Norms are general legal principles that are widely accepted. This acceptance is evidenced in a number of ways, such as international agreements, national legislation, domestic and international judicial decisions, and scholarly writings. The leading norms in the field of international environmental law are addressed below.
1. Responsibility not to cause Environmental damage:
Foremost among these norms is Principle 21 of the 1972 Stockholm Declaration on the Human Environment. Principle 21 maintains that "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 law and development 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."
This is based on the ancient Roman maxim, sic utero tuo et alienum non laedas, roughly translated as, "don't behave in a way that harms your neighbor." Most international environmental agreements that have been negotiated over the past 20 years have reaffirmed this principle, including Agenda 21 and the Biodiversity Convention, both adopted at the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil, in June 1992 (commonly called the Earth Summit). The ICJ’s 1996 Advisory opinion on the Legality of the Threat or use of Nuclear Weapons there can be no question but that the principle 21 reflects a rule of customary international law, placing international legal constraints on the rights of Sates in respect of activities carried out within their territory or under their jurisdiction. In the Palmas Case it was held that the responsibility of the States not to cause Environmental damage in areas outside their jurisdiction predates the Stockholm Conference, and is related to the obligation of all States ‘to protect within the territory the rights of other States, in particular their right to integrity and inviolability in Peace and War’. In the Lac Lanoux Arbitration , involving the proposed diversion of an international river by an Upstream State, the Arbitral tribunal affirmed that a State has an obligation not to exercise its rights to the extent of ignoring the rights of another:
2. The polluter pays principle:
In Environmental law, the polluter pays principle is the principle that the party responsible for producing pollution should also be responsible for paying for the damage done to the natural environment. It is regarded as a 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. In international environmental law it is mentioned in Principle 16 of the Rio Declaration on Environment and Development.
Polluter pays is also known as Extended Polluter Responsibility (EPR). This is a concept that was probably first described by the Swedish government in 1975. EPR seeks to shift the responsibility dealing with waste from governments (and thus, taxpayers and society at large) to the entities producing it. In effect, it internalises the cost of waste disposal into the cost of the product, theoretically meaning that the producers will improve the waste profile of their products, thus decreasing waste and increasing possibilities for reuse and recycling.
OECD defines EPR as:
a concept where manufacturers and importers of products should bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production process itself, and downstream impacts from the use and disposal of the products. Producers accept their responsibility when designing their products to minimise life-cycle environmental impacts, and when accepting legal, physical or socio-economic responsibility for environmental impacts that cannot be eliminated by design.
3. The Precautionary Principle:
The precautionary principle is a moral and political principle which states that if an action or policy might cause severe or irreversible harm to the public or to the environment, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action. The principle implies that there is a responsibility to intervene and protect the public from exposure to harm where scientific investigation discovers a plausible risk in the course of having screened for other suspected causes. The protections that mitigate suspected risks can be relaxed only if further scientific findings emerge that more robustly support an alternative explanation. In some legal systems, as in the law of the European Union, the precautionary principle is also a general and compulsory principle of law.
Definition
There are many definitions of the precautionary principle. Precaution may be defined as "caution in advance," "caution practised in the context of uncertainty," or informed prudence. All definitions have two key elements.
1. an expression of a need by decision-makers to anticipate harm before it occurs. Within this element lies an implicit reversal of the onus of proof: under the precautionary principle it is the responsibility of an activity proponent to establish that the proposed activity will not (or is very unlikely to) result in significant harm.
2. the establishment of an obligation, if the level of harm may be high, for action to prevent or minimise such harm even when the absence of scientific certainty makes it difficult to predict the likelihood of harm occurring, or the level of harm should it occur. The need for control measures increases with both the level of possible harm and the degree of uncertainty.
One of the primary foundations of the precautionary principle, and globally accepted definitions, results from the work of the Rio Conference, or "Earth Summit" in 1992. Principle #15 of the Rio Declaration notes:
"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.
This definition is important for several reasons. First, it explains the idea that scientific uncertainty should not preclude preventative measures to protect the environment. Second, the use of "cost-effective" measures indicates that costs can be considered. This is different from a "no-regrets" approach, which ignores the costs of preventative action.
The 1998 Wingspread Statement on the Precautionary Principle summarizes the principle this way: "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." (The Wingspread Conference on the Precautionary Principle was convened by the Science and Environmental Health Network).
Application of the Principle
The application of the precautionary principle is hampered by both lack of political will, as well as the wide range of interpretations placed on it. One study identified 14 different formulations of the principle in treaties and non-treaty declarations. R.B. Stewart (2002) reduced the precautionary principle to four basic versions:
1. Scientific uncertainty should not automatically preclude regulation of activities that pose a potential risk of significant harm (Non-Preclusion PP).
2. Regulatory controls should incorporate a margin of safety; activities should be limited below the level at which no adverse effect has been observed or predicted (Margin of Safety PP).
3. Activities that present an uncertain potential for significant harm should be subject to best technology available requirements to minimize the risk of harm unless the proponent of the activity shows that they present no appreciable risk of harm (BAT PP).
4. Activities that present an uncertain potential for significant harm should be prohibited unless the proponent of the activity shows that it presents no appreciable risk of harm (Prohibitory PP).
In deciding how to apply the principle, analysis may use a cost-benefit analysis that factors in both the opportunity cost of not acting, and the option value of waiting for further information before acting. One of the difficulties of the application of the principle in modern policy-making is that there is often an irreducible conflict between different interests, so that the debate necessarily involves politics.
In the Mox case Ireland claimed that the UK had failed to apply the precautionary approach to the protection of the Irish Sea in the exercise of its decision making authority. The Principle has also been addressed by the WTO Appellate body in the case of Beef Hormones, in justifying the claim of European Community. They sought to prohibit imports of beef produced from the USA and Canada with artificial Hormones, where the impacts of health was uncertain. The community argued that the principle was already a General Customary principle of International law or at least a general principle of law that it applied to both the assessment and management of a risk.
4. Principle of Good Neighbourliness or
Co operation
The principle of good neighbourliness: the principle of ‘good neighbourliness’ is enunciated in Article 74 of the UN Charter in relation to social, economic and commercial matters. Principle 24 of the Stockholm Declaration reflects a general political commitment to the international co-operation in matters concerning the protection of the environment. Article 27 of the Rio Declaration states clearly that ‘States and people shall co-operate in good faith and in a spirit of partnership in the fulfillment of the principles embodied in the Declaration and in the further development of environmental law in the field of sustainable development.’ The principle of good neighbourliness was the central issue in the case of Gabcikovo–Nagymaros Project, was between Hungary and Slovakia. The Mox case directly addressed the Principle. In its arbitration process under the 1982 UNCLOS, Ireland claimed that the UK had failed to co operate as required by Articles 123 and 197 of the UNCLOS for example by failing to reply to communications and requests for information in a timely manner or at all, by withholding environmental information requested by Ireland or by refusing to prepare a supplementary environmental statement.
5. Environmental impact assessment
Environmental impact assessment is another widely accepted norm of international environmental law. Typically, such an assessment balances economic benefits with environmental costs. The logic of such an assessment dictates that before a project is undertaken, its economic benefits must substantially exceed its environmental costs.
6. Input of Nongovernmental Organizations
Another recent norm is to invite the input of nongovernmental organizations (NGOs), especially those representing community-based grassroots environmental activists. This NGO participation ensures that the people who are likely to be most directly affected by environmental accords will have a major role in monitoring and otherwise implementing the accord.
