Making international environmental law. Actors of law-making

1. Actors and law making in
International Environmental law

2. Contents
 Major Actors
 States, Organizations, non state actors
 Sources of law

3. Major Actors
 Strikingly Diverse number of actors(De facto and De jure)
creating IEL through diverse processes
 Traditionally States are the primary law maker
 States affect the content of international environmental law
through MEA at international level
 With respect to IEL some stats are more powerful known as
E-9 (United States, Germany, Japan, Russia, South Africa,
Brazil, China, India, and Indonesia, The European Union)
 States also affect the content of international environmental
law through the domestic laws they pass.
 One of the broadest divides in international environmental
law-making has little to do with the environment per se but,
instead, has everything to do with economic development
(North and South)

4. States
 Divides between developed and developing nations are not the
only ones that affect the tenor of international environmental
law-making. UNCLOS, affected by conflicts between states
with coastlines and landlocked states. Climate change
negotiations between oil-producing states, and states with
extensive low-lying territories and small island states, many of
which are in the South.
 The identification, both politically and legally, of a meaningful
partnership between the North and the South is pivotal to the
future of international environmental law. (‘shared compact’
Drumbl, 2002) will be required to balance ‘the North’s sense
of urgency to solve global environmental problems’ with ‘the
South’s sense of urgency to redirect the global economy to
overcome the cycle of poverty’

5. International organizations
 The principal international organization in IEL is the United
Nations
 General Assembly has adopted a number of resolutions
pertaining to environmental matters.
 United Nations General Assembly Resolution on Development and
Environment, (GA Res. 26/2849, 1972).
 World Charter for Nature.
 General Assembly established the World Commission on
Environment and Development, better known as the Brundtland
Commission
 General Assembly facilitated the 1972 United Nations Conference
on the Human Environment (Stockholm Conference) and the 1992
United Nations Conference on Environment and Development (the
Rio Conference or Earth Summit).

6. Security Council.
 Security Council has been less active in
environmental matters.
 international environmental law “knows no
obligation not to pollute the ‘national’ environment,
nor is there an obligation to protect it” Klaus
Bosselmann, Environmental Governance: A New
Approach to Territorial Sovereignty, in
ENVIRONMENTAL ETHICS AND LAW (Robert J.
Goldstein ed., 2004)

7. Security Council
 The absence of war and military conflicts amongst
States does not in itself ensure international peace
and security. The non-military sources of instability
in the economic, social, humanitarian and ecological
fields have become threats to peace and security
(President of the United Nations Security Council)
 The Security Council's emerging interest in the
global environment is at once positive and
problematic.

8. Security Council
 Positive as the other organ like GA and ICJ
effectiveness is questionable
 Problem (Politics and Diplomacy, Use of force
question of legitimacy)
 Why involve SC(1) IEL treaties based on
Participation
 Difficult formation of Custom
 Environmental concerns have not been elevated to
Jus Cogens

9. Security Council
 Redefining Peace and Security
 Security council the primary organ under chapter VI
and VII to maintain peace and security
 War as a threat to environment
 Gulf war witnessed Environmental terrorism and
Resolution 687 made it clear the liability of iraq for
even environmental damage
 Compensation commission recognised an obligation
to compensate for ecological damage

10. Security Council
 Environment and Peace and Security
 The prevailing wisdom seems to be that the world's
environmental problems should be solved by
international co-operation, rather than by enforcement
measures, (Patria Birnie and Ben Boer)
 The argument for developing and reinforcing a concept
of environmental/ecological security’ proceeds from the
recognition that the effects of human action are no longer
'local and temporary' and that, instead, 'the cumulative
and largely irreversible effects of human carelessness are
global in scale."

11. Security Council
 arguments against ‘defining environmental issues in
terms of security risks is in itself a risky operation. ’
contributes to the militarization of environmental
politics than to the de-militarization of security
politics.
 Risk to world Stability
 Catherine Tanker Instead of SC it is better to rely on
GA
 Conflicts over use of Force as a protection of
environment

12. Security Council
 potential for the concept to 'be subverted to
illegitimate uses' does not delegitimise the
use of 'environmental security’
 SC involvement will revitalise UN specialised
agencies
 Precautionary action will receive encouragement
 Idea of bringing SC remains more residual at present

13. specialized international organizations
 developed programs or agencies that, although not
separate international organizations, serve an
institutional function in initiating action among
states and pre-existing international organizations.
 Examples include the United Nations Environmental
Programme (UNEP), the United Nations
Development Programme (UNDP), and Commission
on Sustainable Development (CSD).

