International Treaties and Customary International Law on Environmental Sustainability

Introduction

Advancements in the ability to recognise risks to the earth’s environment and to appreciate its anthropogenic origins has engendered a concerted effort by governments and non-governmental organisations to ensure legal protection of the environment. The havoc that such activities wreak may often be irreversible and an acknowledgement of this reality helps to add momentum and urgency to the legal agenda for protecting the environment.
Given the plethora of regional and global environmental and developmental problems encountered – in the context of problems faced by the states of Glowland and Bolsover, transboundary air pollution engendering water pollution, the need to protect endangered species of flora and fauna, climate change and ozone layer depletion – the legal regime is an extensive one. Yet no straightforward resolution is available in light of the nature of policy issues brought about. These issues do not encompass exclusively environmental concerns but involve economic, social, political and cultural variables that create an inevitable need to prioritize competing claims. There are as many losers as winners on this international landscape and therefore questions of political economy, distribution of losses and the right to sustainable development are core features of the debate. It is to be assumed that the state of Glowland is a developed industrial nation whilst Bolsover relies upon its agricultural base. The competing interests of these nations are therefore stark.
The strategy adopted in dealing with environmental concerns has moved from a paradigm of bilateral state responsibility to an approach dependent upon international cooperation. In dealing with transfrontier pollution issues, international environmental law – the foundation of which comprises general principles – relies upon the cooperation of states. Principle 7 of the 1992 Rio Declaration on Environment and Development insists that:

States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. 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.

Furthermore, Article 3(1) of the United Nations Convention on Climate Change, 1992 stipulates that parties ‘should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’ and in such a way that the developed country parties should take the lead in combating climate change and its adverse effects.
Taking these provisions as our point of departure for negotiations between Glowland and Bolsover, the body of rights and duties of each state will be discussed in the context of the most relevant international treaties and normative standards – of which there are very few clearly established – of customary international law.

Some General Principles of International Environmental Law

Precautionary Principle

The principles of environmental law are all emergent in character and the practice of states and legal literature testify to this evolving nature. It is unsurprising therefore to find a clear lack of definitional agreement and understanding amongst states and other organisations operating as members of the international community within this field. Despite receiving strong support in the Rio Declaration, the precautionary principleis imprecisely defined. Principle 15 of this declaration states:

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.

Acknowledging the importance of this precautionary approach in his dissenting opinion in the 1974 Nuclear Tests Case, Judge Weeramantry regretted that the Court had not availed itself of the opportunity to consider this and other principles and the extent to which they apply. This absence of elaboration exemplifies an entrenched habit of the ICJ in its jurisprudential analyses. Despite such vagueness there can be no doubt that the precautionary approach is based upon the principle of foreseeable risk of harm to other states.

Polluter Pays Principle

Principle 16 of the Rio Declaration provides that:

National authorities should endeavour to promote the internalization 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.

Described by some commentators as fundamentally an economic policy, this principle, however conceived, is vague and therefore fails to achieve the status of a generally applicable rule of customary international law. Despite the lack of clarity over the legal status of the polluter-pays principle, general international law brings to bear the principle of state responsibility in such matters. The Trail Smelter arbitration (1905) and the Corfu Channel case (1949) are often cited to invoke the principles of state responsibility in respect of liability of the territorial sovereign for sources of danger to other states emanating within its territory. The former case dealt with a dispute between Canada and the United States over sulphur dioxide pollution from a Canadian smelter, built in a valley shared by British Columbia and the state of Washington, which caused a substantial amount of damage to farmland trees and crops on the American side of the border. The tribunal stated that:

‘under principles of international law…no state has the right to use or permit the use of 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 a serious consequence and the injury is established by clear and convincing evidence’.

This approach was supported by the International Court in the Corfu Channel case, which stressed that it was the obligation of every state ‘not to allow knowingly its territory to be used for acts contrary to the rights of other states’. How far the polluter-pays principle applies is far from clear. Should a polluter bear the full cost of an environmental clean up for example?

Sustainable Development

The principle of Sustainable Development is propounded in many international instruments. It is a protean concept that has been endorsed by political and economic leaders as well as environmental groups in order to protect the future of our global environment. A great diversity of opinion exists in relation to the meaning of sustainability and the methods of implementation. Birnie and Boyle seek to identify a number of elements that make up this principle:

The UNFCCC states that ‘parties have a right to, and should, promote sustainable development. So the overriding impression created by this principle is that it lacks any concrete meaning but refers to a number of important policy issues including economic, social and environmental concerns.