7. Sustainable development
Sustainable development is a pattern of resource use that aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but in the indefinite future. The term was used by the Brundtland Commission which coined what has become the most often-quoted definition of sustainable development as development that "meets the needs of the present without compromising the ability of future generations to meet their own needs."
Sustainable development ties together concern for the carrying capacity of natural systems with the social challenges facing humanity. As early as the 1970s "sustainability" was employed to describe an economy "in equilibrium with basic ecological support systems” Ecologists have pointed to the “limits of growth” and presented the alternative of a “steady state economy” in order to address environmental concerns.
The field of sustainable development can be conceptually broken into three constituent parts: environmental sustainability, economic sustainability and sociopolitical sustainability.
Definition and Scope
The concept has included notions of weak sustainability, strong sustainability and deep ecology. Sustainable development does not focus solely on environmental issues. The United Nations 2005 World Summit Outcome Document refers to the "interdependent and mutually reinforcing pillars" of sustainable development as economic development, social development, and environmental protection.
Indigenous people have argued, through various international forums such as the United Nations Permanent Forum on Indigenous Issues and the Convention on Biological Diversity, that there are four pillars of sustainable development, the fourth being cultural. The Universal Declaration on Cultural Diversity (UNESCO, 2001) further elaborates the concept by stating that "...cultural diversity is as necessary for humankind as biodiversity is for nature”; it becomes “one of the roots of development understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence". In this vision, cultural diversity is the fourth policy area of sustainable development.
State practice suggests that the idea of sustainability has been a feature in the international legal relations since at least 1893, when the United States a right to ensure the legitimate and proper use of Seals and to protect them for the benefit of mankind, from wanton destruction. There are four elements which are supposed to build up the concept of sustainable development as reflected in the international agreements:
1. The need to preserve the natural resources for the benefit of future generations (the principle of intergenerational equity);
2. The aim of exploiting natural resources in a manner which is sustainable or prudent or wise or appropriate ( the principle of sustainable use );
3. The equitable use of natural resources, which implies that use by one State must take account of the needs of other States ( The Principle of Equitable use of Intragenerational equity); and
4. The need to ensure that environmental considerations are integrated into economic or other development plans programmes and projects and that development needs are taken into consideration in applying environmental objectives. (The principle of Integration).
Economic Sustainability
Agenda 21 clearly identified information, integration, and participation as key building blocks to help countries achieve development that recognises these interdependent pillars. It emphasises that in sustainable development everyone is a user and provider of information. It stresses the need to change from old sector-centred ways of doing business to new approaches that involve cross-sectoral co-ordination and the integration of environmental and social concerns into all development processes. Furthermore, Agenda 21 emphasises that broad public participation in decision making is a fundamental prerequisite for achieving sustainable development. In the Shrimp/ turtle case, the WTO appellate body noted that the preamble of the WTO agreement explicitly acknowledges the objectives of ‘sustainable development’ and characterises it as a concept which has been generally accepted as integrating economic and social development and environmental protection.
8. Intergenerational equity
Intergenerational equity is among the newest norms of international environmental law. It can best be understood not as much as a principle but rather as an argument in favor of sustainable economic development and natural resource use. If present generations continue to consume and deplete resources at unsustainable rates, future generations will suffer the environmental (and economic) consequences. It is our children and grandchildren who will be left without forests (and their carbon retention capacities), without vital and productive agricultural land and without water suitable for drinking or sustaining life. Therefore, we must all undertake to pass on to future generations an environment as viable as the one we inherited from the previous generation.
Proponents of intergenerational equity maintain that the present generation has a moral obligation to manage the earth in a manner that will not jeopardize the aesthetic and economic welfare of the generations that follow. From this moral premise flow certain ecological commandments: Do not cut down trees faster than they grow back. Do not farm land at levels, or in a manner, that reduces the land's regenerative capacity. Do not pollute water at levels that exceed its natural purification capacity.
9. Intragenerational Equity
Intragenerational equity is concerned with equity between people of the same generation. This is separate from intergenerational equity, which is about equity between present and future generations. Intragenerational equity includes considerations of distribution of resources and justice between nations. It also includes considerations of what is fair for people within any one nation.
The reason that Intragenerational equity is a key principle of sustainable development is that inequities are a cause of environmental degradation. Poverty deprives people of the choice about whether or not to be environmentally sound in their activities. The Brundtland Commission stated:
Those who are poor and hungry will often destroy their immediate environment in order to survive: They will cut down forests; their livestock will overgraze grasslands; they will overuse marginal land; and in growing numbers they will crowd into congested cities. The cumulative effect of these changes is so far-reaching as to make poverty itself a major global scourge.
High levels of affluence are perhaps even more damaging to the environment as they are accompanied by high levels of consumption, which lead to resource depletion and waste accumulation. Many environmental problems–such as global warming and chemical contamination–are the result of affluence rather than poverty. Inequities can also affect the environment in other ways. For example, the inadequate access to public transport and local services that often occurs in the outer suburbs of Australia’s larger cities can result in greater use of cars, with their attendant environmental drawbacks including noise and air pollution, congestion and accidents.
Other equity concerns relevant to sustainable development policies include inequities in the impacts of environmental policies and inequities in decision-making processes. Measures to improve environmental problems may impact more on some sectors of the community than others through imposing additional costs on industries that then find they cannot compete internationally or by imposing additional costs on individual companies who may have to cease business or reduce their workforce as a result. Environmental policies can also impose burdens on individuals by increasing the prices of certain goods and by shifting the environmental problems.
10. Common heritage of humanity
At the 1982 United Nations Conference on the Law of the Sea, developing countries articulated the norm that certain resources, such as deep seabed, are part of the common heritage of humanity and must be shared by all nations.
11. Common but Differentiated responsibility
The principle of ‘common but differentiated responsibility’ evolved from the notion of the ‘common heritage of mankind’ and
is a manifestation of general principles of equity in international law. The principle 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. Despite their common responsibilities, important differences exist between the stated responsibilities of developed and developing countries. The Rio Declaration states: “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.” Similar language exists in the 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.”
The principle of common but differentiated responsibility includes two fundamental elements. The first concerns the common responsibility of States for the protection of the environment, or parts of it, at the national, regional and global levels. The second concerns the need to take into account the different circumstances, particularly each State’s contribution to the evolution of a particular problem and its ability to prevent, reduce and control the threat.