14. UNEP
 Established after 1972 Stockholm
 Negotiates treaties, acts as secretariat , promotes
technology transfer
 The Oceans and Coastal Areas Programme Activity
Center (OCAPAC) is responsible for the regional seas
conventions. UNEP's Environmental Law Unit
handles all of UNEP's other activities in the field of
environmental law.
 Environmental law Unit Established Montevideo
Programme for the Development and Periodic
Review of Environmental Law

15. UNEP
 UNEP approach has been first to formulate scientific
positions, then develop legal strategies, and in the
process carefully build political support.
 Problem:The control measures UNEP selects consist
primarily of targets for reducing pollutant emissions
(e.g., of chlorofluorocarbons (CFCs)), and notice and
consent controls on trade (e.g., in waste, chemicals, or
en- dangered species).
 The effectiveness of control measures, depends on an
effective enforcement entity.
 economic incentives which boost compliance are not
regular components of UNEP's approach. UNEP does not
usually evaluate ex ante the economic implications.-

16. Other Organisations
 Even organizations far removed from the
environmental sphere, such as the World Trade
Organization (WTO), affect international
environmental law
 In sum, a diffuse and fragmented number of
international and intergovernmental organizations
serve as actors in international environmental law.

17. conferences of the parties
 Examples of treaty bodies include conferences of the
parties (COPs), treaty secretariats, and specialized
expert subsidiary bodies
 COPs negotiate protocols that further the
implementation of the treaty (for example, the Kyoto
and Montréal Protocols
 Secretariat, remains ‘responsible for the day-to-day
operations of the convention’ In some cases,
specialised agencies performs the function of
secretariat for MEAs

18. conferences of the parties
 Treat bodies develop expertise, foster scientific know-
how, survey compliance, promote cooperation,
determine funding, and push administrative rule-making
as a phenomenon in international environmental law.
 Accordingly, and regard- less whether they formally have
international legal personality or whether they have such
personality through implied powers treaty bodies
effectively serve as actors involved in making
international environmental law.
 Problems
 Questions of legitimacy and democratic deficit (
Bodansky, 1999 ).
 Lack of Coordination among MEA treaty bodies

19. Major international conferences
 Major international conferences on environmental
matters have served as important points of inflection
in the development of international environmental
law.
 These events have social constructivist value as they
generally are preceded by years of planning and
discussion, public dissemination of information,
receive extensive media coverage, and lead to the
adoption of important instruments.

20. Non-governmental organizations (non-state actors) and networked
expert communities
 The 1979 Convention on the Conservation of Migratory
Species of Wild Animals resulted from negotiations by
states organized by the International Union for the
Conservation of Nature.
 Handicap International, Human Rights Watch, Medico
International, the Mines Advisory Group, Physicians for
Human Rights, and Vietnam Veterans of America
Foundation formed the International Campaign to Ban
Landmines (ICBL) culminating in 1997 in the
Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-personnel Mines and on
their Destruction (Ottawa Convention).

21. actors) and networked expert communities
 NGO Status accreditation for a UN conference up to
a consultative status with the ECOSOC,
 Non-governmental actors pushed the World Health
Organization and the United Nations General
Assembly to request an advisory opinion from the
International Court of Justice (ICJ) on the question
of the legality of nuclear weapons.

22. epistemic communities’
 expert communities may link with treaty bodies
through their contacts with subsidiary bodies.
 The Intergovernmental Panel on Climate Change
(IPCC) – a multinational scientific body organized
under the auspices of United Nations agencies have
provided critically influential reports regarding
global warming.
 In Massachusetts v. United States Environmental
Protection Agency, the majority of the United States
Supreme Court relied upon the Working Group I
Report (2001) of the IPCC.

23. Individuals
 Stockholm linked environment and Human Rights
 (Existing Human Rights mechanism gives individual
some sort of standing )
 Rio Declaration, Right to development (principle 3)was
proclaimed
 Principle 10 focuses on participation and access to
justice
 Principle 22 focuses on Indigenous people, participation
and
 Forestry principles emphasizes on Indigenous peoples
 CBD and Nagoya Protocol emphases and explicitly
recognizes benefit sharing and protection of traditional
knowledge and indigenous community interests

24. Individuals
 Article 13 of the International Law Commission’s
(ILC) 2001 Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities
states that , in addition to the provision of
information to the public, it would require States "to
ascertain the view of the public" likely to be affected,
as "[w]ithout that second step, the purpose of the
article would be defeated".

