THE ENVIRONMENT AND NATURAL RESOURCES

by Amazona, Delostrico, Saplada, Villarias

COMMON SPACES AND CO-OPERATION IN THE USE OF NATURAL RESOURCES

Introduction

The world’s resources and environment are at the same time shared and partitioned, indivisible and
divided. A world of sovereigns creates the greatest collective action problem in history: international
law is both the product of this world and one of the few tools at our disposal for addressing the
problem.

In the 1960s lawyers were concerned with activities such as atmospheric nuclear testing with
potential to seriously affect the environment; more recently the concerns surrounding anthropogenic
climate change have prompted the development of an international climate change regime.

CO-OPERATION IN THE USE AND GENERATION OF ENERGY

Nuclear Energy and the non-proliferation treaty

Reasons for the cooperation of states in the utilization of atomic energy for peaceful purposes:

1. Its relation to questions of security and disarmament

2. Contribution to dealing with anthropogenic climate change by providing a non-fossil-

fuel-based energy source

3. The immense cost of development, and the risk posed to human health by nuclear
accidents

International Atomic Energy agency

 The most important international organization concerning the use of nuclear energy

 Established in 1957

 It provides assistance of various kinds for the development of atomic energy in particular states
under a system of inspection and control to ensure, inter alia, that the aid is not used for
military purposes.

 Following the increased concern about nuclear reactors after the Chernobyl accident, the IAEA
oversaw two new international agreements:

1. Convention on Nuclear Safety

2. Joint Convention on the Safety of Spent Fuel and Radioactive Waste Management
 As for the use of nuclear energy for non-peaceful purposes, international law does not contain a
comprehensive prohibition of the threat or use of nuclear weapons as such, although it is unlikely that
any actual use of nuclear weapons would be consistent with international law.

 The current nuclear disarmament regime consists of:

1. Treaty on the Non-Proliferation of Nuclear Weapons (NPT)

2. Partial Test Ban of 1963

3. Comprehensive Nuclear Ban Test Treaty (CTBT)

Comprehensive Nuclear Ban Test Treaty (CTBT)

 CTBT bans all nuclear explosions on earth, whether for military or peaceful purposes, and sets
up a global verification regime monitored by the CTBT Organization. It was opened for signature
in 1996 but is not yet in force, pending ratification by nine of the 44 ‘Annex 2 states’, being
those states that possess nuclear technology.

The Energy Charter Treaty

 The Charter was an attempt to accelerate economic recovery in Eastern Europe through co-
operation in the energy sector.

 The Treaty includes provisions on energy-related foreign investment and trade, dispute
resolution, and energy efficiency.

Other cases

 Further areas of concern in the sharing of energy resources include the creation and
maintenance of transnational energy grids and the international transport of energy.

 The Association of South East Asian Nations (ASEAN) signed an Agreement on ASEAN Energy
Cooperation in 1986 and is working towards the establishment of an ASEAN power grid, as well
as trans-ASEAN gas pipelines.

TRANSBOUNDARY WATER RESOURCES

Shared freshwater and canals

The term ‘international’ with reference to a body of water is merely a general indication of rivers
and reservoirs which geographically and economically affect the territory and interests of two or more
states.

Conceivably a body of water could be ‘internationalized’, that is, given a status entirely distinct from
the territorial sovereignty and jurisdiction of any state, on the basis of treaty or custom, general or
regional. Rivers separating or traversing the territories of two or more states are usually subject to the
territorial jurisdiction of riparian states up to the medium filum aquae, taken to be the deepest channel
of navigable waters or thalweg.

The legal regime of rivers, creating rights consists to a large extent of treaty law, and the
International Court has focused on the terms of the particular treaty, making secondary reference to
general international law or local custom.

LAC LANOUX ARBITRATION

 Concerned the interpretation of a treaty between France and Spain. However, the tribunal
made observations on certain Spanish arguments based on customary law.

 The tribunal seemed to accept the principle that an upstream state is acting unlawfully if it
changes the waters of a river in their natural condition in a way that could do serious injury to a
downstream state.

IN THE CASE OF NAVIGABLE RIVERS

 It is accepted that customary law does not recognize a right of free navigation.

 Barcelona Convention and Statute of the Regime of Navigable Waterways of International

Concern of 1921 provides for free navigation as between the parties on navigable waterways of
international concern, but only a minority of states have accepted this convention.

 The Belgrade Convention of 1948 maintained free navigation for all states whilst retaining
powers of control for riparian states.

NOTE: Navigation of warships of non-riparian states is prohibited.

IN THE RIVER ODER CASE

 the ‘community of interest of riparian States’ which in a navigable river ‘becomes the basis of a
common legal right, the essential features of which are the perfect equality of all riparian States
in the use of the whole course of the river and the exclusion of any preferential privilege of any
one riparian State in relation to the others’.

