Open Access Research Article
PREVENTING TRANSBOUNDARY HARM - AN ANALYSIS OF THE ROLE OF ICJ BY: SARVESH M S & THARUN PRANAV
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Article Details
PREVENTING TRANSBOUNDARY HARM - AN ANALYSIS OF THE ROLE
OF ICJ
Author: SARVESH M S,
Law
Student,
School of
Law, Christ (Deemed to be University)
Co-Author: THARUN PRANAV,
Law
Student,
School of
Law, Christ (Deemed to be University)
Abstract:
This
article investigates the role that the International Court of Justice (ICJ) had
in the development of laws regarding cross-border environmental harm. In
international environmental law, countries are prohibited from destroying the
ecosystems of other nations or places outside of their jurisdiction. The
no-harm rule, often known as the prohibition of transboundary environmental
damage, stipulates that governments cannot engage in or authorize activities on
their territory or in common areas that are harmful to other states or the
environment. The duty derives from the sic utere tuo et alienum non laedas
principle, which stipulates that states must not hurt or violate the rights of
other states. This study investigates how international jurisprudence
contributed to the need of this concept in international environmental law. In
addition, it investigates how international law, state practice, multilateral
environmental agreements, and the International Law Commission (ILC) have
defined this norm. The no-harm criteria has been included into several
environmental agreements and declarations and is regarded as international
customary law. The execution of the rule in the actual world and its effects on
modern international law pose various difficulties. What is transboundary harm
to the environment? Does the rule apply to all damages or simply those above a
certain threshold? Does the regulation mandate that all damage over the
threshold be prevented, or is there a standard of care that may acquit the source
state of liability? How should states act if the standard of care holds true?
Is there a lower standard for developing states? The writers will examine
relevant international law, mostly from the ICJ, to evaluate the legal content
of the rule. In current international law, there is an obligation to prevent
and regulate transboundary damage and pollution from activities within their
control and to cooperate to reduce the risk of such harm by notification,
consultation, negotiation, and environmental impact assessments.
Introduction:
Environmental
issues are commonly regarded as one of the most pressing issues of our day. The
environmental changes generated by humans are pervasive and severe on a
national, regional, and global scale. Regional environmental issues, affecting
many countries, include cross-border air and water pollution, the effects of
resource exploitation, a decline in the quality and quantity of freshwater,
nuclear accidents, and international commerce in hazardous waste and toxic
chemicals. Global environmental issues include ozone depletion, extinction of
species, ocean pollution, loss of biodiversity, diminishing food supply and
reduced seafood supplies, deforestation, and human-caused climate change.
Often, pollution and environmental concerns have a transboundary component,
producing issues for and causing harm to nations other than the originating
state and to global common areas. A famous example is a state upstream
discharging pollutants into a river, causing harm to a state downstream. A
recent example is the burning of forests and land in Indonesia, which generates
haze pollution consisting of smoke and dust that drifts over international
boundaries and causes health issues in Singapore and Malaysia.
Problems of
cross-border damage and pollution can only be properly handled via cooperation
and coordination between nations; in this respect, international law and
institutions play a crucial role in creating a framework within which members
of the international community may work together. The conventional reaction of
international law to transboundary issues has been to impose responsibility on
the state guilty of inflicting injury, so requiring that state to cease the
behavior causing damage and to provide proper restitution to the wounded state.
As instances of transboundary environmental damage have dramatically increased
due to industrial development, new technology, and population growth, states
have increasingly recognized the need for global solutions to environmental
issues and that global environmental issues require rules for the protection of
natural resources and the environment as a shared resource for all states. This
insight gave rise to international environmental law. International
environmental law is the branch of international law dealing with rights and
responsibilities in the management of natural resources and the environment. It
consists of both an evolving body of specifically environmental norms and
general international law norms applied to environmental problems.
Defining transboundary Harm:
Clearly,
not all negative consequences generated by environmental variables should be
covered by the requirement not to create transboundary damage. In the
literature, it is said that four elements must be met for an injury to qualify
as a transboundary harm and hence fall under the responsibility.[1]
First, the
injury must be caused by human action. However, not all harm produced by
environmental causes that might impact more than one nation is the result of
human actions; natural catastrophes such as floods, earthquakes, and hurricanes
can also inflict extensive damage across large territories. In the literature,
it is ruled that adverse environmental impacts do not come inside the scope of
the responsibility unless they have a "reasonably proximate causal
relationship to human activity."
