Fue escrito por mi en 1996.
RETHINKING THE 1995 NUCLEAR TESTS CASE.
JUDICIAL SUPPORT FOR EMERGING PRINCIPLES OF
INTERNATIONAL ENVIRONMENTAL LAW
Germán Vera Esquivel[1]
INTRODUCTION
The resumption of the French nuclear tests in the
South Pacific in 1995 and de judgment of the International Court of Justice[2]
(hereinafter called “the ICJ”) concerning those tests have generated great
polemic in the international arena.[3]
To cover comprehensively all possible aspects of the
Nuclear Tests case would exceed the scope of this article. Our intention is
rather modest, to limit the coverage of this paper only to issues related to
international environmental law. It is intended to focus specifically in the
three dissenting opinions of the court, those of judges Koroma, Weeramantry and
judge ad-hoc Palmer.
The dissenting judges found that the Court should have
reopened the case of 1974[4]
and therefore could have analyzed the merits of the petition which New Zealand
filed in 1995.[5]
To support their position, the judges indicated, among other arguments, that
certain principles of international environmental law existed. These were
namely inter alia, the
precautionary, sustainable development and preventive principle. Judges Koroma,
Weeramantry and Palmer did not only describe these principles of international
environmental law, but stated that they should have been applied by the Court
in order to halt the French nuclear tests near the Mururoa and the Fangataufa
Atolls.
This article will explore the principles of
international environmental discussed in the dissenting opinions, In our view,
the analysis of these principles of international environmental law is important
for two reasons. First, because it will help to establish that the principles
of international environmental law have existence and validity in general
international law. Secondly, it will help to determine the degree of
international obligation attached to those principles according to the current
state practice, that is, whether or not these principles are legally binding.
To develop these ideas this article is divided into
five parts. In the first part, the two cases brought before the Court by New
Zealand, 1973 and 1995, will be reviewed. In the following section the
dissenting opinions will be briefly summarized. In part three, a brief
appraisal of the tests will be made from the point of view of the international
relations. In part four, the principles of international environmental law by
the dissenting judges will be analyzed. Part 5 analyze the debate regarding the
obligations arising from environmental principles and finally, some preliminary
conclusions will be presented.
PART 1.
1.1.- THE 1974 NUCLEAR TEST
(NEW ZEALAND AND AUSTRALIA V. FRANCE) CASE.
The ninth of May 1973 New Zealand presented a case to
the International Court of justice against France. In the application New
Zealand asked the Court for a declaration in the following terms:
“That the conduct by the French Government of nuclear
tests in the South Pacific Region that give rise to radio-active fall-out
constitutes a violation of New Zealand’s rights under international law, and
that these rights will be violated by any further such tests.”[6]
New Zealand specifically requested the cessation of
any nuclear activity in the areas of two atolls located inside of French
Polynesia: the Mururoa and the Fangatufa
Atolls.[7]
After the presentation of the case, the Court adopted
the denominated provisional measures of protection. That is, according to the
article 41(1) of the Statute of the International Court of Justice, “(t)he
Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought
to be taken to preserve the respective rights of either party”. [8] In
essence, by ruling that such measures be adopted, the Court demonstrated a
concern for the effects of the French actions. By allowing such measures before
jurisdiction and admissibility were proven, the Court could be said at this
stage to be adopting a precautionary approach.[9]
Unfortunately for environmental jurisprudence, but
fortunately for the environment, the Court never had the opportunity to discuss
the legal issues involved because France declared that it had no intention to
continue its atmospheric nuclear tests.[10]
On the twentieth December of 1974, the Court delivered its judgment in which it
fundamentally considered that the case presented by New Zealand no longer had
any purpose because of the French declaration and thus the judicial process was
considered finished by all parties. Even at this stage, there was
disappointment expressed that the Court did not avail itself of the opportunity
to make some comments about environmental principles[11].
1.2
THE 1995 NUCLEAR TESTS CASE:
THE
REQUEST FOR AN EXAMINATION OF THE SITUATION IN ACCORDANCE WITH PARAGRAPH 63 OF
THE COURT’S JUDGEMENT OF 20 DECEMBER 1974 IN THE NUCLEAR TESTS (NEW ZEALAND V. FRANCE)
CASE. 22 SEPTEMBER 1995.
On the
thirteenth of June 1995, France announced the resumption of its nuclear tests
in the South Pacific, declaring its intention to carry out a series of eight
nuclear tests commencing in September 1995[12].
On the twenty-first of August 1995 New Zealand filed an application against
France in response to this declaration.
New Zealand based its application on an interpretation
of paragraph 63 of the 1974 Judgment of the Court. New Zealand argued that this
paragraph included a “right” to re-open the case of 1974 if the basis of the
1974 Judgment had been affected.
The operative part of paragraph 63 of the 1974 case
reads as follows:
“Once the Court has found that a State has entered
into a commitment concerning its future conduct it is not the Court’s function
to contemplate that it will not comply with it. However, the Court observes that
if the basis of this Judgment were to be affected, the Applicant could request
an examination of the situation in accordance with the provisions of the
Statute…”[13]
Accordingly, taking into account the interpretation of
paragraph 63 of the 1974 Case, New Zealand asked the Court to make a
declaration to the effect that the conduct of the proposed nuclear tests would
constitute a violation of the rights of New Zealand under international law, as
well as other states. It further request that the Court declare that is
unlawful for France to conduct such nuclear tests before it has undertaken an
Environmental Impact Assessment according to accepted international standards.
Unless such an assessment establishes that the tests will not give rise,
directly or indirectly, to radioactive contamination of the marine environment
the rights under international law of New Zealand, as well as the rights of
other states, will be violated.[14]
New Zealand also requested the Court to adopt the
Provisional Measured of Protection, based on article 41(1) of the Statute of
the International Court of Justice. These were that France refrain from
conducting any further nuclear tests as Mururoa and Fangataufa Atolls,
undertake an environmental impact assessment of the proposed nuclear tests, and
ensure that no action of any kind is taken which might aggravate or extend the
dispute submitted to the Court or prejudice the rights of the other Party in
respect of the carrying out of whatever decisions the Court may give in this
case.[15]
France responded to New Zealand’s application by
firstly declaring it did not accept the jurisdiction of the Court. Secondly,
France argued that the reopening of the 1974 case was not possible due to the
original application of New Zealand having been presented to avoid nuclear
tests in the atmosphere, whereas now France intended to carry out nuclear tests
underground. Moreover, during the judicial process, France made the declaration
that irrespective of the judgment of the Court, they would proceed with the nuclear
tests.
