Trail Smelter Arbitration (United States v. Canada)
 Responsibility for pollution of the sea or the existence of a duty to
Brief Fact Summary. The United States (P) sought damages from Canada by suing
them to court and also prayed for an injunction for air pollution in the state of
Washington, by the Trail Smelter, a Canadian corporation which is domiciled in
Canada (D).
Synopsis of Rule of Law. The duty to protect other states against harmful acts by
individuals from within its jurisdiction at all times is the responsibility of a state.
Facts. The Tail Smelter located in British Columbia since 1906, was owned and
operated by a Canadian corporation. The resultant effect of from the sulfur dioxide
from Trail Smelter resulted in the damage of the state of Washington between 1925
and 1937. This led to the United States (P) suit against the Canada (D) with an
injunction against further air pollution by Trail Smelter.
Issue. Is it the responsibility of the State to protect to protect other states against
harmful acts by individuals from within its jurisdiction at all times?
Held. Yes. It is the responsibility of the State to protect other states against harmful
act by individuals from within its jurisdiction at all times. No state has the right to
use or permit the use of the territory in a manner as to cause injury by fumes in or
to the territory of another or the properties or persons therein as stipulated under
the United States (P) laws and the principles of international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is
responsible in international law for the conduct of the Trail Smelter Company.
Hence, the onus lies on the Canadian government (D) to see to it that Trail Smelter’s
conduct should be in line with the obligations of Canada (D) as it has been
confirmed by International law. The Trail Smelter Company will therefore be
required from causing any damage through fumes as long as the present conditions
of air pollution exist in Washington.  So, in pursuant of the Article III of the
convention existing between the two nations, the indemnity for damages should be
determined by both governments. Finally, a regime or measure of control shall be
applied to the operations of the smelter since it is probable in the opinion of the
tribunal that damage may occur in the future from the operations of the smelter
unless they are curtailed.
Discussion.
desist from polluting the sea has never been laid at the feet of any country by any
international tribunal. Although regulation of pollution is just commencing, it must
ensure that there is equilibrium against freedom of the seas guaranteed under
general and long established rules of international law.
THE TRAIL SMELTER ARBITRATION CASE( UNITED STATES VS CANADA) 1941,
U.N. Rep. Int'L Arb. AWARDS 1905 (1949)
The Trail Smelter Case1 arose in the field of late 1950's and came up with the issue
of International Environmental Law. In this case ‘it was damage caused by one State
to the environment of the other that triggered the legal claim. Legally the issue was
not viewed as different from damage caused to the public or private property, for
instance by the inadvertent penetration of a foreign State's territory by armed
forces. For the first time an International Tribunal propounded the principle that as
State may not use, or allow its national's to use, its own territory in such a manner
as to cause injury to a neighboring country'2. The facts of the case are lead below :-
‘The Columbia River rises in Canada and flows past a lead and zinc smelter located
at Trail, in British Columbia (Canada). The smelter company was alleged to cause
damage to trees, crops and land in the American States of Washington.3 The
climate from beyond Trail on the United States boundary is dry, but not arid. The
smelter was built under U.S. auspices, but had been taken over. In 1906, the
Consolidated Mining and Smelting Company of Canada, Limited acquired the
smelter plant at Trail. Since that time, the Canadian company, without interruption,
has operated the Smelter, and from time to time has greatly added to the plant
until it has become one of the best and largest equipped smelting plants on the
American continent.4 In 1925 and 1927, stacks, 409 feet high, were erected and the
smelter increased its output, resulting in more sulphur dioxide fumes. The higher
stacks increased the area of damage in the United States. From 1925 to 1931,
damage had been caused in the State of Washington by the sulphur dioxide coming
from the Trail Smelter, and the International Joint Commission recommended
payment of $350,000 in respect of damage to 1 January, 1932. The United States
informed Canada that the conditions were still unsatisfactory and an Arbikal
Tribunal was set up to "finally decide" whether further damage had been caused in
Washington and the indemnity due, whether the smelter should be required to 1.
1941, U.N. Rep. Int'L Arb. AWARDS 1905 (1949) 2. Cassese Antonio, International
Law, Oxford University Press, 2nd edition, 2005, New York, 484 3. Ibid pg 484. 4.
1
Noah D. Hall, FOURTH IUCN ACADEMY OF ENVIRONMENTAL LAW WORLDWIDE
COLLOQUIUM: IMPLEMENTING ENVIRONMENTAL LEGISLATION: THE CRITICAL ROLE
OF ENFORCEMENT AND COMPLIANCE, Pace Environmental Law Review, Winter,
2007, 5 cease operation; the measures to be adopted to this end; and
compensation due. The Tribunal was directed to apply the law and practice of the
United States as well as international law and oractice.'5 ‘The United States
Government, on February 17, 1933, made represents to the Canadian Government
that the existing conditions were entirely unsatisfactory and that damage was still
occurring and diplomatic negotiations were entered into, which resulted in the
signing of the present convention.'6 ‘The Court held Canada responsible for the
conduct of the Trail Smelter and enjoined it to pay compensation to United States.
The court also provided for future monitoring of the effects of the factory's
activities on the environment, to prevent possible future damages to the United
States environment.'7 ‘The subsequent diplomatic negotiations led to the United
States and Canada signing and ratifying a Convention in 1935. Through the
Convention, the two countries agreed to refer the matter to a three-member
arbitration tribunal composed of an American, a Canadian, and an independent
chairman (a Belgian national was ultimately appointed). The arbitration tribunal
was charged with first determining whether damages caused by Trail Smelter
continued to occur after January 1, 1932 and, if so, what indemnity should be paid.
Under the Convention, Canada had already agreed to pay the United States $
350,000 for damages prior to 1932, based on the findings of the IJC. The arbitration
tribunal addressed this first question in this context of the case determining that
the damages caused by the Canadian smelter to properties in Washington State
from 1932 to 1937 amounted to $ 78,000 (equivalent to approximately $ 1.1 million
in 2006). The arbitration tribunal's more difficult, and ultimately more significant
charge, was to decide whether the Canadian smelter should be required to refrain
from causing damage in the State of Washington in the future, and what measures
or regime, if any, should be adopted or maintained by the smelter, in addition to
future "indemnity or compensation."
5. http://www.unescap.org/DRPAD/VC/document/compendium/int7.htm 6. Mark
W. Jarris & John E. Noyes, Cases and Commentary on International Law, West
Publishing Company, 1997, St. Paul, 586 7. Supra note 2 pg 484 To answer these
questions, the tribunal was directed to apply the law and practice followed in
dealing with cognate questions in the United States of America as well as
International Law and Practice, and give consideration to the desire of the High
Contracting Parties to reach a solution just to all parties concerned.'8 The Trail
Smelter case came up with the issue of "duty" of states to "prevent transboundary
harm" and invoking the "polluter pays" principle. Firstly we move on to the
‘Transboundary Harm' issue. ‘Transboundary Harm proceeds in three parts. Part
One examines the historical foundations of the case, its influence on international
environmental law, and the smelter's continuing yet largely unknown toxic legacy.
Part Two examines the case's contemporary significance for the law of
transboundary environmental harm. Part Three looks beyond environmental law to
examine the significance of the Trail Smelter arbitration for legal responses to other
transboundary harms, from international terrorism to Internet torts.'9 Illustratively:
Part One examination ‘begins with a detailed account of the history surrounding the
dispute, describing the important roles of the private parties involved and
examining the actions of the state actors in arbitrating the dispute on behalf of the
parties. Part One also examines the "jurisprudential legacy" of the decision in an
increasingly prevention-focused, regulatory world. The usefulness of the Smelter
case is limited by the fact that the dispute turned more on the rights of states as
"sovereign equals" and less on the undesirability of transboundary pollution. Unlike
the situation in Trail, in contemporary disputes the cause of damages is often
unclear and the disputing countries often lack a history of cooperation and
"reciprocal" interests which counsel them toward cooperation and moderation. The
enduring significance of the "due diligence" obligation was created by the Tribunal.
The obligation "not to cause serious environmental harm" - was originally intended
to ensure the continuing compliance of the Trail Smelter with 8. Supra note 4 pg 6
9. Stepan Wood, TRANSBOUNDARY HARM IN INTERNATIONAL LAW LESSONS FROM
THE TRAIL SMELTER ARBITRATION, EDITED BY REBECCA M. BRATSPIES & RUSSELL A.
MILLER (NEW YORK: CAMBRIDGE UNIVERSITY PRESS, 2006) 347pages, Osgood Hall
Law Journal. pollution-prevention measures. Due diligence, is recognized by the
"Draft Articles on Prevention of Transboundary Harm from Hazardous Activities" as
the requisite level of intent needed to establish the liability of transboundary
polluters. Part One closes with an account of a new dispute over pollution by the
Trail Smelter - the United States Environmental Protection Agency (EPA) has
recently issued a regulatory order under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) against Cominco relating to
pollution of the Columbia River "watershed." An action to enforce the order is
pending in United States Courts. The regulatory character of this action, and the
attempt by the United States to directly regulate a foreign entity under a "strict
liability" theory of accountability, demonstrates a drastic break in the character of
modern transboundary pollution disputes.'10 ‘Part Two examines the significance
and potential relevance of the Trail Smelter principles to important "contemporary"
issues in transboundary environmental harm. The issues surveyed include
genetically modified organisms, nuclear energy, global climate change, hazardous
2
waste transport, transboundary air pollution, and marine pollution, among others.
The difficulty of identifying any particular polluting entity as the single cause of
global pollution problems, like climate change cannot be identified. The
requirement of "clear and convincing evidence" of "serious" environmental harm
makes liability increasingly difficult to establish, and bilateral litigation becomes less
effective in solving widespread pollution problems. States still reign supreme even
in such international regulatory regimes, as conventions generally depend upon
state cooperation and often are more concerned with preserving the sovereign
equality of states than preventing pollution. One other key theme in Part Two is a
recognition of the fact that although Canada voluntarily assumed responsibility for
the actions of a private company in the Trail Smelter arbitration, such attributions of
control are more problematic.'11 10. Lisa Gouldy, Transboundary Harm in
International Law: Lessons from the Trail Smelter Arbitration. Edited by Rebecca M.