25. Indigenous Communities
 Week prior to UNCED world conference of IP on
territory, environment and development was held in
Kari Oca Brazil(Adopted earth charter of Indigenous
Peoples )
 Emphasized on Right to self determination and
Sustainable development.
 RIO Principle 22 states: "Indigenous people and their
communities, and other local communities, have a vital
role in environmental management and
development because of their traditional knowledge
and traditional practices. States should recognise and
duly support their identity, culture and interests and
enable their effective participation in the achievement of
sustainable development.

26. Indigenous Communities
 Agenda 21 Chapter 26 ("Recognising and Strengthening
the Role of Indigenous People and their Communities")
defines the role of indigenous communities in a
comprehensive manner.
 Forest Principles specifically refers to "the identity,
culture and rights of indigenous people" which need to be
recognised through, inter alia, land tenure arrangements
and sustainable management of forests (Principle 5(a)).
Principle 12 (d) addresses the utilisation of indigenous
knowledge. It provides for an equitable share of benefits
arising from such utilisation.

27. Indigenous Communities
 The Convention on BiologicalDiversity
 Convention recognises the close and traditional
dependence of many indigenous and local
communities embodying traditional lifestyles on
biological resources, and the desirability of sharing
equitably benefits arising from the use of traditional
knowledge
 Nagoya Protocol attempts to Implement the
principles of CBD

28. Indigenous Communities
 Draft International Covenant on Environment and
Development in 1995. (IUCN Commission on
Environmental Law in co- operation with the
International Council of Environmental Law and the
UNEP)
 It represents as a model for the UN Earth Charter.
 Draft Covenant's key provisions are the respect for all life
forms (Article 2), the interdependence of environmental
protection and human rights (Article 4),
intergenerational equity (Article 5) and the pivotal role of
public participation in decision- making processes
(Article 12).

29. CORPORATIONS
 Implications of TNCs on Human Rights and International
Environmental Standards(Bhopal, Niger Delta, Monsanto
)
 Host States/Home States Dilemma
 TNC under International Law (Binding and Non Binding
Initiatives
 Binding (Human Right Treaties and ILO Initiatives
 Non Binding (UNCTC and UNCTAD initiative
 Global Compact: cover some basic human rights, labor and
environmental standards and a commit- ment against corruption.
(Global Compact has TNCs as its parties directly which commit
themselves directly to the principles). However, the Compact is
often not even counted in the category of “soft law”, as it is not a
declaration, recommendation or resolution of an international
organization or a state conference.

30. Corporations
 Reform Initiative of Global Compact to increase
accountability
 Global Compact website itself provides examples of
infringements which are considered serious
including severe environmental damage
 Criticism: corporations have been upgraded to be
“partners” of the UN without paying the price to be
legally bound and to fear any sanctions.
 The fear of a privatization of international
governance
 Can the Interests of TNC and UN be the same

31. Corporations
 The UN-Norms on the Responsibilities of
TNCs and other Business Enterprises
(2003)(sub Commission on Human Rights)
 The UN-Norms suggest a “shared responsibility” of
states and TNCs
 obligations are nearly all put in the wording “TNCs ...
shall/shall not ...”.
 Norm obligations concern environmental protection.
even where national standards are poor,
corporations shall uphold the higher international
standards.

32. Corporations
 UN-Norms state that corporations “shall be subject to
periodic monitoring and verification by United Nations, (para.
16).
 The official commentary ex- plains that the UN human rights
treaty bodies should supervise the implementation of the UN-
Norms
 The future impact of the UN-Norms is not quite clear. do not
have the status of any binding treaty nor do they form part of
customary international law and their place between other
soft-low- mechanisms is not entirely clear
 In 2005, the Secretary-General appointed Special
Representative on human rights and transnational
corporations and other business enterprises
 “Protect, Respect and Remedy” Framework

33. Corporations
 Sara L. Seck, Transnational Business and
Environmental Harm: A TWAIL Analysis of Home State
Obligations3(1) TRADE L. & DEV. 164 (2011)
 Home state obligations in accordance with TWAIL
 (Criticisms: (1)neo-colonialist or imperialist violation of
host state sovereignty
 (2)competitive disadvantage
 Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and
Remedy” Framework: “States should set out clearly the
expectation that all business enterprises domiciled in
their territory and/or jurisdiction respect human rights
throughout their operations.”