After the oral presentations of both countries the
majority of the Court delivered its judgment the 22 of September 1995. The
Court reached the conclusion that the 1974 judgment related only to atmospheric
tests and that it therefore could not consider the legality of underground
tests pursuant to paragraph 63 of the 1974 Judgment.[16]
The majority thus dismissed the New Zealand
Application by twelve votes to three. In favor were: President Judge Bedjaoui,
Vice President Schwebel and the judges: Oda, Guillaume, Shahabuddeen, Ranjeva,
Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo and Higgins. The
dissenting judges were: Weeramantry, Koroma and the judge ad-hoc Geoffrey
Palmer.[17]
While the majority did not allow the re-opening of the
case he Court did note “the development of international law in recent decades”[18]
and stated that the Order was “without prejudice to the obligations of States
to respect and protect the natural environment.”[19]
Further, the separate decision of Judge Shahabuddeen,
notes that the “growing recognition of the need to protect the natural
environment is striking.”[20]
Such comments indicate that the Court does acknowledge the existence of
environmental principles, but as they were not applied by the majority it is to
the dissenting opinions which we now turn.
PART
2
THE
DISSENTING OPINIONS OF THE 1995 CASE
Once again disappointment has been expressed by some
commentators that the Court did not avail itself the opportunity to clarify
principles of international environmental law.[21] The dissenting judges also expressed such disappointment
and the proceeded to use such principles themselves to come to a different
conclusion to the majority of the Court being that the Court should have
analyzed the merits of the case and consequently could have prevented the
French nuclear tests. In general, there are two arguments presented by the
judges to support this conclusion. One is a procedural argument – related to
the distinction between atmospheric and underground tests – and the other derives
from the development of international environmental law. It is the latter of
these which is the focus of this paper.
2.1
Judge Weeramantry:
Judge Weeramantry highlights the fact that the Court
has demonstrated a deep concern for the effect of the tests by discussing the
adoption of interim measures.[22]
Indeed it is salutary to note this in the context of this paper, as it reminds
us that the Court is not without sympathy for the effects of nuclear testing
and was at least prepared to take some precautionary action. However, such
sympathy was not sufficient for the majority to reopen the case.
For the present purposes, the most important part of
Weeramantry’s judgment is his argument that the Court is not without sympathy
for the effects of nuclear testing and was at least prepared to take some
precautionary action. However, such sympathy was not sufficient for the
majority to reopen the case.
For the present purposes, the most important part of
Weeramantry’s judgment is his argument that the Court could have come to the
conclusion to stop the French nuclear tests on the basis of the principles of
international environmental law.
Weeramantry clearly sets out six principles: the
inter-temporal principle, the concept of intergenerational rights, the
precautionary principle, environmental impact assessment (EIA), the illegality
of introducing radio-active waste into the marine environment and the principle
that damage must not be caused to other nations. For each principle he gives clear
examples of international treaties, declarations and academic writings which
support the principle. He expresses disappointment that the Court did not avail
itself of the opportunity to enquire and make a contribution to the “seminal
principles of the evolving corpus of international environmental law”.[23]
2.2 Judge Koroma:
Judge Koroma notes that this was the second New Zealand
application refused by the Court. He analyzed in depth the arguments for and
against re-opening the case, concluding that the majority applied the incorrect
standard of proof and wrongly refused to consider the application.
Again, the most important aspect of justice Koroma’s
opinion in his mention of the principles of international law pertaining the environment.
In his judgment justice Koroma states that there is “probably a duty not to
cause gross or serious damage which could reasonably be avoided together with a
duty no to permit the escape of dangerous substances.”[24]
He cites a growing number of treaties which indicates wide support for such
principles.
In conclusion he finds that nuclear tests per se are
not only prohibited, but would be illegal if they cause radioactive fallout.
Further, that in his view, the evidence is such that a risk of fallout exists
and therefore the Court should have halted the tests.
2.3
Judge Palmer:
Ad-hoc judge Sir Geoffrey Palmer, appointed by New
Zealand, criticized France’s arguments as legalistic and unrealistic, allowing
the Court to avoid substantive and controversial issues. He argued that there
were two main reasons why the Court should have examined the 1974 judgment. The
first argument being that pertinent facts have changed which have increased our
knowledge about the risks of nuclear contamination. Secondly, international
environmental law has developed had progressed rapidly from the point it was in
1974 “towards international legal maturity”.[25]
Palmer set out the development of international
environmental law, concluding that “the obvious and overwhelming trend of these
developments from Stockholm to Rio has been to establish a comprehensive set of
norms to protect the global environment”. The principles of international
environmental law relied upon by Palmer were the prohibition of introducing
radioactive material into the marine environment, the precautionary approach,
environmental impact assessment and the inter-temporal principle.
To have a clear view of the principles of
international environmental law mentioned by the judges in their dissenting
opinions, a chart has been prepared.
TABLE 1
INTERNATIONAL ENVIRONMENTAL LAW PRINCIPLES MENTIONED
BY THE DISSENTING JUDGES IN THE 1995 NUCLEAR TESTS CASE
/////////
|
/////////
|
JUDGES
|
/////////
|
PRINCIPLES
|
Weeramantry
|
Koroma
|
Palmer
|
Intertemporal
|
p. 339
|
p. 413 (without use of the term per se)
|
|
Inter-generational
|
p. 341
|
p. 419
|
|
Precautionary
|
p. 342
|
p. 379 (without use of the term per se)
|
p. 412
|
Environmental Impact Assessment
|
p. 344
|
p. 411
|
|
Illegality of dumping radioactive waste into the marine environment
|
p. 345
|
p. 378 (stated as a broad duty no to permit the escape of dangerous
substances)
|
p. 410
|
Damage must not be caused to other nations
|
p. 346
|
p. 378
|
p. 410
|
SOURCE: The 1995 Case, supra note 2
(Chart prepared by the author)
As the above table indicates, a total of six
environmental principles have been assessed by the dissenting judges. For the
purpose of this paper, the principles have been re-grouped in three more
general principles. This is no more than a theoretical arrangement which is
made for academic reasons and for ease of discussion. The three principles are:
1)
The
precautionary principle (including the concept of environmental impact
assessment and the intertemporal principle) ;
2)
The
principle of sustainable development (including the concept of intergenerational
rights);
3)
The
preventive principle (including the principle that damage must not be caused to
other nations and the principle of the illegality of introducing radio-active
waste into the marine environment).
PART 3
THE FRENCH NUCLEAR TESTS: AN
APPRAISAL FROM POLITICS, DISARMAMENT AND ENVIRONMENT
Before starting in the
analysis of the existence and validity of the principles of international
environmental law discussed in the judgment of the Court, a general overview
will be given of the reasons for France to make those tests. Likewise some
remarks about the consequences of the tests will be presented.