Bratspies and Russell A. Miller. New York, New York: Cambridge University Press,
2006. Pp. xxi, 347. New York University Journal of International Law and Politics,
Winter, 2006. 2. 11. Ibid pg 2. ‘Part Three innovatively examines the applicability of
Trail Smelter to non-environmental forms of "transboundary harm" as broadly
defined, including terrorism, refugee flows, Internet torts, drug trafficking, and
human rights. Generally, such analyses find that Trail's lessons are not easily
transposed to other sorts of transboundary harm. First, "liability regimes" imposing
damages for continuing harms are not always appropriate to remedy non-
environmental harms. In the cases of migration of refugees forcing the state from
which the harm emanated to compensate other states for the harm engendered
will not generally resolve the problem because the harms tend to arise from
instability, poverty, or weak governments within those states. Not only will those
states generally have little money to satisfy any potential judgment, but any such
judgment could only serve to further destabilize the state and increase the harm. In
other situations, the intense focus of Trail Smelter on theories of sovereign equality
makes it less well suited to address harms caused by private actors. For example,
with respect to Internet torts or terrorism, states may not be well placed to prevent
the commission of such harms by private actors. In addition, multinational
corporations often operate across many different states, making it difficult to hold
any one state responsible for their harmful actions. Rather, multinational
corporations often have better resources and scientific knowledge to regulate their
own actions in ways consistent with notions of "corporate social and environmental
responsibility" and therefore states must work together with those corporations in
that regard. Finally, the Trail Smelter remains relevant insofar as it would counsel
that states be held responsible for their own extraterritorial actions which result in
human rights violations abroad.'12 After the issue of the transboundary harm we
can come up to the general principles which have been evolved from this case and
its implications. Only two General Principles have been evolved from the case of
Smelter. ‘The first and more general one is that enjoying every State not to allow its
territory to be used in such a way as to damage the environment of other States or
of areas beyond the limits of national jurisdiction. This principle was first set out by
the Arbitral Courts in the Smelter 12. Ibid pg 2. case. This principle is substantially
based on an even more general obligation, enunciated in the Corfu Channel13 case
where the principle laid down that every State is under the obligation not to allow
knowingly its territory to be used for acts contrary to the rights of the other
States.'14 ‘The second general principle attested to by the general and increasing
concern of the States about the environment and born out by the great number of
treaties concluded that imposing upon States the obligation to co-operate for the
protection of the environment. This principle had already been eluded in the
decision of the Smelter case. It is off course much looser than the previous one but
already reflects a new approach to environmental issues, based on the assumption
that the environment is a matter of general concern. It follows from this principle
that every State must co-operate for the protection of this precious asset,
regardless of whether or not its own environment has been or may be harmed. This
principle can only be applied jointly with the customary rule on good faith, which
states every State must in good faith endeavor to co-operate with other States with
a view to protecting the environment. A blunt refusal to co-operate,
unaccompanied by a statement of he reasons for such attitude, would amount to a
breach of the principle.'15 After dealing with issues of transboundary harm and
general principles applicable in this case we have to give the answers to the
questions that has come up in this case relating to whether the Canadian smelter
should be required to refrain from causing damage in the State of Washington in
the future, and what measures or regime, if any, should be adopted or maintained
by the smelter, in addition to future "indemnity or compensation." ‘The tribunal
first concluded that there was no need to chose between the law of the United
States or international law to decide the case, as the law followed in the United
States in dealing with the quasi-sovereign rights of the States of the Union, in the
matter 13. ICJ Reports, 1949;16 ILR 14. Supra note 2. pg 488 15.Ibid pg.489. of
transboundary pollution, is in conformity with the general rules of international law.
The tribunal cited a leading international law authority: "As Professor Eagleton puts
in ... 'A State owes at all times a duty to protect other States against injurious acts
by individuals from within its jurisdiction.'"16The tribunal supplemented this
general rule with a comprehensive summary of the United States Supreme Court's
decisions regarding interstate transboundary pollution, including cases both
between two sovereign states and between a state and local governments or
3
private parties (such as cities and mining companies). Taking the decisions as a
whole, the tribunal stated the following principles for transboundary pollution
disputes: No State has the right to use or permit the use of its territory in such a
manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein, when the cause is of serious consequence and the
injury is established by clear and convincing evidence. The tribunal further held that
the “Dominion of Canada is responsible in international law for the conduct of the
Trail Smelter. Therefore, it is the duty of the Government of the Dominion of
Canada to see to it that this conduct should be in conformity with the obligation of
the Dominion under international law as herein determined”.17 Applying these
principles to the dispute at hand, the tribunal required the Trail Smelter to "refrain
from causing any damage through fumes in the State of Washington."18 The
tribunal specifically noted that such damage would be actionable under United
States law in a suit between private individuals. Further, the tribunal ordered a
detailed management regime and regulations for the smelter to prevent sulphur
dioxide emissions from reaching levels that cause property damage in Washington
State. The tribunal also indicated that it would allow future claims for damages that
occur, despite the imposed management regime.'19 16. CONVENTION FOR
SETTLEMENT OF DIFFICULTIES ARISING FROM OPERATION OF SMELTER AT TRAIL,
B.C. U.S. Treaty series No. 893. Art XII 17. Ibid Art XII last Para 18. answer to the
question of refraining of the Canadian smelter 19. Supra note 4 pg 6 ‘The
emergence of the Trail smelter dispute raises significant questions about the ability
of Canada and the United States to resolve transboundary pollution disagreements:
* Should U.S. domestic environmental laws be applied and enforced
extraterritorially against Canadian companies that operate exclusively in Canada? *
What international legal mechanisms exist to resolve transboundary water pollution
disputes between the United States and Canada satisfactorily and effectively? *
What lessons may be drawn from the original Trail Smelter Arbitration decided over
sixty years ago? Answers to these questions are important, for the Trail smelter
dispute which does not stand alone. The United States has numerous other
environmental disputes along the Canadian border that are either ongoing or are in
the making, and the number of disputes is expected to grow. Accordingly, the
countries need an effective means to resolve their transboundary pollution
problems. This Article discusses some of the legal mechanisms available to resolve
transboundary water pollution disputes between the United States and Canada, as
viewed through the context of the Trail smelter dispute. This Article concludes that
the use of international arbitration provides an effective, and too often overlooked,
way to resolve transboundary water pollution issues.20 Part I describes the current
Trail smelter dispute, and the unique environmental problems the Trail smelter is
believed to have caused to the Upper Columbia River Basin. Part II analyzes the
legal obstacles facing the U.S. Environmental Protection Agency and others wishing
to use domestic environmental laws to hold Canadian companies liable for
transboundary pollution. Although the United States may be successful in its
attempt to hold Canadian polluters liable through EPA initiated U.S. domestic
litigation, extraterritorial application of U.S. environmental law creates significant
problems, and seriously encroaches upon Canadian sovereignty. Ultimately, the
national adjudication of cross-border disputes does not provide a long-term
solution to transboundary pollution. Part III explores an available, 20. Shaw M.N.,
International Law, Cambridge University Press, 4th edition, 1997, U.K., 595
underutilized international environmental law mechanism that the countries could
potentially use to effectively resolve the Trail smelter and similar disputes. To the
extent that Canada and the United States attempt to resolve disputes legally, rather
than through diplomatic negotiation, the best legal solution to those disputes may
lie in international arbitration. International arbitration, modeled after the famous
Trail Smelter Arbitration, provides both a more diplomatically and conceptually
satisfying means of solving transboundary water pollution disputes than national
adjudication. Indeed, despite its contentiousness, the Trail smelter dispute provides
a unique opportunity to set the stage for renewed environmental cooperation
between the United States and its northern neighbor.'21
CONCLUSION:-
In this case Canada was held liable to the United States for the damages and injuries
done by fumes carried by the winds from a privately owned company of smelter in
Canada and was required to prevent such damages in future. The tribunal found it
unnecessary to decide whether the question should be answered on the basis of
United States Law or the International Law, since the law followed between the
states of the United States in the manner of air pollution, is in conformity with the
general rules of International law. Pointing to the absence of international decisions
dealing with air pollution, the tribunal said, “The nearest analogy is that of water
pollution”, but again found no interrelation decisions. On both air and water
pollution, the tribunal found certain United States Supreme Court decisions which
may be legitimately taken as a guide in this field of international law, for it is
reasonable to follow by analogy, in international cases, precedent established by
that court in dealing with controversies between the States of the Union or with
other controversies concerning the quasi-sovereign rights of that states, where no
contrary rule prevails in international law and no reason for rejecting such
precedents can be adduced from the limitations of sovereignty 21. Austen L.
Parrish, TRAIL SMELTER DEJA VU: EXTRATERRITORIALITY, INTERNATIONAL
4
ENVIRONMENTAL LAW, AND THE SEARCH FOR SOLUTIONS TO CANADIAN-U.S.
TRANSBOUNDARY WATER POLLUTION DISPUTES, Boston University Law Review,
2005, April. 2, 3. inherent in the Constitution of the United States. The tribunal
referred to one Swiss case, on water pollution, Georgia vs Tennessee Copper Co.22
It concluded that under the principles of international law, as well as the law of the
United States, no State has the right to use or permit the use of its territory in such
a manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein, when the case is of serious consequences and the
injury is established by clear and convincing evidence.'23 ‘Considering the
circumstances of the case, the Tribunal held that the Dominion of Canada is
responsible by international law for the conduct of the Trail Smelter. Apart from the
undertakings of the Convention, it is therefore the duty of the Government of the
Dominion of Canada to see to it that this conduct should be in conformity with the
obligation of the Dominion under international law as herein determined.