34. Corporations
 Problem of defining Transnational /boundary
Element
 TNC and Environmental Harm ““capital (including
technological know- how) has been exported from
another country in order to make possible the
activity which has caused environmental damage
and, presumably, any profits realized from such
exported capital will be returned in one way or
another to its country of origin” .

35. Corporations
 How ILC draft on Liability brought elements of TNC
and its activities
 (Principle 21 Stockholm)
 States have, in accordance with the Charter of the United
Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility
to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other
States or of areas beyond the limits of national
jurisdiction.
 Final ILC principles on Liability does not have much for
TNC harm

36.  Can Host states can effectively regulate to prevent and remedy
domestic environmental harm
 Third World states have never experienced the sovereign
equality
 impoverished sovereignty of Third World states is no
accident, but the direct result of the power exerted by the
Bretton Woods institutions on the economic sovereignty of
newly decolonized states. ANTONY ANGHIE, IMPERIALISM,
SOVEREIGNTY AND THE MAKING OF INTERNATIONAL
LAW 205 (2005)
 Prof. Chimmni opposes principle of Home states Universal
jurisdiction and also denial of just based jurisidiction of Home
state


37. Sources of International law
 international conventions; (b) international
custom; (c) general principles of law; (d)
judicial decisions and teachings

38. Sources of International law
 Each of these categories has been critical in the
development of international environmental law.
 More than eight hundred bilateral and multilateral
agreements contain provisions dealing with one or
more aspects of the environment, ranging from sub-
regional and regional to global environmental issues.
 A number of basic environmental principles and
concepts may also be emerging as customary
international law

39. Sources of IEL
Sources Of IEL
Hard
Treaty
Framew
orK
No
Reciproc
ity
No
Reservat
ion
Custom
Not to
Cause
Transbo
undary
harm
Duty to
notify
and
Assist
Equality
of Access
EIA
Geenral
principle
s
Still
Developi
ng
Precauti
onar,
Sustaina
ble
Develop
emnt etc
(Doubtfu
l)
Judicial
Decision
s
Compara
tively
Less
But
Environ
mentla
Dispute
Resoluti
on
Developi
ng
Soft
Reflected
in
Declarati
ons
Regulatio
ns Fast
developi
ng and
Provide
Flexibilit
y

40. Traditional Int Sources of Law
 Kiss and Shelton describe seven main features of environmental
treaties:
 1. an emphasis on national implementing measures being taken by
the states parties;
 2. the creation of international supervisory mechanisms to review
compliance by states parties;
 3. simplified procedures to enable rapid modification of the treaties;
 4. the use of action plans for further measures;
 5. the creation of new institutions or the utilization of already
existing ones to promote continuous cooperation;
 6. the use of framework agreements; and
 7. interrelated or cross-referenced provisions from other
environmental instruments.

41. Features of Environmental treaty
 an absence of reciprocity of obligations,
 framework agreements,
 frequent interim application,
 innovative compliance and non-compliance
procedures and
 simplified means of modification or amendment.

42. Judicial view on Reciprocity in agreements
 In its Advisory Opinion on Reservations to the
Convention on Genocide, the
 International Court of Justice distinguished conventions
adopted in the common interest from those based on
reciprocal rights. States parties to conventions in the
former category do not have any interests of their own;
they merely have, one and all, a common interest,
namely, the accomplishment of those high purposes
which are the raison d’être of the convention.
Consequently, in a convention of this type one cannot
speak of individual advantages or disadvantages to
states, or of the maintenance of a perfect contractual
balance between rights and duties.

43. Traditional Sources of International
Environmental law
 b. INTERNATIONAL CUSTOM
 Professor of law Anthony D’Amato, in an article
quoted by law Professors David Hunter, James Salzman
and Durwood Zaelke, states that “customary rules
represent regularities of behavior” while noting
qualifications under three headings:
 1. Empirical
 2. Acceptance
 3. Regularities
 (Source: International Environmental Law and Policy; )