REASONS FOR FRANCE TO RESUME THE NUCLEAR TESTS
Some of the reasons can be
found in the following ideas:
1. The
strategic reason: the negotiations for the Comprehensive Test Ban Treaty (CTBT)
The negotiations of the CTBT cannot be understood
without analyzing the works of the Conference of Disarmament based in Geneve
and the negotiations about the Treaty of Non-Proliferation of Nuclear Weapons
(NPT).[26]
Following to a preparatory process of two and a half
years, at May 12th 1995 one hundred and seventy five participant
states adopted a “package deal” comprised of four decisions in the Conference
on the Non-Proliferation Treaty Review and Extension Conference:
1)
Consolidation
of the process of assessment of the NPT;
2)
Principles
and objectives for the Non-Proliferation of Nuclear Weapons and Disarmament;
3)
Extension
of the Non-Proliferation Treaty on Nuclear Weapons; and
4)
Resolution
in relation to the Middle East.
With the adoption of this
decision a major step forward was achieved in multilateral disarmament: the
indefinite extension of the treaty of Non-Proliferation. In that regard and for
the purposes of this paper we ae interested in the two following points:
a)
The
already mentioned indefinite of the Non-Proliferation Treaty (Third decision
adopted); and particularly in
b)
The
termination in 1996 of the negotiations in the Conference of Disarmament in
Geneve of a “treaty for the complete prohibition of nuclear tests of universal
and international scope and with an adequate system of verification”, in other
words to adopt the CTBT (second decision adopted)
Therefore, in terms of
French politics and as it has been mentioned. France was, to certain extent,
obliged – for the quick pace of the negotiations in Geneve and New York – to
participate and to sign the CTBT and consequently it was necessary for this
country to carry out the nuclear tests before the CTBT was signed by the other
four members of the “nuclear club”.[27]
In consequence, the rapid progress towards a global tests-ban regime explains
some of the reasons of the timing and the necessity of the French nuclear
tests.
2. The
technological reasons
Harald Muller has indicated that the French tests are
justified for three technological reasons:
“- terminer la
qualification de l’ogive TN-75; celle-ci est destine au missile stratégique M-5
SLBM, colonne vertébrale de la Force de frappe au cours du siecle prochain;
-
Obtenir des
renseignements sur la sécurité et fiabilité des armes viellisantes de
l’arsenal, dans la perspective de pouvoir les réparer sans problemas le jour ou
les tests seront interdit;
-
Obtener des
informations pour la simulation sur ordinateur.[28]
As it can be seen, France had the necessity to carry
out the tests taking into consideration the necessity to maintain the security
and reliability of its nuclear arsenal.
3. The
French politics of “raison d’etat”
France had probably as a main political motive the
widh to maintain its national security and interest protected; to keep the
principle of “raison d’etat” at its best. In this regard, Chirac is a follower
of the politics of the Gaulle for whom nuclear power and the nuclear role of
France was of utmost importance.
In an interview on remembrance of the 25 years of the
death of de Gaulle in “L’Express” in 1995, the French intellectual Alain Peyrefitte
refereeing to Chirac and the nuclear tests pointed out:
“qu’aurait fait de Gaulle a propos des essays
atomiques? Premierement, il n’aurait pas hésité un instant a reprendre les
essays, si son prédécesseur les avait interrompus. Deuximement, il aurait sans
doute gardé le secret, au moins jusqu’au premier essai, peut-etre meme apres. Troisiemement, il aurait alor poussé ses ministres a
attaquer fort, a montrer que ce qui etait non pas de reprendre les essays, mais
de les avoir interrompus! Mais cétait non pas de reprendre les essais, mais de
les avoir interrompus! Mais
cétait de Gaulle.[29]
In defense of Chirac, it should be stressed that the
World in which de Gaulle lived and governed France – at the end of the second
world war and at the beginning of the “cold war” – was different from the
present one[30]
were the global order or “global disorder” has slightly moved the world
scenario from Europe to the United States and keeping in mind that in the
future that scenario may rest un China. In that regard, a vision of a bipolar
world fifty years ahead (US together with Europe counterbalancing China) is a
new framework to be thought.
Considering
the later, the French nuclear test also can be interpreted as the search – from
the government of the Hexagone – for a nuclear re-affirmation of the French
republic. In that view, only France and the United Kingdom – as nuclear powers
– will be the reliable players to maintain the security in Europe in the years
ahead. These two nations could also counterbalance – and this is an audacious
opinion – the economic growth of regional European powers like Germany.[31]
CONSEQUENCES OF THE RESUMPTION OF THE NUCLEAR TESTS
Some short
long term consequences of the tests are the following:
1. The
Negotiations of Disarmament and the Political Situation of France
The CTBT has an uncertain
future in the following years. The absence of India in the CTBT is a major
shortcoming for the success of the treaty and particularly for its definitive
entry into force since 44 ratifications (including the nuclear powers and the
threshold states India, Pakistan and Israel) are necessary for the treaty to be
legally binding. In relation to the provisions of the CTBT, each one of the 44
“nuclear states” has a period of three years to sign and ratify the treaty.
After this period – if there are not enough ratifications – a Conference will
be convened to assess the future of the CTBT. Thus if any of the 44 countries
does not sign the treaty in the following three years the CTBT may will never
entry into force.
India in defending its position
for no t signing the CTBT indicated that the treaty was discriminatory because
it allows the five nuclear powers to maintain its nuclear capacity while
prohibit such capability to other countries. Nevertheless about the political
reasons of India:
“on peut se demander si les
héritiers de Nehru ont vraiment voulu defender la cause du disarmament
nucléaire ou si, par cette manoevre, ils nónt pas plutot souhaite garder
ouverte leur proper option nucléaire” [32]
Interesting to know is, in
relation with other multilateral instrument of disarmament, that the Chemical
Weapons Convention recently entered into force (29 April 1997) in The Hague,
and that Ms Wadhwa from the Indian Embassy has indicated:
“India’s decision to ratify
the Convention was an extension of its well reasoned policy which calls for the
elimination of all weapons of mass destruction within a well defined timeframe
and under international supervision. India
considers the Chemical Weapons Convention it be a model disarmament Convention
since it is non-discriminatory, which does not have special categories of
countries and imposes equal rights and obligations on all countries”.[33]
For France to have conducted
the nuclear tests in the Mururoa Atoll was a major step forward in terms of its
nuclear policy and political prestige of world power. Likewise the tests
definitely will help this country to maintain the state-of-the-art technology
in its nuclear arsenals.
2. The
signature of the protocols of the South Pacific Nuclear Free Zone Treaty
(SPNFZ).
After the French nuclear tests a new nuclear-free zone has been
established: The South Pacific Nuclear Free Zone Treaty (Rarotonga Treaty).