Therefore, so long as the present conditions in the Columbia River Valley prevail,
the Trail Smelter shall be required to refrain from causing any damage through
fumes in the State of Washington; the damage herein referred to and its extent
being such as would be recoverable under the decisions of the courts of the United
States in suits between private individuals. The indemnity for such damage should
be fixed in such a manner as the Governments should agree upon.'24 ‘The Trail
Smelter arbitration also remains a historical anomaly; as such a dispute would likely
be addressed through domestic litigation. With liberalization of jurisdictional rules
in both countries and the growth of environmental enforcement opportunities
under domestic law, citizens no longer need to rely on their federal governments to
seek a remedy for transboundary pollution. In fact, when citizens recently sought to
remedy transboundary water pollution from the same Trail Smelter facility at issue
in the original arbitration, they sued the company in United States federal court
under United States domestic environmental law.'25 25. Supra note 4 pg 13.
AFFAIRE DU LOC LANOUX (SPAIN VS FRANCE)
This arbitration concerned the use of the waters of Lake Lanoux, in the Pyrenees.
The French Government proposed to carry out certain works for the utilization of
the waters of the lake and the Spanish Government feared that these works would
adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne of
May 26, 1866, between France and Spain and the Additional Act of the same date.
In any event, it was claimed that, under the Treaty, such works could not be
undertaken without the previous agreement of both parties. Lake Lanoux lies on
the southern slopes of the Pyrenees, on French territory. It is fed by streams which
have their source in French territory and which run entirely through French territory
only. Its waters emerge only by the Font-Vive stream, which forms one of the
headwaters of the River Carol. That river, after flowing approximately 25
kilometer’s from Lake Lanoux through French territory, crosses the Spanish frontier
at Puigcerda and continues to flow through Spain for about 6 kilometers before
joining the river Segre, which ultimately flows into the Ebro. Before entering
Spanish territory, the waters of the Carol feed the Canal of Puigcerda which is the
private property of that town. On September 21, 1950, Electricité de France applied
to the French Ministry for Industry for a concession, based on a scheme involving
the diversion of the waters of Lake Lanoux towards the River Ariège. The waters so
diverted were to be completely returned into the River Carol by means of a tunnel
leading from the upper courses of the Ariège at a point on the Carol above the
outlet to the Puigcerda Canal. The French Government, however, while accepting
the principle that waters drawn off should be returned, regarded itself as bound
only to return a quantity of water corresponding to the actual needs of the Spanish
users. Consequently, France was going to proceed to develop Lake Lanoux by
diverting its waters towards the Ariege but a certain limited flow of water
corresponding to the actual needs of the Spanish frontagers would be assured at
the level of the outlet to the Puigcerda Canal. Spain was opposed to any diversion
of the waters of Lake Lanoux. The Tribunal examined the Treaty of Bayonne of May
26, 1866 and the Additional Act, as well as the arguments brought forward by both
Governments. Regarding the question whether France had taken Spanish interests
into sufficient consideration, the Tribunal stressed that in determining the manner
in which a scheme had taken into consideration the interests involved, the way in
which negotiations had developed, the total number of the interests which had
been presented, the price which each Party had been ready to pay to have those
interests safeguarded, were all essential factors in establishing, with regard to the
obligations set out in Article 11 of the Additional Act, the merits of that scheme. In
conclusion, the Tribunal was of opinion that the French scheme complied with the
obligations of Article 11 of the Additional Act. The Tribunal decided that in carrying
out, without prior agreement between the two Governments, works for the
utilization of the waters of Lake Lanoux in the conditions mentioned in the Scheme
for the Utilization of the Waters of Lake Lanoux, the French Government was not
committing a breach of the provisions of the Treaty of Bayonne of May 26, 1866,
and the Additional Act of the same date."
Summary: Lake Lanoux is situated in southern France near the border of
Spain. The lake is fed by several streams that all originate in France.
5
Water flows out of the lake in a single stream that joins the Carol River
before crossing into Spain. In the 1950's, France began developing a plan
to divert water from Lake Lanoux over a 789 meter drop to generate
hydroelectric energy. Even though France promised to return the diverted
water to the Carol River, Spain pressed France to arbitrate the dispute
because Spain believed the plan would violate its water rights under a
series of treaties signed in 1866. The arbitration tribunal issued an award
in 1957, which rejected Spain's arguments because the French plan
promised not to alter the volume of water entering Spain through the
Carol River. Although France would not have been allowed to unilaterally
promote its legitimate interests at the expense or injury of neighboring
states, the tribunal did not identify a foreseeable injury to Spain. Further,
the Tribunal stated that the 1866 treaties did not constitute a reason to
subjugate the general rule that standing and flowing waters are subject to
the sovereignty of the state where they are located.
CORFU CHANNEL CASE
The Corfu Channel case was the first public international law case heard before
the International Court of Justice (ICJ) between 1947 and 1949, concerning state
responsibility for damages at sea, as well as the doctrine of innocent passage.
A contentious case, it was the first of any type heard by the ICJ after its
establishment in 1945.
Following a series of encounters from May to November 1946 in the Corfu
Channel between the United Kingdom and the People's Republic of Albania—one of
which resulted in damage to two Royal Navy ships and significant loss of life—the
United Kingdom brought suit in the ICJ seeking reparations. After an initial ruling on
jurisdiction in 1948, the ICJ issued separate merits and compensation judgments in
1949. The Court awarded the United Kingdom £843,947. This amount remained
unpaid for decades, and British efforts to see it paid led to another ICJ case to
resolve competing Albanian and Italian claims to more than two tons of Nazi gold.
In 1996, Albania and the United Kingdom settled the judgment along with Albania's
outstanding claim to the gold.
Corfu Channel has had a lasting influence on the practice of international law,
especially the law of the sea. The concept of innocent passage used by the Court
was ultimately adopted in a number of important law of the sea conventions. The
stance taken by the Court on use of force has been of importance in subsequent
decisions, such as Nicaragua v. United States. Additionally, the case served to set a
number of procedural trends followed in subsequent ICJ proceedings.
In 1946, during the Greek civil war, a series of three encounters took place in
the Corfu Channel, between Albania and the United Kingdom.
On 15 May, the cruisers Orion and Superb passed through the northern part of the
Corfu Channel. Albanian shore batteries opened fire on the two ships, coming
within 200 yards (180 m) of the squadron, but striking neither vessel.[1] The United
Kingdom lodged a formal protest, demanding an apology from Albania. Albania
stated that the ships had violated Albanian territorial waters, and asserted that
passage through the Corfu Channel required Albanian permission. On 2 August, the
United Kingdom stated that Royal Navy ships would return any fire in the future.
On 22 October, a Royal Navy flotilla composed of cruisers Mauritius and Leander,
and destroyers Saumarez and Volage, entered the Corfu Channel. The ships were
at Action Stations, with orders to return fire if they were attacked. Their guns were
not loaded, and were in a neutral position—trained fore and aft, rather than aimed
at the shore.[a] At 2:53 p.m., Saumarez struck a mine and was heavily damaged;
thirty-six people aboard were killed. Volage took her in tow, only to strike another
mine at 4:16 p.m.; eight people were killed. A total of forty-four people died and
forty-two others were injured, and Saumarez was damaged beyond repair.[2] Shore
batteries in the vicinity were observed by the ships, but neither side took any
action. At one point, a boat flying an Albanian ensign and a white
flag approached Volage to ask what the ships were doing.[3] Writing in
2014, maritime archaeologist James P. Delgado said of the incident:
[The] narrowness of the Corfu Channel and rocky shallows north of the island
effectively pushed ships to the edge of Albania's maritime border, occasionally over
the line, sometimes to within a mile of shore. Given the Albanian defenses, the
tensions prompted by their increasingly anti-Western ruler and a British
government eager to reassert a strong naval role in the region, a clash was perhaps
inevitable.[4]
HMS Volage lost her bow as a result of striking a mine in the Corfu Channel while
towing HMS Saumarez, which had also struck a mine not long before.
On 12 and 13 November, the Royal Navy undertook a mine clearance operation in
the Corfu Channel, Operation Retail, which took place in Albanian territorial waters
without advance permission from that country. Subsequently, the Albanian
government formally complained to the United Nations, describing the operation as
an incursion into Albanian territorial waters.
On 9 December, the United Kingdom demanded reparations from Albania.[5] Albania
denied involvement in the laying of mines, blaming Greece.[6] In January 1947, the
6
United Kingdom attempted to involve the United Nations Security Council.
The Soviet Union objected, but the Security Council heard the British complaint.[7] A
fact-finding committee consisting of Polish, Australian
and Colombian representatives reached no conclusions despite ten meetings. [8] A
Soviet veto, supported by Poland, blocked a resolution that would have accused
Albania of indirect responsibility for the minefield.[9] The Security Council passed a
resolution on 9 April 1947, with the Soviet Union and Poland abstaining,
recommending that the United Kingdom and Albania resolve the dispute in the
International Court of Justice.[10] This recommendation was made pursuant to
Article 36, paragraph 3 of the United Nations Charter.[11] On 22 May, the United
Kingdom brought suit against Albania.[12] The ICJ, being permanently in session, was
available to begin hearing the case immediately. Despite having a long backlog of
matters for consideration, such as a request for an advisory opinion on Article 4 of
the United Nations Charter, the Corfu Channel case was considered first.[13][14]
Looking back on this point in the incident in 1966, Leslie Gardiner wrote that one
might have expected the incident to be all but resolved by this point. That after the
"awkward tussle before the Security Council", the proceedings before the ICJ would
be "for a mere formal pronouncement of guilt or innocence, in an atmosphere of
judicial calm, undisturbed by political considerations, uncorrupted by nationalistic
and ideological threats and sulks".[15]
Case history
The United Kingdom submitted its application to the ICJ on 22 May 1947. The
submission was made without any prior negotiation with Albania to reach a special
agreement. The jurisdiction of the ICJ over the matter was claimed under Article 36,
Paragraph 1 of the ICJ Statute.[16][17] The United Kingdom was initially represented by
then-attorney general Hartley Shawcross, who had been chief prosecutor for the
United Kingdom at the Nuremberg trials. Eric Beckett, legal counsel for the Foreign
Office, was also a major member of the legal team, while additional support came
from Hersch Lauterpacht, Humphrey Waldock, Richard Wilberforce, J. Mervyn
Jones and M. E. Reed.[18]
Albania submitted a letter to the Court on 2 July, which partially accepted the
Security Council's recommendations.[19][20] The lead counsel for Albania was Pierre
Cot, then a Radical deputy in the French National Assembly.[18] In late July, the
president of the Court issued an order setting the deadlines for each party's
submission of memorials. While the United Kingdom adhered to this deadline,
Albania instead filed an objection to the application.[21]
The Corfu Channel case has been called a landmark case in the development of
the law of the sea. While the 1930 Hague Conference on International Law reached
no consensus as to whether the right to innocent passage through territorial seas
existed for warships, Corfu Channel heralded a change of this regime.[86]
Corfu Channel was relevant at the seventh session of the International Law
Commission (ILC), held in 1955.[87] The ILC ultimately submitted a draft provision to
the 1958 United Nations Conference on the Law of the Sea (UNCLOS I), providing
that the right of innocent passage through international straits should not be
suspended. The ILC attributed their draft to the Corfu Channel merits judgment. 