44. Custom as Source
 Potential candidates, whose claims to customary status have
ripened to different degrees, include:
 the obligation not to cause environmental harm; (Stockholm
Declaration, 1972: Principle 21; Rio Declaration, 1992:
Principle 2)
 The precautionary principle, which precludes lack of scientific
certainty from postponing cost-effective measures to prevent
environmental degradation
 the requirement to conduct an environmental impact
assessment
 the duties to cooperate, give prior notification, and to
negotiate or consult on activities that may have significant
adverse transboundary environmental effects
 the common heritage of humankind

45. Custom as Source
 Transboundary harm no state may cause or allow its
territory to be used to cause damage to the environment
of other states. (Trail Smelter case )
 Part XII of UNCLOS, relating to protection of the marine
environment, is part of customary international law,
 Gebecikovo-Nagymaros Project (Hungary v. Slovakia),
Judge Weeramantry, expounded on the legal basis for
sustainable development as a general principle of
international law. In the process, he concludes that
environmental protection is a universal ergaomnes legal
norm that is both CIL as well as a general principle of law
per se. (BUT Dissenting Opinion)

46. Examples of Probable Custom Continues
 notification of Imminent Harm,
Rio principle 19 States shall provide prior and timely
notification and relevant information to potentially
affected States on activities that may have a significant
adverse trans boundary environmental effect and shall
consult with those States at an early stage and in good
faith. Duty to notify conventional requirements was the
duty of a state to urgently notify other states at risk of
having their environment adversely affected by any
incidents. The International Law Association (ILA), cited
only seven examples of state practice in support of its
conclusion that the duty to inform is a norm of customary
international law

47. Examples of Probable Custom Continues
Assistance in emergencies
Equality of Access to Administrative or Judicial
Procedures
environmental impact assessment procedure (EIA),

48. Custom as a source
 Daniel Bodansky ‘s Views
 Development of Custom gathered from the regularities of
behaviour through empirical evidence
 What laws account for the regularities of behaviour
 Regualrity had external as well as internal component
 Regularity does not mean uniformity
 Whether Duty to prevent trans-boundary harm is a
custom, evidence is lacking in-terms of State behaviour
,But ICJ has treated this principle in terms of custom
 IEL custom represents regularities of discourse and not
regularities of behaviour

49. General principles Of Law
 those principles that are common to the major legal
systems of the world, if not to all of them.
 Trail Smelter Case : states have a duty not to cause
significant trans boundary air pollution.
 Nuclear Weapons advisory opinion the ICJ simply
said in this opinion that the duty is part of the corpus
of general international law rather than of customary
law in particular).

50. Judicial decisions
 comparatively few direct cases by ICJ
 Trail Smelter , Corfu Channel
 Nuclear Tests (Australia v. France; New Zealand v.
France) (Interim Measures) cases (1976)case
 Gabçikovo-Nagymaros Project (Hungary/Slovakia), 1996
I.C.J Rep. 7, para.
 Pulp Mills on the River Uruguay (Argentina v. Uruguay
2006 (River Uruguay)
 Special chamber for Environment in 1993
 Lack of Judicial effectiveness has forced experts
to suggest World Environmental Court

51. J Contribution
 Jorge Vinuales: two main trends or "waves" of
cases in the ICJ jurisprudence relating to
IEL.
 First wave covers the Corfu Channel case and the
Nuclear Tests case, as well as an important obiter
dictum made in the Barcelona Traction case.
 Contribution :confirmation of previous case-law on
transboundary damages as well as in the
introduction of the concept of obligations erga
omnes

52. ICJ contribution
 Corfu Channel “every State's obligation not to allow
knowingly its territory to be used for acts contrary
to the rights of other States”
 Barcelona Traction case, the ICJ noted that
some international obligations had an erga
omnes effect, As in the Corfu Channel case,
the Court did not refer explicitly to
environmental matters. ICJ Reports, 1970, p. 32,
par. 33.

53. THE SECOND WAVE: THE SCOPE AND
CONTENTS OF ENVIRONMENTAL PROTECTION
 ICJ's Advisory Opinion on the Legality of Nuclear Weapons.
 Question "Is the threat or use of nuclear weapons in any
circumstance permitted under international law
 "The Court recognizes that the environment is under daily
threat and that the use of nuclear weapons could
constitute a catastrophe for the environment. The Court
also recognizes that the environment is not an abstraction
but represents the living space, the quality of life and the
very health of human beings, including generations
unborn. The existence of the general obligation of States
to ensure that activities within their jurisdiction and
control respect the environment of other States or of areas
beyond national control is now part of the corpus of international
law relating to the environment." Id., p. 241, par. 29 (italics added).