This area joins the other nuclear-free zones such as the Latin American and
Caribbean one (Tlatelolco Treaty), the African, the South East Asian (although
there are reservations of the nuclear powers) and Antarctica. However, it
should be noticed that the majority of the treaties creating nuclear-free zones
and in general all the treaties of disarmament use to have the denominated
“escape clause” which allow countries not being completely obliged by the
provisions of the treaties.
3. The
ecological consequences of the nuclear tests for the inhabitants of the South
Pacific islands
After numerous nuclear tests in the South Pacific Islands the ecological
consequences area clear. Damage to the natural environment –in the atmosphere,
in the soil and the sea –and also to the people of the close Pacific Islands.
Now
let’s go back to the legal analysis of the dissenting opinions in the 1995
Nuclear Tests Case.
PART
4.
THE
PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW – EXISTENCE AND VALIDITY:
After the short overview in the foregoing parts of
this paper, this article will now assess the existence and validity of
environmental principles. It is clear that in the aforementioned cases the
majority of the Court did not express any opinions which could affirm such an
existence without doubt, because the Court dismissed the request of New Zealand
and therefore there is no ratio with regard to environmental principles.
Nevertheless, the opinions of the dissenting judges do enunciate and rely on
such principles of international environmental law.
4.1
Precautionary Principle:
A great number of authors recognize that it is
difficult to find a satisfactory definition of the precautionary principle. [34]Gundling
has noted that the concept of this principle has an elusive character because
it contains a variety of elements. It is also very difficult to state a clear
definition of this principle because of its international relevance and its
diverse denominations.[35]
The principle has been called: “principle of the precautionary action”,
“principle of the precautionary basis”.[36]
Hey has registered that in the official documents and the relevant legal
literature legal terms like “precautionary policy”, “precautionary action”,
“precautionary principle”, “principle of precautionary action” and
“precautionary measures” are used.[37]
Nevertheless, despite the terminological imprecision,
it is possible to extract common ideas about this principle which give support
to its existence and validity in international law. Probably the most important
definition which has been given of the precautionary principle is to be found
in article 15 of the Rio Declaration of 1992 that states that:
“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”.[38]
Lothar Gundling explains further:
“Precautionary action is a more stringent form of
preventive environmental policy. It is more than repair of damage or prevention
of risks. Precautionary action requires reduction and prevention of
environmental impacts irrespective of existence of risks”.[39]
As it can be seen the precautionary principle has the
fundamental objective to protect the environment before a situation carrying
risks can cause any damage. Its application involves the idea that the lack of
scientific certainty about the damaging effect to the environment cannot be
considered as an impediment to take measures which can reduce or prevent this
possible damage. The precautionary principle can thus be considered as one of
the most important principles of the evolving corpus of international
environmental law.[40]
In relation to the law of the European Union, the
precautionary principle has been enshrined in the Maastricht Treaty of 1992,
where in article 130 R paragraph 2 it is indicated as one of the fundamental
features of the environmental protection policy of the European Union.[41]
The precautionary principle has been clearly accepted in the second
International Conference for the Protection of the North-Sea (London 1987) and
also in the Third Conference (The Hague 1990).[42]
The majority of the scholars recognize[43]
that the prime example of the precautionary approach at a global level is the
Vienna Convention for the Protection of the Ozone Layer 1985.[44]
And the Protocol to it signed in Montreal.[45]
This convention and the protocol to it were signed despite scientific
uncertainty and in spite of the huge consequences for the chemical industry.
The subsequent revisions have each brought forward phase-out deadlines and
states efforts in this regard represent strong examples of state practice in
support of the precautionary principle.
The dissenting judges in the 1995 Case each discuss
the precautionary principle, lending weight to the argument that it exists and
has validity in international environmental law.
Justice Weeramantry, in applying the inter-temporal
concept, held that the Court must bring to bear the knowledge of 1995 upon the
Request before it, rather than applying the knowledge of 1995 upon the Request
before it, rather than applying the knowledge of 1974 which in his opinion
would be an “exercise in unreality”[46]
Justice Palmer also held that, because the harm is a continuing one, the
applicable law must be determined at the time the Court is called to determine
it.[47]
That is, in 1995 with the knowledge we now have in regards to nuclear damage.
Justice Weeramantry notes that the EIA process is
gathering strength and acceptance and that the Court therefore applies it. In
support for this proposition, Weeramantry cites the UNEP 1987 Guidelines on
EIA. He notes the responsibility the Court has “at the apex of international
tribunals”[48]
to respect the trust placed in it with regards to the Global Palmer goes so far
as to say that it is a legal duty of states to first establish that a planned
activity does not involve an unacceptable risk. In support for this principle
Palmer cites the ILC Article 12 obligation to undertake assessments of risk and
the Noumea Convention Article 16 specific obligation to conduct EIAs.[49]
It is their discussion of the precautionary principle
itself which leads all dissenting judges to conclude that the tests should have
been halted.
Weeramantry traces the history of the concept and
lists examples of treaties applying it. He notes that, because France is a
party to the Maastricht Treaty, this formulation is of particular relevance to
the case before the Court. He argues that one could expect the principle
applicable to Europe to also apply to European activity in “other global theatres”.[50]
Palmer concludes that the norm involved in the
precautionary principle has developed rapidly and may now be a principle of
customary law which requires application in this case.[51]
Koroma likewise uses the precautionary principle to conclude on the facts that
“the evidence, though not conclusive, is sufficient to show that a risk of
radioactive contamination may be brought about” and that the Court should
therefore have taken action on New Zealand’s application.
In summary it can be said that in the opinion of the
dissenting judges there is a general consensus that the precautionary existence
and validity as a principle.
4.2
Sustainable Development Principle:
The concept of sustainable development emerged in the
last decade.[52]
The most renowned and relevant document which contains a definition of this
concept is the Brundtland Report of 1987.[53]
This report was headed by the Norwegian stateswoman Gro Harlem Brundtland which
defines sustainable development as: “development that meets the needs of the present
without compromising the ability of future generations to meet their own
needs”.[54]
This definition clearly emphasizes the existence of
international rights, a concept coming from the law of “trusts” where the
present generation holds the earth on trust for future generations.[55]
This concept was relied upon as early as 1893 in the Pacific Fur Seal
Arbitration.[56]
Many treaties in the last twenty years have referred to this concept in one way
or another. For example: 1973 Convention on International Trade in Endangered
Species, 1979 Bonn Convention, 1985 ASEAN Treaty and the 1992 Biodiversity and
Climate Change Conventions.[57]
The Rio Declaration crystallizes in articles 3 and 4
the Intergenerational Rights principle. Article 3 reads as follows: “The right
to development must be fulfilled so as to equitably meet developmental and
environmental needs of present and
future generations” and article 4 states “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”.