Corfu Channel on the development of international environmental law.
Specifically, the case, along with the 1930s arbitration from the Trail
Smelter dispute and the subsequent ICJ case involving Barcelona
Traction, articulated basic principles used extensively in subsequent
cases and conventions dealing with the environment. In the Corfu
Channel case, the Court articulated the principle that every state is
obliged not to knowingly allow its territory to be used to commit acts
against the rights of any other state. This meant, with respect to the Corfu
Channel, that Albania was obliged to warn others that its territorial waters
were mined. The specific language came from the Trail Smelter case,
and ultimately was adopted into the Stockholm Declaration and Rio
Declaration.[99]
NUCLEAR TESTS (AUSTRALIA V. FRANCE)
OVERVIEW OF THE CASE
On 9 May 1973, Australia and New Zealand each instituted proceedings
against France concerning tests of nuclear weapons which France proposed
to carry out in the atmosphere in the South Pacific region. France stated
that it considered the Court manifestly to lack jurisdiction and refrained
from appearing at the public hearings or filing any pleadings. By two Orders
of 22 June 1973, the Court, at the request of Australia and New Zealand,
indicated provisional measures to the effect, inter alia  , that pending
judgment France should avoid nuclear tests causing radioactive fall-out on
Australian or New Zealand territory. By two Judgments delivered on 20
7
December 1974, the Court found that the Applications of Australia and New
Zealand no longer had any object and that it was therefore not called upon
to give any decision thereon. In so doing the Court based itself on the
conclusion that the objective of Australia and New Zealand had been
achieved inasmuch as France, in various public statements, had announced
its intention of carrying out no further atmospheric nuclear tests on the
completion of the 1974 series.
Brief Fact Summary. Australia and New Zealand (P) requested France (D) to put an
halt to atmospheric nuclear test in the South Pacific.
Synopsis of Rule of Law. Declaration made through unilateral acts may have the
effect of creating legal obligations.
Facts. A series of nuclear tests was completed by France (D) in the South Pacific.
This action made Australia and New Zealand (P) to apply to the I.C.J. demanding
that France (D) cease testing immediately. Before the case could be completed,
France (D) announced it had completed the test and did not plan any further test.
So France (D) moved for the dismissal of the application.
Issue. May declaration made through unilateral act has effect of creating legal
obligations?
Held. Yes. Declaration made through unilateral acts may have the effect of creating
legal obligations. In this case, the statement made by the President of France must
be held to constitute an engagement of the State in regard to the circumstances
and intention with which they were made. Therefore, these statement made by the
France (D) are relevant and legally binding. Application was dismissed.
Discussion. The unilateral statements made by French authorities were first relayed
to the government of Australia. There was no need for the statements to be
directed to any particular state for it to have legal effect. The general nature and
characteristics of the statements alone were relevant for evaluation of their legal
implications.
Nuclear weapons tests are experiments carried out to determine the effectiveness,
yield, and explosive capability of nuclear weapons. Testing nuclear weapons offers
practical information about how the weapons function, as well as how detonations
are affected by different conditions; and how personnel, structures, and equipment
are affected when subjected to nuclear explosions. However, nuclear testing has
often been used as an indicator of scientific and military strength, and many tests
have been overtly political in their intention; most nuclear weapons states publicly
declared their nuclear status by means of a nuclear test.
The first nuclear device was detonated as a test by the United States at the Trinity
site on July 16, 1945, with a yield approximately equivalent to 20 kilotons of TNT.
The first thermonuclear weapon technology test of an engineered device,
codenamed "Ivy Mike", was tested at the Enewetak Atoll in the Marshall Islands on
November 1, 1952 (local date), also by the United States. The largest nuclear
weapon ever tested was the "Tsar Bomba" of the Soviet Union at Novaya Zemlya on
October 30, 1961, with the largest yield ever seen, an estimated 50–58 megatons.
In 1963, three (UK, US, Soviet Union) of the then four nuclear states and many non-
nuclear states signed the Limited Test Ban Treaty, pledging to refrain from testing
nuclear weapons in the atmosphere, underwater, or in outer space. The treaty
permitted underground nuclear testing. France continued atmospheric testing until
1974, and China continued until 1980. Neither has signed the treaty.[1]
Underground tests in the Soviet Union continued until 1990, the United Kingdom
until 1991, in the United States until 1992 (its last nuclear test), and both China and
France until 1996. In signing the Comprehensive Nuclear-Test-Ban Treaty in 1996,
these states have pledged to discontinue all nuclear testing; the treaty has not yet
entered into force because of failure to be ratified by eight countries. Non-
signatories India and Pakistan last tested nuclear weapons in 1998. North Korea
conducted nuclear tests in 2006, 2009, 2013, 2016, and 2017. The most recent
confirmed nuclear test occurred in September 2017 in North Korea.
Nuclear weapons tests have historically been divided into four categories reflecting
the medium or location of the test.
 Atmospheric testing designates explosions that take place in
the atmosphere. Generally these have occurred as devices detonated on
towers, balloons, barges, islands, or dropped from airplanes, and also those
only buried far enough to intentionally create a surface-breaking crater. The
United States, the Soviet Union, and China have all conducted tests involving
explosions of missile-launched bombs (See List of nuclear weapons tests#Tests
of live warheads on rockets). Nuclear explosions close enough to the ground to
draw dirt and debris into their mushroom cloud can generate large amounts
of nuclear fallout due to irradiation of the debris. This definition of atmospheric
8
 is used in the Limited Test Ban Treaty, which banned this class of testing along
with exoatmospheric and underwater.
 Underground testing refers to nuclear tests conducted under the surface
of the earth, at varying depths. Underground nuclear testing made up the
majority of nuclear tests by the United States and the Soviet Union during
the Cold War; other forms of nuclear testing were banned by the Limited Test
Ban Treaty in 1963. True underground tests are intended to be fully contained
and emit a negligible amount of fallout. Unfortunately these nuclear tests do
occasionally "vent" to the surface, producing from nearly none to considerable
amounts of radioactive debris as a consequence. Underground testing, almost
by definition, causes seismic activity of a magnitude that depends on
the yield of the nuclear device and the composition of the medium in which it
is detonated, and generally creates a subsidence crater.[2] In 1976, the United
States and the USSR agreed to limit the maximum yield of underground tests to
150 kt with the
 Threshold Test Ban Treaty.
Underground testing also falls into two physical categories: tunnel tests in
generally horizontal tunnel drifts, and shaft tests in vertically drilled holes.
 Exoatmospheric testing refers to nuclear tests conducted above the
atmosphere. The test devices are lifted on rockets. These high altitude nuclear
explosions can generate a nuclear electromagnetic pulse (NEMP) when they
occur in the ionosphere, and charged particles resulting from the blast can
cross hemispheres following geomagnetic lines of force to create an auroral
display.
 Underwater testing involves nuclear devices being detonated underwater,
usually moored to a ship or a barge (which is subsequently destroyed by the
explosion). Tests of this nature have usually been conducted to evaluate the
effects of nuclear weapons against naval vessels (such as in Operation
Crossroads), or to evaluate potential sea-based nuclear weapons (such as
nuclear torpedoes or depth charges). Underwater tests close to the surface can
disperse large amounts of radioactive particles in water and steam,
contaminating nearby ships or structures, though they generally do not create
fallout other than very locally to the explosion.
 monitor compliance with test-ban treaties. In the United States these tests are
Salvo tests
Another way to classify nuclear tests are by the number of explosions that
constitute the test. The treaty definition of a salvo test is:
In conformity with treaties between the United States and the Soviet Union, a salvo
is defined, for multiple explosions for peaceful purposes, as two or more separate
explosions where a period of time between successive individual explosions does
not exceed 5 seconds and where the burial points of all explosive devices can be
connected by segments of straight lines, each of them connecting two burial points,
and the total length does not exceed 40 kilometers. For nuclear weapon tests, a
salvo is defined as two or more underground nuclear explosions conducted at a test
site within an area delineated by a circle having a diameter of two kilometers and
conducted within a total period of time of 0.1 second.[3]
The USSR has exploded up to eight devices in a single salvo test; Pakistan's second
and last official test exploded four different devices. Almost all lists in the literature
are lists of tests; in the lists in Wikipedia (for example, Operation Cresset has
separate items for Cremino and Caerphilly, which together constitute a single test),
the lists are of explosions.
Purpose
Separately from these designations, nuclear tests are also often categorized by the
purpose of the test itself.
 Weapons-related tests are designed to garner information about how (and
if) the weapons themselves work. Some serve to develop and validate a
specific weapon type. Others test experimental concepts or are physics
experiments meant to gain fundamental knowledge of the processes and
materials involved in nuclear detonations.
 Weapons effects tests are designed to gain information about the effects
of the weapons on structures, equipment, organisms and the environment.