54. Nuclear Weapons.
 States must take environmental considerations into
account when assessing what is necessary and
proportionate in the pursuit of legitimate military
objectives. Respect for the environment is one of the
elements that go to assessing whether an action is in
conformity with the principles of necessity and
proportionality
 both the statal and non-statal components of
environmental protection are expressly
acknowledged as "part of the corpus of
international law relating to the environment

55. Nuclear Weapons.
 Justice Weeramantry
 " Environmental law incorporates a number of principles which are
violated by nuclear weapons. The principle of intergenerational equity and
the common heritage principle have already been discussed. Other
principles of environmental law, which this request enables the Court to
recognize and use in reaching its conclusions, are the precautionary
principle, the principle of trusteeship of earth resources, the principle that
the burden of proving safety lies upon the author of the act complained of,
and, the "polluter pays principle", placing on the author of environmental
damage the burden of making adequate reparation to those affected. There
have been juristic efforts in recent times to formulate what have been
described as "principles of ecological security" - a process of norm creation
and codification of environmental law which has developed under the
stress of the need to protect human civilization from the threat of self-
destruction [ ... ]
 These principles of environmental law thus do not depend for their
validity on treaty provisions. They are part of customary international
law. They are part of the sine qua non for human survival.”

56. Gabcˇíkovo-Nagymaros judgment
 The case deliberated state succession , responsibility , interpretation
of treaties and Environmental law
 Dispute : Concerned the Danube dam between Hungry and
Checkoslavakia ove rthe interpretation of 1977 treaty over the use
and management of River Danube
 Treaty relied on joint and equal utilisation of the Danube River
 Hungary signed the 1977 Treaty while under communist reign, as
did Czechoslovakia.
 In 1989The Hungarian population began to heavily protest on the
grounds of the harsh economic and environmental implication and
abandoned the project as a result of detrimental projections of
environmental impacts from the assessments and the political
pressures,

57. Gabcˇíkovo-Nagymaros judgment
 Negotiations between the two countries failed
Czechoslovakia resorted to ‘variant C’: its own
solution consisting of a unilateral diversion of the
waters in order to put the Gabčíkovo damn into
operation which reduced water flow to hungry.
 Main Legal Issues, Position of Parties
 whether the Republic of Hungary was entitled to
suspend and subsequently abandon the project
unilaterally
 Legality of Checkoslavakias unilateral diversion

58. Gabcˇíkovo-Nagymaros judgment
 Hungry relied on Change of fundamental circumstance
and ecological necessity and contended that Slovakia has
viloated customry principle of equitable utilisation and
sharing of of water
 The Court ruled that Hungary did not meet the
requirements needed to claim a state of necessity.
 The Court relied on the more traditional methods of
using international treaty law to rule on the case, thus it
can be argued that the ecological and environmental
factors and the future effects of current circumstances
were not drawn upon heavily enough,

59. Gabcˇíkovo-Nagymaros judgment
 The ICJ presented in the judgement sustainable development as a
‘concept’, thus implying it was not legally binding as international
customary law/
 “Throughout the ages, mankind has, for economic and other reasons,
constantly interfered with nature. In the past, this was often done without
consideration of the effects upon the environment. Owing to new scientific
insights and to a growing awareness of the risks for mankind ‐ for present
and future generations ‐ of pursuit of such interventions at an
unconsidered and unabated pace, new norms and standards have been
developed, set forth in a great number of instruments during the last two
decades. Such new norms have to be taken into consideration, and such
new standards given proper weight, not only when States contemplate new
activities but also when continuing with activities begun in the past. This
need to reconcile economic development with protection of the
environment is aptly expressed in the concept of sustainable development.{


60. Gabcˇíkovo-Nagymaros judgment
 This passage reflects the sole reference to sustainable
development in the majority decision.
 Court did not elaborate on the definition of
sustainable development, but recognise the utility of
the notion as a useful tool in balancing
environmental protection and economic
development.

61. Gabcˇíkovo-Nagymaros judgment
 SD is not a binding international norm.
 States actions were not judged against an
international sustainable development standard.
 Sustainable development was therefore recognised
as being primarily procedural in nature, requiring a
consideration of both environmental and
development issues in decision‐making, but not
dictating a particular outcome.