It is the Marine context which provides most legal
support for the existence and validity of this principle. In the Icelandic
Fisheries Case, the ICJ surveyed existing fisheries conventions and state
practice and made pronouncements about the rights of coastal and other states
with regard to fishing rights. In doing so it stated that neither group of
states had absolute rights, rather than both have a “duty to have due regard to
the rights of other states and the needs of conservation for the benefit of
all”.[58]
Further UNCLOS III also relies on this principle in relation to sustainable use
of resources.[59]
However it is not only the marine context which
provides international opinio iuris
on the sustainable development principle. Article 3(4) of the 1992 Climate
Change Convention refers to the principle as do many articles in the 1992
Biodiversity Convention.[60]
Article 2 of the latter convention defines sustainable development as “the use
of components of biodiversity in such a way and at a rate that does not lead to
the long-term decline of biodiversity, thereby maintaining its potential to
meet the needs and aspirations of present and future generations”.
It is not clear exactly how this concept, if accepted
as customary law, would be applied. Certainly there is the possibility that it
could be used to support the legal standing of present generations to bring a
claim in a similar way to co-trustees in traditional trust law.
Weeramantry explains the submission of New Zealand
that nuclear damage by its very nature is lasting and the effects of it may be
felt by many generations into the future. He finds that, because the Court is
charged with administering international law, that it should take this emerging
principle into account when it so clearly applies.
Palmer uses the principle as a further reason why the
Court should have heard the case. That is, because the technology has given
humankind the ability to massively alter natural environment, these
consequences need to be examined lest we “imperil those who after us”.[61]
It is disappointing that the majority of the Court did
not take advantage of the preeminent opportunity it had, in this context of
potential nuclear damage, to make a comment about the principles of
sustainability and intergenerational rights. However, what is certain, given
the vast body of treaties refereeing to such rights and the comments by the
dissenting judges, is that the principle has existence and validity which
cannot be denied.
4.3 The Preventive Principle
The preventive principle may be said to be an
overarching principle which includes the good neighborliness principle, the
principle that damage must not be caused to other states or areas beyond
national jurisdiction and the specific principle of illegality of dumping
radioactive waste into the marine environment. It goes further than all of
these however, as it requires action at an early stage, but not as early as the
previously discussed precautionary principle.
The principle has been described by Sands:
“If a state
knows or has a reason to believe that an activity will cause, or is
casing, damage to the environment in violation of the standards established
under the rules of international law, it is under and obligation to prevent the
activity from taking place.”[62]
It has customary law origins form the Trail Smelter
case[63],
later endorsed in the Corfu Channel case[64].
The Court held that states do not have the right to use their own territory in
such a manner as to cause injury to other states or areas beyond their national
jurisdiction.
The latin term being “sic utere tuo ut non laedas
alienum”. The case of the Gabcikovo-Nagymaros Project, which was presented to
the ICJ in March and April this year, also raises this principle and it will be
most interesting to observe whether the Court makes any comment in the
principle.
The renowned Principle 21 Stockholm Declaration, also
repeated as Principle 2 Rio Declaration, encapsulates the duty of states not to
cause harm to other states or areas beyond state jurisdiction. The UN general
Assembly has referred to the principle as reflecting customary international
law.[65]
It may be said to be the modern day expression of the Trail Smelter principle
and the foundation of the preventive principle. Sands refers to this principle
as the “cornerstone of international environmental law”.[66]
The preventive principle has been further supported in
many treaties ranging from the 1972 Stockholm Declaration, 1982 World Charter
for Nature, to the 1992 Rio Declaration, Climate Change and Biodiversity
Conventions.[67]
It is no longer disputed that Principle 21 represents
customary law. What remains unclear, however, is exactly the extent of
environmental damage which is illegal and is to be prevented. The preventive
principle goes further that Principle 21, as it would appear to require states
to prevent “environmental damage” within a state’s own territory. The extent to
which this further requirements is valid and accepted is debatable.
While the preventive principle wasn’t named per se in
the dissenting opinions of the 1995 Case, the concepts behind it were endorsed.
Justice Palmer sets out the New Zealand argument based
on these principles that France was bound because it was party to the 1986
Convention for the Protection of Natural Resources and Environment in the South
Pacific (Noumea). Further, Palmer lists all the treaties relied upon in order
to support the existence and validity of the principles. There were seven
significant treaties named.[68]
Justice Koroma supports his conclusion that preventive
principles and duties exist by citing treaties such as the Moscow Treaty of
1963, the 1967 Treaty on Principles Governing the activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies and the 1971 Treaty on the Prohibition of the Emplacement of Nuclear
Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor
ad in the Subsoil thereof. These treaties have their object as the prevention
of radioactive contamination of the environments to which they relate. He
further cites the United Nations Convention on the Law of the Sea, Part XII
which pertains to protection of the Marine Environment. In light of such
treaties, Koroma concludes that nuclear testing is not only prohibited, but
that any damage caused is illegal.
Justice Weeramantry outlines the specific application
of the principle of illegality of introducing radioactive waste into a marine
environment. He cites chapter 22 of the adopted Rio Conference document, Agenda
21, as support for such principles specifically noting France’s President
Mitterrand’s strong condemnation at that time of marine pollution. Weeramantry
considers this as “self evident”[69]
authority of the principle. He further refers to the principle not to cause
damage to other nations as a “deeply entrenched principle, grounded in common
sense, case law, international conventions and customary international law”.[70]
In light of this he concludes that the Court must reach a determination as to
whether a prima fascie case of
danger to its rights has been made out by New Zealand.
PART
5.
PRINCIPLES
OF INTERNATIONAL ENVIRONMENTAL LAW-OBLIGATIONS OR ASPIRATIONS?
Consideration of the existence and consequent status
of principles requires Article 38(1) of the Statue of the International Court
of Justice to be taken into account. This Article is generally regarded as a
complete statement of the sources of international environmental law[71]
by many scholars. It contains a list of five sources of international law, the
third of which is important for the purposes of this paper:
1)
International
conventions:
2)
International
custom
3)
General
principles of law:
4)
Judicial
decisions: and finally
5)
The
teaching of the most highly qualified publicists
The concept of “General Principles of law” has widely
been accepted as allowing the International Court of Justice “to consider and
apply general principles of municipal law”[72].
When the Court takes rules from municipal systems, those rules are not taken as
they applicable in their own municipal systems; rather the Court edits,
recreates or elaborates those rules. Therefore the rule applied by the Court is
a mutated rule which emerged from municipal law, but which has been adapted and
is now only applicable in the international law.