The second
requirement is that the injury must be a direct result of human action.[2]
Thus, the responsibility often include the damage caused to natural resources
by industrial and agricultural operations, although economic effects, such as a
rise in commodity prices owing to environmental interferences, are omitted.
Thirdly,
there must be an influence that transcends national borders.[3]
An element that crosses international boundaries commences the application of
international law. The illness may potentially have transboundary impacts that
traverse numerous national lines, causing harm to many states. Typically,
transboundary impacts transcend borders through a medium, such as water, soil,
or air, such as when pollution from industrial activity in one state cause acid
rain, which destroys forests and lakes in neighboring states. Current
international law expands the no-harm criterion to cover damage to locations
outside state jurisdiction. The rule protects not just the regions under state
control, but also the "global commons," which include the high seas,
outer space, atmosphere, and Polar Regions.
The fourth
criteria is that the alleged wrongdoing must be sufficiently severe to warrant
judicial action. Clearly, nations cannot participate in or enable actions on
their territory without considering the potential repercussions on regions
beyond their control. Similarly, a state cannot require that other states
refrain from all actions that may have transboundary environmental
implications. Hence, not every boundary crossing injury is banned under the
no-harm rule; the damage must surpass a particular severity threshold.[4]
Defining environmental damage in further detail and
The criterion for injury
There is
little question that damage and injury to property and people are covered by
the general requirement not to cause transboundary harm; this was acknowledged
in Trail Smelter, in which Canada was
held accountable for economic loss "to the territory of another or the
assets or persons within."[5]
The issue of whether or not the responsibility extends to the preservation of
the environment presents a challenge of a greater degree.[6]
In Trail Smelter, the tribunal acknowledged
only economic injury and did not examine potential compensation for damage to
broader environmental interests, such as ecosystem variety and wildlife,
although the conventional perspective expressed in this judgment seems to have
been abandoned today.[7]
In Lake Lanoux, a possibility of
environmental harm in the strict sense was implicitly acknowledged, as the
Court referred to changes in the composition and temperature of the waters that
allegedly harmed Spanish interests,[8]
and separate claims regarding environmental damage were, for instance,
presented in the Nuclear Tests cases and the case concerning Certain Phosphate
Lands in Nauru.[9] In
Gabkovo-Nagymaros, the Supreme Court indirectly agreed that environmental harm
might be considered independently by stating:
Hungary is entitled to
compensation for the damage sustained as a result of the diversion of the
Danube, since Czechoslovakia, by putting into operation Variant C, and
Slovakia, in maintaining it in service, deprived Hungary of its rightful part
in the shared water resources, and exploited those resources essentially for
their own benefit.[10]
Furthermore,
in Legality of nuclear weapons, the International Court of Justice (ICJ)
pointed expressly to the need of nations to guarantee that operations within
their jurisdiction and supervision preserve the environment. This requirement
was reinforced in the Pulp Mills and Gabkovo-Nagymaros instances.[11]
Commentaries
to the ILC Articles on Prevention include damage to "human health,
industry, property, environment, or agriculture in other states,"[12]
and Principles 21 and 22 of the Stockholm and Rio Declarations refer to
responsibility for "damage to the environment," although the concept
of environmental damage is undefined. The narrow Trail Smelter technique has
been abandoned which seems to be the prevailing opinion in the academic
literature.[13]
Malgosia Fitzmaurice, for instance, believes that the current idea of damage
encompasses both the "intrinsic worth of the environment" and
particular ecosystem components.[14]
Birnie, Boyle, and Redgwell note that treaty law does not offer a clear
standard definition of what is meant by "environment" and hence
"environmental injury"; the meanings change based on the aim of the
treaty, and so a general definition of harm cannot be provided.[15]
It is plausible that the responsibility applies not just to the loss of
resources with a monetary value, but also to the intrinsic worth of natural
ecosystems, biodiversity, and regions of wildness and aesthetic importance, for
instance.[16]
As stated
in the article, the no-harm criterion does not apply to all transboundary
environmental damage; the damage must be of a specific magnitude. The necessity
for a threshold criteria is inherent in the balance between the two purposes
discussed, which is that states are obligated not to create harm beyond their
borders, but also have the right, by virtue of their sovereignty, to utilize
the natural resources inside their jurisdiction. A state cannot mandate that
other nations refrain from all activities that may have transboundary
environmental repercussions; doing so would violate the sovereign right of
states to engage in economic activity on their own territory.