Manifestations of the Principle in Multilateral Treaties and Declarations
Instances of common responsibility appear as early as 1949, where tuna and other fish were described as being “of common concern” to the parties by reason of their continued use by those parties. Other examples include outer space and the moon, on the other hand, are described as the “province of all mankind,” waterfowl as “an international resource,” natural and
cultural heritage as “part of the world heritage of mankind as a whole,” the conservation of wild animals as being “for the
good of mankind” and resources of the seabed and ocean floor and subsoil as “the common heritage of mankind.” Recent
state practice supports the emergence of the concept of “common concern” as reflected in the Climate Change Convention, which acknowledges that “change in the Earth’s climate and its adverse effects are a common concern of humankind,” and the Biodiversity Convention which affirms that “biological diversity is a common concern of humankind.” While each of these formulations differ, and must be understood and applied in the context of the circumstances in which they were adopted, the attributions of “commonality” share common consequences. Although state practice is inconclusive as to the precise legal nature of each formulation, certain legal responsibilities are attributable to all States with respect to these environmental media and natural resources under treaty or customary law. While the extent and legal nature of that responsibility will differ for each resource and instrument, the responsibility of each state to prevent harm, in particular through the adoption of environmental standards and international environmental obligations, can also differ. Differentiated Responsibility appears in number of treaties. The 1972 London Convention requires measures to be adopted by parties “according to their scientific, technical and economic capabilities.” The special needs of developing countries are expressly recognised at article 11(3) of the 1976 Barcelona Convention and in the preamble to the UN Convention on the Law of the Sea, where account is to be taken of their “circumstances and particular requirements,” of their “specific needs and special circumstances,” or of their “special conditions” and “the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country parties.” Other treaties identify the need to take account of States’ “capabilities,” “economic capacity,” the “need for economic development,” or the “means at their disposal and their capabilities.” The principle of differentiated responsibility has also been applied to treaties and other legal instruments for developed countries. Examples include the 1988 EC Large Combustion Directive, which sets different levels of emission reductions for each member state, the 1991 VOC Protocol, which allows parties to specify one of three different ways to achieve reduction, and the 1992 Maastricht Treaty which provides that: “Without prejudice to the principle that the polluter should pay, if a measure [...] involves costs deemed disproportionate for the public authorities of a member state, the Council shall, in the act adopting that measure, lay down appropriate provisions in the form of temporary derogations and/or financial support from the Cohesion Fund.” Differentiation within developing countries is specified, for example, in the Climate Change Convention which recognises the “special needs and special circumstances of developing country parties, especially those that are particularly vulnerable to the adverse effects of climate change.” Similarly, the Desertification Convention requires that “Parties […] give priority to affected African country parties, in the light of the particular situation prevailing in that region, while not
neglecting affected developing country parties in other regions.”
Under the 1987 Montreal Protocol the special situation of developing countries entitles them, provided they meet certain
conditions, to delay their compliance with control measures. Under the Climate Change Convention, the principle of common but differentiated responsibilities requires specific commitments only for developed country parties at this time, and allows for differentiation in reporting requirements.
12. Duty to notify and consult
Another widely shared norm is the duty of a state to notify and consult with other states when the first state undertakes an operation (such as the construction of a power plant) that is likely to harm neighboring countries' environments, such as impairing air or water quality in downwind or downstream states.
13. Duty to monitor and assess
Over and above the duty to notify and consult, a relatively new norm has emerged whereby states are expected to monitor and assess specific environmental conditions domestically and disclose these conditions in a report to an international agency or international executive body created by an international agreement and authorized by the parties to the agreement to collect and publicize such information.
14. Right to a decent and healthful environment
Another emerging norm is the guarantee in the domestic constitutions, laws, or executive pronouncements of several states, including India, Malaysia, Thailand, Indonesia, Singapore, and the Philippines, that all citizens have a right to a decent and healthful environment. In the United States, this fundamental right has been guaranteed by a handful of states but not by the federal government.
15. Principle of "Zero tolerance"
This principle does not exist in environmental law. If the same mentality towards criminals who pollute the environment with poisonous air and water were taken toward criminals who pollute the environment with poisonous drugs then we would soon see a number of state owned factories (nationalisation through forfeiture laws) and many persons who were in suits and ties would find themselves in prison working at low wages to pay into a victims' compensation fund. Basically a zero tolerance principle would mean that toxic torts would be taken seriously and that the lives of all persons, wealthy or not, would be protected, by penal sanction if necessary. This principle could also be called the principle of penal treatment for penal acts. Persons whether acting through or for a company or on their own should be criminally responsible for poisoning the environment. Penalisation of pollution would of course not apply to mere aesthetic injuries and should only be reserved for torts which actually or potentially maim, cripple or kill. However since any defendant would claim no actual knowledge or intent it should not be limited to intentional torts - proving the subjective element of an act is factually impossible. One can doubt that criminal treatment for criminal acts will happen in environmental law: but many people would have said the same thing about "victimless" drug crimes in the 1970s.
Some Important Cases:
Trail Smelter Case ( United States v. Canada)
Fact
The arbitration arose from claims involving transfrontier air pollution by a smelter factory located in Trail (Province of British Columbia, Canada) about 20 kilometers north of the US boundary. The factory – owned by the private Consolidated Mining & Smelting Co. of Canada Ltd. – roasted sulphur-bearing ores and emitted sulphur dioxide fumes into the air, which between 1926 and 1937 caused damage to privately owned agricultural and forest lands near the township of Northport (State of Washington, USA). On 7 August 1928, the issue was initially referred to the International Joint Commission established by the 1909 US-Canadian Boundary Waters Treaty, which submitted a report on 28 February 1931
recommending compensation and remedial measures. After further representations by the United States in 1933, the two countries concluded a compromise convention on 15 April 1935, whereby Canada agreed to pay $350,000 for damage caused up to 1932, while the question of subsequent liability and prevention was submitted to an arbitral tribunal (Jan Frans Hostie, Belgium; Robert A.E. Greenshields, Canada; Charles Warren, USA). In its first decision on 16 April 1938, the tribunal evaluated the further damage between 1932 and 1937 at $78,000 dollars, and prescribed provisional remedial measures.
Issues
(a) Whether damage caused by the Trail Smelter has occurred since 1 January 1932, and if so, what indemnity should be paid therefore?
(b) If so, whether the Trail Smelter should be required to refrain from causing damage in the future and, if so, to what extent?
(c) If so, what measures or regime should be adopted or maintained by the Trail Smelter?
(d) What indemnity or compensation should be paid on account of any decisions rendered by the Tribunal?
SUMMARY OF THE DECISION
‘Claim of the United States for amount of money expended in the investigation, preparation and proof of its case denied as they were in the nature of expenses of the presentation of the case, which, according to the Arbitration Convention, are to be paid by each government; nor are such costs claimable under the heading of damages. When a state espouses a private claim on behalf of one of its nationals, expenses which the latter may have incurred in establishing or prosecuting his claim prior to espousal by the government may, under appropriate conditions, be legitimately included in the claim, but the Tribunal knew of no case in which a government has sought or been allowed indemnity for expenses incurred in preparing the proof or presenting a national or private claim before an international tribunal. In the absence of international cases on the subject, there are certain decisions of the Supreme Court of the United States dealing with both air pollution and water pollution which may legitimately be taken as a guide in this field of international law where no contrary rule prevails in international law and no reason for rejecting such precedents can be induced from the limitation of sovereignty inherent in the Constitution of the United States. The Tribunal finds that under the principles of international law, as well as 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 or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. The Tribunal therefore holds that the Dominion of Canada is responsible in international law for the conduct of the Trail Smelter and that it is the duty of the Government of the Dominion of Canada to see to it that this conduct is in conformity with the obligation of the Dominion under international law as herein determined. No damage has occurred since the previous award of the Tribunal. The Trail Smelter shall be required to refrain in the future from causing any damage through fumes in the State of Washington. To avoid such damage, the operations of the Smelter shall be subject to a regime or measure of control as provided in the present decision. Should such damage occur, indemnity to the United States shall be fixed in such manner as the Governments acting under the convention may agree upon.
