this principle: States shall provide prior and
timely notification and relevant information to potentially affected States
on activities that may have a significant adverse transboundary environmental
effect.15 The importance of prior notification is reflected in its close
relationship to the obligation to conduct environmental impact assessments in
the transboundary context, as well as to obtain prior informed consent.16
Consultation
The principle of consultation requires States to allow potentially affected
parties an opportunity to review and discuss a planned activity that may
potentially cause damage. The acting State is not necessarily obliged to
conform to the interests of affected States, but should take them into
account. The principle has been reiterated in various declarations and
conventions, frequently including a requirement that the consultation be "in
good faith and over a reasonable period of time."17
The obligation to consult is often closely connected to the requirement
of prior notification discussed above. Principle 6 of the UNEP Principles for
Shared Natural Resources illustrates this relationship:
It is necessary for every State sharing a natural resource with one or
more other States:
(a) to notify in advance the other State or States of the pertinent
details of plans to initiate, or make a change in, the conservation or
utilization of the resources which can reasonably be expected to affect
significantly the environment in the territory of the other State or
States; and
(b) upon request of the other State or States, to enter into
consultations concerning the above mentioned plans.
Increasingly, consultation is being institutionalized at the
international level, either through existing international bodies, for
example, the Nordic Council, the European Council and the U.N. system, or
through new institutions created in the framework of specific environmental
conventions.18
PRIOR INFORMED CONSENT
When one State wants to act in the territory of another State, simple
notification and consultation has not been deemed sufficient; most treaties
now require the acting State to obtain the other State's prior informed
consent. Thus, for example, a party to the Basel Convention that seeks to
export hazardous wastes must inform the importing State of the nature of the
wastes and receive the written consent of the importing State.19 Other
activities requiring prior informed consent include transporting hazardous
wastes through a State,20 lending emergency assistance after a nuclear
accident,21 exporting domestically banned chemical substances,22 and
prospecting for genetic resources.23
NOTIFICATION IN THE CASE OF AN EMERGENCY
One of the most important aspects of international cooperation in the
environmental sphere is the obligation to notify affected parties in the case
of an emergency that has transboundary effects. Principle 18 of the Rio
Declaration codifies this principle in the following way:
States shall immediately notify other States of any natural disasters or
other emergencies that are likely to produce sudden harmful effects on
the environment of those States.
Emergency notification is the after-the-fact version of prior notice
discussed above. Emergency notification is intended to allow affected parties
the greatest possible opportunity to prepare for, and mitigate, potential
damage. Emergency notification provisions are critical components of
international responses to oil spills,24 industrial accidents,25 and most
recently nuclear accidents.26
PRINCIPLE OF EMERGENCY ASSISTANCE
Although there is not yet an affirmative obligation to provide emergency
assistance (unless perhaps for the State responsible for creating the
emergency), the importance of mutual assistance in emergencies has been
frequently reiterated in international legal instruments.27 Emergency
assistance often implies operations on the territory of the affected State,
as well as financial transactions and the management of in-kind assistance.
Consequently, some agreements relating to specific emergencies include
specific operational parameters. For example, the 1986 Convention on
Assistance in the Case of a Nuclear Accident or Radiological Emergency is
designed to minimize international response time by opening direct channels
for requesting assistance and readying the international community for prompt
and effective action.28
"Industry now recognizes that
designing a product or process to minimize
waste production is often more cost-effective
than relying on 'end-of-pipe' technologies
or disposal options."
4. THE DUTY TO AVOID ENVIRONMENTA HARM
THE GENERAL DUTY TO PREVENT ENVIRONMENTAL HARM
It is a widely accepted principle of international environmental law that
States are required to ensure that activities within their jurisdiction or
control do not damage the environment of other states or the commons. As
Principle 21 of the Stockholm Declaration (and more recently Principle 2 of
the Rio Declaration) states:
States have, in accordance with the Charter of the United Nations and
the principles of international law, ... 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.
This principle is often associated with the Trail Smelter Arbitration
Between Canada and the United States. In that case, fumes from a Canadian
smelter were damaging the property and health of U.S. citizens. After the two
countries agreed to arbitration, the U.S.-Canada International Joint
Commission (IJC) concluded that under 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."1
Although Trail Smelter involved a closely circumscribed arbitration
proceeding, it is cited frequently as the genesis for the rule against
causing environmental damage in a foreign State or the global commons.2
The duty to prevent harm is often written to require States to take all
"practicable" steps to avoid harm. For example, Article 194 of the U.N.
Convention on the Law of the Sea requires that:
States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce
and control pollution of the marine environment from any source, using
for this purpose the best practicable means at their disposal and in
accordance with their capabilities, and they shall endeavor to harmonize
their policies in this connection.3
Similarly, in an effort to reduce damage from environmental pollution,
the Basel Convention requires the "environmentally sound management of
hazardous wastes and other wastes," which it defines as:
taking all practicable steps to ensure that hazardous wastes or other
wastes are managed in a manner which will protect human health and the
environment against the adverse effects which may result from such
wastes.4
This reliance on a standard of "practicable" steps suggests that the
duty to prevent harm may not be absolute, but requires at least that States
diligently and in good faith make all reasonable efforts to avoid
environmental damage.
NON-DISCRIMINATION BETWEEN STATES
One narrower variation of the general obligation to prevent environmental
harm is the obligation not to take actions to shift pollution from one
State's territory to that of another State. This principle of "non-
discrimination" ensures that:
polluters causing transfrontier pollution should be subject to legal or
statutory provisions no less severe than those which would apply for any
equivalent pollution occurring within their country....5
More particularly, this means that domestic environmental regulations
and rules for example, those setting acceptable pollution levels, providing
for environmental liability, access to courts, or similar substantive and
procedural rules, should apply equally regardless of whether the pollution
affects domestic resources or resources in another State.6
POLLUTION PREVENTION AND WASTE MINIMIZATION
The pollution prevention principle can perhaps best be thought of as a
specific articulation of the general duty to avoid environmental damage. The
current focus on pollution prevention, both by industry and policymakers,
reflects a growing knowledge that avoiding or reducing pollution is almost
always less expensive than attempting to restore a contaminated area.
