the legitimate role(s) of human rights courts in ... · •the legitimate role(s) of human rights...
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• The Legitimate Role(s) of Human Rights Courts in Environmental Disputes
• An international symposium will bring together scholars and human rights judges to discuss how environmental concerns can legitimately be addressed by human rights courts.
• Time and place: The Legitimate Role(s) of Human Rights Courts in Environmental Disputes Sep 8, 2014 - Sep 9, 2014, Faculty of Law, Professorboligen
History and (some) Principles of IEL
Christina Voigt
Professor, UiO
International Environmental Law
Recap 1st lecture
• 1. Why do we need international environmental law?
• 2. Where do we find it?
• 3. Why do we need international law to protect the environment?
1. Challenges
1. Nature is complex and non-linear
2. Invisibility of (many) environmental challenges
3. Scientific uncertainty
4. Nature has no legal standing
5. Free accessibility
6. Which price for the environment?
7. Legality of environmental destruction
8. Cross-sectoral
9. Cross-boundary
10.Cross-temporal
History
• Early Treaties:
– Convention to Protect Birds Useful to Agriculture (1902)
– Treaty for the Preservation and Protection of Fur Seals (1911)
– International Convention for the Protection of Whales (1931)
History
• Early Disputes:
– Pacific Fur Seal Arbitration 1893
– Trail Smelter (1941) «No state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another state or the persons or properties therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.»
IEL: 40 Years • 1972: UN Conference on the Human Environment,
Stockholm
• 1980: World Conservation Strategy (IUCN)
• 1982: UNGA adopts the World Charter for Nature
• 1987: «Our Common Future» – Report of the World Commission on Environment and Development
• 1992: UN Conference on Environment and Development (UNCED), Rio de Janeiro
• 2002: Rio+10: World Summit on Sustainable Development, Johannesburg
• 2012: Rio+20: UN Conference on Sustainable Development, Rio de Janeiro
UNCED 1992
• Non-binding:
– Rio Declaration on Environment and Development
– Forest principles
– Agenda 21
• Binding:
– Convention on Biological Diversity
– UN Framework Convention on Climate Change
International Environmental Cases • ICJ
– Nuclear test cases (Australia and New Zealand/France) 1973/1974
– Phosphate Lands in Nauru (Nauru/Australia) 1992, ICJ Reports 240
– Advisory Opinion, The Legality of the Threat or Use of Nuclear Weapons, 1996
– Gabcikovo-Nagymaros (Hungary/Slovakia) 1997, ICJ Reports 7 – Pulp Mills (Argentina/Uruguay) 20 April 2010 – Whaling in the Antarctic (Australia/Japan) 31 March 2014
– Pending:
• Aerial Herbicide Spraying (Ecuador/Columbia) – taken from the list • Construction of a Road along the San Juan River (Nicaragua/Costa
Rica) • Certain Activities carrired out by Nicaragua in the Border Area (Costa
Rica/Nicaragua)
International Environmental Cases
• International Arbitral Awards – Methanex v USA, 15 January 2001, 44 ILM 1345 (2001) – S.D. Mayers vs Canada, NAFTA chapter 11 Arbitral Tribunal,
13 November 2000, 40 ILM 1408 (2001) – Belgium/Netherlands (Iron Rhine arbitration) PCA Award
of 24 May 2005 – Responsibilites and Obligations of States Sponsoring
Persons and Entities with Respect to Activities in the Area (Advisory Opinion) 1 February 2011, International Tribunal for the Law of the Sea
– Mox Plant (Ireland/UK) 3 December 2001, International Tribunal for the Law of the Sea
– Southern Bluefin Tuna (New Zealand/Japan) 4 August 2002
International Environmental Cases
• GATT/WTO (EXAMPLES) – US-Reformulated Gasoline, 35 ILM 603 (1996)
– US-Certain Shrimp and Shrimp Products, WT/DS58/AB/R 12. October 1998
– EC-Measures Affecting Asbestos, WT/DS135/AB/R 12 March 2001
– EC-Biotech, WT/DS291/R; WT/DS292/R; WT/DS293/R 29 September 2006
– Brazil-Retreaded Tyres, WT/DS332/AB/R 3 December 2007
– US-Tuna, WT/DS381/AB/R 16. May 2012
What are Principles?