Damage
thresholds are not defined in Principles 21 of the Stockholm and Principle 2 of
Rio Declarations. The second segment of Principle 21 seems to concern avoiding
"environmental damage" regardless of severity. To be considered,
however, is the sovereign authority of states "to employ their own
resources" in the first part of the notion. The two competing objectives
must be reconciled, which necessitates harm qualification. Due to territorial
sovereignty, other international law treaties that prohibit environmental harm
without an explicit threshold must have a threshold. A threshold criterion is
required, although its definition is debatable. Many treaties use the terms
"substantial," "serious," "considerable," and
"significant" to describe damage. Each term has distinct state
obligations. International law has adopted a variety of approaches to the
topic. Trail Smelter[17]
and Lac Lanoux[18]
set the threshold for transboundary hazard at "serious harm." Under
recent judicial precedents, the parties' allegations indicate a lower harm
threshold. In the matter of Certain Phosphate Lands in Nauru, Nauru urged the
court to declare that Australia was "under a responsibility not to make
changes to the state of the territory that may cause irreparable harm or
materially affect the existing or contingent legal interests of another State."[19]
In the Gabkovo-Nagymaros case, Hungary argued that the "obligation
enunciated in Stockholm Principle 21 not to inflict significant injury on the
territory of another State or on areas beyond national control" had
established a norm of international law over time.[20]
In the Aerial Herbicide Spraying case, Ecuador said, "Fumigations supplied
by Colombia along or near the border line were transferred over the border,
resulting in serious adverse effects in Ecuador."[21]
The Pulp Mills ruling stated explicitly that "severe environmental
damage" was the obligation.[22]
The barrier has been decreased by the growing knowledge of irreparable
environmental harm and environmental protection. Current research and Articles
on Prevention[23]
concur that the criterion applies to "substantial" harm.[24]
While there
seems to be unanimity about the necessity of "substantial injury," it
is not feasible to provide definitive answers regarding the precise meaning of
"significant." So, its substance must be established in connection to
the precise context of each event, since severity varies with context.[25]
According to the comments to the Articles on Prevention, the threshold should
be assessed using "factual and objective criteria."[26]
The
procedure for determining the exact threshold, i.e. where to draw the line
between considerable and insignificant injury, is also unclear. In the
literature, two alternate techniques are presented.[27]
The first method suggests that the threshold of damage must be decided by
weighing the socioeconomic value of an activity against its negative impacts on
the environment; hence, the acceptable degree of harm increases as the economic
and developmental benefits of the activity grow. This strategy takes into
consideration a country's economic and technological capabilities; accordingly,
the threshold of damage differs between developed and poor nations. A
disadvantage of this strategy is that it may let the value of the activity to
exceed the severity of the injury.
According
to the second method, a de minimis test must be used to the injury, which
suggests that the threshold is exceeded if the harm is not minimal, i.e.
inconsequential or trivial. This approach is used by the ILC in the Articles on
Prevention, since the definition of "significant" in the comments
exceeds "detectable."[28]
Yet, the method does not specify which types of injury are important and which
are not.
Prevention and control of harm
As
demonstrated in the article, the general rule prohibiting the causing of
transboundary harm, which is rooted in the principle of state sovereignty and
developed on the basis of the Trail Smelter arbitration, is the traditional
basis for the regulation of state conduct in the field of international
environmental law. An important concern is whether the need not to create
transboundary environmental damage is only responsibility ex post facto, or
whether it also includes an obligation to avoid and manage risk of harm. When
environmental damage, such as species extinction, waste of nonrenewable
resources, marine pollution, or nuclear fallouts, happens for the first time,
it is often irreparable. Hence, damage prevention is vital for addressing
environmental concerns.