They are mainly used to assess and improve survivability to nuclear explosions
in civilian and military contexts, tailor weapons to their targets, and develop
the tactics of nuclear warfare.
 Safety experiments are designed to study the behavior of weapons in
simulated accident scenarios. In particular, they are used to verify that a
(significant) nuclear detonation cannot happen by accident. They include one-
point safety tests and simulations of storage and transportation accidents.
 Nuclear test detection experiments are designed to improve the
capabilities to detect, locate, and identify nuclear detonations, in particular to
associated with Operation Vela Uniform before the Comprehensive Test Ban
Treaty stopped all nuclear testing among signatories.
 Peaceful nuclear explosions were conducted to investigate non-military
applications of nuclear explosives. In the United States these were performed
under the umbrella name of Operation Plowshare.
9
 Legality of the Threat or Use of Nuclear Weapons
By a letter dated 19 December 1994, filed in the Registry on 6 January 1995,
the Secretary-General of the United Nations officially communicated to the
Registry a decision taken by the General Assembly, by its resolution 49/75 K
adopted on 15 December 1994, to submit to the Court, for advisory opinion,
the following question : “Is the threat or use of nuclear weapons in any
circumstance permitted under international law ?” The resolution asked the
Court to render its advisory opinion “urgently”. Written statements were
filed by 28 States, and subsequently written observations on those
statements were presented by two States. In the course of the oral
proceedings, which took place in October and November 1995, 22 States
presented oral statements.
On 8 July 1996, the Court rendered its Advisory Opinion. Having concluded
that it had jurisdiction to render an opinion on the question put to it and
that there was no compelling reason to exercise its discretion not to render
an opinion, the Court found that the most directly relevant applicable law
was that relating to the use of force, as enshrined in the United Nations
Charter, and the law applicable in armed conflict, together with any specific
treaties on nuclear weapons that the Court might find relevant.
The Court then considered the question of the legality or illegality of the use
of nuclear weapons in the light of the provisions of the Charter relating to
the threat or use of force. It observed, inter alia, that those provisions
applied to any use of force, regardless of the weapons employed. In
addition it stated that the principle of proportionality might not in itself
exclude the use of nuclear weapons in self-defence in all circumstances.
However at the same time, a use of force that was proportionate under the
law of self-defence had, in order to be lawful, to meet the requirements of
the law applicable in armed conflict, including, in particular, the principles
and rules of humanitarian law. It pointed out that the notions of a “threat”
and “use” of force within the meaning of Article 2, paragraph 4, of the
Charter stood together in the sense that if the use of force itself in a given
case was illegal — for whatever reason — the threat to use such force
would likewise be illegal.
The Court then turned to the law applicable in situations of armed conflict.
From a consideration of customary and conventional law, it concluded that
the use of nuclear weapons could not be seen as specifically prohibited on
the basis of that law, nor did it find any specific prohibition of the use of
nuclear weapons in the treaties that expressly prohibited the use of certain
weapons of mass destruction. The Court then turned to an examination of
customary international law to determine whether a prohibition of the
threat or use of nuclear weapons as such flowed from that source of law.
Noting that the members of the international community were profoundly
divided on the matter of whether non-recourse to nuclear weapons over
the past 50 years constituted the expression of an opinio juris, it did not
consider itself able to find that there was such an opinio juris. The
emergence, as lex lata, of a customary rule specifically prohibiting the use of
nuclear weapons as such was hampered by the continuing tensions
between the nascent opinio juris on the one hand, and the still strong
adherence to the doctrine of deterrence on the other. The Court then dealt
with the question whether recourse to nuclear weapons ought to be
considered as illegal in the light of the principles and rules of international
humanitarian law applicable in armed conflict and of the law of neutrality. It
laid emphasis on two cardinal principles : (a) the first being aimed at the
distinction between combatants and non-combatants ; States must never
make civilians the object of attack and must consequently never use
weapons that are incapable of distinguishing between civilian and military
targets while (b) according to the second of those principles, unnecessary
suffering should not be caused to combatants. It follows that States do not
have unlimited freedom of choice in the weapons they use. The Court also
referred to the Martens Clause, according to which civilians and combatants
remained under the protection and authority of the principles of
international law derived from established custom, the principles of
humanity and the dictates of public conscience.
The Court indicated that, although the applicability to nuclear weapons of
the principles and rules of humanitarian law and of the principle of
neutrality was not disputed, the conclusions to be drawn from it were, on
the other hand, controversial. It pointed out that, in view of the unique
characteristics of nuclear weapons, the use of such weapons seemed
scarcely reconcilable with respect for the requirements of the law applicable
in armed conflict. The Court was led to observe that “in view of the current
state of international law and of the elements of fact at its disposal, [it]
cannot conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake”. The Court added,
10
lastly, that there was an obligation to pursue in good faith and to conclude
negotiations leading to nuclear disarmament in all its aspects under strict
and effective international control.
Legality of the Threat or Use of Nuclear Weapons [1996]
 ICJ 2 is a landmark international law case, where the International Court of
Justice gave an advisory opinion stating that there is no source of law,
customary or treaty, that explicitly prohibits the possession or even use of
nuclear weapons. The only requirement being that their use must be in
conformity with the law on self-defence and principles of international
humanitarian law.[1]
The World Health Organization requested the opinion on 3 September
1993,[2] but it was initially refused because the WHO was acting outside its
legal capacity (ultra vires). So the United Nations General
Assembly requested another opinion in December 1994,[3] accepted by the
Court in January 1995. As well as determining the illegality of nuclear
weapon use, the court discussed the proper role of international judicial
bodies, the ICJ's advisory function, international humanitarian law (jus in
bello), and rules governing the use of force (jus ad bellum). It explored the
status of "Lotus approach", and employed the concept of non liquet. There
were also strategic questions such as the legality of the practice of nuclear
deterrence or the meaning of Article VI of the 1968 Treaty on the Non-
Proliferation of Nuclear Weapons.
The possibility of threat outlawing use of nuclear weapons in an armed
conflict was raised on 30 June 1950, by the Dutch representative to
the International Law Commission (ILC) J.P.A. François, who suggested this
"would in itself be an advance".[4] In addition, the Polish government
requested this issue to be examined by the ILC as a crime against the peace
of mankind.[5] However, the issue was delayed during the Cold War.
The original advisory opinion was requested by the World Health
Organization in 1993.
An advisory opinion on this issue was originally requested by the World
Health Organization (WHO) on 3 September 1993:[6]
In view of the health and environmental effects, would the use of nuclear
weapons by a state in war or other armed conflict be a breach of its
obligations under international law including the WHO Constitution?[7]
The ICJ considered the WHO's request, in a case known as the Legality of
the Use by a State of Nuclear Weapons in Armed Conflict (General List No.
93), and also known as the WHO Nuclear Weapons case, between 1993 and
1996. The ICJ fixed 10 June 1994 as the time limit for written submissions,
but after receiving many written and oral submissions, later extended this
date to 20 September 1994. After considering the case the Court refused to
give an advisory opinion on the WHO question. On 8 July 1996 it held, by 11
votes to three, that the question did not fall within the scope of WHO's
activities, as is required by Article 96(2) of the UN Charter.[8]
Request of the UN General Assembly
On 15 December 1994 the UN General Assembly adopted resolution A/RES/49/75K.
[9]
 This asked the ICJ urgently to render its advisory opinion on the following
question:
Is the threat or use of nuclear weapons in any circumstances permitted under
international law?
— United Nations General Assembly[10][11]
The resolution, submitted to the Court on 19 December 1994, was adopted by 78
states voting in favour, 43 against, 38 abstaining and 26 not voting.[12]
The General Assembly had considered asking a similar question in the autumn of
1993, at the instigation of the Non-Aligned Movement (NAM), which ultimately did
not that year push its request.[citation needed] NAM was more willing the following year,
in the face of written statements submitted in the WHO proceedings from a number
of nuclear-weapon states indicating strong views to the effect that the WHO lacked
competence in the matter. The Court subsequently fixed 20 June 1995 as the filing
date for written statements.
Altogether forty-two states participated in the written phase of the pleadings, the
largest number ever to join in proceedings before the Court. [citation needed] Of the five
declared nuclear weapon states only the People's Republic of China did not
11
participate. Of the three "threshold" nuclear-weapon states only India participated.
Many of the participants were developing states which had not previously
contributed to proceedings before the ICJ, a reflection perhaps of the unparalleled
interest in this matter and the growing willingness of developing states to engage in
international judicial proceedings in the "post-colonial" period.[citation needed]
Oral hearings were held from 30 October to 15 November 1995. Twenty-two states
participated: Australia, Egypt, France, Germany, Indonesia, Mexico, Iran, Italy, Japan
, Malaysia, New Zealand, Philippines, Qatar, Russian Federation, San
Marino, Samoa, Marshall Islands, Solomon Islands, Costa Rica, United
Kingdom, United States, Zimbabwe; as did the WHO.[citation needed] The secretariat of
the UN did not appear, but filed with the Court a dossier explaining the history of
resolution 49/75K. Each state was allocated 90 minutes to make its statement. On 8
July 1996, nearly eight months after the close of the oral phase, the ICJ rendered its
opinion.
Decision of the International Court of Justice[edit]
Composition of the Court[edit]
See also: Composition of the International Court of Justice
The ICJ is composed of fifteen judges elected to nine year terms by the UN General
Assembly and the UN Security Council. The court's "advisory opinion" can be
requested only by specific United Nations organisations, and is inherently non-
binding under the Statute of the court.
The fifteen judges asked to give their advisory opinion regarding the legality of the
threat or use of nuclear weapons were:
Deterrence and "threat"[edit]
The court considered the matter of deterrence, which involves a threat to use
nuclear weapons under certain circumstances on a potential enemy or an enemy.