Corfu Channel case
Fact
This case refers to three separate incidents involving Royal Navy ships in the Channel of Corfu which took place in 1946, and it is considered an early episode of the Cold War. During the first incident, Royal Navy ships came under fire from Albanian fortifications. The second incident involved Royal Navy ships striking mines and the third incident occurred when the Royal Navy conducted mine-clearing operations in the Corfu Channel, but in Albanian territorial waters, and Albania complained about them to the United Nations. This series of incidents led to the Corfu Channel Case, where the United Kingdom brought a case against the People's Republic of Albania to the International Court of Justice.
Decision
It was the first case adjudicated by the ICJ, and in December 1949 the court awarded the British the sum of £843,947 or U.S. $2,009,437 having found that, irrespectively of who laid the mines, the Albanians ought to have observed any such action, since the minefield was so close to their coast, and thus they failed to inform the British of the danger. The Court also rejected the self-defence argument advanced by the United Kingdom and found that the mine-clearing operations undertaken by the British during Operation Retail, in the absence of prior Albanian consent, were illegal.
The Corfu Channel case established that states must meet a preponderance of the evidence standard to prevail before the ICJ.
Lac Lanoux Case
The Lac Lanoux arbitration case involving France and Spain shows how the process of prior consultation and negotiation has been interpreted by an international arbitral tribunal, not only as a treaty stipulation, (specifically the Bayonne Treaty of 1866 between France and Spain), but more generally as a principle of customary law.
Fact
The Lac Lanoux negotiations began in 1917. The case was put to arbitration in 1956.
Lake Lanoux is located on the French side of the Pyrenees mountain chain. It is fed by many streams rising in France and running only in the French territory. However, its waters also run into the headwaters of the river Carol which, some 25 kilometers from the lake, do cross the Spanish frontier at Puigcerda, having previously fed the Canal of Puigcerda, which is the private property of that town. After some 6 kilometres in Spanish territory, the Carol joins
the Segre, which ultimately flows into the Ebro. The frontier between France and Spain was fixed by the Treaty of Bayonne, 1866 and an additional Act thereto, whereby regulations were made for the joint use of the water resources. Spain alleged that certain plans proposed by France would adversely affect Spanish rights and interests contrary to the Treaty, and could only be undertaken with prior consent of both Parties.
Award
In the light of the agreement between the two countries (treaty of Bayonne, 1866, and Additional Act), the tribunal found that the conflicting interests aroused by the industrial use of international rivers must be reconciled by mutual concessions embodied in the agreements which needed to be interpreted. In the present case, the Tribunal was of the opinion that “the French scheme complied with the obligations of Article 11. In carrying out without prior agreement between the two Governments, works for the utilization of the waters of Lake Lanoux...and brought to the notice of the representatives of Spain...., the French Government was not committing a breach of the provisions of the Treaty of Bayonne...or of the Additional Act”. The Tribunal said that, because the question before it related uniquely to a treaty of 1866, the tribunal would apply the treaty if it was clear. But if interpretation was necessary, the tribunal would turn to international law, allowing it in this case to take account of the “spirit” of the Pyrennées treaties and “des règles du droit international commun”, and also consider certain rules of customary international law in order to proceed to the interpretation of the Treaty and the Act.
Commentary
The tribunal discussed the applicable law because the Parties (France and Spain) disagreed on this issue of international rights and obligations of States sharing common natural resources such as water. Consultations and negotiation in good faith are necessary not only as a mere formality, but as an attempt to conclude an agreement for the prevention of conflicts.
Nuclear Test Case
Fact
Between 1966 and 1972 France had conducted atmospheric tests of nuclear weapons in the territory of French Polynesia in the South Pacific Ocean. This had released into the atmosphere radioactive matter. France created “prohibited zones” for aircraft and “dangerous zones” for aircraft and shipping, in order to exclude aircraft and shipping from the area. These zones had been put into effect during the period of testing in each year in which the tests had
been carried out. The tests released into the atmosphere radioactive matter. The main firing site was Mururoa atoll, 6000 kilometres east of Australia. Australia asserted that the tests caused some fallout of radioactive matter to be deposited on its territory. France maintained that the radioactive matter produced by the tests were so infinitesimal that it was negligible, and that it did not constitute a danger to the health of Australian population. In May 1993 Australia instituted proceedings against in the ICJ. It asked for a declaration that the carrying out of further atmospheric nuclear weapon tests was not consistent with the applicable rules of international law and an order that France not to carry out further tests. Australia asked for, and obtained, interim orders that France should avoid further tests. France declined to accept the Court’s jurisdiction and did not participate in the proceedings. The Court ruled however that it had jurisdiction to hear the case. Australia claimed that France had violated the following rights:
(a) a right possessed by every state to be free from atmospheric nuclear tests conducted by any state arising from what is now a generally accepted rule of customary international law prohibiting all such tests;
(b) a right inherent in Australia’s own territorial sovereignty to be free from the deposit on her territory and dispersion in her air space, without her consent, of radioactive fall-out from the nuclear tests. The mere fact of the trespass from the fall-out, the harmful effects which flow from such fall-out and the impairment of her independent right to determine what acts shall take place within her territory are all violations of this right; (c) a right derived from the character of the high seas as res communis, and possessed by Australia in common with all other maritime states to have freedom of the high seas respected by France and, in particular, to require her to refrain from (1) interference with the ships and air craft of other states on the high seas and super adjacent air space and (2) pollution of the high seas by radioactive fall-out.
The legality of atmospheric nuclear weapons tests
The Court held that before deciding on the legality of the tests it needed to examine, as a preliminary matter, whether or not there was a dispute between the parties. The Court therefore had to consider whether Australia requested a judgment which would only state the legal relationship between it and France with regard to the matters in issue or a judgment which required one or both of the parties to take, or to refrain from taking, some action. In other words, the Court had to decide the true object and purpose of the claim. The Court observed that Australia’s objective was to bring about the termination of the French atmospheric nuclear tests. It had repeatedly sought to obtain from France a permanent undertaking to refrain from further atmospheric tests but France had refused to give one. The Court held that it was clear that if France had given a firm, explicit and binding undertaking to refrain from further atmospheric tests, Australia would have regarded its objective as having been achieved. Therefore, Australia’s claim could not be regarded as a claim for a declaratory judgment since such a declaration would only be a means to an end, which was the cessation of the French nuclear tests.
The Court observed that, in the months following the commencement of the proceedings, France had made public its intention to cease the conduct of atmospheric nuclear tests at the end of the 1974 series of tests, and move on to underground tests. This was stated by, among others, France’s President at a press conference, its Minister for Defence on television and its Minister for Foreign Affairs in the UN General Assembly. The Court held that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Further, that when it was the intention of the State making the declaration that
it should become bound according to its terms, that intention conferred on the declaration the character of a legal undertaking, the state being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with the intention to be bound, was binding without the need for any acceptance or reply from other States. And that whether the statement was written or oral made no difference.
The Court held therefore that, in announcing that the 1974 series of tests would be the last, the French Government conveyed to the world at large its intention to terminate the tests. In light of this development Australia’s objective had in effect been accomplished in as much as France had undertaken to hold no further atmospheric tests. These declarations had caused the dispute between the parties to disappear. Therefore, no further judicial action was required as there was nothing on which to give judgment.
Commentary
It is clear that the Court side stepped the real dispute between the parties, perhaps because of an acute consciousness of the fact that, France having declined to participate in the proceedings would not comply with an adverse ruling. Therefore, whereas the case raised important questions of international environmental law, these were not substantively dealt with.