Already in
Trail Smelter, the significance of harm prevention was recognised in
international law, as the tribunal ordered Canada to take measures to prevent
future harm, and state practise and more recent judicial understandings of the
obligation reflect the view that the obligation is one of prevention.[29]
For instance, in the first Nuclear Tests case, the intricate chain of causation
between the tests and subsequent impacts on the environment and human health
made it difficult to establish serious harm to the Court's satisfaction.
Australia therefore downplayed the requirement of actual damage to have occurred,
and instead based its argumentation on a view that deposit of radioactive
material violated international law even if it could not be established that
the material caused actual damage.[30]
In the second Nuclear Testing case, New Zealand argued that the plan to conduct
nuclear tests without a previous risk assessment would be unlawful, regardless
of whether real damage happened.[31]
Principle
21 of the Stockholm and Principle 2 of the Rio Declarations are often read as
requiring the prevention and management of damage.[32]
In Legality of Nuclear Weapons, the International Court of Justice slightly
modified the language of the principle from requiring states to ensure that
activities under their jurisdiction and control do not "harm" the
environment to requiring states to ensure that such activities
"respect" the environment.[33]
Uncertainty exists as to whether the Court intended to make any substantial
alterations to the concept; nonetheless, the use of the broad term
"respect" may imply that the principle is extended to situations when
no harm is committed. Eventually, the International Court of Justice
acknowledged that nations had a duty to avert injury. In the Gabkovo-Nagymaros
case, it was determined that "vigilance and prevention are essential in
the sphere of environmental protection due to the sometimes irreparable nature
of environmental harm and the inherent limits of the mechanism for repairing
this sort of damage."[34]
Recently,
in the Pulp Mills judgement, the Court ruled that states are "obligated to
use all available means to prevent activities from occurring on their territory
or in any area under their jurisdiction that cause significant damage to the
environment of another State".[35]
This is in accordance with the Articles on Prevention, which suggest that the
requirement not to create transboundary environmental damage includes a duty of
preventive. Throughout the Articles' remarks, it is also highlighted that, from
a policy standpoint, prevention is preferable than cure:
The notion of prevention
has gained a prominent and timely role. The focus on the responsibility to
prevent, as opposed to the requirement to repair, rectify, or compensate, has a
number of significant implications. Prevention should be favoured since
compensation in the event of damage cannot frequently restore the state that
existed before to the incident or disaster.[36]
To
hold states accountable for a breach of the no-harm rule, either for causing
environmental damage or for failing to take steps to avoid harm, it is required
to establish a legally relevant state activity or to impute private actions to
the state.[37]
The majority of environmental harm and pollution is created by private actors,
generally via industrial and agricultural operations, and is not always the
responsibility of the government. Even when private actors engage in activities
that cause environmental damage, the state still has the responsibility to
regulate these actions.[38]
In Trail Smelter, the arbitral panel determined that the norm it articulated
also extended to private operations that are not adequately regulated by the
government, stating that "State has at all times a responsibility to
safeguard other States from harmful conduct by persons under its
jurisdiction."[39]
Principle 21 makes no distinction between state and private activity, but
typically requires governments to guarantee that their territory does not cause
harm. The Articles of Prevention address the problem by requiring prior
authorization for actions conducted on its territory or otherwise under its
authority or control that pose a danger of producing severe transboundary
damage.[40]
Throughout the commentary, it is highlighted that states are not compelled to
participate in operational matters pertaining to the activities covered by the
articles. It states "When these activities are done by private people or
businesses, the State's role is restricted to developing the proper regulatory
framework and executing it in line with these rules".[41]
Standard of
Care
The
amount of prevention needed according to the obligation, i.e., what
standard of care is required in the context of the no-harm rule, is an
important question. There have emerged two general approaches to this issue.
The first approach holds that states are required to accomplish genuine damage
prevention. The alternative viewpoint is that states are required to implement
preventive measures with due care. Another way to conceptualize this issue is
to consider whether the no-harm rule is a result-based or conduct-based rule.
