INTERNATIONAL ENVIRONMENTAL LAW

WORKSHEET3 AND POWERPOINT 3

Chapter 7: Making IEL Work

Chapter 8: Principles and Concepts of IEL, Some Landmark Cases

Contents
Key Concepts:..............................................................................................................................................2
11 Principles and Concepts: UNEP Training Manual on IEL.........................................................................3
1) State Sovereignty –..........................................................................................................................4
2) Right to Development.........................................................................................................................4
3) Common Heritage of Humankind –.....................................................................................................4
4) Common Concern of Humankind........................................................................................................5
5. Intergenerational Equity......................................................................................................................5
6. Common but Differentiated Responsibilities.......................................................................................5
7. State Responsibility.............................................................................................................................5
8. Obligation not to cause transboundary environmental harm.............................................................5
9. The precautionary principle.................................................................................................................5
10. The polluter and user pay principle...................................................................................................5
11. Good neighborliness and the Duty to cooperate...............................................................................5
12. Duties to provide prior notification and to consult in good faith.......................................................5
13. The Principle of Prior Informed Consent...........................................................................................5
14. Duty to assess Environmental Impacts..............................................................................................5
15. Public Participation and Access to Information.................................................................................5
Inter-Generational and Intra-Generational Equity......................................................................................6
Common Heritage and Common Concern of Humankind...........................................................................7
Cooperation & Common but Differentiated Responsibilities......................................................................7
Responsibility for Transboundary Harm......................................................................................................8
Transparency, Public Participation and Access to Information and Remedies............................................8
Prevention...................................................................................................................................................9
Polluter Pays Principle (PPP)........................................................................................................................9
Access and Benefit Sharing regarding Natural Resources..........................................................................10
Some Landmark IEL Cases.........................................................................................................................11
Note about IEL Cases.............................................................................................................................11
Trail Smelter Case (USA v. Canada) (1938 and 1941)............................................................................11

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 Gabçikovo-Nagymaros (Hungary/ Slovakia), ICJ, 25 Sep 1997...............................................................12
Iron Rhine Arbitration (Belgium/ Netherlands), PCA, 25 May 2005.......................................................14
Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ, 20 April 2010..........................................15
Advisory Opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the
Sea, February 2011................................................................................................................................16
Whaling in the Antarctic (Australia v. Japan, New-Zealand Intervening), ICJ, 31 March 2014...............17

Key Concepts:
• Regimes – includes norms, laws and institutions. Is a sufficient regime in place? Are substantive
obligations clear?

• Implementation – the process of putting commitments into practice. Although compliance

sometimes can occur without implementation, usually implementation is a predicate for
compliance.

• Compliance – a state of conformity between an actor’s behaviour and specified rule. First step is
to understand what obligations the norm or law require. This varies for different actors.
Compliance is an ongoing process, not a one-off event.

• Deterrence, Enforcement, and Sanction-based Approaches – assume that States, firms and
individuals are rational actors that will be deterred from non-compliance if they believe
violations will be detected and a sanction or penalty imposed. These approaches therefore
stress inspection, monitoring, and prosecution.

• Although enforcement is usually the domain of the State, increasingly non-State actors are
becoming involved (IOs, NGOs, and private citizens) by monitoring, investigating, publicizing,
negotiating, and bringing legal actions. Private sector may indirectly enforce laws by requiring
evidence of compliance to receive a loan or insurance policy.

• Compliance Promotion and Assistance-based Approaches – this approach assumes States, firms
and individuals are law abiding actors, struggling in good faith to comply with complicated and
competing laws, sometimes with few resources.

• This approach seeks voluntary compliance by creating a sense of obligation.

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 Ex. A high degree of participation and transparency in the law-making process leads to
perceptions of fairness and willingness to comply.

• This approach includes educational, technical and financial assistance.

• Effectiveness – the ultimate goal of any regime but includes all of the above.

• What is the difference between compliance and effectiveness of MEAs?

• Can you fully comply with an MEA but the environmental results still be ineffective?

• If an MEA is shallow, a high level of compliance will not make it effective.

• Corruption – Because governments and government officials bear primary responsibility for
enforcing IEL, government corruption is an important source of non-compliance, particularly in
developing countries where salaries are low or may go unpaid for months.