International Canals

 GENERAL RULE - Canals are in principle subject to the territorial sovereignty and jurisdiction of
the state or states which they separate or traverse.

 Where the canal serves more than one state or otherwise affects the interests of more than one
state a treaty regime may be created to regulate use and administration.

SUEZ CANAL

 1869 - built and opened under a private law concession for 99 years granted by the Egyptian
government to the Universal Suez Maritime Canal Company with Britain as the largest
shareholder.
  1888 – the affairs of the Canal were regulated by the Convention in Constantinople which
provided that the Canal ‘shall always be free and open, in time of war as in time of peace, to
every vessel of commerce or of war, without distinction to flag.’

Joint boundary commissions

Traditionally the primary function of a boundary commission has been to delimit or demarcate and
maintain the boundary, frequently as part of a peace settlement or dispute resolution process.

Commissions are often also involved in ongoing cross-border water and environmental
management.

They are usually established by treaty, and can be temporary or permanent.

 Examples of Joint Boundary Commissions:

1. Canada/US International Joint Commission

2. US/Mexico International Boundary and Water Commission

3. Cameroon/Nigeria Mixed Commission

Joint Development zones

The practice of establishing JDZs as an interim measure to enable exploitation to proceed for the
benefit of two or more states with overlapping claims is reinforced by UNCLOS Articles 74(3) and 83(3),
which provide that pending agreement on the delimitation of the EEZ or continental shelf, respectively,
the states concerned ‘shall make every effort to enter into provisional arrangements of a practical
nature’.

These arrangements are set down in bilateral treaties, governing matters such as the allocation of
rights and obligations arising from exploitation activities, supervision and management of the
exploitation, protection of the marine environment, inspection rights, and dispute settlement.

Land-locked states and enclaves

 There are 43 land-locked states (plus Kosovo) and numerous enclaves detached from the
metropolitan territory and lacking access to the sea.

CONVENTION ON THE HIGH SEAS, Article III

 Provides for free transit on a basis of reciprocity, and equal treatment in respect of por.t access
and use

CONVENTION ON THE HIGH SEAS, Article IV

 Recognized the right of every state, whether coastal or not, to sail ships under its flag on the
high seas.

UN CONVENTION ON THE TRANSIT TRADE OF LANDLOCKED STATES

  Adopts the principle of free access and sets out the conditions under which freedom of transit
will be granted. It provides a framework for the conclusion of bilateral treaties and is not directly
dispositive with respect to rights of access.

UNCLOS PART X

 Provides for land-locked states to enjoy freedom of transit through the territory of transit states
by means of transport (Art 125 (1)), in accordance with bilateral, subregional, or regional
agreements between the land-locked states and transit states (Art 125 (2)). Article 125(3)
provides that transit states have the right to take all measures necessary to ensure their
legitimate interests are not thereby infringed.

POLAR REGIONS

Antarctica

ANTARCTIC TREATY

 Ensures that Antarctica is used for peaceful purposes only, to promote international scientific
cooperation within Antarctica and also to put aside disputes about territorial sovereignty.

 Military personnel and equipment may be used in pursuing peaceful purposes.

 Nuclear explosions, for whatever purpose, are prohibited.

 The treaty applies to the area south of 60°S, and includes all the shelves but reserves the rights
of states (not only contracting parties) with regard to the high seas in the area (Article VI).

 Two other matters may be mentioned:

 First, there is a liberal inspection system involving a right to designate observers

unilaterally and provision for complete freedom of access for such observers at any time
to all areas of Antarctica.

 Secondly, jurisdiction cannot in the context rest on the principle of territoriality.

 From the jurisdictional point of view the area is treated as res nullius and the nationality
principle governs.

 However, general principles will have to be resorted to when a national of one party commits an
offence or civil wrong against a national of another party or of a non-party.

 Three instruments supplement the regime:

 Convention on the Conservation of Antarctic Seals (1972)

 Convention on the Conservation of Antarctic Marine Living Resources (1980)

 Protocol on Environmental Protection to the Antarctic Treaty (1991)

The Arctic

No overarching regime equivalent to the Antarctic Treaty system operates in the Arctic, which is
instead governed largely by the law of the sea, as well as various multilateral and bilateral agreements
on specific issues, soft law declarations and understandings, and the domestic legislation of the eight
Arctic states. These states work together to implement the Arctic Environmental Protection Strategy,
also known as the Rovaniemi Process.

In 1996 they created the Arctic Council as a forum for intergovernmental co-operation and co-
ordination on issues of sustainability and environmental protection in the region. Several indigenous
organizations are recognized as permanent participants in the Council.

The presence of a permanent human population in the Arctic (around 4 million people), the fact that
there is no land territory underlying the Arctic ice cap, and other fundamental differences mean many
of the successful measures of the Antarctic regime could not feasibly be transposed there.