Fisheries Jurisdiction Case
In 1948 Iceland passed a law called “Law concerning the scientific conservation of the Continental Shelf Fisheries.” This gave the Ministry of Fisheries power to establish conservation zones within Iceland’s continental shelf and to issue regulations for the protection of fishing grounds within those zones. This move was prompted by the “progressive impoverishment” of the fishing grounds arising out of the increased efficiency of fishing gear used. Iceland therefore sought to establish an exclusive fishing zone around its coastline, reserved for its nationals only, as a way of conserving the fisheries. In 1952 Iceland established a fishery zone extending to 4 miles from its coastline. The UK, who traditionally fished in the area, protested the establishment of the zones. In 1958 Iceland extended the fishery limits to 12 miles and prohibited all fishing activities by foreign vessels within the 12 mile zone. The UK refused to accept the 12 mile limit and its vessels continued to fish within the zone. The UK and Iceland commenced negotiations in order to resolve their differences. In 1961 they reached an agreement which provided that (a) the UK would no longer object to the 12 mile zone; (b) UK vessels would continue to fish within the zone for three years; and (c) Iceland would continue to
work for the extension of its fisheries jurisdiction but would give the UK six months notice of such extension, and in case of dispute, the matter would be referred to the ICJ.
In 1971 Iceland decided to extend its fisheries jurisdiction to 50 miles with effect from 1st September 1972. The UK protested. In the talks that followed the UK proposed that Iceland’s objectives of conserving the fisheries in issue could be achieved by a catch limitation agreement. The UK expressed readiness to recognise Iceland’s preferential requirements on account of its dependence on the fisheries. Iceland rejected the catch limitation approach.
The UK referred the dispute to the ICJ in accordance with the 1961 Agreement. Iceland declined to recognise the Court’s jurisdiction but the Court held that it had jurisdiction under the 1961 Agreement and proceeded to determine the case. The UK asked the Court to declare that the claim by Iceland to a zone of exclusive fisheries jurisdiction extending to 50 miles is without foundation in international law, and that as against the UK, Iceland was not entitled unilaterally to assert exclusive fisheries jurisdiction beyond the limits agreed to in 1961.
The law on fisheries conservation
The Court observed that two concepts had crystallized as customary law in recent years. The first was the concept of the fishery zone, the area in which a state may claim exclusive fishery jurisdiction independently of its territorial sea, which had now been extended by general consensus to 12 miles. The second was the concept of preferential rights of fishing in adjacent waters in favour of the coastal state in a situation of special dependence on its coastal fisheries. The concept was particularly applicable in situations where, in spite of adequate fisheries conservation measures, the yield ceased to be sufficient to satisfy the requirements of all those who were interested in fishing in a given area. In such a case, where intensification in the exploitation of fisheries resources makes it imperative to introduce some system of catch limitation and sharing of the resources, special consideration is to be given to the
coastal state whose population is overwhelmingly dependent on the fishing resources in its adjacent waters. The Court observed further that the concept of a 12 mile fishery zone had been accepted by the parties in the 1961 Agreement, as had the concept of preferential rights. At the same time the UK’s historic fishing rights in these same waters had been acknowledged. The Icelandic regulations, on their part, were issued as a claim to exclusive rights, going beyond the concept of preferential rights and seeking to establish an exclusive fishery zone in which all foreign fishing vessels would be prohibited. The Court held that the concept of preferential rights was not compatible with the exclusion of all fishing activities of other states. The concept implied a certain priority, but not the extinction of the concurrent rights of other states, and particularly of a State which, like the UK, had for many years fished in the waters in question. Therefore the fact that Iceland was entitled to claim preferential rights did not justify its claim unilaterally to exclude the UK’s fishing vessels in the waters beyond the 12 mile limit. Indeed, given the UK’s own dependence on the fishing in these waters, the conservation and efficient exploitation of the fish stocks in issue were of importance to both the parties. Consequently, the Icelandic regulations establishing a zone of exclusive fisheries jurisdiction extending to 50 miles could not be applied to UK fishing in the area. An equitable solution required that Iceland’s preferential fishing rights be reconciled with the UK’s traditional rights. This could not be achieved through the extinction of the UK’s fishing rights. The parties should therefore negotiate in order to define the extent of each other’s rights.
Minority opinions
A number of members of the Court observed that the Court’s decision had focused on specifying the conditions for the exercise of preferential rights, for conservation of fish species, and historic rights, rather than on answering the question whether Iceland’s claims were in accordance with the rules of international law. The judgment was based on the circumstances and special characteristics of the case in dispute. It did not rule on the UK’s main contention, i.e that there was a customary rule of international law prohibiting extensions by states of their exclusive fisheries jurisdiction beyond 12 miles. In the view of these members of the Court, such a rule did not exist.
Gabcíkovo-Nagymaros Project case
Background Facts
The Danube River is the second longest river in Europe and forms part of the contiguous territorial boundary between Hungary and Slovakia, neighbouring riparian states. The Treaty Between the Hungarian People’s Republic and the Czechoslovak Socialist Republic concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks was concluded on 16 September 1977. The Treaty addressed broad utilisation of the natural resources of the Danube between Bratislava and Budapest, representing two hundred of the River’s two thousand eight hundred and sixty kilometres. In its Preamble, the Treaty sets objectives of mutual management in respect of “development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties”.
A Joint Contractual Plan stipulated that the Project constituted an integrated joint scheme, with both parties enjoying equality of energy rights and ownership commensurate with equality of financing, construction and operation. Article 1 described the Project as a “single and indivisible operational system of works”. Construction work began in 1978 and continued amidst profound political and economic changes across Central Europe.
Intense criticism of the construction at Nagymaros centred upon endangerment of the environment and uncertainty of continued economic viability. This growing opposition engendered political pressures upon the Hungarian Government. After initiating two Protocols, primarily concerned with timing of construction, Hungary suspended works at Nagymaros on 21 July 1989 pending further environmental studies.
Czechoslovakia protested Hungary’s suspension of works. Negotiations took place between the parties and Czechoslovakia began investigating alternative solutions. “Variant C”, one of these alternatives, involved a unilateral diversion of the Danube onto Czechoslovakian territory ten kilometres upstream from Dunakiliti. Negotiations had been of no avail when Czechoslovakia began work on Variant C in November 1991. On 19 May 1992 Hungary purported to terminate the 1977 Treaty by way of a Note Verbale transmitted to the Czechoslovak Government. On 15 October 1992 Czechoslovakia initiated closing the Danube and proceeded with damming the river.Slovakia was formed upon the dissolution of Czechoslovakia on 31 December 1992. Hungary and Slovakia have enjoyed diplomatic relations since 1 January 1993.
The Decision of the International Court of Justice
The jurisdiction of the International Court of Justice was founded by the Special Agreement for Submission to the International Court of Justice of the Differences Between the Republic of Hungary and the Slovak Republic concerning the Gabcíkovo-Nagymaros Project. A two-tiered judgment was delivered on 25 September 1997. The judgment of the Court was declaratory in relation to past conduct and prescriptive as to future conduct between Hungary and Slovakia. A number of Declarations, Separate Opinions and Dissenting Opinions were attached to the judgment of the Court, illustrating the complex maze of legal issues raised by the factual matrix of the Gabcikovo-Nagymaros Case.