• Here the incentive to accept bribes in exchange for overlooking noncompliance may be
immense. For those seeking to evade compliance, the cost of bribery may be negligible relative
to the costs of compliance.

• OECD Convention on Combating Bribery of Foreign Public Officials in International Business

Transactions, 1999, makes it a criminal offence under a party’s domestic law, to bribe or offer to
bribe a foreign public official, “to act or refrain from acting in relation to the performance of
official duties . . . To obtain an improper advantage.”

• Why does the Bribery Convention focus on the person offering bribes rather than the official
who accepts them? Domestic laws already prohibit officials from accepting bribes.

• The UNEP Training Manual on IEL identifies 11 IEL Principles and Concepts (p. 23)

• IEL Principles are fundamental doctrines on which other rules are based, or rules of conduct.

• The main source of the key principles is the Rio Declaration on Environment and Development
(Rio de Janeiro, 1992)

• They can be placed in three groups:

• Prevention and precaution

• Sustainable development

• Public participation and human rights

11 Principles and Concepts: UNEP Training Manual on IEL

1. Sustainable Development, Integration and Interdependence

2. Inter-Generational and Intra-Generational Equity

3. Responsibility for Transboundary Harm

4. Transparency, Public Participation and Access to Information and Remedies

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 5. Cooperation, and Common but Differentiated Responsibilities

6. Precaution

7. Prevention

8. Polluter Pays Principle

9. Access and Benefit Sharing regarding Natural Resources

10. Common Heritage and Common Concern of Humankind

11. Good Governance

1) State Sovereignty –
a fundamental cornerstone of international law; also the political and legal counter-weight to
the many ecological and economic trends that are pushing countries toward international
cooperation; the argument you most hear in international negotiations when countries are
objecting to new international norms or standards.

The principles of common heritage of humankind, the obligation not to cause environmental
harm and more recently the principles of common concern, delimit the contours of state
sovereignty in the field of the environment.

Thus, state sovereignty suggests a state can do what it wants to certain resources, unless it
interferes with the interests of the international community or another state, and thus one of
the other international responsibilities or principles applies.

2) Right to Development
- Rather than suggesting any right to a certain level of development, the right is probably better
thought of as a statement of independence and autonomy-States have a right to choose their own
development paths, control the use of their resources and reap the benefits from that use. This is
reflected, for example, in Rio Principle 2, which recognizes the rights of States to set their own
environment and development policies.

3) Common Heritage of Humankind –

a significant departure common from the previous way of thinking about international law. Up until that
time, areas outside of any State's territory were often available for claiming. This was in fact the legal
framework for the colonial period.

The concept of common heritage rejected that concept and introduced instead a system that
had the potential to allow for an equal share in the benefits from these regions. The new post-
colonial countries as well as small countries obviously had an interest in developing such an
approach. The industrialized powers ultimately recognized that at the time there was little need
or impetus to develop the technologies necessary to exploit these global commons.

Over half the world’s surface area lies outside the national borders of any state i.e. high seas,
sea-bed, Antarctica, outer space, possibly outer atmosphere.

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4) Common Concern of Humankind
– A growing consensus that the planet is ecologically interdependent. So what about
international concerns about activities that take place, or resources that are located wholly
within State boundaries?

Ex. CBD – address “common concerns of humankind.”

5. Intergenerational Equity
6. Common but Differentiated Responsibilities
7. State Responsibility
8. Obligation not to cause transboundary environmental harm
9. The precautionary principle
10. The polluter and user pay principle
11. Good neighborliness and the Duty to cooperate
12. Duties to provide prior notification and to consult in good faith
13. The Principle of Prior Informed Consent
14. Duty to assess Environmental Impacts
15. Public Participation and Access to Information

• U.N. Charter Art. 2 (1) states “the principle of the sovereign equality of all its Members”.