Pollution prevention has been adopted, in general terms, by numerous
conventions and resolutions restricting the introduction of pollutants into
the environment.7 Principle 6 of the Stockholm Declaration sets out the
principle in sweeping terms:
The discharge of toxic substances or of other substances and the release
of heat, in such quantities or concentrations as to exceed the capacity
of the environment to render them harmless, must be halted in order to
ensure that serious or irreversible damage is not inflicted upon
ecosystems.
Some agreements also prescribe concrete quantitative standards for
pollution abatement, including in some cases specific timetables for reducing
or eliminating certain emissions.8
In some contexts, pollution prevention refers exclusively to minimizing
waste through design changes, input substitutions and other clean production
methods.9 Industry now recognizes that designing a product or process to
minimize waste production is often more cost effective than relying on "end-
of-pipe" technologies or disposal options. Beginning with the initial design
of a product and of its production process and continuing all the way through
the life-cycle of a product to disposal, the most modern companies now seek
clean production methodologies and processes to reduce material inputs and
waste discharges. For example, German automobile manufacturers are designing
their automobiles to reduce the amount of waste when the car is scrapped.
Each component of the automobile is being designed to separate easily from
the whole, and the components are being coded to facilitate recycling and re-
use.
THE PRECAUTIONARY PRINCIPLE
The precautionary principle is one of the most important general
environmental principles for avoiding environmental damage and achieving
sustainable development. As set forth in the Rio Declaration, the
precautionary principle states that:
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.10
This precautionary approach underlies a number of international legal
instruments.11 It also applies in a variety of contexts from protecting
endangered species to preventing pollution. The precautionary principle
evolved from the growing recognition that scientific certainty often comes
too late to design effective legal and policy responses to potential
environmental threats. In essence, it switches the burden of proof necessary
for triggering policy responses.
The precautionary principle can have far-reaching implications. For
example, implementing the precautionary principle in the context of pollution
prevention led the UNEP Governing Council to urge countries to adopt:
alternative Clean Production methods including raw material selection,
product substitution, and clean production technologies and processes
as a means of implementing a precautionary principle in order to promote
production systems which minimize or eliminate the generation of
hazardous wastes....12
This preference for clean production methods has begun to appear in
international environmental treaties as well. For example, the Bamako
Convention on hazardous wastes requires that:
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. The Parties shall co-operate with each other
in taking the appropriate measures to implement the precautionary
principle to pollution prevention through application of Clean
Production methods, rather than the pursuit of a permissible emissions
approach based on assimilative capacity assumptions.13
ENVIRONMENTAL IMPACT ASSESSMENT
Many international instruments,14 international institutions,15 and over
sixty countries16 now require some form of environmental impact assessment
(EIA). EIA is a process for examining, analyzing and assessing proposed
activities in order to maximize the potential for environmentally sound and
sustainable development. The EIA process is designed to ensure that (i) the
appropriate government authorities have fully identified and considered the
environmental effects of proposed activities, as well as alternatives that
avoid or mitigate the environmental effects, and (ii) affected citizens have
an opportunity to understand the proposed project or policy and to express
their views to decisionmakers in advance. Many of these procedures are
becoming recognized in international conventions. For example, the
Biodiversity Convention states that the signatories shall:
introduce appropriate procedures requiring environmental impact
assessment of its proposed projects that are likely to have significant
adverse effects on biological diversity with a view to avoiding or
minimizing such effects and, where appropriate, allow for public
participation in such procedures.17
To achieve the objectives of greater citizen participation and better
development decisions, EIAs begin early in the planning stage. Relevant
impacts, mitigation measures, and alternatives that avoid or minimize impacts
are analyzed fully. A draft EIA detailing the proposed project, the resulting
environmental impacts, alternatives to the project, and potential mitigation
options is often be made available to the public for study and comment. The
final EIA then considers relevant comments and recommends appropriate actions
to minimize environmental damage.
EIAs have also become increasingly important in the transboundary
context. The UNEP Governing Council, for example, recommends that all States
undertake:
environmental assessment before engaging in any activity with respect to
a shared natural resource which may create a risk of significantly
affecting the environment of another State or States sharing that
resources.18
The 1991 Convention on EIA in a Transboundary Context specifies a
State's obligations related to transboundary environmental impact assessment
for the members of the U.N. Economic Commission for Europe.19 EIA is also
extensively used for investigating and communicating potential transboundary
and global impacts in many contexts. For example, the U.N. Convention on the
Law of the Sea states this obligation as follows:
When states have reasonable grounds for believing that planned
activities under their jurisdiction or control may cause substantial
pollution of or significant harmful changes to the marine environment,
they shall, as far as practicable, assess the potential effects of such
activities on the marine environment and shall communicate reports of
the results of such assessments.20
"A distinction continues to emerge in
international environemntal law between
international 'responsibility' and
international 'liability'..."
5. THE DUTY TO COMPENSATE FOR HARM
STATE RESPONSIBILITY
The basic rule of State responsibility in the context of environmental
protection can be summarized in the following way: States are responsible for
injuries caused to the environment of another State or the global commons
resulting from violations of a generally accepted international rule or
standard. State responsibility is confirmed in Principle 21 of the Stockholm
Declaration:
States have ... 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.1
The following is a brief discussion of the primary elements for
demonstrating a state responsibility claim:
(i) The environmental damage must result from a violation of international
law. This presents a problem in a relatively new field like environmental
law. Customary international environmental law is only emerging, and most
environmental treaties depend heavily on general obligations of cooperation.
Those with more specific prohibitions often present difficult questions of
proof.
(ii) A state is responsible both for its own activities and for activities of
private corporations or individuals under its jurisdiction or control. Thus,
even if a State is not directly polluting, the State can still be responsible
for failure to stop or control the polluting activities of others. Under this
rule, States may be responsible for not enacting or enforcing necessary
environmental laws, for not terminating dangerous activities, or for letting
violations go unpunished.