Stichting Greenpeace Council v. Commission of the European Communities
By this case Greenpeace challenged the Commission’s decision to disburse funds to Spain to construct two power stations in the Canary Islands. The basis of the challenge was the alleged failure to carry out an environmental impact assessment study in accordance with European Community requirements. Greenpeace relied on the provisions governing the disbursement of structural funds which provides that “Measures financed by the Funds or receiving assistance from the European Investment Bank or from other existing financial instruments shall be in keeping with the provisions of the Treaties, with instruments adopted thereto and without Community policies, including those concerning ... environmental protection.” The Commission objected to the challenge on the basis of; inter alia, the locus standi of Greenpeace to bring the action. The Court upheld the challenge, pointing out that under Community law required that a party coming to Court must be affected by an act in manner which differentiated him from all other persons.
SOUTHERN BLUEFIN TUNA CASE
(Australia and New Zealand v. Japan)
Fact
The three States have been in dispute over whether southern bluefin tuna, a valuable migratory species of tuna that ranges over southern seas near the Antarctic and is prized in Japan for sashimi, is recovering from a state of severe overfishing. In 1993, Australia, Japan and New Zealand entered into a convention on the conservation of southern bluefin tuna establishing a commission to set a total allowable catch and take other measures to promote the recovery of the stock. That convention has a provision for the settlement of disputes arising under it which permits the parties to choose whatever means of peaceful settlement they prefer. Australia, Japan and New Zealand are also parties to the United Nations Convention on the Law of the Sea of 1982, which contains provisions for compulsory settlement of disputes arising under it, including by arbitration. That Convention has provisions bearing on the fishing of migratory fish species including southern bluefin tuna. The Arbitral Tribunal which has just ruled was established pursuant to the Law of the Sea Convention.
Issues
The main issue in dispute before the Tribunal was whether or not it had jurisdiction over the merits of the dispute. Japan argued that the dispute arose solely under the 1993 Convention, and that accordingly it could not be compelled to arbitrate the merits of the dispute. It contended that a provision of the Law of the Sea Convention that entitles parties to avoid compulsory dispute settlement if another treaty to which they are parties excludes it governed this case.
Decision
The Tribunal rejected Japan's claim that the dispute solely concerned the 1993 Convention, holding that a dispute could arise under more than one treaty and did in this case. However, by a vote of 4 to 1, the Tribunal sustained Japan's contention that a provision of the 1993 Convention did exclude compulsory jurisdiction over disputes arising both under it and the Law of the Sea Convention. It held that in this case the same States were grappling not with two separate disputes but what in fact is a single dispute arising under both Conventions, and that to find that there was a dispute arising under the Law of the Sea Convention which is distinct from the dispute that arose under the 1993 Convention "would be artificial". In the Tribunal's view, the meaning and intent of the disputes settlement provision of the 1993 Convention was to exclude procedures for compulsory settlement of the Law of the Sea Convention. Accordingly, the Tribunal unanimously revoked provisional measures in force that enjoined Japan from conducting an experimental fishing program for southern bluefin tuna. At the same time, the Tribunal declared that revocation of provisional measures did not mean that the parties may disregard the effects of those measures. It noted that the parties had narrowed the gap between them, and that Japan had offered mediation or arbitration under the 1993 Convention. It emphasized that the prospects for a successful settlement of the dispute will be promoted by the parties' abstaining from any unilateral act that may aggravate it.
Judge Sir Kenneth Keith appended a separate opinion that maintained that the 1993 Convention did not exclude compulsory arbitration under the Law of the Sea Convention.
North Sea Continental Shelf case(Germany v. Denmark) (Germany v. Netherlands)
Facts
Denmark and Netherlands argue that shared continental shelf should be divided by principle of equidistance in Art. 6 of Geneva Convention. Germany argues that this is inappropriate because Germany isn’t a party to Convention.
Netherlands and Denmark maintain Convention is part of Customary International Law, even though not based on slow accretion of practice, actually created new process for coastal division.
Issue
Can the negotiation of a treaty give rise to Customary International Law?
• Holding: Court rejects arguments of Netherlands and Denmark
• Look to rule itself: This is possible but not in all cases. Such provision should be of a fundamentally norm-creating character such as could be regarded as forming the basis of general rule of law. This Article is not of that type; the primary obligation is to effect delimitation by agreement and secondarily the use of equidistance method. Also, parts of the Article are still in controversy.
• Look at extent of active agreement: Sometimes a rule can become a general rule of International Law through a widespread participation in the convention, if it includes states whose interests are specially affected. This convention is not of that type because so many states have not ratified it. This doesn’t mean they necessarily disapprove but it doesn’t show that they approve of it either.
• Look at time convention has been in effect: Only 5 years since convention has been in force. Short period of time not necessarily a bar, but practice should have been extensive and uniform within that time, including by states whose interests are specially affected.
• Look at extent of participation: Few cases, and b/c of certain reasons they can’t be precedent. Even if there were more, 2 conditions would need to be filled: (1) acts must amount to settled practice; (2) must be such as to be evidence of belief that this action is obligatory as IL.
Pacific Fur Seal Arbitration
Background
The Bering Sea Arbitration arose out of a fishery dispute between Great Britain and the United States in the 1880s which was closed by this arbitration in 1893.
In 1867 the United States government purchased from Russia all her territorial rights in Alaska and the adjacent islands. The boundary between the two countries was a line drawn from the middle of Bering Strait south-west to a point midway between the Aleutian and Komandorski Islands dividing the Bering Sea into two parts, the larger being on the American side. This portion included the Pribilof Islands, the principal breeding-grounds of the seals in those seas.
There followed a diplomatic controversy, in the course of which the United States developed the contentions which were afterwards laid before the tribunal of arbitration. The claim that Bering Sea was mare clausum was abandoned, but it was asserted that Russia had formerly exercised therein rights of exclusive jurisdiction which had passed to the United States, and they relied inter alia upon the ukase of 1821, by which foreign vessels had been forbidden to approach within 100 Italian miles of the coasts of Russian America. It was pointed out by Great Britain that this ukase had been the subject of protest both by Great Britain and the United States, and that by treaties similar in their terms, made between Russia and each of the protesting powers, Russia had agreed that their subjects should not be troubled or molested in navigating or fishing in any part of the Pacific Ocean. The American answer was that the Pacific Ocean did not include Bering Sea. They also claimed an interest in the fur seals, involving the right to protect them outside the three-mile limit. In August 1890 Lord Salisbury proposed that the question at issue should be submitted to arbitration. This was ultimately assented to by the secretary of state, James Gillespie Blaine, on the understanding that certain specific points, which he indicated, should be laid before the arbitrators.
On the February 29, 1892, a definitive treaty was signed at Washington. Each power was to name two arbitrators, and the president of the French Republic, the king of Italy, the king of Norway and Sweden were each to name one.
Award
The award, which was signed and published on 15 August 1893, was in favour of Great Britain on all points. The question of damages, which had been reserved, was ultimately settled by a mixed commission appointed by the two powers in February 1896, the total amount awarded to the British sealers being $473,151.26 - in excess of US$10 million in present-day inflation-adjusted dollars.
Island of Palmas Case:
It was a case involving a territorial dispute over the Island of Palmas (or Miangas) between the Netherlands and the United States which was heard by the Permanent Court of Arbitration. This case is one of the most highly influential precedents dealing with island territorial conflicts.