Some examples of general principles which have been
applied by the ICJ include “principle of consent, reciprocity, and equality of
states, finality of awards and settlements, and the legal validity of
agreements, good faith, domestic jurisdiction, and the freedom of the seas”.[73]
The questions which remains open is to assess whether
or not the group of principles of international law discussed above have
validity and status in international law. Classical interpretations have
indicated that there is no separate body of International Environmental Law
(hereinafter “IEL”) and consequently that there are no particular principles of
IEL.[74]
However, in the author’s view, the increasing global
concern relating to the protection of the environment in the last 25 years,
which has resulted in a vast body of laws and treaties being created, has
changed the classical legal approach to this subject.[75]
In the opinion of the author, it is possible to find and define principles
which can only be related to environmental matters and that the preceding
analysis of the 1995 Nuclear Tests Case highlights this existence and validity
of such principles.
Birnie and Boyle have suggested that examples of these
environmental principles possibly are “the precautionary action, sustainable
development, equitable utilization of shared resources, etc.”[76]
Other authors have expressed a broader view. Sands, for example, considers that
there exist more principles directly linked to IEL. In his opinion there are
seven principles of IEL:
“These are:
(a)
The
obligation reflected in Principle 21 of the Stockholm Declaration and Principle
2 of the Rio Declaration, namely that states have sovereignty over their
natural resources and the responsibility no to cause environmental damage:
(b)
The
principle of preventive action;
(c)
The
principle of good neighborliness and international co-operation
(d)
The
principle of sustainable development
(e)
The
precautionary principle
(f)
The
polluter-pays principle; and
(g)
The
principle of common but differentiated responsibility”.[77]
While these principles are receiving more attention in
the international arena and their existence and validity can no longer be
doubted so readily, it remains disputable whether these principles are binding
or merely guidelines for policy action.
Now, this paper will be focus in the principles
analyzed and its status in general IEL.
Sustainable
Development:
Sands observes the several applications or aspects of
the principle, namely consideration of future generations, equitable allocation
of resources and environment and development integrations.[78]
Handl observes that “without authoritative third party decision-making,
conflicting claims about the concepts specific normative implications will
abound and disputes over application will be exceedingly difficult to resolve”.[79]
It may be said, therefore that while sustainable
development is a well-known concept, it’s binding nature is difficult to
specify.
The
precautionary Principle:
After an analysis of the precautionary principle,
Birnie and Boyle conclude that:
“Difficult questions concerning the point at which it
becomes applicable to any given activity remain unanswered and seriously
undermine its normative character and practical utility, although support for
it does indicate a policy of greater prudence on the part of those states
willing to accept it”.[80]
More optimistically, also in relation to the
precautionary principle, Sands concludes that, at a minimum there is sufficient
evidence of state practice to justify the conclusion that the principle, as
elaborated in the Rio Declaration, Climate Change and Biodiversity Conventions,
has now received universal support. He further concludes that this supports an
argument that the principle is now customary law.[81]
Justice Weeramantry endorses Sands, specifically in the context of discussing
the precautionary principle, as support for his finding that there are principles
of environmental law.[82]
Preventive
Principle:
The many applications and levels of this principle may
not be readily said as a whole to be binding IEL. However, some of the
principles under this banner have doubted status as binding principles of IEL.
Principle 21’s Stockholm Declaration and the Good Neighbor and Co-operation
principles area examples of principles which are well accepted by the
international community and have indisputable status as IEL.[83]
The pleadings of over forty states in the World Health
Organization request presented to the UNGA for advice on the legality of the
use of Nuclear Weapons[84]
provides further support for this status. The request included the issue of the
existence of international environmental principles. Egypt, Iran, Solomon
Islands and Mexico said Principle 21 was a principle of customary international
law and no state denied this status in response.
General
Status in IEL:
In relation to the status of general IEL, Handl argues
that “general acquiescence in expressions of international concern over local
environmental management is one this; states’ acceptance of specific
international normative standards and rules that might impose severe limits on
natural resources policies locally, is quite another”.[85]
The
pleadings of the seven states[86]
involved in the 1995 Case, provide a useful insight into the opinio iuris of at least those states
with regard to the principles raised in the preceding sections of this paper.
In her analysis
Fitzmaurice considers that most writers agree that there now exists “in general
international law real and binding obligations on states on the protection of
the environment whose breach involves responsibility thru a wrongful act.”[87]
While Sands
acknowledges that the principles are not always endorsed by state practice and
that some of them are only emerging rules of law, he argues that it is
undeniable that these principles are becoming more important daily in
international law.[88]
In this sense their status is also evolving from vague principles to
applicable, binding rules.
6. CONCLUSIONS
The
overwhelming support expressed by dissenting judges for the existence and
validity of several very important environmental principles cannot be overlooked
as a contribution to the evolving corpus of law in this area. The
precautionary, sustainable development and preventive principles discussed by
the judges and as found in wide ranging international agreements, have definite
validity in international law which can no longer be denied.
While it
would be simplistic and legally incorrect to state that the 1995 Nuclear Tests
case has itself created legally binding obligations of these principles, it is
short sighted no to note the contributions it has made to increase the validity
and status of principles of international environmental law.
It must
note that the presentation of arguments relying on these principles to the
world’s highest tribunal is in itself a major step forward. While the choice of
the majority not to discuss or apply the principles is one which is regrettable
for proponents of the environmental law development cause, it is hopefully not
one which will be made again when the opportunity arises. Indeed, the Author
await the current consideration by the ICJ of the Hungary and Slovakia dispute
over the Gabcikovo-Nagymaros dam with interest, as similar principles of
international environmental law have been raised.
[1] Diplomat, LL.B in International
Relations (Diplomatic Academy of Peru), LL.M. in the International Law (The
University of Hull, U.K.), Maitrise en Politique International (Univesité Libre
de Bruxelles). Doctor in Law (Ponthifical Catholic University of Peru).
The views expressed here are those of the
author and do not necessarily reflect those of the Government of Peru
[2] Request for an Examination of the
Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20
december 1974 in the Nuclear Tests (New-Zealand v. France)Case I.C.J. Reports
1995, p. 288 (hereinafter “The 1995 Case”) See also: Nuclear Tests Case (New
Zealand v. France), Judgment of 20 December 1974, I.C.J: Reports 1974, p. 457.
(hereinafter “The 1974 Case”).