(iii) There must be no justifying circumstances, such as consent by the
affected State or an intervening cause, such as an act of God.
(iv) The damage must be "significant," which can present serious problems of
proof and quantification.
In practice, there are relatively few judicial claims based on State
responsibility, and most pollution cases are settled not at the international
level but through private international rules of civil liability (i.e.
directly between the private individuals involved). International claims
commissions that distribute funds "donated" by the acting State directly to
the foreign plaintiffs are also important. Such a procedure allows States to
settle the claims without acknowledging legal responsibility.
STATE AND CIVIL LIABILITY
A distinction continues to emerge in international environmental law between
international "responsibility" and international "liability": the former
arises from unlawful acts, the latter focuses primarily on lawful acts
(although it is still used at times with reference to unlawful acts).2
Imposing liability for acts not prohibited by international law irrespective
of fault or the lawfulness of the activity emphasizes the harm, rather than
the conduct. Traditional principles of State responsibility can merge with
the concept of State liability, particularly in instances such as ultra-
hazardous activities where States must meet such a strict standard of care
that for all practical purposes they will be "responsible" for any activity
leading to harm.
There is as yet no international consensus regarding the details for
when and how compensation must be paid.3 Nonetheless liability for pollution-
related injuries is addressed, albeit generally, in many treaties. For
example, the 1989 Basel Convention contains an obligation for the Parties to:
co-operate with the view to adopting, as soon as practicable, a protocol
setting out appropriate rules and procedures in the field of liability
and compensation for damage resulting from the transboundary movement
and disposal of hazardous wastes and other wastes.4
Negotiations on such a protocol are currently under way and a draft
under discussion contains a three-tier liability system. Primary liability
shall be through civil liability of the private operators. This will be
supplemented by a subsidiary compensation fund, and as a last resort the
State shall be held liable.
A number of international environmental conventions have also been
adopted to assist injured private parties use civil liability systems to gain
compensation.5
THE POLLUTER PAYS PRINCIPLE
The polluter pays principle implies that the polluter should bear the
expenses of carrying out pollution prevention measures or paying for damage
caused by pollution. Instituting the polluter pays principle ensures that the
prices of goods reflect the costs of producing that good, including costs
associated with pollution, resource degradation, and environmental harm.
Environmental costs are reflected (or "internalized") in the price of every
good. The result is that goods that pollute less will cost less, and
consumers may switch to less polluting substitutes. This will result in a
more efficient use of resources and less pollution.
Originally recommended by the OECD Council in May 1972, the polluter
pays principle has been increasingly accepted as an international
environmental principle. It has been explicitly adopted in several bilateral
and multilateral resolutions and declarations,6 including Principle 16 of the
Rio Declaration which provides:
National authorities should endeavor to promote the internalization of
environmental costs and the use of economic instruments, taking into
account the approach that the polluter should, in principle, bear the
cost of pollution, with due regard to the public interest and without
distorting international trade and investment.
EQUAL ACCESS TO ADMINISTRATIVE AND JUDICIAL PROCEEDINGS
Central to the issues of compensation for environmental harm is the emerging
trend toward equal access to administrative and judicial proceedings. Under
the equal access principle, affected parties in one State should be provided
the same access to remedies and redress as would be provided to affected
parties in the State where the polluting activities are located. The
principle extends both to planning processes, such as the environmental
impact assessment provisions,7 and to issues of liability and compensation.8
.
"The emergence of the concept
of a 'common concern' of humankind
may help resolve the challenge to permanent
sovereignity over natural resources."
6. LEGAL STATUS OF NATURAL RESOURCES AND COMMON AREAS
Many of the principles, duties and obligations discussed above often focus on
environmental pollution control. Just as important for achieving sustainable
development are issues relating to the sustainable use of natural resources.
Traditionally, natural resources located wholly within national boundaries
have been considered to be within the province of national law and
development priorities. For resources that are shared by different nations
(e.g., rivers or migratory wildlife), however, there is a need for
international regulation. Similarly, global common areas beyond national
jurisdiction (e.g., the high seas, Antarctica, and outer space) require
international cooperation, and have led to the advent of a new concept - the
common heritage of humankind.
Even more recently, the increasing urgency of international
environmental issues and the increasing recognition that all states are
ecologically interrelated have led to a new challenge to State sovereignty
over natural resources. This challenge draws from the intellectual roots of
the common heritage of humankind, to suggest that humankind has a common
concern in some resources (e.g., biodiversity) or activities (e.g., emissions
of greenhouse gases) which might otherwise be considered wholly within the
province of State sovereignty. These concepts and their implications for
international environmental law and sustainable development are discussed
below.
PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES
Sovereignty in the relations between States signifies independence; that is,
the right to exercise, within a portion of the globe and to the exclusion of
other States, the functions of a State, such as the exercise of jurisdiction
and enforcement of laws over persons therein. The concept of permanent
sovereignty over natural resources, though subsumed under the broader
principle of territorial sovereignty, is of a relatively recent origin. The
United Nations General Assembly declared, inter alia, that the right of
peoples and nations to permanent sovereignty over their natural wealth and
resources must be exercised in the interest of their national development and
of the well-being of the people of the States concerned.1 The resolution
further declared that the exploration, development and disposition of such
resources, as well as the import of foreign capital required for these
purposes, should conform with rules and conditions that the people and
nations freely consider to be necessary or desirable with regard to the
authorization, restriction or prohibition of such activities.
National sovereignty over natural resource development issues has been
reaffirmed in many international agreements, declarations and resolutions.
