Customary international law

There are three widely accepted principles of customary international law that appear to have potential application in this area. First, the duty to prevent and control environmental harm requires States to take adequate steps to control and regulate sources of serious global pollution or transboundary harm within their territory or subject to their jurisdiction. The origins of such a duty are the Trail Smelter decision19 and Principle 21 of the 1972 Stockholm Declaration on the Human Environment.20 In the Trail Smelter arbitration the tribunal held that '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 of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence'.21 Principle 21 of the Stockholm Declaration affirms the sovereign right of States to exploit their own resources pursuant to their own environmental policies and their responsibility to 'ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or to areas beyond the limits of national jurisdiction'. Principle

21 was regarded by many States present at the Stockholm Conference, and subsequently by the UN General Assembly, as reflecting customary international law.22 Its content has been included in a number of later instruments, including UNCLOS, article 194(2), the 1985 ASEAN Convention on the Conservation of Nature and Natural Resources, article 20,23 and in the Preamble of the United Nations Framework Convention on Climate Change. Principle 21 has been restated in the 1992 Rio Declaration. As applied in subsequent treaties and res-olutions,24 the Principle recognises a duty to prevent harm rather than merely make reparation for environmental damage. The Principle has been highly influential in later international developments. Older formulations of the 'no harm' principle dealt only with transboundary harm to other States, but conventions and declarations subsequent to the Stockholm Declaration support international acceptance of the protection of global common areas.25 The International Court of Justice has confirmed in the 1997 Gab^ikovo-Nagymaros (Hungary v Slovenia) decision that the duty not to cause transboundary environmental harm is a duty under general international law.26

19 (1941) 35 AJIL 684. See also the Corfu Channel case (1949) ICJ Rep 1.

20 UN Doc. A/CONF/48/14/REV 1. 21 (1941) 35 AJIL 684 at 716.

22 On this subject, see e.g. LSohn,'The Stockholm Declaration on the Human Environment' (1973) 14 Harvard

LJ423 at 485-93. See also UNGA Res 2996 (XXVII) (1972).

24 See, for example, Final Act, Conference on Security and Cooperation in Europe, Helsinki, August 1976; Preliminary Declaration of a Programme of Action of the European Communities in respect to the Environment (1973) O.C.J. 112/1.

25 See e.g. 1982 UNCLOS, arts 145, 209; Convention for the Regulation of Antarctic Mineral Resources Activities (27ILM868); 1991 Protocol to the Antarctic Treaty on Environmental Protection (30 ILM 678).

26 (1997) ICJ Rep 7; discussed in P Bekker, (1998) 92 American JIntL 273; AKoe, 'Damming the Danube: The International Court of Justice and the Gabcikovo-Nagymaros Project' (1998) 20 Sydney L Rev 612; P Taylor, 'Case Concerning the Gabgikovo-Nagymaros Project: Amessage from The Hague on Sustainable Development' (1999) 3 NewZealand J Environmental L 109. See also the Advisory Opinion of the ICJ in the Nuclear Weapons case (1996) ICJ 226.

This first principle might initially appear to be an effective means of ensuring that adequate controls exist at international level to prevent individual States causing pollution to neighbouring States in all energy-related contexts. However, theprecise scope of the legal duty to prevent transboundary pollution is not clear. Uncertainties exist on a number of matters. For example, it is not clear whether the obligation is one of due diligence or absolute prevention of harm;27 moreover, the type and degree of harm from which States must be protected is not settled.28 Although it is possible to talk generally of an international obligation not to harm the environment of other States, it is not possible to define precisely the content of the obligation. The duty must be examined individually as it applies to each type of environmental activity or harm.

Second, there is a duty of transboundary cooperation in the control of trans-boundary environmental risks.29 This principle is supported in part by the law relating to the use of shared natural resources and requires prior consultation based on adequate information.30 Pursuant to Principle 24 of the Stockholm Declaration, the duty extends to the case of management of transboundary or global environmental risks posed by hazardous or potentially harmful activities. These presumably include, inter alia, nuclear installations near borders and long-range transboundary air pollution. In addition to the Stockholm Declaration, somemea-sure of prior notification and consultation has been called for in certain treaty regimes and in the environmental strategies of UNEP and other international bodies.31

Identical procedural obligations will not apply to each case of environmental risk. The risk of harm must be significant or appreciable, and the obligation will depend on the circumstances of each case. For example, the obligation to consult about nuclear power stations has been narrowly construed by State practice and applies only to installations within 30 km of a State border.32 The duty imposes an obligation to negotiate in good faith but there are no substantive limitations on activities, such as a prohibition on the installation of nuclear facilities.33

Third, the duty of notification and cooperation in an environmental emergency is also widely accepted as customary law. State practice, case law, treaties and resolutions of international bodies support the existence of an obligation

27 According to Birnie and Boyle, International Law and the Environment, at 113: 'Treaty formulations and the work of the ILC overwhelmingly favour the due diligence interpretation of states' primary environmental obligations'.