[3] On the evaluation of this subject
read the comments by Gillepsie, A. The 1995 nuclear tests case, The ICJ fails
to address the merits of an international environmental concern. In: The New
Zealand Law Journal, May 1996, Perera, A. Rohan, French Nuclear Tests in the
Pacific – New Zealands Request for “An Examination of the Situation” – A
Retreat into Judicial Formalism by the International Court of Justice?. In: 7,
Sri Lanka Journal of International Law, December 1995; Bothe, M., Challenging
French Nuclear Tests: A Role for Legal Remedies?. In: RECIEL, Volume 5, Issue
3, 1996; NicoSchrijver, Nuclear Weapon Tests and the international law: the New
Zealand and France case and beyond, In: Institute of Social Studies, State and
Society Relations Paper Nr. 96-03, 6 February 1996 (on file with the author);
Kwiatskowka, B., New Zealand v. France Nuclear Tests case: the dismissed case
of lasting significance. In: 9, Georgetown International Environmental Law
Review, Washington, in the press, Daniele, Luigi, “L’Ordonnance sur la demande
d’examen de la situation dans l’affaire des essays nucléaires et le pouvoir de
la Cour Internationale de Justice de régler sa propre procédure”. In Revue
Générale de Droit International Public, Issue 3, 1996.
[4] THe 1974 Case, supra note 2, p. 457
[5] The 1995 Case, supra note 2, p. 288
[6] The 1974 Case, supra note 2, p. 460
[7] “Nuclear Test case” (Australia and
New Zealand v. France), in: United Nations, Summaries of Judgments, advisory
opinions and orders of the International Court of Justice, 1948 – 1991, New
York, 1992, pp. 87 ff.
[8] Statute of International Court of
Justice; Text in Brownlie, Basic Document in International Law, 3rd edition,
1983, Oxford.
[9] See infra part 3.1, p. 9
[10] France declared in 1974 not to
continue its atmospheric nuclear tests. This unilateral declaration was
considered for several years as an example of an additional source of
international law. However, when France reasumed its nuclear tests in 1995 the
concept of an unilateral declaration as a source of international law became
controversial. On the classical interpretation of unilateral declaration as an
additional source of international law see: Shaw, M.N. International Law, third
edition, Cambridge: Grotius Publications Limited, 1991, at page 98.
[11] Gormley, W.P. (1976) Human Rights and
Enviromental: The need for International Co-operation Sijthoff International
Publishing Co., Leyden, at p. 146
[12] A few weeks later, France announced that
instead of eight nuclear tests it would conduct only six
[13] Nuclear Tests case, I.C.J. Reports 1974, p. 477
[14] The 1995 Case, supra note 2, p. 291
[15] The 1995 Case, supra note 2, p. 291-292
[16] The 1995 Case, supra note 2, p. 306
[17] Ibid. The judicial terminology of the Court the
opinion of the judges can take three forms: a) dissenting opinion that states
the reason why a judge disagrees with the Court’s decision, b) separate opinion
“is written by a judge who has voted in favor of the Court’s decision, but who
finds himself in disagreement with all or some of the Court’s reasoning”, c)
declaration “is a brief indication of concurrence or dissent”. See:
International Court of Justice. The International Court of Justice, ICJ The
Hague 1986, third edition, at p. 62
[18] 1995 Order; para 63
[19] 1995 Order; para 64
[20] 1995 Order; p. 312
[21] See supra note 3
[22] The 1995 Case, supra note 2, p. 339
[23] Id.
[24] The 1995 Case, supra note 2, p. 379
[25] The 1995 Case, supra note 2, p. 406
[26] About this subject it is recommended to see
chapter 13 “The nuclear non-proliferation regime after the NPT Review and
Extension Conference” of the SIPRI Yearbook of 1996. SIPRI Yearbook 1996:
Armaments, Disarmament and International Security (Oxford University Press,
1996)
[27] “Chaud partisans d’une interndicion des essais,
ls Australiens ont alors pris les devans er présenté a New York un projet de
resolution adoptant le CTBT. Initiative couronnée des success puisque le 10
septembre 1996, l’assemblée générale des Nations unies a approuvé, a une
écrasante majorité, une resolution adoptant le Traité d’interdiction globale
des esais nucléaires:158 voix favorable, don’t celles des cinq puisances
nucléaires declares, 3 votes contre (Inde, Libye, Bhoutan) et 5 abstentions
(Cuba, Liban, Ile Maurice, Syrie, Tanzaine)”. Schmitz, Marc, Introduction, p. 6
In: De Becker, Martine: Muller, HArald et Scpaer, Annette, Essais Nucléaires. Fin
de PArtie. Editions Grip, Institu Européen de Recherche et d’information sur la
Paix et la Sécurité, 1996, 100 p. Likewise and consequent with the latter
France, toguether with the United States And United Kingdom ad signed before –
on 25 March 1996 – the South Pacific Nuclear Free Zone Treaty (SPNFZ), widely
known as the Treaty of Rarotonga of 1985
[28] Muller, Harald.
“CTBT: son historie, les enjeux, les perspectives d’avenir”. Pp. 28-29. In: De Becker, MArtine:
Muller, HArald et Schaper, Annette. Op. cit.
[29] L’Express, No 2312 Semaine du 26 Octobre au 1er
November 1995, “L’ombre du Général”, p. III
[30] The world and challenges of the time of the
Gaulle differs completely from the present one. About this see: Aron, Raymond. L’Age
de Empires et l’Avenir de France, Paris Défense de la France, 1945
[31] J. Goldblat during the courses of the Hague
Academy of International Law in the summer of 1995 suggested this idea.
[32] Schmitz, Marc Introduction, p. 7 In: De Becker,
Martine: Muller, Harald et Schaper, Annette
[33] “NRC Handelsblad”, The Netherlands, 14 May 1997
[34] Gundling, Lothar.”The status in international
law of the principle of precautionary action”. Pp. 23-30. In: Freestone, David
and Ijlstra, Ton (ed). The North Sea: Perspectives on regional environmental
cooperation (special issue of International Journal of Estuarine and Coastal
Law), London, Dordrecht, Boston: Graham and Trotman, Martinus Nijhoff, 1990, p.
25
[35] Id.
[36] Stebbing, A.R.D. “Environmental capacity and
the precautionary principle”. Pp. 287-295. In Marine: Pollution Bulletin.
Volume 24, number 6, 1992, p. 289
[37] Hey, Ellen. “The precautionary concept in
environmental policy and law, Institutionalizing caution”. Pp. 303-318. In: The
Georgetown International Environmental Law Review. Volume 4, 1992.
[38] Report of the United Nations Conference on
Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. Ann. I, p.6
[39] Gundling, Lothar. Op. cit. p. 26 The same
opinions have been given by Hey and Handl. Hey, Ellen. “The precautionary
approach. Implications of the revision of the Oslo and Paris Convention”. In:
Marine Policy, july 1991, p. 245. Likewise, Handl, Gunther. Environmental
Security and Global Change: The Challenge to International Law”. London,
Dordrecht, Boston: Graham and Trotman, Volume 1, 1990, p. 22.