62. Gabcˇíkovo-Nagymaros judgment
 Weeramantry considered SD it to be a ‘principle with
normative value’ which demands striking a balance
between development and environmental protection.
due to widespread state acceptance, forms part of
custom.
 Weeramantry framed sustainable development as a
principle of reconciliation in the context of
conflicting human rights. Weeramantry considered a
human right to protection of the environment as a
‘vital part’ of the human rights discourse.

63. Gabcˇíkovo-Nagymaros judgment Impact
 Weeramantrys opinion was adopted before the
International Tribunal for the Law of the Sea (ITLOS)
(Case concerning land reclamation by singapore)
 Supreme Court of Sri Lanka referred to the need for
environmental protection to ‘constitute an integral part
of the development process’ and indicated that in
relation to a proposed mining agreement: ‘due regard
should be had by the authorities concerned to the general
principle encapsulated in the phrase “sustainable
development” Tikiri Banda Bulankulama and Others v
Secretary, Ministry of Industrial Development (2000) 3
SLR 243 at 274,

64. Gabcˇíkovo-Nagymaros judgment
 The Custom Debate
 Many criticise his perception of sustainable development as a
part of customary international law.
 The principle of sustainable development is, however,
procedurally important.
 international law may not require development to be
sustainable, it does require development decisions to be the
outcome of a process which promotes sustainable
development’.
 In this sense, sustainable development may be seen as a
binding norm of ‘practical reasoning’ which should be applied
to resolve conflicts between the primary norms of
development and environmental protection when they arise

65. Gabcˇíkovo-Nagymaros judgment
 The Precautionary Principle
 Precaution was one of a number of emerging
environmental norms argued by Hungary to
evidence the lawfulness of its Treaty termination.
 The precautionary principle, did not play as large a
role in Gabcikovo as had been anticipated. The
majority did not mention the principle in its reasons,
and Weeramantry did so only incidentally
 The Court accepted that ‘vigilance and prevention’
are needed in the ‘field of environmental protection’.

66. Gabcˇíkovo-Nagymaros judgment
 Ecological Necessity :The Court recognised that the
environment is an ‘essential interest’ of a State on
which a customary defence of necessity might be
grounded.
 for a defence of necessity to lie, the interest in
question must be threatened by a ‘grave and
imminent peril’. The ‘mere apprehension of a
possible peril’ was considered insufficient.

67. Gabcˇíkovo-Nagymaros judgment
 EIA ‘Court opined The awareness of the
vulnerability of the environment and the recognition
that environmental risks have to be assessed on a
continuous basis have become much stronger in the
years since the Treaty's conclusion.’
 probably a reference to the EIA principle, without
explanation of its legal basis.
 Weeramantry contended that treaties are to be
interpreted in accordance with modern
environmental obligations, regardless of the date of
signature.

68. Gabcˇíkovo-Nagymaros judgment
 Weeramantry framed the obligation to conduct an EIA as
‘a specific application of the larger general principle of
caution,’ thereby indicating his understanding that both
the principles of precaution and EIA possess legal status.
 He made reference to the principle of Continuing
Environmental Impact Assessment (CEIA)as an
important aspect of international law
 The World Bank has also taken note of the decision, with
its lead counsel in environmental and international law
citing Weeramantry’s opinion as evidencing the
customary status of EIA.

69. Pulp Mills case
 Facts
 Argentina alleged that Uruguay had breached its obligations
under the Statue of the River Uruguay,2 a 1975 bilateral
treaty by authorising one pulp mill and constructing another
on the River Uruguay, which serves as a boundary between
Argentina and Uruguay
 In order to avoid disputes involving the River Uruguay the
parties created the Administrative Commission of the River
Uruguay (CARU) to superintend appropriate use and
protection of the river. Statute provide a process for prior
notification and consultation for activities that are likely to
affect navigation or the water quality of the river. The
notification and consultation process entails four distinct
stages.

70. Pulp Mills case
 Argentina has claimed that Uruguay has violated
 i) the obligation to take all necessary measure of the
optimum and rational utilisation of the river; ii) the
obligation to provide prior notice of processes and
activities associated with the mills; iii) the obligation
to preserve the aquatic environment and its fisheries
and biodiversity, iv) the obligation to prevent
pollution, v) the obligation to prepare a full
environmental impact study; and vi) the obligation
to co- operate in the preservation of the environment
and prevention of pollution