For example, the UNESCO Convention for the Protection of the World Cultural
and Natural Heritage, while obliging contracting States to cooperate in
protecting certain cultural and natural heritage sites, emphasizes full
respect for the sovereignty of States on whose territory the sites are
located.2 More recently, the 1992 Biodiversity Convention affirms that States
have sovereign rights over their natural resources and the authority to
regulate access to genetic resources through national legislation.3
The concept of permanent sovereignty is not absolute and is subject to
a general duty not to harm the interests of other States. As stated in the
1972 Stockholm Declaration and reaffirmed in the 1992 Rio 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 and
developmental 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.4
Moreover, as discussed above, permanent sovereignty may be slowly
conditioned to reflect the goal of sustainable development.5 The emergence of
the concept of a "common concern" of humankind may help resolve the challenge
to permanent sovereignty over natural resources. As knowledge of the
ecological interrelatedness of the planet increases, more activities or
resources that qualify as "common concerns" will increase, thus providing the
conceptual justification for appropriate international regulation.
SHARED RESOURCES
This concept refers to resources that do not fall wholly within the
territorial jurisdiction of one State, but straddle common political borders
or migrate from one territory to another. Examples include river basins,
enclosed and semi-enclosed seas, mountain systems, watershed areas, and
migratory wildlife. The primary concept governing shared resources is the
general obligation for equitable or harmonious utilization of such
resources.6
Although the principle of equitable utilization entails a broad range of
responsibilities, most of them relate to cooperation, notification and
consultation. As the 1974 Charter of Economic Rights and Duties of States
notes:
In the exploitation of natural resources shared by two or more
countries, each State must co-operate on the basis of a system of
information and prior consultation in order to achieve optimum use of
such resources without causing damage to the legitimate interest of
others.7
Indeed, virtually all the principles and discussions relating to
international cooperation and the duty to avoid harm apply to State
activities with respect to shared natural resources.8
COMMON HERITAGE OF HUMANKIND
The global commons refers to those areas beyond the limits of national
jurisdiction such as the high seas, the sea-bed, Antarctica, outer space, or
the ozone layer. For resources in these areas, the concept of permanent
sovereignty is generally not applicable. Moreover, although the rules of
cooperation and equitable use that apply to shared resources also apply to
global commons resources, participants in the Law of the Sea Conference
perceived a need to generate a new conceptual framework for addressing these
resources. Although the first derivation of the common heritage of humankind
may have related to the protection of certain cultural or natural landmarks9
and outer space,10 it became a central principle in the 1982 U.N. Law of the
Sea Convention. Seeking to institute a common management regime for the deep
sea-bed, the convention states:
The Area and its resources are the common heritage of mankind. No state
shall claim or exercise sovereignty or sovereign rights over any part of
the Area or its resources.... All rights in the resources of the Area
are vested in mankind as a whole ... the Authority shall provide for the
equitable sharing of financial and other economic benefits derived from
activities in the Area....11
Although the global commons are open for legitimate, peaceful and
reasonable use by all States, they cannot be appropriated by any one State.
States must cooperate in the conservation and sustainable utilization of the
natural resources of the commons and, in its purest form, must share in the
economic wealth of those areas.
Most recently, the concept of common heritage of humankind has been
applied in the protection of Antarctica and the decision to make that
continent essentially the equivalent of a global park, with very limited
rights for exploitation, at least over the next fifty years.12
COMMON CONCERN OF HUMANKIND
Although the common heritage of humankind has proven to be a useful concept
for developing an international regulatory regime for resources in global
commons, the concept has not been widely accepted in relation to other
resources or activities of interest to the international community. The
common heritage concept is viewed as being in direct opposition to concepts
of permanent sovereignty over natural resources. It thus provides a less
compelling conceptual justification for regulating such internal issues as
the conservation of biodiversity or the emission of greenhouse gases.
At the same time, there is a growing consensus about the ecological
interdependence of human activities around the planet and a growing
understanding that all of humanity may have an interest (based on
environmental concerns) in certain activities or resources wholly within
State boundaries. The compromise reached with respect to the Biodiversity
Convention and the Climate Change Convention is that there are common
"concerns" of humankind. This principle may never be defined in any precise
way, but it nonetheless provides the conceptual framework for international
regulation and lawmaking with respect to what would otherwise be activities
or resources within the sovereign control of individual States.
As international concern over environmental issues broadens, the concept
of a common concern of humankind can be expected to expand to other areas.
Indeed, if there is to be an international law of sustainable development
that actually constrains domestic development decisions, conceptually it will
come from the same increased understanding of ecological interdependence that
has led to the development of the concept of common concern.
.
7. CONCLUSION
The growing understanding of the planet's ecological constraints on human
activity has led to the rapid development of international environmental law.
Indeed, the international law of sustainable development and environmental
protection has emerged as a major area of international law and policymaking.
It has matured now to where it must be treated equally with the longer
standing principles and laws underlying international trade. Recognizing and
understanding the international environmental principles in this paper is a
first step in effectively reconciling the goals, policies and principles of
environmental protection with the goals, policies and principles of
international trade.
.
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ENDNOTES
Title Page
1. Similarly, policymakers can benefit from understanding key concepts
and principles of international trade, such as "most favored nation",
"national treatment", and "like product".
1. Introduction
1. Statute of the International Court of Justice, Article 38(1) (1945).
The statute of the court describes judicial decisions and the writings of
publicists "as subsidiary means for the determination of rules of law," and
many analysts view them primarily as evidence of law. See, e.g., Brownlie,
Principles of Public International Law, 20-26 (1979).
2. See, e.g., United Nations Convention on the Law of the Sea, Part V,
Dec. 10, 1982, U.N. Doc. A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982)
(enters into force Nov. 16, 1994) [hereinafter "U.N. Convention on the Law of
the Sea"] (granting coastal states the right to manage and conserve marine
resources within their exclusive economic zone).
2. The International Law of Sustainable Development
1. See Rio Declaration on Environment and Development, Principle 4, June
14, 1992, U.N. Doc. A/CONF.151/5/Rev.1 (1992), reprinted in 31 I.L.M. 876
(1992) [hereinafter "Rio Declaration"].
2. See Report of the United Nations Conference on Environment and
Development, Annex II, June 14, 1992, U.N. Doc. A/CONF.151/26 (1992)
[hereinafter "Agenda 21"].
3. World Commission on Environment and Development, Our Common Future 8
(1987) [hereinafter "Our Common Future"].