Absorption of an Environmental Conscience within General International Law

Historically, concerns over the environment have been absorbed within disparate areas of general international law such as state responsibility, law of the sea and the non-navigational uses of international watercourses. Yet general international law fails to support the provision of focused solutions to environmental problems. Such an accommodation is left to specifically prepared normative treaties whose success correlates directly with national and international systems of support and funding. In addition to multilateral conventions that concentrate on specific types and regions of environmental concern, other conduits used for channelling appropriate action include bilateral understandings between states in relation to their boundaries and frontiers.
The establishment and effective operation of regional organisations such as the European Union are also invaluable to international environmental regulation.
Whatever the cause of action is – and often the cause of pollution can be a cumulative process involving complex/multiple causal factors – there is much to be gained by requests, addressed to the International Court of Justice, for interim measures of protection. Successful requests based upon credible scientific evidence are highly valuable in political terms, partly as a consequence of media attention and the revelatory nature of the claims a respondent state is obliged to answer.
Although a corpus of international environmental law is emerging, its impact on the protection of the environment within national courts is limited. Consequently, the general obligation of States to ensure that activities for which they are responsible respect the environment outside areas of national control is as important as ever. Principle 2 of the Rio Declaration insists:

‘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.’

Such language is echoed by the judgement of the International Court of Justice in Gabcíkovo-Nagymaros Project (1997):

‘The Court recalls that it has recently had occasion to stress, in the following terms, the great significance that it attaches to respect for the environment, not only for States but also for the whole of mankind:
“the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996)’

Furthermore, Principle 21 of the Stockholm Declaration of 1972 provides that states in accordance with the Charter of the United Nations and the principles of international law have the sovereign right to exploit their own resources in pursuit of their own environmental policies as well as 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’. The Preamble to the Convention on Long-Range Transboundary Air Pollution, 1979 makes specific reference to Principle 21 after referring to an extensive programme for the monitoring and evaluation of long-range transport of air pollutants ‘starting with sulphur dioxide and with possible extension to other pollutants’.
Can it be said that the State of Glowland is strictly liable for its conduct resulting in damage to the pastureland, crops and forests of Bolsover? Is Glowland under an absolute duty to prevent pollution and if so is the state liable for its effects regardless of fault? There is no evidence that international law has accepted strict liability as a general principle. The case law is inconclusive and most treaties specify a test of due diligence requiring the exercise of diligent control of sources of harm. Responsibility is then carried for specific breaches of obligations defined within particular conventions. For e.g. Article 2 of the Vienna Convention for the Protection of the Ozone Layer, 1985 specifies that:

The Parties shall take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.

Article 2 of the Convention on Long-Range Transboundary Air Pollution, 1979 similarly provides that:

The Contracting Parties, taking due account of the facts and problems involved, are determined to protect man and his environment against air pollution and shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary pollution.

The requirements of due diligence are not without ambiguity but it is generally accepted that the standard of behaviour expected of good government – typically inclusive of established systems of consultation and notification – would satisfy the test. Whilst no clearly defined judicial test exists, elements of remoteness and foreseeability of harm are central to any framework imposing liability on states. The language adopted in the Trail Smelter case is unequivocal in stressing the need to establish the harm by ‘clear and convincing evidence’ of causation i.e. that damage is due to the pollution in question.

Environmental Damage Caused

Can international legal liability arise before any damage occurs? In other words, can liability arise in respect of the risk of damage? According to general definitions of pollution, damage or harm must have been caused before liability ensues. The seriousness of the damage caused is clearly relevant according to the Trail Smelter case with its reference to the need to establish that the concern was of ‘serious consequence.’ A definition of the necessary threshold of damage or injury applicable to all types of pollution is highly unlikely given the importance of the particular circumstances of each case. Article 1(a) of the Long-Range Transboundary Air Pollution, 1979 provides that “air pollution”:

‘means the introduction by man, directly or indirectly, of substances or energy into the air resulting in deleterious effects of such a nature as to endanger human, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment’

Such enumerations are evidently not free of definitional obscurity.
Although the type of damage involved in the Trail Smelter case concerned property, subsequent definitions of pollution in international instruments have expanded the range of interests protected. Damage to ecosystems and living resources is covered, as is the legitimate use of the environment or the sea. Article 1(2) of the Vienna Convention on the Ozone Layer, 1985 defines adverse effects upon the ozone layer in terms of:

‘changes in the physical environment or biota [animal and plant life of a region], including changes in climate, which have significant deleterious effects on human health or on the composition, resilience and productivity of natural and managed ecosystems, or on materials useful to mankind’.

The UNFCCC, 1992 refers to the “Adverse effects of climate change” as:

‘changes in the physical environment or biota resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socio-economic systems or on human health and welfare’.