Facts of the case
Palmas, also referred to as Miangas, is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and has a population of about 750 when the decision of the arbitrator was handed down. The island is located between Mindanao, Philippines and the northern most islands, known as Nanusa, of what was the former Netherlands East Indies. In 1898, Spain ceded the Philippines to the United States and Palmas sat within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island and the two parties agreed to submit to binding arbitration to resolve the dispute on January 23, 1928. The arbitrator in the case was Max Huber, a Swiss national. The question the arbitrator was to resolve was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands.
Argument by USA
1. The United States argued that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. ( Right by discovery)
2. The United States also argued that Palmas was United States territory because the island was closer to the Philippines than to Indonesia which was then held by the Netherlands East Indies. ( Contiguity)
Contention of Netherlands
The Netherlands’ primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the United States had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, than there would have been conflicts between the two countries but none are provided in the evidence. (Continuous and peaceful display of sovereignty)
The Arbitrator's decision
The Arbitrator ruled in favor of the Netherlands’ position and stated that the Netherlands’ held actual title to Palmas :
For these reasons The Arbitrator in conformity with Article I of the Special Agreement of January 23rd, 1928 DECIDES that : THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory done at The Hague, this fourth day of April 1928 Max Huber, Arbitrator Michiels van Verduynen, Secretary-General
Commentary
Under the Palmas decision, three important rules for resolving island territorial disputes were decided:
• Firstly, title based on contiguity has no standing in international law.
• Secondly, title by discovery is only an inchoate title.
• Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.
Rainbow Warrior Case
The Rainbow Warrior Case was a dispute between New Zealand and France that arose in the aftermath of the sinking of the Rainbow Warrior. It was arbitrated by UN Secretary-General Javier Pérez de Cuéllar in 1986, and became significant in the subject of Public International Law for its implications on State responsibility.
Fact
On 10 July 1985 an undercover operation conducted by the French military security service (DGSE) sank the British-registered Greenpeace ship Rainbow Warrior berthed in Auckland Harbour. The Greenpeace ship was planning to disrupt French Nuclear tests on the islands of French Polynesia. New Zealand subsequently caught and convicted several members of the French secret forces. Even though the actions of the French state were not a threat to "international peace and security" as held by the UN Charter due to their limited objectives and impact, they were widely held to be acts of international delinquency comprising breach of sovereignty and espionage (though peace time espionage is not covered by international law). The French memorandum to the secretary general argued that Greenpeace was engaging in "hostile actions" and "illegal penetration" of French territory around the test site and New Zealand acted as a platform for those actions. These arguments were rejected as not fulfilling any of the criteria of international law pertaining to the use of force.
Decision
France, having admitted responsibility, focused its efforts on the repatriation of its servicemen. This was agreed to by New Zealand on the condition that they would serve out the rest of their sentences. A compromise was reached by the mediation of the UN secretary general to three year sentences on the French atoll of Hao (at a French naval base). In terms of reparations, France initially offered an official apology and acknowledgement of breach of international law. Additionally, the UN secretary-general awarded New Zealand 7 million USD. This is in addition to compensation which France paid to the family of the only victim of the mission and to Greenpeace (settled privately).
Consequences
The Rainbow Warrior case bolsters the notion that there is a doctrine of non-intervention in international law and that states will be punished for contravening it. It is also an interesting study of state responsibility, individual responsibility, use of force and reparations. Its consideration for international law is slightly hampered by the fact that it was decided by a single individual (the UN secretary general) as a special Tribunal not internationally established. This is because there existed jurisdictional obstacles for an application to the ICJ by New Zealand.
Mox Plant Case
The case of Ireland v. United Kingdom, currently underway at the Permanent Court of Arbitration in The Hague, raises interesting questions of jurisdiction and applicable law for international environmental claims under the United Nations Convention on the Law of the Sea (UNCLOS)
Fact
In this dispute concerning radioactive waste pollution in the Irish Sea produced by an English nuclear fuel reprocessing facility, Ireland argues that certain UNCLOS provisions allow Convention tribunals to enforce not only UNCLOS directives, but “other rules of international law not incompatible with this Convention” as well. As a result, Ireland’s claim draws not only from UNCLOS, but also from more than twenty additional international agreements and instruments to which the United Kingdom may be bound. In response, the United Kingdom argues that UNCLOS provides no such jurisdiction to the Tribunal, and as such, the basis for much of Ireland’s suit is improper.
Arguments and advancement:
The theory advanced by Ireland in many ways resembles the practice of supplemental jurisdiction as developed in American case law and legislation, which permits the attachment of non-federal claims to valid federal claims when they are all part of the same case or controversy. Properly speaking, there is no international law concept analogous to supplemental jurisdiction in U.S. federal law; however, the parallels are striking in this case and will be explored in an effort to understand how such an approach might be understood within the context of UNCLOS.
If the Tribunal permits a kind of supplemental jurisdiction for Ireland’s non-UNCLOS claims, the decision could have far-reaching implications for future litigation under UNCLOS, significantly expanding the power of a Convention already considered “the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time.”7 Conversely, a rejection of supplemental jurisdiction could limit similar suits to claims deriving strictly from UNCLOS, which provides powerful dispute resolution procedures but largely conceptual rights and obligations.
The Volga Case (Russian Federation v. Australia)
Fact
On 2 December 2002, an Application under article 292 of the United Nations Convention on the Law of the Sea was filed by the Russian Federation against Australia for the release of the vessel Volga and three members of its crew. Australia filed its Statement in Response with the Registry on 7 December 2002. The hearing was held on 12 and 13 December 2002. The Volga is a long-line fishing vessel flying the flag of the Russian Federation with a fishing license provided by it. On 7 February 2002, the Volga was arrested by Australian military personnel beyond the limits of the exclusive economic zone of the Australian territory of Heard Island and the McDonald Islands for alleged illegal fishing in the Australian fishing zone. Australian authorities seized the vessel including the catch, nets and equipment. Three members of the crew were charged with criminal offences and were admitted to bail on certain conditions.
The Russian Federation submitted that the bond sought by Australia imposed conditions for the release of the vessel and the three members of the crew which were neither permissible nor reasonable under article 73, paragraph 2, of the Convention. Australia maintained that the bond sought by the Australian authorities was reasonable and requested the Tribunal to reject the application made by the Russian Federation. On 23 December 2002, the Tribunal delivered its judgment. The Tribunal unanimously found that it had jurisdiction to entertain the application made by the Russian Federation, and that the application, with respect to the allegation of non-compliance with article 73, paragraph 2, of the Convention, was admissible. Dealing with the Applicant’s allegation that the Respondent had not complied with article 73, paragraph 2, of the Convention concerning the release of the vessel and its three crew members, the Tribunal referred to the “Camouco” Case where it had indicated factors relevant in an assessment of the reasonableness of bonds or other financial security (“They include the gravity of the alleged offences, the penalties imposed or imposable under laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of bond imposed by the detaining State and its form”, Judgment of 7 February 2000, paragraph 67). It also confirmed the statement made in the “Monte Confurco” Case according to which “[t]his is by no means a complete list of factors, Nor does the Tribunal intend to lay down rigid rules as to the exact weight to be attached to each of them” (Judgment of 18 December 2000, paragraph 67). The Tribunal then proceeded to deal with the application of the various factors in the Case.