28 See Birnie and Boyle, International Law and the Environment, at 94-102.

29 For illustrations of State practice on this point, see the LacLanoux arbitration (1957) 24 ILR101; Nuclear Test Cases (Australia v France) (1973) ICJ Rep 99; (1974) ICJ Rep 253; (New Zealand v France) (1973) ICJ Rep 135; (1974) ICJ Rep 457.

30 See e.g. G Handl, 'The Principle of "Equitable Use" as applied to Internationally Shared Natural Resources: Its Role in Resolving Potential International Disputes over Transfrontier Pollution' (1978) 14 Revue belge de droit international 40; A Utton, 'International Environmental Law and Consultation Mechanisms' (1973) 12 Columbia J Transnational L 56.

31 See, for example, 1982 UNCLOS, Articles 204-206; Convention for the Regulation of Antarctic Mineral Resource Activities (1988) 27ILM 868; Protocol to the Antarctic Treaty on Environmental Protection (1991) 30 ILM 1461.

32 See, for example, 1977 Denmark-Federal Republic of Germany Agreement Regulating the Exchange of Information on the Construction of Nuclear Installations along the Border (1978) 17 ILM 274.

33 Birnie and Boyle, International Law and the Environment, at 128.

to give timely notification to States at risk of transboundary environmental harm to enable them to take measures for self-protection and minimisation of damage.34

Other principles relevant to the international control of energy-based pollution are in the process of evolving in international environmental law. These include the precautionary principle; the principle of sustainable development; intergenerational equity; transfer of technology; and, more controversially, the right to a decent environment.35

While these various principles outlined above have application in the energy context in relation to atmospheric pollution, they are as yet insufficiently developed and defined to address adequately the environmental difficulties concerning nuclear radiation, acid rain, ozone depletion and climate change. The area where custom is perhaps of least assistance is that of climate change. It is possible to argue that the 'no harm' principle in customary international law applies to protection of the global atmosphere. This point is made by Birnie and Boyle who draw together different instruments which regulate activities affecting the atmosphere and argue that a duty of 'no harm' exists. To begin with, Principle 21 of the Stockholm Declaration forms the basis for the long-range air pollution treaties and for various provisions of the 1982 UN Convention on the Law of the Sea. Although the global environment is not an area 'beyond the limits of national jurisdiction' and hence within the exact terms of Principle 21, Birnie and Boyle argue that it should, by analogy, fall within the protection afforded by international law to common areas such as the high seas.36 Further support for the application of the 'no harm' principle to climate change is the 1977 Convention on the Prohibition of Military or Other Hostile Use of Environmental Modification Techniques, which indicates State concern regarding the hostile modification of the atmosphere. In addition, the 1980 UNEP Principles of Co-operation in Weather Modification recommend that weather modification activities should only be carried out in 'a manner designed to ensure that they do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction'.

Birnie and Boyle conclude that customary international law may provide some legal constraint on the conduct of activities likely to result in global climate change. However, there is no standard of due diligence that can be applied. The standards of due diligence contained in the Long-Range Transboundary Air Pollution Convention and the Ozone Convention cannot necessarily be generalised into customary law. The most telling argument against the customary rule applying to global climate change is the lack of consensus among States on the

34 See, for example, Corfu Channel case (1949) ICJ Rep 22; 1982 UNCLOS, Articles 198, 211(7); 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Waste, Article 13; 1976 Convention on the Protection of the Rhine Against Chemical Pollution, Article 11.

35 For a discussion of emerging principles of international environmental law, see H Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law, Graham & Trotman, London, 1994; AKiss and D Shelton, InternationalEnvironmentalLaw, Transnational Publishers Inc, New York, 3rd edn2004, ch 5.

36 Birnie and Boyle, International Law and the Environment, at 502.

need to reduce greenhouse gases and the extent of the required reductions. This indicates that the uniformity required to form a new rule of custom is lacking.

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