Transboundary Pollution – Basics of International Law

Introduction

International Environmental Law has seen a tremendous increase in scope ever since its recognition in the 1960s through Rachel Carson’s book, the Silent Spring. Since then, the law has evolved from an anthropocentric approach to an enviro-centric approach.

 In the years since, several conferences have been held and important declarations have been signed (Stockholm Declaration of 1972, Rio Declaration of 1992 etc.). Along with it, principles of international environmental law have developed. One such principle is the duty not to cause significant damage to the environment of another State. This principle found its latest interpretation in the Pulp Mills case where the ICJ referred to it as a part of the corpus of international law relating to the environment.

While discussing this principle as mentioned in the Pulp Mills case[1], and its evolution, the author will first focus upon the principle of prevention and precaution, along with the corresponding notion of Transboundary Harm. The author will also analyse Environmental Impact Assessment as well as the duty to notify and get prior informed consent. Finally, the author will analyse the relevance and treatment of the principle in international law.

Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. (Apr. 20)

Duty not to cause Significant Damage to the environment of another State

The Rio Declaration[2] as well as the Stockholm Declaration[3] uphold the principle of no harm. Sic utero tuo, ut alienum non laedas, is the basis of the concept of prevention of transboundary harm and the principle of Good Neighbourliness.[4] The liability of the State for environmental damage due to transboundary pollution is based on this principle of non-interference.[5] Transboundary harm is harm caused in the territory of, or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border.[6]

Although States have a right to exploit living resources pursuant to their domestic policies, there is a 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. Every state must act in such a way as not to allow, knowingly, its territory to be used for acts contrary to the rights of other States.[7] States have an obligation to prevent injury to other States.[8]

Both the instruments put a responsibility on the State 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.” The only difference is in the reason for exploitation. While Stockholm Declaration mentions that the States had the sovereign right to exploit their own resources pursuant to environmental policies; under the Rio Declaration it has evolved to include both environmental as well as developmental policies.

The no-harm principle, thus, includes under it the following notions:

1. Principle of Prevention

Environmentalists, and now environmental lawyers understand that it is easier to prevent significant harm to the environment than to reverse effects once the damage has been caused. In the Nuclear Weapons Advisory Opinion, the court held that “The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.”[9] It is in fact, every State’s duty not to allow its territory to be utilised in a manner which infringes upon the rights of other States.[10]

The Principle of Prevention was first recognised in an international context through arbitration in the Trail Smelter case.[11] In this arbitration matter, the air pollution in Canada had caused injury to the air in Washington. Not only did it recognise the duty to prevent harm, but also awarded damages.

2. Principle of Precaution

Precautionary principle is a guiding principle in application of international environmental law where there is an element of scientific uncertainty.[12] Principle 15 of the Rio Declaration upholds the Precautionary Principle and it states as follows:

“Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”[13]

Thus, where there is scientific uncertainty with respect to an activity, resulting in threat of serious or irreversible damage, this principle applies. The underlying idea behind this principle is not about preventing damage, but about taking the most cost-effective measure to prevent further environmental degradation.

In the Gabcikovo-Nagymaros case[14], the ICJ held that an essential interest that could affect a state of necessity would include “a grave danger to . . . the ecological preservation of all or some of [the] territory [of a State]”. The Court recognised some aspects of the precautionary principle but refused to use that terminology.

3. Environmental Impact Assessment (EIA):

The EIA is a procedure where before any developmental activity is undertaken, a study is undertaken to look into the environmental damage of the said activity. It is enshrined in Rio Principle 17, where it is used as a national instrument. Despite its name, it is used to study the social and economic impacts as well as the environmental ones so as to give a holistic idea of the project and ensure a fair cost-benefit analysis.

Pulp Mills[15] is the first occasion on which an international court has considered the contents of an EIA and held that prior assessment of transboundary impacts is not merely a treaty based obligation but a requirement of general international law.[16] The ICJ categorically held:  “Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the regime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.”

EIA was recognised as customary international law which echoes the Rio Declaration, Espoo Convention as well as the ILC Draft Articles on transboundary harm.

Duty to Notify other States of any environmental disasters and Prior Informed Consent

One other principle or obligation on the State undertaking any developmental activity would be to notify the other states of any environmental disasters. This Rio Declaration, i.e. Principle 18 encapsulates this principle. In the Nicaragua judgment, the Parties agreed that there was the “existence in general international law of an obligation to notify, and consult with, the potentially affected State in respect of activities which carry a risk of significant transboundary harm.”[17]

Furthermore, it is also the duty to get consent of the State which may be affected to proceed with the activity, as stated in Principle 19 of Rio Declaration. This concept has been incorporated into various multilateral environmental agreements such as the Hazardous Waste Protocol, Rotterdam Convention, Basel Convention, etc.

Treatment under Corpus of International Law

Traditionally, there have only been very few international environmental law cases pertaining to prevention and precaution. But through public awareness and an urgent need for makeover of the environment protection regime, the body of case law is increasing. Through these, there are newly developed or newly upheld principles of environmental law.