Was such a threat illegal? The court decided, with some judges dissenting, that, if a
threatened retaliatory strike was consistent with military
necessity and proportionality, it would not necessarily be illegal. (Judgement
paragraphs 37–50)
The legality of the possession of nuclear weapons[edit]
The court then considered the legality of the possession, as opposed to actual use,
of nuclear weapons.[citation needed] The Court looked at various treaties, including
the UN Charter, and found no treaty language that specifically forbade the
possession of nuclear weapons in a categorical way.
The UN Charter was examined in paragraphs 37–50 (paragraph 37: "The Court will
now address the question of the legality or illegality of recourse to nuclear weapons
in the light of the provisions of the Charter relating to the threat or use of force").
Paragraph 39 mentions: "These provisions [i.e. those of the Charter] do not refer to
specific weapons. They apply to any use of force, regardless of the weapons
employed. The Charter neither expressly prohibits, nor permits, the use of any
specific weapon, including nuclear weapons. A weapon that is already unlawful per
se, whether by treaty or custom, does not become lawful by reason of its being
used for a legitimate purpose under the Charter."
Treaties were examined in paragraphs 53–63 (paragraph 53: "The Court must
therefore now examine whether there is any prohibition of recourse to nuclear
weapons as such; it will first ascertain whether there is a conventional prescription
to this effect"), as part of the law applicable in situations of armed conflict
(paragraph 51, first sentence: "Having dealt with the Charter provisions relating to
the threat or use of force, the Court will now turn to the law applicable in situations
of armed conflict"). In particular, with respect to "the argument [that] has been
advanced that nuclear weapons should be treated in the same way as poisoned
weapons", the Court concluded that "it does not seem to the Court that the use of
nuclear weapons can be regarded as specifically prohibited on the basis of the [...]
provisions of the Second Hague Declaration of 1899, the Regulations annexed to the
Hague Convention IV of 1907 or the 1925 Protocol" (paragraphs 54 and 56)". It was
also argued by some that the Hague Conventions concerning the use of
bacteriological or chemical weapons would also apply to nuclear weapons, but the
Court was unable to adopt this argument ("The Court does not find any specific
prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use
of certain weapons of mass destruction", paragraph 57 in fine).
With respect to treaties that "deal [...] exclusively with acquisition, manufacture,
possession, deployment and testing of nuclear weapons, without specifically
addressing their threat or use," the Court notes that those treaties "certainly point
to an increasing concern in the international community with these weapons; the
Court concludes from this that these treaties could therefore be seen as
foreshadowing a future general prohibition of the use of such weapons, but they do
not constitute such a prohibition by themselves" (paragraph 62). Also,
regarding regional treaties prohibiting resource, namely those of Tlatelolco (Latin
America) and Rarotonga (South Pacific) the Court notes that while those "testify to
a growing awareness of the need to liberate the community of States and the
international public from the dangers resulting from the existence of nuclear
weapons", "[i]t [i.e. the Court] does not, however, view these elements as
amounting to a comprehensive and universal conventional prohibition on the use,
or the threat of use, of those weapons as such." (paragraph 63).
12
Customary international law also provided insufficient evidence that the
possession of nuclear weapons had come to be universally regarded as illegal. [citation
needed]
Ultimately, the court was unable to find an opinio juris (that is, legal consensus) that
nuclear weapons are illegal to possess. (paragraph 65) However, in practice, nuclear
weapons have not been used in war since 1945 and there have been numerous UN
resolutions condemning their use (however, such resolutions are not universally
supported—most notably, the nuclear powers object to them).(paragraph 68–73)
The ICJ did not find that these facts demonstrated a new and clear customary law
absolutely forbidding nuclear weapons.
However, there are many universal humanitarian laws applying to war. For
instance, it is illegal for a combatant specifically to target civilians and certain types
of weapons that cause indiscriminate damage are categorically outlawed.[citation
needed]
 All states seem to observe these rules, making them a part of customary
international law, so the court ruled that these laws would also apply to the use of
nuclear weapons.(paragraph 86) The Court decided not to pronounce on the matter
of whether the use of nuclear weapons might possibly be legal, if exercised as a last
resort in extreme circumstances (such as if the very existence of the state was in
jeopardy).(paragraph 97)
Gabčíkovo-Nagymaros Project (Hungary/Slovakia)
On 2 July 1993 the Governments of the Republic of Hungary and of the
Slovak Republic notified jointly to the Registry of the Court a Special
Agreement, signed at Brussels on 7 April 1993, for the submission to the
Court of certain issues arising out of differences which had existed between
the Republic of Hungary and the Czech and Slovak Federal Republic
regarding the implementation and the termination of the Budapest Treaty
of 16 September 1977 on the Construction and Operation of the Gabčíkovo-
Nagymaros Barrage System and on the construction and operation of the
“provisional solution”. The Special Agreement records that the Slovak
Republic is in this respect the sole successor State of the Czech and Slovak
Federal Republic. In Article 2 of the Special Agreement, the Court was asked
to say : (a) whether the Republic of Hungary was entitled to suspend and
subsequently abandon, in 1989, the works on the Nagymaros project and on
that part of the Gabčíkovo project for which the Treaty attributed
responsibility to the Republic of Hungary ; (b) whether the Czech and Slovak
Federal Republic was entitled to proceed, in November 1991, to the
“provisional solution” and to put into operation from October 1992 this
system (the damming up of the Danube at river kilometre 1,851.7 on
Czechoslovak territory and the resulting consequences for the water and
navigation course) ; and (c) what were the legal effects of the notification,
on 19 May 1992, of the termination of the Treaty by the Republic of
Hungary. The Court was also requested to determine the legal
consequences, including the rights and obligations for the Parties, arising
from its Judgment on the above-mentioned questions. Each of the Parties
filed a Memorial, a Counter Memorial and a Reply accompanied by a large
number of annexes.
In June 1995, the Agent of Slovakia requested the Court to visit the site of
the Gabčíkovo-Nagymaros hydroelectric dam project on the Danube for the
purpose of obtaining evidence. A “Protocol of Agreement” was thus signed
in November 1995 between the two Parties. The visit to the site, the first
such visit by the Court in its 50-year history, took place from 1 to 4 April
1997 between the first and second rounds of oral pleadings.
In its Judgment of 25 September 1997, the Court asserted that Hungary was
not entitled to suspend and subsequently abandon, in 1989, the works on
the Nagymaros project and on the part of the Gabčíkovo project for which it
was responsible, and that Czechoslovakia was entitled to proceed, in
November 1991, to the “provisional solution” as described by the terms of
the Special Agreement. On the other hand, the Court stated that
Czechoslovakia was not entitled to put into operation, from October 1992,
the barrage system in question and that Slovakia, as successor to
Czechoslovakia, had become Party to the Treaty of 16 September 1977 as
from 1 January 1993. The Court also decided that Hungary and Slovakia
must negotiate in good faith in the light of the prevailing situation and must
take all necessary measures to ensure the achievement of the objectives of
the said Treaty, in accordance with such modalities as they might agree
upon. Further, Hungary was to compensate Slovakia for the damage
sustained by Czechoslovakia and by Slovakia on account of the suspension
and abandonment by Hungary of works for which it was responsible,
whereas, again according to the Judgment of the Court, Slovakia was to
compensate Hungary for the damage it had sustained on account of the
putting into operation of the dam by Czechoslovakia and its maintenance in
service by Slovakia.
On 3 September 1998, Slovakia filed in the Registry of the Court a request
for an additional Judgment in the case. Slovakia considered such a Judgment
13
necessary because of the unwillingness of Hungary to implement the
Judgment delivered by the Court on 25 September 1997. In its request,
Slovakia stated that the Parties had conducted a series of negotiations of
the modalities for executing the 1997 Judgment and had initialled a draft
Framework Agreement, which had been approved by the Slovak
Government. However, according to the latter, Hungary had decided to
postpone its approval and had even disavowed it when the new Hungarian
Government had come into office. Slovakia requested the Court to
determine the modalities for executing the Judgment, and, as the basis for
its request, invoked the Special Agreement signed at Brussels on 7 April
1993 by itself and Hungary. After the filing by Hungary of a statement of its
position on Slovakia’s request, the Parties resumed negotiations and
informed the Court on a regular basis of the progress in them.
By a letter from the Agent of Slovakia dated 30 June 2017, the Slovak
Government requested that the Court “place on record the discontinuance
of the proceedings [instituted by means of the request for an additional
Judgment in the case] and . . . direct the removal of the case from the List”.
In a letter dated 12 July 2017, the Agent of Hungary stated that his
Government “d[id] not oppose the discontinuance of the proceedings
instituted by means of the Request of Slovakia of 3 September 1998 for an
additional judgment”.
By a letter to both Agents dated 18 July 2017, the Court communicated its
decision to place on record the discontinuance of the procedure begun by
means of Slovakia’s request and informed them that it had taken note that
both Parties reserved their respective right under Article 5, paragraph 3, of
the Special Agreement of 7 April 1993 between Hungary and Slovakia to
request the Court to render an additional judgment to determine the means
of executing its Judgment of 25 September 1997.
GABCIKOVO-NAGYMAROS PROJECT CASE BRIEF (HUNGARY/SLOVAKIA)
Gabcikovo-Nagymaros Project (Hungary/Slovakia)
Procedural History:
NATURE OF CASE: Proceeding before the International Court of Justice
Overview:
FACT SUMMARY: Hungary (D) claimed that changed circumstances made
enforcement of a treaty with Slovakia (P) impossible.
FACTS: Hungary (D) and Slovakia (P) had agreed in 1977 to build and operate a
system of locks along the Danube River comprising a dam, reservoir, hydroelectric
power plant, and flood control improvements. This project was never completed
and both countries underwent changes in their political and economic systems
beginning in 1989. Hungary (D) first suspended and then abandoned its part of the
works and later gave notice of termination of the treaty. In 1992, Hungary (D) and
Slovakia (P) asked the l.C.J. to decide on the basis of international law whether
Hungary (D) was entitled to suspend, and subsequently abandon, its part of the
works, on the basis of the doctrine of impossibility of performance.