THE OUTER SPACE

Evidence of generally accepted principles is provided by the General Assembly Resolution of 13

December 1963, adopted unanimously, which contains ‘a declaration of legal principles’ governing
activities of states in the exploration and use of outer space.

 Five multilateral treaties on outer space have been concluded since the 1963 resolution:

1. Outer Space Treaty (1967)

2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space (1968);

3. Convention on International Liability for Damage Caused by Space Objects (1972);

4. Convention on Registration of Objects Launched into Outer Space (1974); and

5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979)

The regime created by the Outer Space Treaty, adopted as a sequel to the 1963 resolution, is not
dissimilar to that of the Antarctic Treaty of 1959, with the important difference that there are no
claimants to sovereignty in outer space.

OUTER SPACE TREATY, Article 1

 Exploration and use of outer space ‘shall be carried out for the benefit and in the interests of all
countries…and shall be the province of all mankind’; and further, outer space (including the
moon and other celestial bodies) ‘shall be free for exploration and use by all states without
discrimination of any kind, on a basis of equality and in accordance with international law, and
there shall be free access to all areas of celestial bodies’.
OUTER SPACE TREATY, Article 2

 Outer space ‘is not subject to national appropriation by claim of sovereignty, by means of use or
occupation, or any other means’.

OUTER SPACE TREATY, Article 6

 States parties shall bear responsibility for national activities in space, whether carried on by
governmental or by non-governmental entities.

OUTER SPACE TREATY, Article 7

 States parties that launch objects into outer space, and states parties from whose territory or
facility objects are launched, are strictly liable for damage caused by such objects to other states
parties or their nationals.

OUTER SPACE TREATY, Article 9

 Activities shall be conducted ‘with due regard to the corresponding interests of all other States
Parties to the Treaty’ and study and exploration shall be carried out so as to avoid harmful
contamination of outer space and celestial bodies and also ‘adverse changes in the environment
of the Earth resulting from the introduction of extraterrestrial matter’.

OUTER SPACE TREATY, Article 8

 ‘a State Party to the Treaty on whose registry an object launched into outer space is carried shall
retain jurisdiction and control over such object, and over any personnel thereof, while in outer
space or on a celestial body’.

LEGAL ASPECTS IN THE PROTECTION OF THE ENVIRONMENT

Environmental Issues Under General International Law

It is evident that general international law does not provide the focused problem-solving which
results from carefully prepared standard-setting treaties linked with domestic and international support
systems and funding.

The development of specialized environmental regimes by treaty serves to address this deficiency.

The legal underpinnings of the protection of the environment continue to be institutions of general
international law.

 Trail Smelter and Corfu Channel Cases – Principle of State Responsibility

 Nuclear Tests – concerned issues of admissibility and remedial law, as well as the status of
unilateral promises
  Certain Phosphate Lands in Nauru – issues of admissibility and state responsibility

Deficiencies in the Adversarial System of Responsibility

The key problem with focusing on responsibility as a means of ensuring environmental protection is
that it addresses issues after damage has already occurred, instead of focusing on the need for
prevention of damage in the first place.

A particular difficulty is the selection and deployment of an appropriate basis of claim.

The requirement of material or significant damage as a necessary condition of claim bears an uneasy
relation to the scientific proof of a certain threshold of damage caused by an overall rise in radiation or
other forms of pollution, and problems of multiple causation often arise.

In Nuclear Tests, the applicants employed the international law equivalent of trespass to deal with
this problem: the deposit of radioactive fall-out was classified as a violation of their territorial
sovereignty.

Likewise, the concept of ‘decisional sovereignty’ was used, referring to their right to determine what
acts should take place within its territory.

It has been said that the decision in Nuclear Tests ‘suggested that an international tribunal cannot
grant injunctions or prohibitory orders restraining violations of international law’.

This is unjustified, and declarations are given by the Court which are injunctive in effect, as the joint
dissenting opinion pointed out.

The Rio Conference 1992 and the Development of International Environmental Law

 In 1992, more than 100 governments met in Rio de Janeiro for the UN Conference on
Environment and Development.

 The Rio Conference 1992 and the development of international environmental law

 The Earth Summit produced Agenda 21.

 AGENDA 21 - a comprehensive plan of action calling for the ‘further development of

international law on sustainable development, giving special attention to the delicate balance
between environmental and developmental concerns.’

 The Rio Conference 1992 and the development of international environmental law

 Rio Declaration on Environment and Development – contains 27 principles linked to the

concept of sustainable development, and the non-binding Authoritative Statement of Principles
for a Global Consensus on the Management, Conservation and Sustainable Development of All
Types of Forests (the Forest Principles).
Emergent Legal Principles

The Preventive principle

 It is a principle which requires action protecting the environment should be taken at an early
stage.