But there has been a certain evasion with regard to recognising some of these principles as customary international law. Prof. Boisson de Chazournes very clearly explains the trajectory taken by the ICJ in recognising (or lack of recognition) the principles.[18] In the Gabcikovo-Nagymaros case, the court assumed the importance of environmental protection without mentioning the precautionary principle. Similar was the situation in the Pulp Mills Case. The EC – Meat and Meat Products (Hormones) decision by the WTO recognises the court’s hesitation to acknowledge this principle[19].

The reasons are attributed to the confusion in the legal status of precautionary principle as a general principle of international law or a customary principle of international law. Another explanation could be attributed to the fact that there is no consensus on the precise definition and content of the principle. Thus Precautionary Principle is not recognised as a customary international law principle.[20]

Although its usage is controversial, this hesitation should not be seen as a deterrent in the emergence of the principle.[21] The precautionary principle is expressly recognised as a considerable significant for future approaches to marine environmental protection and resource conservation.[22] Pulp Mills has only added to the jurisprudence of recognising and developing this principle further.

Conclusion

Pulp Mills case is a landmark judgment in environmental law as it discussed various concepts related to the no harm principle. It looked into both the precautionary and prevention principle. Most importantly, the judgment recognised EIA as part of customary international law. In 2010, not only were these concepts further advanced, but also embedded as important aspects of international environmental law. Thus, it has rightly incorporated “essential elements of the duty not to cause significant damage to the environment of another state” as a part of the corpus of international law relating to the environment.


[1] Pulp Mills on the River Uruguay (Argentine v. Uruguay) (Judgment) (2010) ICJ Rep 14, para. 101.

[2] ‘Rio de Janeiro Declaration on Environment and Development’ (Rio de Janeiro, 3 to 14 June 1992), (1992) 31 ILM 876. (Principle 21)

[3] ‘Declaration of the United Nations Conference on the Human Environment’ (Stockholm, 16 June

1972), (1972) 11 ILM 1416. (Principle 2)

[4] Alan Boyle & Patricia Birnie, International Law and the Environment (Oxford Univ. P. 2nd ed. 2004). 

[5] P.B. Sahasranaman, Handbook of Environmental Law 105 (Oxford Univ. P. 2nd ed. 2012).

[6]  Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, art 2 (c), May 11, 2001, ILC A/CN.4/L.601.

[7] Lac Lanoux Arbitration (Fr. v. Spain) 24 I.L.R. 101 (1957).

[8] Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9).

[9] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1996) I. C. J. Reports 242, para. 29

[10] Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22

[11] Trail Smelter Arbitration (United States v. Canada( 1938 and 1941 ) 3 R.I.A.A. 1905.

[12] Philippe Sands & Jacqueline Peel, Principles Of International Environmental Law 218 (Cambridge Univ. P. 3rd ed. 2012).

[13] The Rio Declaration on Environment and Development, Principle 15, U.N. Doc A/CONF/151/26 (Vol.1) (June 13, 1992).

[14] Gabčikovo-Nagymaros Project (Hungary/Slovakia) (1997) ICJ Rep 7, para. 53

[15] Pulp Mills on the River Uruguay (Argentine v. Uruguay) (Judgment) (2010) ICJ Rep 14.

[16] Alan Boyle, Developments in International Law of EIA and their Relation to the Espoo Convention, https://www.unece.org/fileadmin/DAM/env/eia/documents/mop5/Seminar_Boyle.pdf

[17] Certain Activities Carried Out by Nicaragua (Costa Rica v. Nicaragua) and Construction of a Road

(Nicaragua v. Costa Rica) (Judgment) (2015) ICJ, para. 106.

[18] BOISSON DE CHAZOURNES, L., ‘Precaution in International Law: Reflection on Its Composite Nature’ in M. NDIAYE and R. WOLFRUM (eds.), Law of the Sea, Environmental Law and Settlement of Disputes – Liber Amicorum Judge Thomas A. Mensah (Nijhoff, The Hague, 2007), pp. 21-34.

[19] European Communities- Measures concerning Meat and Meat Produets (Hormones), Report of the Appellale Body, WT/DS/26/AB/R and WT/DS/48/ AB/R, 16 January 1998.

[20] BOISSON DE CHAZOURNES, L., ‘Precaution in International Law: Reflection on Its Composite Nature’ in M. NDIAYE and R. WOLFRUM (eds.), Law of the Sea, Environmental Law and Settlement of Disputes – Liber Amicorum Judge Thomas A. Mensah (Nijhoff, The Hague, 2007), pp. 21-34.

[21] FREESTONE, D., ‘The Road from Rio: International Environmental Law after the Earth Summit’, (1994) 6 Journal of Environmental Law pp.193, 212.

[22] UN Doc A/ 4 5 / 7 2I, 19 November 1990, 20, para 6.

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