• Professor Ian Brownlie states that “sovereignty and equality of states represents the basic
constitutional doctrine of the law of nations.” He further indicates that this basic doctrine is
contextualized by three corollaries:

• (1) jurisdiction exercised by States over territories and permanent populations;

• (2) the duty not to intervene in the exclusive jurisdiction of other States; and

• (3) the dependence of obligations which emerge from the sources of international law

• See the UN General Assembly Resolution 1803 (XVII) on the “Permanent Sovereignty over
Natural Resources” 14 December 1962

• Q: Do you think state sovereignty is an absolute doctrine?

 Common Future, stated that sustainable development is:

• “development that meets the needs of the present without compromising the ability of
future generations to meet their own needs.”

 Rio Principles

Principle 3

• The right to development must be fulfilled so as to equitably meet developmental and

environmental needs of present and future generations.

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 Principle 4

• 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.

Q: Do you think that the Rio Declaration gave pre-eminence to development over the
environment?

Embodied in the Rio Conventions and many subsequent MEAs and international documents.

 CBD (1992): Conservation of Biodiversity and the Sustainable Use of its Components.

 UNFCCC (1992) and Kyoto Protocol (1997): Climate Change should be coordinated with social
and economic development in an integrated manner.

 UNCCD (1994): The Convention to Combat Desertification in Countries Experiencing Serious

Drought and/or Desertification, promotes a new approach within the framework of sustainable
development.

 One of the Millennium Development Goals, number 7 (“Ensure environmental sustainability”), is

to “Integrate the principles of sustainable development into country policies and programmes…”

 See UN Declaration on the Right to Development, A/RES/41/128 Dec. 1986 and UNGA Res. No.
64/172, March 24, 2010

 “The right to development is an inalienable human right by virtue of which every human person
and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms can be fully
realized.” (Article 1.1, Declaration on the Right to Development)

 “The human right to development also implies the full realization of the right of peoples to self-
determination, which includes, subject to the relevant provisions of both International
Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all
their natural wealth and resources.” (Article 1.2)

 Most countries endorsed the right to development, with the exception of the United States.
What are your views about the objection by the US?

Inter-Generational and Intra-Generational Equity

 Equity is central to sustainable development

 Inter-generational equity:

• the right of future generations to enjoy a fair level of the common patrimony.

• Intra-generational equity:

• the right of all people within the current generation to fair access to the current
generation’s entitlement to the Earth’s natural resources.

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 • 1992 UNFCCC, Article 3.(i) refers to inter-generational equity

• 1992 CBD , Preamble

• 2001 Stockholm Convention on Persistent Organic Pollutants (POPs)

• Minors Oposa case (Minors Oposa et. al. v. Secretary of the Department of Environment and
Natural Resources) 33 (1994) ILM 173

• The Supreme Court of the Republic of the Philippines decided, in the that the petitioners could
file a class suit (have standing), for others of their generation and for the succeeding generations
to stop deforestation in the country.

• The Court, considering the concept of inter-generational responsibility, further stated that every
generation has a responsibility to the next to preserve that rhythm and harmony necessary for
the full enjoyment of a balanced and healthful ecology.

• This case demonstrates how principles developed in IEL can play a role in the progress
development of national laws.

Common Heritage and Common Concern of Humankind

Common Heritage of Humankind:

• outer space, moon and celestial bodies

• the sea-bed, ocean floor and subsoil thereof beyond the limits of national jurisdiction.

• See UNCLOS Art. 136 (the seabed area and all its resources are the common heritage of
mankind.)

Common Concern:

Reflects humanity’s increasing awareness of inter-dependence and the global nature of environmental
problems

Basic Assumptions:

• States should not cause harm with regard to issues of common concern

• Shared responsibility for addressing those concerns

Cooperation & Common but Differentiated

Responsibilities

• Recognizes the need for shared obligations to address common concerns

• In accordance with one’s capacity and capabilities

• States assume differentiated responsibility in addressing environmental issue

 Rio Declaration, Principle 7

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 • In view of the different contributions to global environmental degradation,
States have common but differentiated responsibilities. The developed
countries acknowledge the responsibility that they bear in the international
pursuit to sustainable development in view of the pressures their societies place
on the global environment and of the technologies and financial resources they
command.

 UNFCCC, Articles 3, 4, 12

 CBD, Article 20 (4)

 UNCCD, Articles 5 and 6

 UN Charter, Articles 55 and 56 - Duty to cooperate.