4. UNEP Report of the Governing Council, U.N. GAOR 44th Sess., Supp. No.
25, at 115, U.N. Doc. A/44/25 (1989).
5. See also, e.g., Rio Declaration, supra note 5, at Principle 5
(eradicating poverty is essential task); Declaration of the United Nations
Conference on the Human Environment, Principles 1, 8, June 16, 1972, U.N.
Doc. A/CONF.48/14/Rev.1 (1973), reprinted in 11 I.L.M. 1416 (1972)
[hereinafter "Stockholm Declaration"].
6. See, e.g., World Charter for Nature, Preamble, G.A. Res. 37/7 (Oct.
28, 1982) [hereinafter "World Charter for Nature"]; Convention on Biological
Diversity, Preamble, June 5, 1992, 31 I.L.M. 818 (1992)[hereinafter
"Biodiversity Convention"].
7. See also Stockholm Declaration, supra note 9, at Principle 13.
8. See generally Statistical Office of the United Nations, SNA Draft
Handbook on Integrated Environmental and Economic Accounting (Mar., 1992)
(provisional version); Repetto, et al., Wasting Assets: Natural Resource
Accounting in the National Income Accounts (World Resources Institute, 1989);
Ahmad, et al., Environmental Accounting for Sustainable Development (UNEP-
World Bank Symposium, 1989).
9. See, e.g., infra Part V(3) (discussing the Polluter Pays Principle).
10. See, e.g., Rio Declaration, supra note 5, Preamble; U.N. General
Assembly Resolution on Protection of Global Climate for Present and Future
Generations of Mankind, G.A. Res. 43/53 (Dec. 6, 1988), reprinted in 28
I.L.M. 1326 (1989); Biodiversity Convention, supra note 10, Preamble;
Association of South East Asian Nations (ASEAN) Agreement on the Conservation
of Nature and Natural Resources, Preamble, July 9, 1985, reprinted in 15
Envtl. Pol'y & L. 64 (1985) (not yet in force) [hereinafter "ASEAN
Conservation Agreement"].
11. See also, e.g., Rio Declaration, supra note 5, Preamble
("Recognizing the integral and interdependent nature of the Earth, our
home").
12. See infra Part VI(4) (discussing the common concern of humankind).
13. See, e.g., United Nations General Assembly Resolution on the
Historical Responsibility of States for the Protection of Nature for the
Benefit of Present and Future Generations, G.A. Res. 35/8 (Oct. 30, 1980);
Declaration of the Hague, Mar. 11, 1989, 28 I.L.M. 1308 (1989); United
Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849
(1992) (not yet in force) [hereinafter "Climate Change Convention"].
14. Fisheries Jurisdiction (U.K. v. Iceland), 1974 I.C.J. 34-35
(Judgement of July 25).
15. Biodiversity Convention, supra note 10, at Article 2.
16. Stockholm Declaration, supra note 9, at Principle 5.
17. Rio Declaration, supra note 5, at Principle 7.
18. See Climate Change Convention, supra note 17, at Article 3.
19. Montreal Protocol on Substances that Deplete the Ozone Layer,
Article 5, Sept. 16, 1987, U.K.T.S. 19 (1990), reprinted in 26 I.L.M. 1550
(1987) [hereinafter "Montreal Protocol"].
20. See, e.g., id. at Article 5(3); Biodiversity Convention, supra note
10, at Articles 20(2), 21(1); see also Stockholm Declaration, supra note 9,
at Principle 9.
21. The Global Environment Facility (GEF) was created in 1990 to provide
incremental funding to developing countries in four project categories: (1)
reducing the risk of global climate change; (2) preserving biodiversity; (3)
preventing further depletion of the ozone layer; and (4) protecting
international waters. Legal arrangements establishing the GEF took place in
1991. See 30 I.L.M. 1735 (1991). The GEF is operated under a tripartite
agreement among the World Bank, UNEP and UNDP. As of June 30, 1993, the GEF
had approved projects for a total of over $700 million in 63 countries.
22. Report of the Fourth Meeting of the Parties to the Montreal Protocol
on Substances that Deplete the Ozone Layer, Decision IV/18, Nov. 25, 1992,
UNEP/OzL.Pro.4/15.
23. See London Adjustments and Amendments to the Montreal Protocol on
Substances That Deplete the Ozone Layer; and Non-Compliance Procedure,
Article 10, June 29, 1990, UNEP/OzL.Pro.2/3 (1990) (amendments not yet in
force) [hereinafter "London Revisions to the Montreal Protocol"]; Climate
Change Convention, supra note 17, at Article 11; Biodiversity Convention,
supra note 10, at Article 20; see also Agenda 21, supra note 6, at Paragraph
33.13 (requiring substantial new and additional funding).
24. See Agenda 21, supra note 6, at Chapter 34 (addressing the transfer
of environmentally sound technology).
25. Our Common Future, supra note 8, at 65.
26. Rio Declaration, supra note 5, at Principle 10; see also
Biodiversity Convention, supra note 10, Preamble; ASEAN Conservation
Agreement, supra note 14, at Article 16; OECD Council Recommendation
Concerning the Provision of Information to the Public and Public
Participation in Decision-Making Processes Related to the Prevention of, and
Responses to, Accidents Involving Hazardous Substances, July 8, 1982, C(88)85
(Final) (1988); World Charter for Nature, supra note 10, at Articles 23-24.
27. Under the principle of equal access, these procedures are
increasingly extended to citizens of neighboring states affected by
activities within the State. See infra Part V(4).
28. See Charter of Economic Rights and Duties of States, G.A. Res. 3281
(XXIX) (Dec. 12, 1974) [hereinafter "Charter of Economic Rights and Duties"].
29. Rio Declaration, supra note 5, at Principle 3.
3. The Duty to Cooperate
1. Vienna Convention for the Protection of the Ozone Layer, Article 4,
Mar. 22, 1985, U.K.T.S. 1 (1990), T.I.A.S. No. 11097, reprinted in 26 I.L.M.
1529 (1987) [hereinafter "Vienna Convention"].
