Anthony Aust. Handbook of International Law
Подождите немного. Документ загружается.
landscape’ (ILC Report 2004, A/59/10, p. 148 or www.un.org/law/ilc/).
9. 9 AD 315; (1939) AJIL 182 and (1941) AJIL 684. And see p. 344 below.
10. B&B Docs. 1.
Page 330
Smelter arbitration in confirming the sovereign right of a state to exploit its own resources pursuant
to its environmental policies, but subject to its responsibility not to cause damage to other states.
Following UNCHE, the UN General Assembly established in 1972 the UN Environment
Programme (UNEP), with its headquarters in Nairobi.
11
Although not a UN specialised agency, it
has been effective in the adoption of environmental treaties and the development of IEL generally.
The role of the Environmental Management Group (EMG), chaired by the UNEP Executive
Director, is to enhance cooperation in environmental matters both within and beyond the UN system
including the specialised agencies and the secretariats of multilateral environmental treaties. The
EMG Secretariat is in Geneva.
12
The Stockholm Declaration is not a treaty, and its other Principles are no more than general
objectives to be followed up by the negotiation of treaties, several of which were concluded in the
1970s. Principle 11 states that environmental policies should not adversely affect the development
potential of developing countries, so reflecting the fact that the developed world had become so only
by despoiling its own environment. This was followed by UN declarations emphasising the freedom
of developing countries to decide how to develop their economies. Only with the ‘Brundtland
Report’ in 1987 did sustainable development become the new maxim.
13
The UN Conference on Environment and Development (UNCED) produced the Rio Declaration
on Environment and Development 1992.
14
Its twenty-seven principles on sustainable development
attempt to balance the interests of developed and developing countries. Agenda 21 (a forty-chapter
programme of action), and the Conventions on Climate Change and Biological Diversity (see below)
were also adopted.
Concepts
The precautionary approach
Principle 15 of the Rio Declaration states:
In order to protect the environment, the precautionary approach shall be 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.
11. www.unep.org.
12. See www.unep.org (go to ‘about UNEP’, then ‘UN Inter-Agency Cooperation’).
13. WCED, Our Common Future, Oxford, 1987.
14. ILM (1992) 876; B&B Docs. 9.
Page 331
It is also described as the ‘precautionary principle’. Despite the use of mandatory language (‘shall’),
Principle 15 does not represent a principle of customary international law. Its scope and application
are still unclear and it has not yet been endorsed as such by an international court or tribunal. It can
be seen as an application of the principle of state responsibility in the context of potential
environmental harm, and not only in the case of transboundary activities. But there are still many
uncertainties. The possibility of harm must be foreseeable: but how foreseeable? And what is the
degree of harm and how should a state respond? Nevertheless, it may be seen as a general principle
that is relevant to interpreting and applying the customary law on state responsibility and risk
prevention.
15
The precautionary approach has been followed in certain treaties. The Vienna
Convention for the Protection of the Ozone Layer 1985, and its Montreal Protocol 1987, require the
parties to limit the use of CFCs even before it had been proved conclusively that they cause damage
to the ozone layer.
16
It is also included in the Fish Stocks Agreement 1995, Article 6 and Annex
,
17
and the Cartagena Protocol.
18
The polluter pays
One constantly hears this principle misrepresented and referred to as if it were a widely accepted
customary rule applicable in all circumstances. Principle 16 of the Rio Declaration states:
National authorities should endeavour to promote the internalisation 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.
‘Internalisation’ is an economic term, defined by the OECD as the incorporation of costs as part of
the internal economic structure, especially social costs resulting from the manufacture or use of a
product. The qualified wording of Principle 16 shows that it is no more than a suggestion as to the
economic policy that a state may follow when apportioning the cost of remedying pollution or other
environmental damage so that the state does not have to bear an unfair share. Generally, each state
has been left to
15. See p. 410 below.
16. See further Birnie and Boyle, pp. 115–24 and p. 338 below.
17. 2167 UNTS 3 (No. 37924); ILM (1995) 1542; UKTS (2004) 19. See also Churchill and Lowe, p. 309.
18. See p. 338 below.
Page 332
decide what policy to follow.
19
A fundamental problem is deciding who caused the pollution. When
maritime pollution is caused by the escape of a cargo of oil, it could be the shipowner, the owner of
the oil, a pilot or a navigation authority. There are therefore treaties where the costs of marine
pollution have been allocated in advance.
20
The Rhine Arbitration (Netherlands/France) (2004) held
that the principle is not part of international law.
21
It may, however, be influential in the
development of environmental treaties.
Sustainable development
Sustainable development is at present a leading concept of IEL, yet its nature is such that it cannot
be usefully defined.
22
It is like ‘reasonable’: only meaningful when applied to the facts of a
particular case. The basic concept is that development (industrial, agricultural, communications,
etc.) is not inherently bad, but that one should take account of its effect on the environment. Industry
should exploit (using the word non-pejoratively) a natural resource in a way that allows the resource
to regenerate, not to be destroyed. Fish are a good example. Over-fishing has become so bad that in
some areas what was once a common fish has now become a scarce delicacy. This has various
implications for consumers, human health and the fishing industry. The dangers were appreciated
long ago in the 1958 Convention on Fishing and Conservation of the Living Resources of the High
Seas, which defined fish conservation as ‘the aggregate of the measures rendering possible the
optimum sustainable yield’.