Responsibility for Transboundary Harm

• This case be seen as 2 principles combined (from Hunter et al)

• State Responsibility and the Obligation not to Cause Environmental Harm

 (1972) Stockholm Declaration, Principle 21

 (1992)Rio Declaration, Principle 2

• 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.

 See UNCLOS; CBD Article 3; UNFCCC, preamble; the Trail Smelter Case; and the Corfu Channel
case.

Transparency, Public Participation and Access to

Information and Remedies
 Transparency and access to information important to public participation:

• Right to know what decisions are being contemplated, the factual basis proposed, etc.

• Right to appropriate, comprehensible and timely information.

 Public participation is essential to good governance – responsive, transparent and

accountability.

 EIA procedure

See: Rio Declaration; Principle 10, Agenda 21; UNFCCC, Article 4; UNCCD, Article 3; and CBD Articles 13,
14.

Rio Declaration, Principle 15

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In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.

 See: UNFCCC, Article 3 (3); CBD Preamble; Biosafety Protocol , Articles 1, 10, 11; 1995 Fish Stock
Agreement, Articles 5 (c), 6; 1991 Bamako Convention

 European Communities – Measures Affecting the Approval and Marketing of Biotech Products
(DS 291/292/293), 29 September 2006

 Responsibilities and Obligations of States sponsoring Persons and Entities with respect to
Activities in The Area, Advisory Opinion of the Seabed Disputes Chamber of ITLOS, February
2011.

Prevention
• The Golden Rule

• Overarching aim that gives rise to a multitude of legal mechanisms [prior assessment of
environmental harm, licensing instruments, emission limits, environmental impact assessment
etc.]

• EIA – prior assessment of potentially harmful activities, This is one obligation that flows from the
concept of prevention.

 Rio Declaration, Principle 17

 Agenda 21, Principle 8(h)

 CDB, Article 14

UNCLOS, Article 206

Polluter Pays Principle (PPP)

Environmental costs of economic activities, including the costs of preventing harm, should be internalize
rather than imposing upon society at large

• International Civil Liability [Liability of private individuals for environmental damage]

• See: Rio Declaration, Principle 16; POP Convention, Preamble; International Convention
on Civil Liability for Oil Pollution Damage, 1969 amended in 1976 and 1992 [Regime to
guarantee payment of compensation by ship owners for pollution damage]; Convention
for the Establishment of an International Fund for the Compensation of Oil Pollution,
1971; Convention on Liability and Compensation from Damage in Connection with the
Carriage of Hazardous and Noxious Substances by Sea, 1996

• Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

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 • International Convention on Oil Pollution Preparedness, Response and Cooperation,
Preamble, 1990

• Basel Protocol on Liability and Compensation from Transboundary Movement of

Hazardous Waste and their Disposal, 1999

Access and Benefit Sharing regarding Natural Resources

 Rio Principle 22: Highlights the vital role of indigenous people et al in environmental
management

 CBD: Preambular paragraph 12, Article 8 (j)

Contracting Parties shall

“subject to its national legislation, respect, preserve and maintain knowledge, innovation and practices
of indigenous communities embodying traditional lifestyles… and promote their wider application with
the approval and involvement of the holder of such knowledge, innovations and practices and
encourage the equitable sharing of benefits arising from the utilization of such knowledge and
practices”

Right of Prior Informed Consent (PIC) Free, Prior and Informed Consent (FPIC)

 1. PIC – before a State can operate in another State, it must seek that State’s prior informed
consent.

 Notice that when dealing with States, the requirement is to seek PIC; PIC is not required.

Ex. If State A is planning to build a factory that may have transboundary pollution in State B,
State A must notify State B, assess environmental risks, and enter into good faith negotiations
BUT no requirement to obtain State B’s consent.

 2. FPIC – Indigenous communities have the right to give (or withhold) their free, prior informed
consent to activities that effect them.

Ex. UN Declaration on the Rights of Indigenous Peoples, Art. 32:

 “States shall consult and cooperate . . . with indigenous peoples . . . to obtain their free and
informed consent prior to the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.”

Ex. Indigenous and Tribal People Convention (revised Convention C107, the Indigenous and
Tribal Populations Convention, 1957).