Decision
The Tribunal took note of the concern of the Respondent with regard to the depletion of stocks of Patagonian Toothfish in the Southern Ocean. It "understands the international concerns about illegal, unregulated and unreported fishing and appreciates the objectives behind the measures taken by States, including the States Parties to CCAMLR, to deal with the problem". The Tribunal, however, emphasized that, in prompt release proceedings, it is called upon to decide if the bond set was reasonable in terms of article 292 of the Convention. It added that the penalties provided by the law of Australia in respect of the alleged offences indicate that these offences are considered to be grave under Australian law.
The Tribunal noted that, according the laws of Australia, the maximum total of fines imposable on the three officers of the Volga is AU$ 1,100,000 and that the vessel, its equipment and fish on board are liable to forfeiture. It took the view that the amount of AU$ 1,920,000 sought by the Respondent for the release of the vessel, which represents the full value of the vessel, fuel, lubricants and fishing equipment and is not in dispute between the parties, is reasonable in terms of article 292 of the Convention. With respect to the three crew members, the Tribunal noted that, according to information it received from the parties during its deliberations, the Full Court of the Supreme Court of Western Australia upheld the appeal of the three officers of the Volga on 16 December 2002 and ordered that they be permitted to leave Australia upon the amount of bail already posted, and was informed that the officers left Australia on 20 December 2002. The Tribunal therefore considered that setting a bond in respect of the three officers no longer served any practical purpose.
The Tribunal observed that, besides requiring a bond, Australia has made the release of the vessel conditional upon the fulfillment of two conditions: that the vessel carry a VMS (vessel monitoring system) and that information concerning particulars about the owner and ultimate beneficial owners of the ship be submitted to its authorities. The Tribunal considered that these non-financial conditions could not be considered as components of the bond or other financial security for the purposes of article 292 of the Convention. The Tribunal also stated that the circumstances of the seizure of the Volga were not relevant to the proceedings for prompt release under article 292 and therefore could not be taken into account in the assessment of the reasonableness of the bond.
With regard to the proceeds of the catch found on board the Volga at the time of arrest, the Tribunal declared that, although the proceeds represent a guarantee to the Respondent, they have no relevance to the bond to be set for the release of the vessel in this Case.
The Tribunal concluded that the bond as sought by Australia was not reasonable within the meaning of article 292 of the Convention and that the allegation made by the Applicant was well-founded. Consequently, it ordered that Australia must promptly release the Volga upon the posting of a bond or other financial security to be determined by the Tribunal.
The Tribunal determined, by 19 votes to 2, that the bond or other security for the release of the vessel shall be of AU$ 1,920,000 to be posted with Australia. The Tribunal determined unanimously that the bond shall be in the form of a bank guarantee from a bank present in Australia or having corresponding arrangements with an Australian bank or, if agreed to by the parties, in any other form. It further decided that each party should bear its own costs.
The Government of the State of Kuwait V. The American Independent oil Company
Factual Background and Claims of the Investor
In 1948, the Sheikh of Kuwait granted to Aminoil, a US company, a 60-year concession for the exploration and exploitation of oil and gas in a designated territory in Kuwait. The price for the concession included a down-payment plus a fixed royalty of US$ 2.50 for every ton of oil recovered subject to a minimum annual royalty of US$ 625,000. The Concession Agreement contained a stabilization clause that prevented the Sheikh from unilaterally annulling or altering the terms of the Agreement. In 1954 Aminoil began commercial production and exportation of petroleum products. Following the developments in the neighbouring Middle East countries, in 1961 Kuwait and Aminoil agreed to modify the Concession Agreement and supplement the fixed-royalties principle with a 50/50 arrangement, according to which Aminoil had to share half of its profits with the Government. After the declaration of Kuwait’s independence in early 1960-s, the Aminoil concession continued. However, in 1973 the final set of revisions to the Concession Agreement was agreed; they were designed to take account of changes in the global oil market and envisaged, among other things, an increase of the payments due from Aminoil, in compliance with OPEC-led agreements aimed at increasing the ‘take’ of the producer governments in oil business. The 1973 Draft Agreement between Kuwait and Aminoil was subject to ratification by the Kuwaiti parliament, but this never occurred. However, in December 1973 Kuwait’s Minister of Finance and Aminoil signed a letter, in which the company agreed to make payments as if the 1973 Draft Agreement was effective. In the arbitration, however, Aminoil questioned the validity and effect of the Draft Agreement and of the letter. Continued OPEC-driven transfer of power away from oil companies to the producing governments led to the adoption of the ‘Abu Dhabi formula’. Following the dramatic increase of oil prices in 1973, the OPEC took a decision to introduce the agreement reached by the producing governments in Abu Dhabi, which further increased the average government ‘take’ from operating oil companies. Kuwait and Aminoil failed to reach compromise on this issue and on 19 September 1977, by Decree Law No.124, Kuwait enacted that Aminoil’s concession should be terminated; that
Aminoil’s assets in Kuwait should revert to the State; and that ‘fair’ compensation should be paid to Aminoil. Subsequently, the parties concluded a separate Arbitration Agreement, whereby the disputes between the parties had to be resolved ‘on the basis of law’ by an ad hoc tribunal of three members. Both parties presented their claims to the Tribunal:
The Government’s main claims included approximately US$ 140 million under the financial provision of the 1973 Draft Agreement, under the ‘Abu Dhabi formula’ and in respect of liabilities of the company assumed by the Government after the nationalization.
Aminoil’s main claims included the repayment of US$ 423 million paid underthe 1973 Draft Agreement, which the company now said should not have beenpaid because the agreement was ineffective, as well as lost profits calculateduntil the natural termination of the concession, in the amount of US$ 2,587million.
Law Applicable to the Determination of Damages
As far as the determination of compensation was concerned, the Tribunal applied ‘principally international law’.
Basis to Reach the ‘Appropriate Compensation’
The Tribunal based its approach on the concept of ‘legitimate expectations’. This concept was derived by the Tribunal from a premise that every long-term contract involves economic calculations, and the weighing-up of rights and obligations, of chances and risks, constituting the contractual equilibrium. ‘It is in this fundamental equilibrium that the very essence of the contract consists”. (para.148)
The said contractual equilibrium gives rise to the legitimate expectations of the parties. To assess both the equilibrium and the expectations, one should look at the original text of the contract, as well as at the amendments, the interpretations, and the behaviour manifested along the course of its existence. (para.149)
The Tribunal found indications – in the Concession Agreement and in the ‘attitude of Aminoil’ – that Aminoil’s ‘aim was to obtain a “reasonable rate of return” and not speculative profits’ (‘a moderate estimate of profits’). The Tribunal determined that this was Aminoil’s expectation; in light of this expectation the appropriate compensation had to be assessed. (paras.159-160
International Environmental law is a tool or mechanism to establish, protect and ensure the rights of the subjects of international law in the environmental aspects. It has been developed through various treaties, conventions, decisions, governmental steps and measures. The environmental activists and the less developed countries are very much eloquent against the maltreatment of the environment; the developed countries are not showing their interest and sometimes hinder the process. For this reason the advancement of environmental law and the obeisance of conventions, treaties, and protocols are not up to the mark. Sometimes the decisions and judgments are violated by the countries which are clear violation of International Law. But for the sake of a save world and a plain life of people of the world each and every country and the citizens should be sincere.