As
per the first perspective, it is incumbent upon states to attain effective
prevention. Consequently, states bear the onus for any harm resulting from
their conduct, irrespective of any lack of care or culpability. The
aforementioned principle operates on the basis of strict liability, whereby the
occurrence of damage is sufficient to activate the no-harm rule, provided that
the requisite threshold is surpassed and a causal connection between the
activity and the damage can be established.[42]
The aforementioned approach places significant emphasis on determining the
degree of harm that is deemed acceptable under the obligation, as well as on
the concept of causation.[43]
Numerous
industrial operations, including the manufacture of hazardous chemicals and the
generation of nuclear power, present a significant threat to both human health
and the environment. As a result, it is widely believed that the individual or
organization seeking to engage in such inherently hazardous activities should
assume responsibility for any accidents or harm resulting from said activities.[44]
In response to this phenomenon, there has been a development of strict
liability regimes in national legal systems, and certain international
agreements, such as those pertaining to the transportation of nuclear materials
and oil pollution by sea, require private operators to bear strict liability in
cases of harm.[45]
Certain scholars have contended that ultra-hazardous activities in the context
of environmental harm are typically subject to a standard of strict liability.
According to Sands and Peel, the imposition of strict liability for such
activities could be regarded as a fundamental principle of international law.[46]
An
alternative perspective suggests that the primary responsibility of preventing
harm lies in the conscientious execution of preventative measures through due
diligence. This approach posits that the application of due diligence serves as
a criterion for assessing the behavior expected of states, and the violation of
the no-harm principle occurs when the prescribed level of diligence is not
observed. This approach presupposes that in the event that the state satisfies
the necessary standard of care, and harm ensues nonetheless, the state is
absolved of liability.
The
strategy employed by the ILC with regards to the Articles on Prevention is as
follows. As per the commentaries on the Articles, it is not mandatory for
states to ensure complete prevention of significant harm in situations where it
is unfeasible to achieve such prevention.[47]
The state is obligated to make its utmost efforts to reduce the risk, and
therefore, the obligation is not violated even if considerable harm is
inflicted. The obligation is triggered by the state's failure to take rational
measures to avert harm. The aforementioned statement acknowledges the
acknowledgement of the principle that the rule is founded on a negotiated
settlement between the preservation of territorial unity and territorial
autonomy; a duty of effective prevention would likely be perceived as an
excessive infringement upon the autonomous authority of states to govern and utilize
their own natural resources. Transforming a real prohibition into a conduct
obligation renders it more readily embraced by nations.
The
approach is supported by international jurisprudence that posits the no-harm
rule as an obligation to exercise reasonable care. In the Corfu Channel
incident, a due diligence test was implemented. The ICJ conducted a thorough
evaluation of Albania's conduct in relation to the explosions that occurred in
Albanian waters and the consequential damage, in order to determine whether
Albania was responsible for these events.[48] The Court determined that Albania failed to
provide notification of the minefield's existence or to alert the warships of
the peril they were approaching. Additionally, Albania did not take any
measures to avert the catastrophic event. The study determined that Albania
bears international responsibility for the serious omissions identified. It
acknowledged that the issue of whether a state has violated its obligation to
refrain from causing harm to other states hinges on whether the state in
question has acted with a particular level of care. The study further noted
that a state's failure to implement reasonable measures to prevent harm is what
triggers this obligation.
The
affirmation that the no-harm principle entails a duty to exercise reasonable
care is further corroborated in contemporary legal precedents established by
the Court. The Pulp Mills case is noteworthy for the Court's explicit statement
that the duty to uphold the environment of foreign states entails a
responsibility to exercise reasonable care.
The Court notes that the
origins of the customary principle of prevention lie in the obligation of a
state to exercise reasonable care on its territory. It is 'every State's
obligation not to allow its territory to be used knowingly for acts that
violate the rights of other States' (Corfu Channel (United Kingdom v.
Albania)). A state is thus obligated to use all available means to prevent
activities on its territory or in any area under its jurisdiction from causing
significant environmental damage to another state. This Court has determined
that this obligation "is now part of the body of international
environmental law."