Ex. World Bank - Borrower Requirements—Environmental and Social Standards (ESS) 7

Indigenous Peoples – requires FPIC:

“Because there is no universally accepted definition of FPIC [ESS 7 says] (1) The scope of FPIC applies to
project design, implementation arrangements and expected outcomes related to risks and impacts on
the affected Indigenous Peoples

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(2) that FPIC builds on and expands the process of meaningful consultation described in ESS10
Stakeholder Engagement and Information Disclosure

(3) The Borrower will document: (i) the mutually accepted process to carry out good faith negotiations
that has been agreed by the Borrower and Indigenous Peoples (ii) the outcome of the good faith
negotiations between the Borrower and Indigenous Peoples including all agreements reached as well as
dissenting views;

(4) FPIC does not require unanimity (difficulty of negotiating with a variety of indigenous peoples who
sometimes do not have a clear hierarchy or democratically elected leader)

Some Landmark IEL Cases

1. Trail Smelter Case (1938 and 1941)

2. Gabçikovo-Nagymaros (1997)

3. Iron Rhine Arbitration (2005)

4. Pulp Mills on the River Uruguay (2010)

5. Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to
Activities in The Area (2011)

6. Whaling in the Antarctic (2014)

Note about IEL Cases

• Diplomatic and judicial dispute settlement procedures

Cases before the ICJ:

Traditionally only a few cases, but number of cases with an environmental component is growing with
ever-increasing public awareness of environmental issues

Other “environmental cases” frequently before the WTO, ICSID, ITLOS and HR courts and tribunals

-Other compliance and enforcement mechanisms

-The protection of collective interests at stake

Trail Smelter Case (USA v. Canada)

(1938 and 1941)
• First decision to recognize international liability for damages caused to another nation, even
when no existing treaty created an obligation to prevent such damage.

• In 1935 a Canadian based corporation (defendant) owned a smelter plant in British Columbia,
Canada which emitted hazardous fumes (sulphur dioxide) that caused damage to plant life,
forest trees, soil, and crop yields across the border in Washington State in the U.S. (plaintiff).

• Held: Canada must pay the United States for damages and must abate the pollution.

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 • Historic and often-cited declaration:

"Under the principles of international law . . . no State has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes in or to the territory of another or the properties
or persons therein, when the case is of serious consequence and the injury is established by clear and
convincing evidence...“

• liability for damages caused to another nation is consistent with Roman Law and Common Law:

sic utere ut alienum non laedas - use your property in such a manner as not to injure that of another.
Prior to 20th C. this principle was largely irrelevant to international law because actions within a nation's
borders rarely conflicted with the rights of another.

Transboundary Effect

• Any significant adverse effect on the environment resulting from human activity, the physical
origin of which is situated wholly or in part within an area under the jurisdiction of another
State. (Source: draft based on UN Economic Commission for Europe (UNECE) definition of
transboundary effect/MMA)

Environmental impacts and threats that do not respect national borders (such as use of transboundary
waters, long-range air-pollution, industrial accidents), impacts that requests consultation between
(presumably) effected countries (Draft based on UNECE re. transboundary context of conventions)

Polluter Pays Principle

• The polluter pays principle had never been applied in an international context. When the
Tribunal dealt with the details of the Trail Smelter Arbitration, there was no existing
international law that dealt with air pollution.

• The polluter pays principle was modelled after U.S. state laws, with the Tribunal referring to a
number of cases in the U.S. that involved air pollution between multiple states.

Gabçikovo-Nagymaros (Hungary/ Slovakia), ICJ, 25 Sep 1997

The ICJ decision in Gabcikovo-Nagymoros important for IEL because:

1. The only case in which the ICJ has directly addressed environmental issues.

2. The case's ultimate impact on the field was diminished, however, because the Court ruled
primarily on issues relating to the interpretation of the cooperative agreements between
Hungary and Slovakia.

3. The court also applied rules relating to the law of transboundary watercourses as opposed to
more generally applicable international environmental law. Thus, the agreement advanced

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 concepts of joint management and equitable utilization of a shared resource more than it did
issues of environmental protection.