The Precautionary principle

 This principle attempts to codify the concept of precaution in law. Precaution is defined as a
strategy for addressing risk. It concerns the manner in which policy-makers, for the purposes of
protecting the environment, apply science, technology, and economics.

PRINCIPLE NO. 15 OF THE RIO DECLARATION

“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.”

The Concept of Sustainable Development

 It is a development that meets the needs of the present without compromising the needs of the
future generation to meet their own needs.

 Development is said to be sustainable when it is achieved by the integration of social, economic,

and environmental considerations in a way that provides for and protects the long-tem well
being of populations.

The Polluter-pays principle

ARTICLE 16 OF THE RIO DECLARATION

“National authorities should endeavor to promote the internalization of environmental costs and the use
of economic instruments, taking into account the approach that the polluter should, in principle, bear the
cost of pollution, with due regard to the public interest and without distorting international trade and
investment.”

The Sic Utere Tuo principle

 The general obligation of states is to ensure that the activities within their jurisdictions and
control respect the environment and of other states.

The Obligation of Environmental Impact Assessment

 This is a technique for integrating environmental considerations into decision-making processes.

In International Law, the duty to undertake the environmental impact assessment is expressed
in the Rio Declaration

PRINCIPLE NO. 17 OF THE RIO DECLARATION

“Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities
that are likely to have a significant adverse impact on the environment and are subject to a decision of a
competent national authority.”

Development of Multilateral Standard-Setting Conventions

These conventions were drafted and agreed in response to international collective action problems
pertaining to the environment, and to establish international environmental regimes which provide
both the structure and resources for addressing the issue at their core.

TRAFFIC IN ENDANGERED SPECIES

CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA

(CITES)

It seeks to regulate trade in species threatened with extinction by providing that the trade in such
species ‘must be subject to particularly strict regulation in order not to endanger further their survival
and must only be authorized in exceptional circumstances.’

CITES is an example of an environmental convention which targets the economic activity (trade)
supporting the environmental harm (loss of species) as a means to address the problem; however, it
does not directly address the demand-side drivers (such as consumer preference) or the supply-side
drivers (such as poverty) of the trade in endangered species.

PROTECTION OF THE OZONE LAYER

MONTREAL PROTOCOL OF 1987

 It established the following:

1. Substantive controls on substances linked to ozone depletion;

2. A mechanism in reporting progress;

3. A multilateral fund for the purposes of providing financial and technical co-operation,
including the transfer of technologies to support implementation.

 It incorporated a significant amount of the law concerning transboundary pollution (procedural

and substantive) which attained customary status prior to its negotiation.

 This regime has been described as ‘dynamic and flexible’ in its operation, and the high
participation (191 parties) in combination with some evidence supporting a reduction in ozone
depletion suggests a measure of success.

 This regime has been described as ‘dynamic and flexible’ in its operation, and the high
participation (191 parties) in combination with some evidence supporting a reduction in ozone
depletion suggests a measure of success.
TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTES

BASEL CONVENTION OF 1989

 Negotiated in response to concerns that the transport of hazardous wastes between countries
could pose an environmental hazard to both transit and recipient countries.

 It does not ban the transport of hazardous wastes, but places limits on their movement.

 Cases of valid transport:

1. If the exporting country does not have sufficient disposal capacity or disposal sites
capable of disposal in an environmentally sound manner;

2. If the wastes are required as raw material for recycling or recovery industries in the
importing country.

 The exporting state must obtain the consent of the importing state and transit states before
allowing a shipment of hazardous wastes.

 There is an obligation on parties to reduce hazardous waste and manage it in a manner

consistent with environmental protection.

 Export of hazardous waste to Antarctica is explicitly banned.

CLIMATE CHANGE

FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE

 It confirmed that the release of greenhouse gases into the atmosphere constitutes a major
anthropogenic contribution to climate change.

KYOTO PROTOCOL

 It established a carbon market until 2012, with rules pertaining to emissions trading and ‘flexible
mechanisms’ to be used by member states to help them meet their emissions reduction targets.

 PROTECTION OF THE MARINE ENVIRONMENT

UNCLOS

 States have the obligation to protect and preserve the marine environment.

 PROTECTION OF THE MARINE ENVIRONMENT

MARPOL 73/78

 It aims to minimize pollution of the oceans and seas including dumping, oil and air pollution
from vessels.
OTHER CONVENTIONS AND INSTITUTIONS

1. Convention on Early Notification of a Nuclear Accident

2. Convention on the Protection and Use of Transboundary Watercourses and Lakes

3. Convention on the Transboundary Effect of Industrial Accidents

4. Biodiversity Convention

5. Protocol on Further Reduction of Sulphur Emissions

6. Convention on the Law of the Non-Navigational Uses of International Watercourses