In
its judgment, the Court examined whether approval, construction, and future
commissioning of two pulp mills constituted a violation of substantive treaty
obligations stipulated by the 1975 Statute of the River Uruguay. Argentina
claimed that the substantive obligations to manage measures to avoid
alterations to the ecological balance, to avert pollution, and to safeguard the
aquatic ecosystem was violated, as toxic pollutants from one of the mills had
altered the ecological balance of the river, and argued that these
responsibilities were result obligations. This argument was expressly rejected
by the Court, which determined that both states had a duty of conduct to
cooperate on their regulatory operations for the purpose of maintaining the
ecological equilibrium and stated that "an obligation to adopt regulatory
or administrative actions either separately or jointly and to impose them is an
obligation of conduct."
Future
Challenges:
Climate
change is widely regarded as one of our generation's most significant
environmental challenges. The most recent reports from the Intergovernmental
Panel on Climate Change concluded that the warming of the climate system is
undeniable and that the human influence on the climate system is unmistakable.
The panel has enumerated a number of severe effects of climate change,
including health and ecological damage, loss of land and property, threats to
human security, and potential human casualties. What role international
environmental law should play in addressing current and future climate change
damages, as well as the role of international courts and tribunals in this
context, are topics of extensive debate. In this section, I will provide an
overview of the primary challenges posed by the application of the no-harm rule
in the context of climate change.
A
question raised in the literature is whether legal obligations under the
no-harm rule can be applied alongside the climate regime, or whether the UN
Convention on Climate Change and the Kyoto Protocol have superseded rules of
general international law in the context of climate change in accordance with
the doctrine of lex specialis. The essence of the doctrine is that principles
of general international law may not apply if a specialised legal system of
international law is intended to create a self-contained regime. In order to
determine whether general principles of international law were intended to be
excluded, it is necessary to consider the intent of the legal system's parties.
In the literature, the prevailing view appears to be that neither the scope of
the climate change treaties, the negotiation history, nor the intent of the
parties indicate that the regime is lex specialis vis à vis general rules of
international law, and therefore that the no-harm rule remains applicable in
the context of climate change. A difficulty associated with applying the
no-harm rule in this context is the no-harm rule's ambiguity, which involves a
number of substantial uncertainties. As demonstrated by the discussion of the
substantive content of the no-harm rule, the duty of due diligence requires an
equitable balance of the duties and interests of the state of origin and the
affected state; consequently, it is nearly impossible to define an objective
standard of care. Even if it is proven beyond a reasonable doubt that global
warming poses a significant threat to the environment, this risk must be
weighed against the significance and desirability of the emitting activities.
It is difficult to foresee the outcome of the due diligence evaluation because
there is no obvious answer for how the various factors should be weighted in
the balancing test. In most instances, it will be difficult for the affected
state to demonstrate that another state did not act with reasonable care.
Moreover, the multiplicity of victims and pollutants poses a unique challenge
in the context of climate change: this raises questions without clear answers
in international law, such as the allocation of damages among polluting states.
In
addition, it is evident that a claim to the ICJ for damages caused by climate
change would encounter jurisdictional obstacles. A constraint inherent in all
contentious cases is that both states must assent to the Court's jurisdiction.
Importantly, in the context of climate change, a lawsuit concerning the effects
of global warming would involve difficult questions of legal standing.
Literature
suggests that climate change litigation, along with efforts to find political
and legal solutions through international negotiations, may play an important
role in combating global warming, and that the ICJ, with its unique visibility
and status, could make significant contributions in this regard. Intriguingly,
there is a prospect that the Court will address the applicability of the
no-harm rule in the context of climate change in the relatively near future. In
September 2011, the President of the island nation of Palau petitioned the UN
General Assembly to request an advisory opinion from the ICJ on the
responsibilities of States under international law to ensure that activities
conducted under their jurisdiction or control that emit greenhouse gases do not
harm other states. The present formulation of the proposed query as
communicated by the Permanent Mission of Palau to the United Nations is as
follows: What obligations does international law impose on a state to ensure
that greenhouse gas-emitting activities under its jurisdiction or control do
not cause or substantially contribute to severe injury to another state or
states?
If
this query is posed to the ICJ, the Court will be required to specify the
content of international law norms pertaining to transboundary damage, taking
into account both customary and conventional law. It is likely that Palau will
invoke the no-harm rule, and this will provide an occasion for the Court to
address the rule's applicability to greenhouse gas emissions and the
obligations it imposes on a state in this context. The formulation of the question
further implies that the Court will only be asked to address fundamental
obligations under international law, meaning that the Court would not be
required to engage in politically contentious questions regarding secondary
rules, such as the attribution of responsibility for injury, etc.