4. Nonetheless the Gabcikovo case presents some of the ICJ's only writings relating to
environmental principles and the development of the field.

5. Case is factually and politically interesting: The Gabcikovo-Nagymoros plan was a massive
Soviet-era construction that would divert almost the entire Danube's water flow.

6. Most of its design and construction took place when there was little opportunity for citizen
dissent within Hungary or then Czechoslovakia.

7. Finally, the dam became a major symbol of the political changes that swept Central Europe in
1989. Protests against the dam, particularly in Hungary but also in Slovakia, were major
contributors to the overthrow of both authoritarian regimes. Hungary's protests were
widespread and their government was more responsive to civil society and public pressure. This
led them to withdraw from the project.

8. Slovakia, however, was still struggling for national identity (separating from the Czech Republic)
and turned to an authoritarian leader, Vladimir Meciar, who pushed Gabcikovo through as an
assertion of Slovak nationalism and an affirmation of the power of the government.

Facts and findings:

1. Joint Hungarian-Czechoslovakian hydroelectric dam project from the communist era

(1977 agreement) was left unfinished in political turmoil of 1980s when Hungary and
Slovakia moved to democracy. Aim of the project was to prevent catastrophic floods,
improve river navigability and produce clean electricity.

2. In new political climate, Hungary, concerned about the environment, unilaterally

abandoned the joint plan in 1989, so Slovakia proceeded unilaterally in 1991 with its
own variant of the project. Dispute submitted to ICJ in 1993.

3. Held that neither party was entitled to take the action it took.

4. Treaty deemed not to have been terminated and parties were urged to cooperate to
carry out its objectives in the light of contemporary environmental concerns (situation
still not resolved)

Much of the Gabcikovo case focuses on interpretation of the specific treaty in question between
Slovakia and Hungary.

Hungary raised a defense of ecological necessity as a justification for suspending the treaty and
withdrawing its support for the project.

The parties and the Court agree that this defense is a valid one in theory and is well defined by
reference to Article 33 of the International Law Commission’s Draft Articles on the International
Responsibility of States (see para. 50).

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 The Court validates Hungary in so far as it holds that threats to a country’s environment can in
some circumstances threaten essential interests of a State sufficiently to invoke the defense of
necessity.

In this case, however, the Court does not believe that the “peril” posed by the proposed dam is
sufficiently “grave and imminent” to support the invocation of the necessity defense (paras 54-
57).

• The Court also explored the doctrine of equitable use of a water way and found that Slovakia’s
unilateral damming of the river deprived Hungary of its equitable and reasonable use of the
river.

• Hungary also claimed that the development of international environmental law principles since
the ratification of the joint treaty essentially trumped the treaty.

• The Court rejected Hungary’s suggestion that new international environmental principles were
principles of jus cogens and thus override the Treaty.

• Instead, the Court said new developed principles of international environmental law required
the countries to reconsider environmental impacts in the implementation of the treaty. (see
paras 140).

Significance for International Environmental Law:

– Importance of the environment underlined and thus damage to the natural

environment may constitute an “essential interest” of a State within the meaning of the
law of State responsibility (para 53)

– Evolutionary interpretation: Contemporary environmental standards (EIA and

precaution) read into 20 year-old treaty, thereby expanding the scope of environmental
law (para 140)

– Principles of international environmental law, including those of a soft-law character,

were given legal weight through the Court’s reference to them in their judgment i.e.
prevention and sustainable development (para 140). However these principles were not
considered peremptory norms and thus could not override the treaty.

– Instead the court said that the evolving norms would seem to be relevant to the
interpretation of the general environmental concerns reflected in the 1977 treaty. In
this way, the court did not opine directly on the legal status of any principle.

Iron Rhine Arbitration (Belgium/ Netherlands), PCA, 25 May 2005

 Facts and findings:

– Belgium wanted to reactivate the use of the Iron Rhine railway line connecting it,
through the Netherlands, to the German Ruhr region (Belgium’s right of transit across
Netherlands codified in 1839 Treaty of Separation updated in 1972 Iron Mine Treaty).

– Netherlands complained that this would cause noise pollution and damage nature
reserves within its jurisdiction.