2. U.N. Convention on the Law of the Sea, supra note 4, at Article 200.
3. Biodiversity Convention, supra note 10, at Article 17. The obligation
to provide information is generally not absolute. For example, Article 17 of
the Biodiversity Convention requires Parties to facilitate information
exchange from all "publicly available" sources, and Article 4 of the Vienna
Convention explicitly recognizes that the exchange of information is subject
to national laws and practices (e.g., those related to patents, trade
secrets, and confidential and proprietary information). See also U.N.
Economic Commission for Europe, Convention on Protection and Use of
Transboundary Watercourses and International Lakes, Article 8, Mar. 17, 1992,
31 I.L.M. 1312 (1992) (not yet in force) [hereinafter "Convention on
Transboundary Watercourses and Lakes"].
4. See Convention on International Trade in Endangered Species of Wild
Fauna and Flora, Article VIII(7), Mar. 3, 1973, 993 U.N.T.S. 243 (1973),
U.K.T.S. 101 (1976), reprinted in 12 I.L.M. 1088 (1973).
5. Climate Change Convention, supra note 17, at Article 12.
6. See Montreal Protocol, supra note 23, at Article 7.
7. Biodiversity Convention, supra note 10, at Article 26.
8. Climate Change Convention, supra note 17, at Article 9.
9. See U.N. Convention on the Law of the Sea, supra note 4, at Articles
200, 202, 204.
10. Vienna Convention, supra note 34, at Article 3; Climate Change
Convention, supra note 17, at Article 5.
11. UNESCO Convention for the Protection of the World Cultural and
Natural Heritage, Nov. 16, 1972, U.K.T.S. 2 (1985), 27 U.S.T. 37 (1972),
reprinted in 11 I.L.M. 1358 (1972) [hereinafter "UNESCO World Heritage
Convention"]. See generally Stockholm Declaration, supra note 9, at Principle
20; UNEP Governing Council Decision: Principles of Conduct in the Field of
the Environment for the Guidance of States in the Conservation and Harmonious
Utilization of Natural Resources Shared By Two or More States, UNEP
GC/DEC/6/14 (May 19, 1978), reprinted in 17 I.L.M. 1097 (1978) [hereinafter
"UNEP Principles for Shared Natural Resources"].
12. Vienna Convention, supra note 34, at Article 3, Annex I.
13. Subsequent revisions to the Montreal Protocol have resulted in
increasingly strict timetables for reducing and eliminating a growing number
of ozone destroying substances. See, e.g., London Revisions to the Montreal
Protocol, supra note 27.
14. As in the general obligation to provide information, special
provisions may protect the disclosure of confidential data as part of the
prior notification requirement. See, e.g., OECD Council Recommendation on
Principles Concerning Transfrontier Pollution, Nov. 14, 1974, C(74)224, Annex
(1974), reprinted in 14 I.L.M. 242 (1975) [hereinafter "OECD Principles on
Transfrontier Pollution"]; UNEP London Guidelines for the Exchange of
Information on Chemicals in International Trade, Article 11, UNEP
GC/DEC/15/30 (May 25, 1989) [hereinafter "London Guidelines for Exchange of
Chemical Information"].
15. Rio Declaration, supra note 5, at Principle 19; see also, e.g.,
Montreal Rules of International Law Applicable to Transfrontier Pollution,
Sept. 4, 1982, Report of the Sixtieth Conference of the International Law
Commission 1-3 (1982) [hereinafter "Montreal Rules for Transfrontier
Pollution"]; UNEP Principles for Shared Natural Resources, supra note 44, at
Principle 6; U.N. Convention on the Law of the Sea, supra note 4, at Article
206.
16. See, e.g., infra Part IV(5) (discussing environmental impact
assessments); infra Part III(5) (discussing prior informed consent).
17. Montreal Rules for Transfrontier Pollution, supra note 48, at
Article 8; see also, e.g., UNEP Principles for Shared Natural Resources,
supra note 44, at Principles 6-7; OECD Principles on Transfrontier Pollution,
supra note 47, at Annex, Principle 7; Convention on the Protection of the
Environment Between Denmark, Finland, Norway and Sweden, Feb. 19, 1974, 1092
U.N.T.S. 279 (1974), reprinted in 13 I.L.M. 591 (1974) [hereinafter "Nordic
Convention for Protecting the Environment"].
18. See, e.g., Climate Change Convention, supra note 17, at Articles
7-10 (outlining the consulting and decisionmaking authority of the Conference
of the Parties and establishing various subsidiary bodies with advisory
functions).
19. Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal, Article 6, March 22, 1989, 28 I.L.M. 657
(1989) [hereinafter "Basel Convention"]; see also Bamako Convention on the
Ban of Import into Africa and the Control of Transboundary Movement of
Hazardous Wastes within Africa, Article 6, Jan. 30, 1991, 30 I.L.M. 775
(1991) [hereinafter "Bamako Convention"].
20. Basel Convention, supra note 52, at Article 6(4).
21. International Atomic Energy Agency Convention on Assistance in the
Case of a Nuclear Accident or Radiological Emergency, Article 2, September
26, 1986, U.N.T.S. Reg. No. 24643, reprinted in 25 I.L.M. 1377 (1986)
[hereinafter "IAEA Convention on Assistance in the Case of Nuclear
Accident"].
22. London Guidelines for Exchange of Chemical Information, supra note
47, at Article 7; see also FAO International Code of Conduct on the
Distribution and Use of Pesticides, Article 9, Nov. 28, 1985 (as amended in
1989).
23. Biodiversity Convention, supra note 10, at Article 15(5).
24. London International Convention for the Prevention of Pollution From
Ships, November 2, 1973, U.K.T.S. 27 (1983), 12 I.L.M. 1319 (1973), as
modified by the Protocol of 1978 relating thereto, Feb. 17, 1978, 34 U.S.T.
3407 (1978), reprinted in 17 I.L.M. 546 (1978), [hereinafter "Marpol
Convention"]; U.N. Economic Commission for Europe, Convention on the
Transboundary Effects of Industrial Accidents, Article 10, Mar. 17, 1992, 31
I.L.M. 1330 (1992) [hereinafter "U.N. ECE Convention on Industrial
Accidents"].