23
Later, with decolonisation and the acknowledgment that developing
countries also need to be able to exploit their natural resources and develop industry, there came a
tension between developed and developing countries as to what is sustainable. The UN Convention
on the Law of the Sea 1982 speaks of ‘maximum sustainable yield’.
24
ECOSOC established the
Commission on Sustainable Development in 1993, but it is largely ineffective.
25
Environmental impact assessment (EIA)
EIA began in 1969 as a requirement of US federal law, and has been followed in the laws of many
states. Its purpose is to discover at an early stage
19. See Birnie and Boyle, pp. 92–5.
20. See p. 342 below.
21. See www.pca-cpa.org (go to ‘Arbitrations – recent’).
22. Birnie and Boyle, pp. 40–7 and Ch. 3.
23. 559 UNTS 285 (No. 8164); UKTS (1966) 39. See Article 2.
24. Article 61(3).
25. See Birnie and Boyle, pp. 51–2.
Page 333
whether a proposed activity may have an adverse effect on the environment and, if so, whether it
should be authorised. Principle 17 of the Rio Declaration states:
Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities
that are likely to have significant adverse impact on the environment and are subject to a decision of a
competent national authority.
Thus, EIA is a national procedure. There is no general obligation in international law to undertake
EIA, except possibly when there may be a risk to the environment of other states or to the marine
environment. Internationally, EIA is required (though as a national process) mainly in treaties
dealing with pollution of the marine environment from sea – or land-based sources.
26
Perhaps the
broadest and most comprehensive provisions are in the Protocol to the Antarctic Treaty on
Environmental Protection 1991.
27
Although the wording varies from treaty to treaty, generally the
two main requirements are that there must be a proposed ‘activity’ (or ‘project’), not merely general
plans, and it must be foreseeable that the activity could have a ‘significant’ impact (not a minor or
transitory impact). There is obviously much scope for a state to argue that a significant impact was
not foreseeable; and to prove that a state has acted in bad faith may be difficult. In 1991, the UN
Economic Commission for Europe (ECE) adopted the Convention on Environmental Impact
Assessment in a Transboundary Context (the Espoo Convention).
28
Whaling
Given that there are now some 200 multilateral treaties on, or touching on, the environment, only the
most significant can be mentioned here. The first of these concerns whaling. The International
Convention for the Regulation of Whaling (IWC) was adopted in 1946 and amended by a Protocol
in 1956.
29
Its purpose was never to ban the hunting of whales. It was merely to reverse the process
of the depletion of whale stocks by the establishment of a regime that would, in the words of the
preamble to the IWC, ‘provide for the proper conservation of whale stocks and thus make possible
the orderly development of the whaling industry’. The IWC
26. Birnie and Boyle, p. 132 and n. 394.
27. See n. 7 above.
28. 1989 UNTS 309 (No. 34028); ILM (1971) 802; B&B Docs. 31. It entered into force in 1997 and now
has forty parties.
29. See the consolidated text on the IWC Secretariat website, www.iwcoffice.org.
Page 334
applies worldwide and now has sixty-six parties. The IWC Commission, whose members represent
all the IWC parties, has a Secretariat, situated in Cambridge, England. The Commission meets at
least once a year. It can by a three-quarters vote of the members (excluding abstentions and
absences), adopt regulations for the conservation and utilisation of whale resources. A regulation
becomes binding on all parties after ninety days. If a party objects to a regulation within that period,
another period, of up to ninety days, is allowed for any other party also to object. Thereafter, the
regulation becomes binding on all parties except those which objected.
The IWC allows a party to authorise its nationals to conduct whaling for scientific research,
although the scale of such whaling by Japan has been criticised by other parties. In 1982, the
Commission imposed a general moratorium on commercial whaling. It is not binding on Norway
which lodged objections. At present, the Commission is almost evenly split between those who
support the moratorium and those who do not. This may change as many more small states become
parties, thus possibly making it easier to obtain a three-quarters majority to lift or modify the
moratorium. Iceland withdrew from the IWC soon after the moratorium was established. When in
2001 it sought to become a party again, though with a reservation that would have enabled it to
conduct commercial whaling, its accession was opposed by the moratorium states on dubious legal
grounds. By a bare majority, it became a party again at a Special Commission Meeting in 2002 with
a modified reservation.
Other fishing
The treatment of whales, considered majestic mammals by many, these days raises great emotion. It
is not so for fish (or cows). The several regional regimes for the conservation of other marine living
resources have the objective of preventing overfishing so that commercial fishing can continue for
the benefit of both the fisherman and the consumer. They include the Northwest Atlantic Fisheries
Organization (NAFO),
30
the Commission on the Conservation of Antarctic Marine Living
Resources (CCAMLR),
31
and, more recently, the South East Atlantic Fisheries Organization.
32
Each attempts to manage and conserve stocks by adopting various measures that are legally binding
on the member states, but has to rely upon them for their enforcement. They set annual total
allowable
30. See the NAFO Convention 1978 at www.nafo.ca.
31. See p. 360 below.
32. ILM (2002) 257 or www.mfmr.gov.na/seafo/seafo.htm.