[40] Freestone has indicated that: “The crux of the
precautionary principle, action to prevent serious or irreversible damage
should not be delayed until the scientific evidence is clear – by which time it
might be too late”. Freestone David. “The road from Rio. International
Environmental Law after the Earth Summit”. Hull: The University of Hull Press,
1993. p. 23
[41] Likewise, the same article recognizes that
another fundamental principle which is part of the environmental policy of the
European Union is the “Polluter Pays Principle”. In reference to the
Precautionary Principle article 130 R paragraph 2 indicates: “Community policy
on the environment shall aim at a high level of protection taking into account
the divertisty of situations in the various regions of the Community. It shall
be based on the Precautionary Principle and on the principles that preventive
actions should be taken, that environmental damage should as a priority be
retified at source and that the polluter should pay. Environmental protection
requirements must ne integrated into the definition and implementation of other
Community policies”. See: Treaty on European Union” (Maastricht, Netherlands,
1992). In: Foster, Nigel G. EEC Legislation. Third Edition. London: Blackstone
Press Limited, 1992.
[42] Freestone, David, op. cit., p. 22 and
following. See also: Cameron, Lames and Abouchar, Juli. “The Precautionary
Principle: a Fundamental Principle of Law and Policy for the Protection of the
Global Environment”, op. cit., pp. 4-5
[43] See for example: Benedick, R.E. (1991) Ozone
Diplomacy, Harvard University Press, p.1
[44] Convention for the Protection of the Ozone
Layer (Vienna) UKTS 1 (1990), Cm 910: 26 ILM (1987), 1529. In force 22
September 1988
[45] Protocol on substances which Deplete the ozone
layer (Montreal) UKTS 19 (1990), Cm 977: 26 ILM (1987), 1550. In force 1
January 1989. Ammended 1990 OJED, No C11 (1991) p. 21
[46] The 1995 Case, supra note 2, p. 340
[47] Ibid. p. 413
[48] Ibid. p. 345
[49] Ibid. p. 411
[50] Ibid. p. 344
[51] Ibid. p. 412
[52] The term “sustainable development” was
introduced in 1980 by the International Union for the Conservation of Nature
and Natural resources (IUCN) as “a new paradigm for future development
strategies that aim to integrate economic, ecological and social objectives”.
Mathias Buck, Research Associate, Ecological Centre for International and
European Environmental Research
[53] World Commission on Environment and Development
1987 “Our Common Future”. Brundtland Report.
[54] Id.
[55] Brown-Weiss, E. (1990) Our Right and
Obligations to Future Gnerations for the Environment, 84 AJIL (1990) 198, 199.
[56] Bering Sea Fur Seals Fisheries Arbitration
(Great Britain v United States), Moore’s International Arbitrations, 755 (1893)
[57] See also:
1972 World Heritage Convention – Article 4
1977 ENMOD Convention – preamble
1985 Nairobi Protocol – Article 16(1)
[58] Icelandic Fisheries Cases (UK v Iceland), para
72, p. 31 and (FRGv Iceland), para 64, p 200
[59] See article 61(3)
[60] See Articles 1, 8, 11, 12, 16, 17 & 18
[61] The 1995 Case, supra note 2 at p. 419
[62] Sands, P. (1995) Principles of International
Environmental Law. Vol. 1 Frameworks, Standards & implementation,
Manchester University Press, Manchester & New York, 1995 p. 195
[63] Trail Smelter Arbitration, 33 AJIL, (1939), 182
[64] Corfu Channel Case, ICJ Reports (1949), 1.
[65] UNGA Res. 2996 (XXVII)(1972) asserts the Principles
21 and 22 of the Stockholm Declaration “lay down the basic rules governing the
matter”. One hundred and twelve states voted for this resolution, none opposed,
although it should be noted that the Eastern Block states did not attend the
Conference and abstained on this Resolution, but have supported later treaties
which recognize the normative character of the principle.
[66] Sands, supra note 54, p. 186
[67] See also:
1982 UNCLOS, Article 194 (1)
1985 ASEAN Convention, Article II
1987 Montreal Protocol, Preamble
MARPOL 73/78, Article I
[68] Namely:
1992 Agenda 21, Chapter 22, of the Rio
Declaration
1958 Convention on the High Seas, Art. 25
1982 UNCLOS, Art. 194
1992 Biodiversity Convention, Arts. 3 & 14
1956 Statute of the IAEA, Art. 34
1992 Convention for the Protection of the
Marine Environment of the North-East Atlantic, Art. 3(3)(a)&(b)
1972 London Dumping Convention
[69] The 1995 Case, supra note 2, at 346
[70] The 1995 Case, supra note 2, at 347
[71] Among these scholars Brownlie is notorious:
See: Brownlie, I. (1990) Principles of Public International Law, 4th
Edition, Oxford University Press, New York 1990, 9. 3
[72] Sands, supra note 54, p. 123
[73] Brownlie, supra note 63, p. 19
[74] Some legal scholars dislike the use of the term
“international environmental law”, because they consider that there is no
distinct “environmental” body of law with its own sources and methods of
lawmaking deriving from principles peculiar or exclusive to environmental
concerns”. Birnie, P.W. and Boyle, A.E. (1992)International Law and the
Environment. Oxford University Press, 1992, p. 1.
[75] It is generally accepted that the global
concern for the protection of the environment started at the first UN
Conference on Human Environment in Stockholm in 1972
[76] Birnie and Boyle, p. 22
[77] Sands, supra note 54, at p. 183
[78] Sands, supra note 54, p. 208
[79] Handl, 1 YIEL (1990)
[80] Birnie and Boyle, supra note 66, p. 68
[81] Sands supra note 54, p. 462
[82] The 1995 Case, supra note 2, p. 342
[83] Supra note 75 and Sands, supra note 54 at 197
[84] See Sands, P. Reports from International Court
of Justice in Year in Review, Y. Int’l Env. L,4 (1994)487-8
[85] Handl, G. (1992) “Environmental Security and
Global Change: The Challenge to International Law” In: Lang, W. et. Al. (eds)
Environmental Protection and International Law (1991) Graham & Trotman, 59
at 86
[86] Australia, Samoa, Solomon Islands, Marshall
Islands, Federated States of Micronesia and New Zealand
[87] Fitzmaurice, M.A. (1995) “Responsibility for
environmental damage as distinct from general state responsibility – the ILC
Draft” in Netherlands Yearbook of International Law (1995) p. 202 at 210
quoting: Mazzeschi, R.P. (1991) “Forms
of International responsibility for Environmental Harm” in Francioni, F. &
Scovazzi, T. (eds) International Responsibility for Environmental Harm (1991)
p. 35
[88] Sands, supra
note 54, p. 236
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