If
Palau is successful in obtaining the General Assembly's support for a request
for an Advisory Opinion, the Court will have an unprecedented opportunity to
clarify the state of international law in this area. Despite the fact that
advisory opinions are non-binding, the preceding discussions of this thesis
have demonstrated that this type of decision can still carry considerable
persuasive weight in subsequent cases and unquestionably contribute to the
clarification and development of the law.
One
may question whether the International Court of Justice is an appropriate venue
for addressing climate change issues and whether a ruling or advisory opinion
on the subject would be a step in the correct direction in terms of confronting
these global challenges. Evidently, no judicial decision can displace the need
to negotiate international legal and political solutions for the comprehensive
management of greenhouse gas emissions. Certainly, an advisory opinion on the
matter will serve as an essential reminder of the grave consequences of climate
change, particularly for Island States such as Palau, in light of the recent
failure of diplomatic climate change negotiations to advance. If successful, it
could increase Palau's prospects of obtaining compensation for climate
change-related damages. Nonetheless, if the Court takes a restrictive stance on
the issue, a ruling from the Court may reduce the pressure on states to change
their behaviour by "letting them off the hook" legally; as a result,
there is a risk that an advisory opinion would hinder efforts to reach
political solutions through negotiation.
Conclusion:
The
discussions in the preceding chapters of this study indicate that the ICJ
played a role in transforming the old principle of international law – that
states are obligated not to harm or violate the rights of other states – into
an obligation not to harm the environment of other states or areas beyond
national jurisdiction. As the rule has taken shape as a rule of international
environmental law, two particularly significant aspects have been added. In the
first place, the Court has confirmed unequivocally that the rule applies to
areas beyond national jurisdiction. Consequently, unlike the old sic utere
principle, it does not only apply to exclusively transboundary harm to
neighboring states. It also applies to harm done to the "global
commons" and, ostensibly, not only to damage done to states in the global
commons, but also to the environment of the global commons. Although the
International Court of Justice has not explicitly stated that even the
intrinsic value of the environment, such as natural ecosystems and
biodiversity, is protected by the rule, the Court has repeatedly emphasised
that it attaches great importance to respect for the environment, both
explicitly and implicitly, by recognising that the protection of the natural
environment constitutes an essential interest.
With
the Court's assistance, another significant dimension has been added to the
rule: prevention. The Court has thus confirmed that the obligation is not
simply one of responsibility ex post facto, but also one to prevent and control
the risk of significant transboundary harm, implying that the rule creates
legal obligations prior to the occurrence of harm. The ICJ has applied the
obligation as one of due diligence and one of conduct rather than outcome, and
in Pulp Mills the Court significantly strengthened the due diligence obligation
by affirming in clear terms that states are required to "use all the means
at its disposal" to avoid transboundary harm. The no-harm rule therefore
requires states to take proactive measures in addition to merely refraining
from causing transboundary harm. In addition, the Court has indicated that,
while a breach of the procedural duties to notify, consult, and negotiate does
not necessarily constitute a breach of the duty of due diligence, compliance
with these duties reduces the likelihood of substantive violations. A prior environmental impact assessment is
also required when there is a possibility that the proposed industrial activity
will have a considerable negative impact in a transboundary context. How high
the risk of injury must be for the obligation to prevent to be triggered is an
important question. Herein lies an opportunity for the ICJ to provide
clarifications, but the Court has thus far provided little guidance on this
matter.
Lack
of reciprocity in international environmental law is one reason why the no-harm
rule may be insufficient for managing global environmental issues. The concept
of reciprocity is pervasive in international law. The essence of the concept is
that states frequently refrain from pursuing a course of action that may be
advantageous to them in the short term, because doing so could disrupt
reciprocal tolerance and thus result in long-term disadvantages. In the context
of environmental protection, however, this incentive to act reasonably and
moderately due to the expectation that this will also encourage other states to
act along the same lines, which is typically applicable to obligations and
rights of states, does not apply as well. This is due to the fact that legal
interest in the preservation of the environment is frequently shared rather
than reciprocal, and environmental harm is frequently a harm to the community
as a whole rather than to a specific party. Consequently, this traditional
procedure appears inadequate for addressing environmental damage that crosses
international borders on a global scale.