Issue:
ISSUE: Must a fundamental change of circumstances have been unforeseen and
must the existence of the circumstances at the time of the treaty’s conclusion have
constituted an essential basis of the consent of the parties to be bound?
Outcome:
HOLDING AND DECISION: [Judge not stated in casebook excerpt.] Yes. A
fundamental change of circumstances must have been unforeseen and the
existence of the circumstances at the time of the treaty’s conclusion must have
constituted an essential basis of the consent of the parties to be bound. Where the
prevalent political and economic conditions were not so closely linked to the object
and purpose of the treaty as to constitute an essential basis of the consent of the
parties, there was no fundamental change of circumstances. The plea of
fundamental change of circumstances may only be applied in exceptional cases.
Rule:
a fundamental change of circumstances must have been unforeseen and the
existence of the circumstances at the time of the treaty’s conclusion must have
constituted an essential basis of the consent of the parties to be bound.
Analysis:
The Court relied on the Vienna Convention. The Vienna Convention may be seen as
a codification of existing customary law on the subject of termination of a treaty on
the basis of change in circumstances. New developments in environmental law
were not completely unforeseen.
14
Facts: The Gabčíkovo–Nagymaros Dams project. Initiated by the Budapest Treaty of
16 September 1977 between the Czechoslovak Socialist Republic and the People’s
Republic of Hungary.Only a part of the project has been finished in Slovakia, under
the name Gabčíkovo Dam, because Hungary first suspended then tried to terminate
the project due to environmental and economic concerns. Slovakia proceeded with
an alternative solution, called “Variant C”, which involved diverting the Danube, the
border river.
Issues:
1.
1. Whether or not Czechoslovakia was entitled to embark on
Proposal C
2. Whether the 1977 treaty was binding on Slovakia and Hungary
Decision: The 1977 Budapest Treaty still in force. Each Party must compensate the
other Party for the damage caused by its conduct.
Reasoning: Both Hungary and Slovakia had breached their legal obligations. A
breach of international law by a State entails its international responsibility
SOVEREIGNTY OVER NATURAL RESOURCES AND
THE OBLIGATION NOT TO CAUSE HARM
Through the years, the concept of sovereignty has evolved to include not
only territorial sovereignty but permanent sovereignty over natural
resources (PSNR) as well. Fundamentally,  PSNR  means the State can freely
dispose of its natural wealth and resources within its territory. Correlatively,
the principle brings about the State duty to properly manage its wealth and
resources as well as due care of the environment.
Efforts at formulation of the principle culminated in the adoption of a UN
resolution called Declaration on Permanent Sovereignty over Natural
Resources in 1962. The principle progressively developed that by 1972, the
well-known Principle 21 of the  Stockholm Declaration on the Human
Environment declares the sovereign right of States to exploit their own
natural resources pursuant to their own environmental policies. However,
the right is qualified by the obligation not to cause any extra-territorial
environmental harm.
For many years, the main purpose of international agreements related to
the principle of permanent sovereignty over natural resources was the
maximum use and development of natural resources instead of rational
management and conservation of natural resources in order to prevent
their depletion or degradation. Perhaps, the reason was the concept of
sovereignty is difficult, if not impossible, to fathom in an ecological frame of
reference. The very thought of ecology is based on the notion of
interdependence rather than independence. In fact, rights of full disposal
were granted to States on the basis of territorial sovereignty rather than a
principle of sharing the world’s resources. The trend was overtaken after
the 1972 UN Stockholm Conference on the Human Environment by
resource-oriented multilateral environmental agreements (MEAs) or
treaties. An example is the UN Law of the Sea  Convention (1982) which
adopted the regime of “ common heritage of mankind” by which non-State
areas are not freely appropriated anymore by financially capable developed
countries for their exclusive use. Similarly, incorporation of the integrated
ecosystem approach in the Convention on Biological Diversity (1992)
enumerates State duties to properly manage its species of plants and
animals which, in effect, limits a State’s exercise of jurisdiction over its
natural resources. From unrestrained freedom of action, State sovereignty
was interpreted in a more functional way to mean specific uses of a
resource rather than absolute and unlimited jurisdiction within a given
geographical space.
Functional sovereignty is bolstered by reference  of various PSNR-related
UN resolutions and treaties to “mankind” referring to areas and resources
beyond the limits of national jurisdiction or the “global commons.” In this
connection, mention should be made that at the 1992 UN Conference on
Environment and Development in Rio de Janeiro, proposals were made to
characterize biological and genetic resources as well as the world’s forests
as the “common heritage of humankind.” Thus, the three Rio treaties
recognize that change in the Earth’s climate and its adverse effects are a
common concern of humankind (Climate Change Convention); that the
conservation of biological diversity is a concern of humankind (Convention
on Biological Diversity); and desertification and drought are problems of
global dimension and human beings in affected areas should be at the
centre of concerns to combat desertification and to mitigate the effects of
drought (Convention to Combat Desertification). Note that in those treaties
15
people, humankind and the environment as such are objects rather than
subjects of international law. As objects, indirectly they have rights under or
are beneficiaries of international law through subjects of international law,
referring to the State actors in the international legal system.
Sovereignty has served as the foundation of public international law since
the Peace of Westphalia (1648) with sovereign states as the principal actors
in international relations. But as can be gleaned, times have changed. What
does the principle represent in the changing world? Current thinking
maintains permanent sovereignty over natural resources as a State-oriented
law under which natural resources regimes co-exist but barely interact. Be
that as it may, the trend, as can be observed, is towards a legal
interpretation that is humankind-oriented, under which sustainable
development and environmental preservation are approached from a global
perspective. At its core is cooperation aimed at implementation of the right
to development, the wise management of natural resources, equitable
sharing of transboundary natural resources and the global commons for
preservation for the coming generations. With this legal thinking and the
concomitant framework, sovereignty over natural resources as the
fountainhead of rights and obligations can very well continue to serve as a
basic principle of public international law. The above-enumerated treaties
incorporate the law of interdependence in the sustainable use of natural
resources emphasizing States are under the duty to cooperate with each
other to promote development sustainability of the common environment.
With this latest development in the increasing appreciation of PSNR, is it not
time to re-think and re-actualize sovereignty   in order to formally recognize
its functional role as demanded by changing times?
After all, the general principle that ensues from all this is that the Earth’s
biosphere  is the common heritage of all life on earth of which humanity is
the steward.
The precautionary principle
As discussed above, environmental law regularly operates in areas
complicated by high levels of scientific uncertainty. In the case of
many activities that entail some change to the environment, it is
impossible to determine precisely what effects the activity will have
on the quality of the environment or on human health. It is generally
impossible to know, for example, whether a certain level of air
pollution will result in an increase in mortality from respiratory
disease, whether a certain level of water pollution will reduce a
healthy fish population, or whether oil development in an
environmentally sensitive area will significantly disturb the native
wildlife. The precautionary principle requires that, if there is a strong
suspicion that a certain activity may have environmentally harmful
consequences, it is better to control that activity now rather than to
wait for incontrovertible scientific evidence. This principle is
expressed in the Rio Declaration, which stipulates that, 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.” In the United
States the precautionary principle was incorporated into the design of
habitat-conservation plans required under the aegis of
the Endangered Species Act. In 1989 the EC invoked the
precautionary principle when it banned the importation of U.S.
hormone-fed beef, and in 2000 the organization adopted the
principle as a “full-fledged and general principle of international law.”
In 1999 Australia and New Zealand invoked the precautionary
principle in their suit against Japan for its alleged overfishing of
southern bluefin tuna.
The prevention principle
Although much environmental legislation is drafted in response to catastrophes,
preventing environmental harm is cheaper, easier, and less environmentally
dangerous than reacting to environmental harm that already has taken place. The
prevention principle is the fundamental notion behind laws regulating the
generation, transportation, treatment, storage, and disposal of hazardous waste
and laws regulating the use of pesticides. The principle was the foundation of the
16
Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal (1989), which sought to minimize the production of
hazardous waste and to combat illegal dumping. The prevention principle also was
an important element of the EC’s Third Environmental Action Programme, which
was adopted in 1983.
The “polluter pays” principle
Since the early 1970s the “polluter pays” principle has been a dominant concept in
environmental law. Many economists claim that much environmental harm is
caused by producers who “externalize” the costs of their activities. For example,
factories that emit unfiltered exhaust into the atmosphere or discharge untreated
chemicals into a river pay little to dispose of their waste. Instead, the cost of waste
disposal in the form of pollution is borne by the entire community. Similarly, the
driver of an automobile bears the costs of fuel and maintenance but externalizes
the costs associated with the gases emitted from the tailpipe. Accordingly, the
purpose of many environmental regulations is to force polluters to bear the real
costs of their pollution, though such costs often are difficult to calculate precisely. In
theory, such measures encourage producers of pollution to make cleaner products
or to use cleaner technologies. The “polluter pays” principle underlies U.S. laws
requiring the cleanup of releases of hazardous substances, including oil. One such
law, the Oil Pollution Act (1990), was passed in reaction to the spillage of some 11
million gallons (41 million litres) of oil into Prince William Sound in Alaska in 1989.
The “polluter pays” principle also guides the policies of the EU and other
governments throughout the world. A 1991 ordinance in Germany, for example,
held businesses responsible for the costs of recycling or disposing of their products’
packaging, up to the end of the product’s life cycle; however, the German
Federal Constitutional Court struck down the regulation as unconstitutional. Such
policies also have been adopted at the regional or state level; in 1996 the U.S. state
of Florida, in order to protect its environmentally sensitive Everglades region,
incorporated a limited “polluter pays” provision into its constitution.
The integration principle
Environmental protection requires that due consideration be given to the potential
consequences of environmentally fateful decisions. Various jurisdictions (e.g., the
United States and the EU) and business organizations (e.g., the U.S. Chamber of
Commerce) have integrated environmental considerations into their decision-
making processes through environmental-impact-assessment mandates and other
provisions.