• Norms of general application
– Do not necessitate an outcome/decision/action
– Must be taken into account as a consideration
– Interpretation
– Impact on future development
– In treaty law: guide the implementation of that treaty (Art. 3 UNFCCC, Art. 3 CBD) and the negotiation of further protocols/COP decisions
…and where are they?
1. Customary principles (opinio juris + state practice)
– Prohibition of transboundary harm (Nuclear Weapons, 1996)
“29. The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that 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.”
…and where are they?
– Prevention (Pulp Mills, 2010)
• “101. The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this obligation “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 (I), p. 242, para. 29).»
…and where are they?
2. General principles
• «the concept of a “recognized” general principle seems
to conform more closely than the concept of custom to the
situation where a norm invested with strong inherent
authority is widely accepted even though widely violated’. (B.
Simma and P. Alston, ‘The Sources of Human Rights Law:
Custom, Jus Cogens and General Principles’ (1991) 12 AYbIL,
102)
• Examples: Good faith, pacta sunt servanda, prohibition of
transboundary harm (?), sustainable development (?)
…and where?
• 3. Treaties:
– Art. 2 UNFCCC, Art. 3 CBD (read!)
Principles in IEL
1. Sustainable Development
2. Common Heritage of Mankind
3. Common Concern of Humankind
4. Common But Differentiated Responsibilities
5. Polluter Pays Principle
6. Principle of Prevention
7. Precautionary Principle
8. Sovereignty over Natural Resources
9. Prohibition of Transboundary Harm (sic utere)
Principles in IEL
• Sustainable Development
«Development that meets the need of the present without compromising future generations to meet their own needs»
CASE CONCERNING
THE GABCIKOVO-NAGYMAROS PROJECT
(HUNGARY/SLOVAKIA)
JUDGMENT OF 25 SEPTEMBER 1997
“140. The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.
Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.
For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.”
Sustainable Development
• Intergenerational equity
• Sustainable use
• Equitable use or intragenerational equity
• Principle of integration
“perhaps it is inevitable that content and contours of an integrative concept such as that of sustainable development which was endorsed by the world community as a whole, lacks the kind of clarity of articulation of concepts one might be accustomed to in a more limited, homogenous group of States. However, that needs not necessarily be considered a disadvantage. Indeed, it may well have been the very lack of conceptual rigor which permitted the entire world community to embrace it.” (B. Simma, ‘Foreword’ in N. Schrijver and F. Weiss (eds.) International Law and Sustainable Development: Principles and Practice (Leiden: Martinus Nijhoff, 2004) vi.)
Please discuss!
1. Prior to this course, where have you heard about sustainable development?
2. In your opinion, can sustainable development be a meaningful and effective principle?
3. What do you think about its potential as a legal principle?
• Common Heritage of Mankind
• Common Concern of Humankind
• Common But Differentiated Responsibilities and Respective Capabilities
• Polluter Pays Principle
• Prevention Principle
• Precautionary Principle
Common Heritage of Mankind
– Principle of international law which holds that defined areas beyond national jurisdiction and certain elements of humanity's common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation states or corporations
– Non-appropriation
– International management procedures
– Exclusively peaceful uses
Common Heritage of Mankind
– Examples:
– Moon Treaty: Article 11: “[t]he Moon and its natural resources are the common heritage of mankind”.
– UNCLOS: Art. 136 «The Area and its resources are the common heritage of mankind.”
– Antarctic Treaty: Preamble “in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”
Common Concern of Humankind
– Principle of global cooperation – Examples: Preamble UNFCCC: «Acknowledging that change in
the Earth's climate and its adverse effects are a common concern of humankind”
– Preamble CBD: «Affirming that the conservation of biological diversity is a common concern of humankind”
– Ambigous concept – Rejection of CHM: Fear of lost of sovereignty: No
international body in charge over resources – Equitable sharing of burdens, rather than benefits of
exploitation of common respources – Global, inter-temporal, all actors of the international
community
Common But Differentiated Responsibilities and Respective
Capabilities • Recognises historical differences in the contributions of developed and
developing States to global environmental problems, and differences in their respective economic and technical capacity to tackle these problems.