71. Pulp Mills case
 The ICJ distinguished Argentina’s claims on the basis of
procedural claims and substantive claims.
 It ruled that the Uruguayan procedural obligation to
notify and consult with Argentina prior to the
authorisation and constructions of the mills had been
breached
 However, their is no substantive violations
 The preparation of a transboundary environmental
impact assessment (EIA) is required by custom where a
proposed activity poses a risk of significant
environmental harm even though the Court found that
international law had little to say about the nature, scope
and content of the EIA

72. Pulp Mills case
 Procedural Violations
 Notification to CARU
 The Court explicitly highlights that the principle of
prevention is a customary rule, having its origins in
the due diligence that is required of a State in its
territory “not to allow knowingly its territory to be
used for acts contrary to the rights of other States”
 The obligation to notify CARU under the 1975
Statute is inextricably linked to the fulfillment of the
duty to prevent environmental harm.

73. Pulp Mills case
 the breach of a procedural obligation was not the
same as a violation of substantive duties. Each
requires separate consideration.

74. Pulp Mills case
 Environmental impact assessment
 the ICJ has explicitly held that transboundary environmental
impact assessment is a requirement of customary
international
 Adopting an evolutionary interpretive approach the Court
observed that the 1975 Statute should be interpreted in an
evolving manner to incorporate EIA
 due diligence, and the duty of vigilance and prevention would
not be considered to have been exercised, if a party planning
works did not undertake an environmental impact assessment
 The Court commented, however, that general international
law does not specify the scope and content of an
environmental impact assessment

75. Pulp Mills Case
 it is for each State to determine in its domestic legislation
or in the authorization process for the project, the
specific content of the environmental impact assessment
required in each case, having regard to the nature and
magnitude of the proposed development and its likely
adverse impact on the environment as well as to the need
to exercise due diligence in conducting such an
assessment.
 Court has made clear the origins of the obligation to
conduct a transboundary EIA, basing it on the duty of
prevention rather than the 'non-discrimination' principle

76. Pulp Mills Case
 Consultation of the affected populations
 the Court expressed the view that the parties had no
international legal obligation to consult the
populations affected by the approval and
construction of the mills. However, the Court added
that this was based on the instruments invoked by
Argentina.

77. Pulp Mills Cae
 Precautionary Principle :The Court lent support to
the customary status of the precautionary principle
through its willingness to infer precaution.
 Court rejected Argentina’s radical contention that it
implies a reversal of the burden of proof, but
accepted that "a precautionary approach may be
relevant in the interpretation and application of the
provisions of the Statute"

78. Pulpmills case
 supported the 'ecosystems approach' to
environmental protection, a largely precautionary
device.
 The Court stated, [t]his vigilance and protection is all
the more important in the preservation of the
ecological balance, since the negative impact of
human activities on the waters of the river may affect
other components of the ecosystem of the
watercourse such as its flora, fauna, and soil.

79. Pulp Mills Case
 Due diligence and the duty of prevention of transboundary harm
 The Judgment does much to clarify the nature and extent of the due
diligence requirements. The Court placed emphasis on one
particular aspect of due diligence, i.e. the requirement to inform a
neighbouring State
 States should understand the duty to notify as comprising two
stages: initial notification as soon as a plan is received; and
subsequent detailed notification on the basis of an EIA study.
 The Court elaborated another aspect of the due diligence in "good
faith. The Court found that by authorising and implementing the
planned activity without waiting for the negotiations to be brought
to a conclusion, Uruguay had failed in its "obligation so to conduct
themselves that the negotiations are meaningful”. the Court found
that Uruguay had thus breached the requirement to perform its
procedural obligations in good faith.

80. Pulp Mills Case
 Due diligence requirements
 “adoption of appropriate rules and measures” - “a
certain level of vigilance in their enforcement”
 - “the exercise of administrative control applicable
to public and private operators”
 - “careful consideration of the technology to beused”
 - EIA and notification

81. PUBLICISTS

The International Law Commission’s (ILC) draft
articles on state responsibility have been of great
influence as a subsidiary means for determining
international law.
 The ILC also has addressed state liability, which
involves the obligation by states to compensate for
the harm they cause through lawful activities, and
more particularly allocation of loss.

82. Soft Law is Developing as a Main Source of Environmental
law at present
 Soft laws
 Soft law involves instruments that are ‘not yet or not
only law’ (Dupuy, 1991:
 states feel less constrained about accepting norms
and goals that are not legally binding,
 allows the participation of international institutions
and of non-state actors in the process where there is
uncertainty about the scope of the problem or the
appropriate solution