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 – PCA found that Belgium could reopen the line so long as it paid for its renovation and
took steps to protect the environment (including a tunnel under an environmentally
sensitive area).

 Significance for IEL:

– Broad definition of the “environment” for the purposes of international environmental

law (para 58)

– International environmental law (a recent phenomonen) considered relevant for

continuing activities even though those activities were, in law, governed by an 1839
treaty regime (para 59)

– Sustainable development conceptualised into a “duty” which is a “principle of general

international law” to prevent or mitigate significant harm to the environment caused by
development (para 59)

Costs of environmental protection must be shared by both countries

Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ, 20 April

2010
 Facts and findings:

– Uruguay authorised the construction of certain pulp mills on the banks of the River
Uruguay, a watercourse shared by the two neighbouring countries.

– Argentina brought action against Uruguay alleging breaches of the Statute of the River
Uruguay of 1975 which seeks to “establish the joint machinery necessary for the
optimum and rational utilization of the River Uruguay”.

– The Court found Uruguay in breach of the procedural obligations establishing a

cooperation mechanism between the two parties in Articles 7 to 12 of the Treaty,
including the obligations to notify, inform and negotiate.

– Argentina was, however, unsuccessful in its claims that Uruguay breached substantive
obligations, broadly not to cause environmental damage to the river.

Significance for IEL:

Affirmation and reiteration of some key principles of IEL (in interpreting the Statute of the River Uruguay
of 1975):

1. Sustainable development: Implies “interconnectedness between equitable and

reasonable utilization of a shared resource and the balance between economic
development and environmental protection” (para 177).

2. Prevention: A State is “obliged to use all the means at its disposal in order to avoid
activities which take place in its territory, or in any area under its jurisdiction, causing
significant damage to the environment of another State.” (para 101)

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3. Precaution: A “precautionary approach may be relevant in the interpretation and application of the
provisions of the Statute”, but “it does not follow that it operates as a reversal of the burden of proof.”
(para 164)

4. EIAs: Court said it may now be considered a requirement under general international law to
undertake an environmental impact assessment where there is a risk that the proposed industrial
activity may have a significant adverse impact in a transboundary context, in particular, on a shared
resource.

– Linking of international environmental law and a specific treaty regime to international

water law.

Advisory Opinion of the Seabed Disputes Chamber of the International

Tribunal for the Law of the Sea, February 2011
Facts: In April 2008, Nauru and Tonga two small Pacific Island developing states, each put forward a
proposal to explore and exploit minerals in an area governed by the International Seabed Authority
(UNCLOS).

Holding: State sponsors have the responsibility to ensure, within their legal systems, that a contractor so
sponsored shall carry out activities in the Area in conformity with the terms of its contract and its
obligations under this Convention (due diligence).

Due diligence may impose more rigorous requirements for riskier activities.

One such legal obligation is to apply the precautionary approach as found in Principle 15 of the Rio
Declaration.

Precaution principle is recognized by the ISA Nodules and Sulphides Regulations, but the Chamber went
further, seeing this as an integral part of the due diligence of sponsoring states which is applicable even
outside the scope of the regulations, requiring actions where scientific evidence is insufficient but there
are plausible indications of potential risk.

• Para. 127. The provisions of the aforementioned Regulations transform this non-binding
statement of the precautionary approach in the Rio Declaration into a binding obligation.

• Perhaps most significantly, the Chamber recognized a trend towards making this precautionary
approach part of customary international law, which it sees in the Pulp Mills Case and which this
opinion further supports.

• See, European Communities – Measures Affecting the Approval and Marketing of Biotech
Products (DS 291/292/293), Report of a Panel of the World Trade Organization, 29 September
2006; and

• EC – Hormones, the Appellate Body, WT/DS320/AB/R 16 October 2008

Whaling in the Antarctic (Australia v. Japan, New-Zealand Intervening),

ICJ, 31 March 2014
 Facts and findings:

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 – Japan was engaged in whaling in the southern ocean despite a commercial ban, claiming
that its hunting activities were carried out for the purpose of scientific research within
the framework of Japan’s “JARPA II” program.

– Australia challenged the legality of these activities under the 1946 International
Convention for the Regulation of Whaling (ICRW) and submitted an application claiming
that Japan was hiding its commercial activities behind a scientific smoke screen.