• Two elements – common responsibilities to protect the environment and promote sustainable
development, – but due to different social, economic, and ecological situations, countries must
shoulder different responsibilities.
• The principle therefore provides for asymmetrical rights and obligations regarding environmental standards, and aims to induce broad State acceptance of treaty obligations, while avoiding the type of problems typically associated with a lowest common denominator approach.
• The principle also reflects the core elements of equity, placing more responsibility on wealthier countries and those more responsible for causing specific global problems.
• Presents a conceptual framework for compromise and co-operation in effectively meeting environmental challenges.
Common But Differentiated Responsibilities and Respective
Capabilities The Rio Declaration: “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 of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.” UN Framework Convention on Climate Change: “ Parties should act to protect the climate system on the basis of equality and in accordance with their common but differentiated responsibilities and respective capabilities.”
Polluter Pays Principle
• Make the party responsible for producing pollution responsible for paying for the damage done to the natural environment.
• Environmental damages are (often) external effects of production and consumption (smoke, waste, tobacco,…)
• Objective: Internalisation of environmental costs. • Regional custom because of the strong support it
has received in most Organisation for Economic Co-operation and Development (OECD) and European Community (EC) countries.
Polluter Pays Principle
• Rio Declaration Principle 16: “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.”
Prevention Principle
• Actions should be taken in order to prevent damage (before damage has occured)
Precautionary principle
• if an action or policy has a suspected risk of causing harm to the environment, in the absence of scientific consensus that the action or policy is not harmful, the burden of proof that it is not harmful falls on those taking an action.
• used by policy makers to justify discretionary decisions in situations where there is the possibility of harm from taking a particular course or making a certain decision when extensive scientific knowledge on the matter is lacking
• "When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.” (1998 Wingspread Statement)
Precautionary principle
• Art. 15 Rio Convention
• «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 damage.»
Permanent Sovereignty over Natural Resources
• Each state has exclusive jurisdiction within its territory and people to - adopt laws (legislative sovereignty) - enforce them - administer the territory - judge disputes that arise therein - exclude other states from exercising - sovereign rights (unless agreed on by contract)
• Evolution
• Natural Resources/economic principle
• Conflict of interest between capital exporting and capital importing nations
• Focus on natural resource management, UN Resolution 1803 (1962): “the right of peoples and nations to permanent sovereignty must be exercised in the interest of their national development and of the well-being of the people of the State concerned”, “The exploration, development and disposition of such resources as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable”; “inherent and overriding right of a state to control the exploitation and the use of its natural resources”
Rights under the Principle
– to dispose freely of the natural resource
– to freely explore and exploit natural resources
– to regain effective control and to compensation for damage
– to use natural resources for national development
– to manage natural resources pursuant to national environmental policy
– to an equitable share in benefits of transboundary natural resources
– to regulate foreign investment
– to expropriate or nationalize foreign investment (right to determine the conditions of nationalization and the amount of compensation)
41
Duties under the Principle: • Exercise permanent sovereignty over natural resources
for national development and the well-being of the people (UN Res. 1803/XVII, 1962)
• Respect the rights and interests of indigenous people • Co-operate for international development? • Equitable sharing of transboundary natural resources • Fair treatment of foreign investors • Conservation and Sustainable Use of natural resources
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Prohibition of Transboundary Harm
“[u]nder the principles of international law as well as of the law of the United States, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another state or the persons or properties therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” Trail Smelter Arbitration (US v. Canada) (1939) 33 AJIL 182 and (1941) 684
43
“29. The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that 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.” ICJ: 8 July 1996, LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS, Advisory
Opinion
Prevention (Pulp Mills, 2010)
• “101. The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this obligation “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 (I), p. 242, para. 29).»
45
Principle 21 Stockholm Declaration:
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 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.
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Principle 2 Rio Declaration: “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.”
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3 conditions : - The harm must result from human activity - Must cross national boundaries - Must be significant or substantial
Relationship between the two principles?
• Can pull in different directions
• No absolute sovereignty (Sovereignty pervaded with environmental concerns)
• No absolute prohibition of transboundary harm (threshold: serious harm)
• Balance between rights and responsibilities of states
• Evolution into a commitment to co-operate for the good of the international community
• Protection of the State’s own environment?