25. See, e.g., European Community Directive on the Major Accident
Hazards of Certain Industrial Activities, Council Directive 82/501, Article
5, 1982 O.J. (L230) 1.
26. International Atomic Energy Agency Convention on Early Notification
of a Nuclear Accident, September 26, 1986, 25 I.L.M. 1370 (1986). See
generally UNEP Principles for Shared Natural Resources, supra note 44, at
Principle 9(1).
27. See, e.g., Rio Declaration, supra note 5, at Principle 18 (stating
that "Every effort shall be made by the international community to help
States so afflicted"); U.N. Convention on the Law of the Sea, supra note 4,
at Article 199; UNEP Principles for Shared Natural Resources, supra note 44,
at Principle 9(3).
28. See generally IAEA Convention on Assistance in Case of Nuclear
Accident, supra note 54.
4. The Duty to Avoid Environmental Harm
1. (U.S. v. Canada), III R.I.A.A. 1911, 1965 (Apr. 16, 1938).
2. See, e.g., Corfu Channel Case, (U.K. v. Albania) 1949 I.C.J. Reports
4; Lac Lanoux Arbitration, (Spain v. Fr.) XII R.I.A.A. 281 (1957); see also
UNEP Principles for Shared Natural Resources, supra note 44, at Principle 3;
U.N. Convention on the Law of the Sea, supra note 4, at Part XII.
3. See also Convention on Environmental Impact Assessment in a
Transboundary Context, Article 2(1), Feb. 25, 1991, 30 I.L.M. 800 (1991) (not
yet in force) [hereinafter "Convention on EIA in a Transboundary Context"]
(providing that "[t]he Parties shall, either individually or jointly, take
all appropriate and effective measure to prevent, reduce and control
significant adverse transboundary environmental impact from proposed
activities").
4. Basel Convention, supra note 52, at Article 2(8); see also, e.g.,
International Maritime Organization Convention on the Prevention of Marine
Pollution By Dumping of Wastes and Other Matter, Dec. 29, 1972, 1046 U.N.T.S.
120 (1972), reprinted in 11 I.L.M. 1294 (1972); MARPOL Convention, supra note
57.
5. OECD Principles on Transfrontier Pollution, supra note 47, at Annex,
Title C.4.
6. See, e.g., id.; Nordic Convention for Protecting the Environment,
supra note 50, at Article 2 (any activity causing a nuisance in one
Contracting State "shall be equated with a nuisance in the State where the
activities are carried out"); UNEP Principles for Shared Natural Resources,
supra note 44, at Principle 13.
7. See, e.g., Paris Convention for the Prevention of Marine Pollution
from Land-Based Sources, June 4, 1974, 13 I.L.M. 352 (1974); Barcelona
Convention for the Protection of the Mediterranean Sea Against Pollution,
Feb. 16, 1976, U.N.T.S. Reg. #16908, reprinted in 15 I.L.M. 290 (1976);
Convention on Transboundary Watercourses and Lakes, supra note 36.
8. See, e.g., Montreal Protocol, supra note 23 (reducing emissions of
certain chloroflourocarbons); London Revisions to the Montreal Protocol,
supra note 27 (phasing out certain chloroflourocarbons and calling for the
reduction in other ozone destroying substances); Helsinki Protocol to the
1979 Convention on Long-range Transboundary Air Pollution on the Reduction of
Sulphur Emissions or Their Transboundary Fluxes By at Least 30 Per Cent, July
8, 1985, 27 I.L.M. 707 (1988) (calling for a reduction in sulfur dioxide
emissions).
9. See also infra Part IV(4) (describing the link between clean
production methods and the precautionary principle).
10. Rio Declaration, supra note 5, at Principle 15.
11. World Charter for Nature, supra note 10, at Principle 11;
Biodiversity Convention, supra note 10, Preamble; Climate Change Convention,
supra note 17, at Article 3.3; Ministerial Declaration for the Second
International Conference on the Protection of the North Sea, Nov. 25, 1987,
reprinted in International Protection of the Environment, 2d
ser.II/B/25-11-87 (Bock et al. eds., 1987); London Revisions to the Montreal
Protocol, supra note 27, at Annex II, Article I.A.1 (amendment to 6th
preambular paragraph); Convention on Transboundary Watercourses and Lakes,
supra note 36, at Article 2(5)(a); Treaty Establishing the European Economic
Community, Mar. 25, 1957, 294 U.N.T.S. 17, U.K.T.S. 15 (1979) [hereinafter
EEC Treaty] as amended by Treaty on European Union, Title XVI, Article 130r,
Feb. 7, 1992.
12. UNEP Governing Council Decision, UNEP /GCSS.II/4B (Aug., 1990).
13. Bamako Convention, supra note 52, at Article 4(3)(f).
14. See, e.g., Rio Declaration, supra note 5, at Principle 17;
Wellington Convention on the Regulation of Antarctic Mineral Resources
Activities, Articles 37(7)(d)-(e), 39(2)(c), 54(3)(b), June 2, 1990, 27
I.L.M. 868 (1988) (not yet in force); World Charter for Nature, supra note
10, at Principle 11(c); UNEP Governing Council Decision: Goals and Principles
of Environmental Impact Assessment, UNEP GC/DEC/14/17, Annex III (June 17,
1987); EEC Directive on the Assessment of the Effects of Certain Public and
Private Projects on the Environment, Council Directive 85/337, Article 2,
1985 O.J. (L175) 40-41; Biodiversity Convention, supra note 10, at Article
14; African, Caribbean and Pacific States European Economic Community Fourth
Lome Convention, Article 37, Dec. 15, 1988, 29 I.L.M. 783 (1990) (not yet in
force).
15. All of the multilateral development banks now have environmental
impact assessment policies and procedures. See, e.g., World Bank, Operational
Directive 4.01 (1991); World Bank, Environmental Sourcebook, Vols. I-III,
World Bank Technical Papers 139, 140, 154 (1991).