– Australia submitted that JARPA II should be subjected to an objectively ascertained

standard of scientific rigour. Japan countered that each nation reserved the right to
issue whaling permits at its own discretion, and that any resolutions proposing an
objective standard were at best recommendatory.

– Although the court agreed that the standard of “scientific purpose” cannot depend
simply on each state’s perception, it ultimately declined to define an objective standard,
noting that “scientific research” is not defined in the ICRW.

– Instead, the Court based its review on JARPA II’s own stated research objectives.
Ultimately, inconsistencies between its objectives, methodology and implementation
led to the finding that the lethal sampling of whales under JARPA II was not reasonable
in relation to achieving its objectives.

– The Court concluded that Japan was in breach of several provisions of the ICRW and
found that JARPA II was not conceived or implemented for the purpose of scientific
research.

– According to the Judgment, Japan must cease its current whaling program but whaling
per se is not prohibited provided it complies with the ICRW requirements by being
conducted for a sound scientific purpose.

Significance for IEL:

– A new approach to deal with scientific issues, which is meaningful for the handling of
environmental disputes.

 An innovative use of experts: the scientific evidence was made by expert

witnesses going through cross-examination and not by scientists acting as
counsel; the Court gave substantial importance to their opinion.

 An innovative method to handle scientific facts: the Court defined an

“objective standard of review”, which allowed it to focus on legal interpretation
without having to perform a scientific evaluation. It sought to clarify the
distinction between the roles of the adjudicator and of the experts.

– The Court distinguished the tools that it found appropriate for legal interpretation of the treaty
from the methods used within scientific disciplines. As scientific research is not defined in the
ICRW, the Court considered views of the party experts and the relevant law, but declined to
adopt a specific set of criteria.

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 – It found that JARPA II could be characterized as scientific research, based on its objectives, which
are within the scope of the Scientific Committee’s research categories which are the systematic
collection and analysis of data by scientists.

– The second part of the analysis is key: the Court found that important aspects of JARPA’s design
and implementation (i.e., lethal take) were not reasonable in relation to its research objectives.
The Court found that lethal methods would be necessary to obtain evidence from internal
organs and were not per se unreasonable.

– It refused to engage with the party’s dispute over the scientific value of the data sought, which it
characterized as a matter of scientific opinion.

– But the Court found Japan’s failure to assess the use of non-lethal alternatives unreasonable in
light of its obligations to cooperate with the IWC, its own scientific policy, and the advent of new
technologies improving non-lethal whale research.

– Also, several aspects of the study were not reasonably related to the objectives of the research
program.

The Court also said, “a State party may not, in order to fund the research for which a special permit has
been granted, use lethal sampling on a greater scale than is otherwise reasonable in relation to
achieving the programme’s stated objectives”

• UPDATE: Japan announced the country’s departure from the International Whaling

Commission (IWC) in December 2018, along with its intention to resume commercial whaling—
which the IWC has forbidden since 1986—within its own coastal waters.

• The international reaction to this news began with condemnation, but Japan’s move has at least
the virtue of good faith. If whaling is going to happen—and it will, at least for the foreseeable
future—it may be better that it takes place honestly than under the false flag of science.

• Japan previously stayed within the IWC by taking advantage of an exception that allowed
whaling for scientific research.

• Conservation organizations began to see a silver lining in Japan’s departure. The Animal Welfare
Institute, the Sea Shepherd Conservation Society, and Jean-Michel Cousteau’s Ocean Futures
Society expressed optimism that the restriction of Japanese whaling activities to Japanese
coastal waters would allow some of the more vulnerable whale populations in the North Pacific
and the Southern Ocean to recover.

• For Japan to drop its “scientific research” cover, to call commercial whaling by its name, and to
confine the activity to its own waters is, arguably, less bad than continuing with a business-as-
usual, IWC-approved scientific whaling program in international waters.

• What will Japan’s move mean for whales? That depends on the effect it has on other IWC
member states that may be contemplating their own departure, the size and scope of Japan’s
soon-to-be-established coastal commercial whaling operation, and the future influence of
international organizations like the IWC.

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