[1] Oscar Schachter,
The Emergence of International Environmental Law, 44 Journal of International Affairs ,
457–493 (1991), https://www.jstor.org/stable/24357318.
[2] Ibid.
[5] Trail smelter case (United States,
Canada), 3
UNRIAA, p. 1905, 1952
[6] Alan E. Boyle et al., Birnie, Boyle & Redgwell's international
law and the environment (Oxford University Press) (2021).
[7] Alan
E. Boyle et al., Birnie, Boyle
& Redgwell's international law and the environment (Oxford
University Press) (2021).
[10] Gab?íkovo-Nagymaros, para. 152.
[11] Legality
of Nuclear Weapons, para. 29.
[13] Philippe Sands et al., Principles of International Environmental Law
(Cambridge University Press) (2019).
[14] Malgosia Fitzmaurice et al., Research Handbook on international
environmental law (Edward Elgar) (2021).
[15] Patricia W. Birnie et al., International law and the environment
(Oxford University Press) (2009).
[16] Ibid.
[22] Pulp
Mills on the River Uruguay, Argentina v Uruguay, Order, Provisional Measures,
ICJ GL No 135, [2006] ICJ Rep 113, (2006) 45 ILM 1025, ICGJ 2 (ICJ 2006), 13th
July 2006, United Nations [UN]; International Court of Justice [ICJ].
[24] R. Lefeber, Transboundary Environmental Interference and the origin of State
liability (Kluwer Law International) (1996).
[25] Ibid.
[26] Ibid.
[27] R. Lefeber, Transboundary Environmental Interference and the origin of State
liability (Kluwer Law International) (1996), pp. 87-89.
[30] Remus Pr?v?lie, Nuclear
weapons tests and environmental consequences: A global perspective, 43 AMBIO , 729–744 (2014).
[31] Nuclear
Tests, Australia v France, Judgment on Admissibility, [1974] ICJ Rep 253,
ICGJ 133 (ICJ 1974), 20th December 1974, United Nations [UN]; International Court
of Justice [ICJ],
[35] Pulp
Mills on the River Uruguay, Argentina v Uruguay, Order, Provisional Measures,
ICJ GL No 135, [2006] ICJ Rep 113, (2006) 45 ILM 1025, ICGJ 2 (ICJ 2006), 13th
July 2006, United Nations [UN]; International Court of Justice [ICJ].
[37] Alexandre Charles Kiss & Dinah Shelton,
Guide to international environmental law
(Martinus Nijhoff Publishers) (2007).
[38] Christina Voigt,
State responsibility for damages associated with climate change, Research Handbook on Climate Change Law and
Loss & Damage , 166–183 (2021).
[40] ILC
Rep. (2001) Document A/56/10, p. 399 para. 2.
[41] Ibid.
[42] Richard S.J Tol
& Roda Verheyen, State responsibility and compensation for climate
change damages—a legal and Economic Assessment, 32 Energy Policy , 1109–1130 (2004).
[43] Christina
Voigt, State responsibility for damages associated with climate change, Research Handbook on Climate Change Law and
Loss & Damage , 166–183 (2021).
[44] Roda Verheyen, Climate change damage and international law: Prevention duties and
state responsibility (Nijhoff) (2005).
[45] See the 1971 Convention Relating tsandso
Civil Liability in the Field of Maritime Carriage of Nuclear Material and the
1969 Convention on Civil Liability for Oil Pollution Damage.
[46] Philippe Sands et al., Principles of International Environmental Law
(Cambridge University Press) (2019).
[47] Report of the International Law Commission on
the work of its fifty-third session United
Nations - Office of Legal Affairs,
https://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf (last
visited Apr 22, 2023).
[48] Corfu
Channel Case (United Kingdom v. Albania); Assessment of Compensation, 15 XII
49, International Court of Justice (ICJ), 15 December 1949
Article Information
PREVENTING TRANSBOUNDARY HARM - AN ANALYSIS OF THE ROLE OF ICJ BY: SARVESH M S & THARUN PRANAV
Authors: SARVESH M S, THARUN PRANAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/26
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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