So the classification of damage that is relevant evidently reaches far beyond mere damage to property.
In 1978 the International Law Commission began its consideration of international liability for the injurious consequences of acts not prohibited by international law, the main focus of which was environmental harm. The eventual Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001 are designed to ‘apply to activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences.’ The threshold of harm required to establish liability clearly consists of a combination of risk and harm and must reach a level that is considered ‘significant.’ Article 3 of the Draft specifies that the ‘state of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimise the risk thereof’. As already stated, the test to be applied is that of due diligence:

‘this being that which is generally considered to be appropriate and proportional to the degree of risk of transboundary harm in the particular instance and this test requires the state to keep up to date with technological and scientific developments’.

General Principle Requiring the Provision of Information – A Spirit of International Cooperation>

The cooperative spirit required for successful international relations is expressed throughout treaty provisions. Principle 18 of the Rio Declaration of 1992 for example, requires that states ‘shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States’. According to Principle 19 states ‘shall provide prior and timely notification and relevant information to affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.’ A duty of prior notification may well be deemed to exist in negotiations between the states of Glowland and Bolsover in light of Article 5 of the Long-Range Transboundary Air Pollution Convention, 1979 which provides that:

‘Consultations shall be held, upon request, at an early stage between, on the one hand, Contracting Parties which are actually affected by or exposed to a significant risk of long-range transboundary air pollution and, on the other hand, Contracting Parties within which and subject to whose jurisdiction a significant contribution to long-range transboundary air pollution originates, or could originate, in connexion with activities carried on or contemplated therein’.

Article 8 specifies that parties will exchange available information inter alia on emissions at periods of time to be agreed upon, of agreed air pollutants, starting with sulphur dioxide, coming from grid-units of agreed size- or on the fluxes of agreed air pollutants, starting with sulphur dioxide, across national borders, at distances and at periods of time to be agreed upon (subsection (a)) as well as on major changes in national policies and in general industrial development, and their potential impact, which would be likely to cause significant changes in long-range transboundary air pollution (subsection (b)).

The 1997 Kyoto Protocol

The Kyoto Protocol to the UNFCCC commits developed countries such as Glowland to individual and legally binding targets aimed at the reduction of greenhouse gas emissions such as sulphur dioxide and carbon dioxide with at least a 5 per cent cut expected from 1990 levels during the commitment period (2008-2012). Given the Protocol’s intention to adopt differential treatment as the basis for sustainable development, the obligation on developing countries is to meet existing commitments. Specific activities since 1990 that have the effect of removing greenhouse gases – such as Bolsover’s forests operating as ‘carbon sinks’ – may be offset against emission levels.

Convention on Wetlands

The Preamble to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar, Iran, 2nd February 1971 as amended on 28th May 1987 (‘Ramsar Convention 1971’), in recognising the ‘interdependence of man and his environment’ considers that wetlands serve two fundamental ecological functions: as regulators of water regimes and as habitats in support of characteristic flora and fauna. As a resource of ‘great economic, cultural, scientific and recreational value’ the loss of wetlands is considered to be ‘irreparable’. The ability of waterfowl to transcend frontiers renders them an ‘international resource’ and therefore the contracting parties are confident that the ‘conservation of wetlands and their flora and fauna can be ensured by combining far-sighted national policies with coordinated international action’.
So what impact does the text of this Convention have on relations between Glowland and Bolsover? An initial enquiry must surely consist of whether either nation has ratified or acceded to this Convention. If both states are already parties then its provisions will naturally bind them. Otherwise the Convention shall enter into force for each Contracting Party four months after the day of its signature without reservation as to ratification or its deposit of an instrument of ratification or accession.
Article 2 of the Ramsar Convention requires contracting parties to designate suitable wetlands within its territory for inclusion in a list of ‘Wetlands of International Importance’. Yet this inclusion does not ‘prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated’. Each party therefore has the right to delete or at least restrict the boundaries of wetlands already included by it in the list so long as it informs the organisation responsible for continuing duties of the bureau. Furthermore, each contracting party ‘shall consider its international responsibilities for the conservation, management and wise use of migratory stocks of waterfowl’ when designating or changing entries of wetlands. Article 4 provides that the contracting parties shall ‘encourage research and the exchange of data and publications regarding wetlands and their flora and fauna’ – a provision reflected in Principle 20 of the Stockholm Declaration of 1972 which provides that:

Principle 9 of the Rio Declaration also stipulates that States should cooperate in order to:

‘strengthen endogenous capacity-building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies’.

In the context of Glowland and Bolsover facing cultural barriers, a general principle of international environmental law requiring that information be provided in certain situations may engender exchanges between the two states that will provide assistance in overcoming differences based upon culture or otherwise.

Conclusion

‘The law is only one of the many social mechanisms, including family, school, church, peer groups, elites and the media, whose convergence is necessary to shape conduct’. The enormous breadth and complexity of issues concerning the environment and sustainability is overwhelming – as the foregoing discussion suggests.