16. The U.S. National Environmental Policy Act of 1969, 42 U.S.C.
4331-4344, was the first national EIA law. It, along with the European
Community's EIA Directive, has shaped the development of many other national
laws. There are now EIA laws in countries from the Netherlands to New
Zealand, and from Bulgaria to Brazil.
17. Biodiversity Convention, supra note 10, at Article 14.
18. UNEP Principles for Shared Natural Resources, supra note 44, at
Principle 4.
19. Convention on EIA in a Transboundary Context, supra note 64.
20. U.N. Convention on the Law of the Sea, supra note 4, at Article 206.
5. The Duty to Compensate for Harm
1. See also, e.g., Rio Declaration, supra note 5, at Principle 2; UNEP
Principles for Shared Natural Resources, supra note 44, at Principle 3; U.N.
Convention on the Law of the Sea, supra note 4, at Article 194(2).
2. See, e.g., U.N. Convention on the Law of the Sea, supra note 4, at
Article 139 ("... damage caused by failure of a State Party or international
organization to carry out its responsibilities under this Part shall entail
liability..."); Convention on International Liability for Damage Caused by
Space Objects, Articles II-III, Mar. 29, 1972, 961 U.N.T.S. 187
(1972)(providing for absolute liability without a wrongful act for damage
caused on the surface of the earth and for fault-based responsibility for
other kinds of damage).
3. See, e.g., Stockholm Declaration, supra note 9, at Principle 22; Rio
Declaration, supra note 5, at Principle 13.
4. Basel Convention, supra note 52, at Article 12; see also UNEP
Principles for Shared Natural Resources, supra note 44, at Principle 12.
5. See, e.g., 1989 Convention on Civil Liability for Damage Caused
During Carriage of Dangerous Goods by Road, Rail and Inland Navigation
Vessels, Oct. 10, 1989 (not yet in force); Vienna Convention on Civil
Liability for Nuclear Damage, May 21, 1963, 1063 U.N.T.S. 265, reprinted in
2 I.L.M. 727 (1963); International Convention on Civil Liability for Oil
Pollution Damage, Nov. 29, 1969, as amended by the 1976 Protocol, 9 I.L.M. 45
(1970); see also infra Part V(4) (discussing the principle of equal access).
6. See, e.g., OECD Council Recommendation on Guiding Principles
Concerning International Economic Aspects of Environmental Policies, May 26,
1972, C(72)128 (1972); OECD Council Recommendation on the Implementation of
the Polluter-Pays Principle, Nov. 14, 1974, C(74)223 (1974); European Charter
on the Environment and Health, Principles for Public Policy, Article 11, Dec.
8, 1989, WHO Doc. ICP/RUD 113/Conf.Doc./1, reprinted in 20 Envtl. Pol. & Law
57 (1990); Agenda 21, supra note 6, at Paragraph 30.3 (governments should use
"free market mechanisms in which the prices of goods and services should
increasingly reflect the environmental costs"), Paragraph 2.14 (commodity
prices should reflect environmental costs); Convention on Transboundary Lakes
and Watercourses, supra note 36, at Article 2(5)(b); see also EEC Treaty,
supra note 72, as amended by, Single European Act, Title VII, Article 130r,
Paragraph 2, Feb. 17, 1982.
7. See, e.g., OECD Principles on Transfrontier Pollution, supra note 47,
at Annex, Title D.5(a).
8. See, e.g., Nordic Convention for Protecting the Environment, supra
note 50, at Article 3 (providing equal access for parties affected by an
environmental nuisance); OECD Principles on Transfrontier Pollution, supra
note 47, at Annex, Title D.5(b); UNEP Principles for Shared Natural
Resources, supra note 44, at Principle 14; U.N. ECE Convention on Industrial
Accidents, supra note 57, at Article 9.
6. Legal Status of Natural Resources and Common Areas
1. G. A. Res. 1803 (XVII) (Dec. 14, 1962); see also Declaration of the
Right to Development, G.A. Res. 41/128 (Dec. 4, 1986).
2. UNESCO World Heritage Convention, supra note 44, at Article 6.
3. Biodiversity Convention, supra note 10, at Article 15; see also
Stockholm Declaration, supra note 9, at Principle 21; Rio Declaration, supra
note 5, at Principle 2.
4. Rio Declaration, supra note 5, at Principle 2; Stockholm Declaration,
supra note 9, at Principle 21.
5. Rio Declaration, supra note 5, at Principle 3 (modifying the right to
development to include intergenerational equity).
6. See Helsinki Rules on the Uses of the Waters of International Rivers,
Aug. 26, 1966, in Report of the Fifty-Second Conference of the International
Law Association 484 (1967); UNEP Principles for Shared Natural Resources,
supra note 44, at Principle 1.
7. Charter of Economic Rights and Duties, supra note 32, at Chapter II,
Article 3.
8. See UNEP Principles for Shared Natural Resources, supra note 44, at
Principle 3 (duty to avoid harm), Principle 4 (environmental impact
assessment), Principle 5 (information exchange and consultation), Principle
6 (consultation and notification), Principle 8 (joint scientific research),
Principle 9 (emergency notification).
9. As the preamble of the UNESCO World Heritage Convention, supra note
44, states:
Deterioration or disappearance of any ... cultural and natural heritage
constitutes a harmful impoverishment of the heritage of all nations of the
world, ... parts of the cultural and natural heritage ... need to be
preserved as part of the world heritage to mankind.
10. Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 205 (1967), reprinted in 6
I.L.M. 386 (1967). This treaty, also known as the Outer Space Treaty,
provides that the exploration and exploitation of the relevant areas shall be
carried out for the benefit and in the interests of all countries and that
these areas shall be the province of all humankind.
11. See U.N. Convention on the Law of the Sea, supra note 4, at
Articles, 136, 137, 140.
12. See Protocol on Environmental Protection to the Antarctic Treaty,
June 21, 1991, 30 I.L.M. 1461 (1991) (not yet in force).
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