The public participation principle
Decisions about environmental protection often formally integrate the views of the
public. Generally, government decisions to set environmental standards for specific
types of pollution, to permit significant environmentally damaging activities, or to
preserve significant resources are made only after the impending decision has been
formally and publicly announced and the public has been given the opportunity to
influence the decision through written comments or hearings. In many countries
citizens may challenge in court or before administrative bodies government
decisions affecting the environment. These citizen lawsuits have become an
important component of environmental decision making at both the national and
the international level.
Public participation in environmental decision making has been facilitated in Europe
and North America by laws that mandate extensive public access to government
information on the environment. Similar measures at the international level include
the Rio Declaration and the 1998 Århus Convention, which committed the 40
European signatory states to increase the environmental information available to
the public and to enhance the public’s ability to participate in government decisions
that affect the environment. During the 1990s the Internet became a primary
vehicle for disseminating environmental information to the public.
Sustainable development
Sustainable development is an approach to economic planning that attempts to
foster economic growth while preserving the quality of the environment for future
generations. Despite its enormous popularity in the last two decades of the 20th
century, the concept of sustainable development proved difficult to apply in many
cases, primarily because the results of long-term sustainability analyses depend on
the particular resources focused upon. For example, a forest that will provide a
sustained yield of timber in perpetuity may not support native bird populations, and
a mineral deposit that will eventually be exhausted may nevertheless support more
or less sustainable communities. Sustainability was the focus of the 1992 Earth
Summit and later was central to a multitude of environmental studies.
17
One of the most important areas of the law of sustainable development
is ecotourism. Although tourism poses the threat of environmental harm
from pollution and the overuse of natural resources, it also can create economic
incentives for the preservation of the environment in developing countries and
increase awareness of unique and fragile ecosystems throughout the world. In 1995
the World Conference on Sustainable Tourism, held on the island of Lanzarote in
the Canary Islands, adopted a charter that encouraged the development of laws
that would promote the dual goals of economic development through tourism and
protection of the environment. Two years later, in the Malé Declaration on
Sustainable Tourism, 27 Asian-Pacific countries pledged themselves to a set of
principles that included fostering awareness of environmental ethics in tourism,
reducing waste, promoting natural and cultural diversity, and supporting local
economies and local community involvement. Highlighting the growing importance
of sustainable tourism, the World Tourism Organization declared 2002 the
International Year of Ecotourism.
Current Trends And Prospects
Although numerous international environmental treaties have been concluded,
effective agreements remain difficult to achieve for a variety of reasons. Because
environmental problems ignore political boundaries, they can be adequately
addressed only with the cooperation of numerous governments, among which
there may be serious disagreements on important points of environmental policy.
Furthermore, because the measures necessary to address environmental problems
typically result in social and economic hardships in the countries that adopt them,
many countries, particularly in the developing world, have been reluctant to enter
into environmental treaties. Since the 1970s a growing number of environmental
treaties have incorporated provisions designed to encourage their adoption by
developing countries. Such measures include financial cooperation, technology
transfer, and differential implementation schedules and obligations.
The greatest challenge to the effectiveness of environmental treaties is compliance.
Although treaties can attempt to enforce compliance through mechanisms such as
sanctions, such measures usually are of limited usefulness, in part because
countries in compliance with a treaty may be unwilling or unable to impose the
sanctions called for by the treaty. In general, the threat of sanctions is less
important to most countries than the possibility that by violating their international
obligations they risk losing their good standing in the international community.
Enforcement mechanisms other than sanctions have been difficult to establish,
usually because they would require countries to cede significant aspects of their
national sovereignty to foreign or international organizations. In most agreements,
therefore, enforcement is treated as a domestic issue, an approach that effectively
allows each country to define compliance in whatever way best serves its national
interest. Despite this difficulty, international environmental treaties and
agreements are likely to grow in importance as international environmental
problems become more acute.
Many areas of international environmental law remain underdeveloped. Although
international agreements have helped to make the laws and regulations applicable
to some types of environmentally harmful activity more or less consistent in
different countries, those applicable to other such activities can differ in dramatic
ways. Because in most cases the damage caused by environmentally harmful
activities cannot be contained within national boundaries, the lack of consistency in
the law has led to situations in which activities that are legal in some countries
result in illegal or otherwise unacceptable levels of environmental damage in
neighbouring countries.
This problem became particularly acute with the adoption of free trade agreements
beginning in the early 1990s. The North American Free Trade Agreement (NAFTA),
for example, resulted in the creation of large numbers of maquiladoras—factories
jointly owned by U.S. and Mexican corporations and operated in Mexico—inside a
60-mile- (100-km) wide free trade zone along the U.S.-Mexican border. Because
Mexico’s government lacked both the resources and the political will to enforce the
country’s environmental laws, the maquiladoras were able to pollute surrounding
areas with relative impunity, often dumping hazardous wastes on the ground or
directly into waterways, where they were carried into U.S. territory. Prior to
NAFTA’s adoption in 1992, the prospect of problems such as these led negotiators
to append a so-called “side agreement” to the treaty, which pledged environmental
cooperation between the signatory states. Meanwhile, in Europe concerns about
the apparent connection between free trade agreements and
environmental degradation fueled opposition to the Maastricht Treaty, which
created the EU and expanded its jurisdiction.
Intergenerational equity
Intergenerational equity represents a widely recognized principle of international
environmental law providing for the preservation of natural resources and the
environment for the benefit of future generations. It has roots in the 1972
Stockholm Declaration [69] and forms a core tenet of sustainable development
frameworks [70]. The right to development must be fulfilled so as to equitably
meet developmental and environmental needs of present and future generations.
18
Intergenerational equity is a value concept which focuses on the rights of future
generations. ... Each generation has the right to inherit the same diversity in natural
and cultural resources enjoyed by previous generations and to equitable access to
the use and benefits of these resources.
The UNFCCC embeds intragenerational equity within the international climate
change regime as a founding principle. Article 3 frames the concept in terms of the
need to “protect the climate system for the benefit of present and future
generations of humankind” [71], which is reinforced by the inclusion of sustainable
development as a further core principle within the UNFCCC framework [72]. The
continuing relevance of intergenerational equity as a guiding principle shaping
climate action is reaffirmed by the Paris Agreement preamble [73], yet its precise
conceptualization and implementation measures, beyond the implicit benefits of
climate mitigation for future generations generally, remain unclear.
Intergenerational equity, despite being widely referred to in the discourse and
instruments of international institutions [74], is often provided for in the form of
nonbinding “soft law” or remains undefined and open to interpretation, as in the
UNFCCC. The status of the principle before the courts is contested and it is
observed by Bell, McGillivray et al. that the inherent difficulty in defining
intergenerational equity means that it is very seldom invoked in judicial
decisions [75].
In climate justice literature, there is widespread agreement on the importance of
taking the needs and rights of future generations into account. Caney for example
argues that intergenerational duties represent a core facet of global climate justice
due to the temporal dimension of climate change, which means that the adverse
impacts of current greenhouse gas emissions will be experienced by future
generations of people [76]. The way in which the principle should be defined and
applied to climate change however lacks agreement. Brown Weiss has defined
intergenerational equity in the form of three key principles of conservation, namely,
of options, quality, and access [77]. These three principles, designed to protect
natural resource diversity, the quality of the environment, and the ability of future
generations to equitably access the benefits therefrom, are translated into the
obligations to prevent and mitigate climate change, together with the obligation to
provide adaptation assistance [78]. All three of these climate obligations can be
found within the international climate change regime, which has established a
warming threshold commensurate with the prevention of dangerous interference
with the climate system, and ascribes mitigation and adaptation assistance
obligations to developed nations.
It is however unclear which of the founding principles underpin each of these
obligations or how the principles are being conceptualized. The application of
liberal principles of fairness such as Rawls’ “just savings” principle, described as “an
understanding between generations to carry their fair share of the burden of
realizing and preserving a just society” [79], whereby the present generation has a
duty to save a “fair share” of resources for the next [80], has also been advocated
for in the climate change context [81]. Attempts to fill the lacuna between principle
and implementation have given rise to proposals for economic solutions in the form
of “social discounting,” based upon cost–benefit calculations of the value of acting
to protect future generations. These contentious proposals and questions
surrounding the values assigned to market, technological, and human factors have
met with strong criticism on ethical grounds, including from fellow economists [82].
To what extent the interests of future generations should be provided for is itself a
highly contested question and presents significant challenges, both ethically and
legally. Some of the strongest critiques have argued that protecting future
generations from climate impacts through stringent mitigation efforts is at the cost
of improving the welfare of the present generation, particularly those living in
poverty for whom resources are urgently required [83]. The false dichotomy
between development and environmental protection has been particularly
pervasive in the field of climate change, where, reinforced by a binary approach to
common but differentiated responsibility, it has served to entrench the pre-Paris
Agreement impasse on mitigation action between developed and high-emitting
developing states [84]. A further common criticism of attempts to implement
intergenerational equity and rights is the ability to identify the people to whom a
duty is owed or by whom a right is held, known as the “non-identity problem” [85],
discussed in greater detail in Section 24.3.3 below. The common factor in
intergenerational approaches to climate change is their ambiguity in both the
definition and application of the concept. Acknowledging these difficulties, it can
pragmatically be argued that the best way to provide protection from adverse
climate change impacts for future generations is to increase commitment to
mitigation and overcoming social injustice in the present [86].
RIGHTS-BASED APPROACH
 A rights-based approach means integrating human rights norms and principles in
the design, implementation, monitoring, and evaluation of health-related policies
and programs. These include human dignity, attention to the needs and rights of
vulnerable groups, and an emphasis on ensuring that health systems are made
accessible to all. The principle of equality and freedom from discrimination is
central, including discrimination on the basis of sex and gender roles. Integrating
human rights into development also means empowering poor people, ensuring
19
their participation in decision-making processes that concern them and
incorporating accountability and transparency mechanisms that they can access.
A human rights approach to health is critical to address growing global health
inequalities. Key elements of a human rights-based approach such as: Participation,
Accountability, Non-discrimination, Transparency, Human dignity, Empowerment
and Rule of Law, are core enablers of achieving health care services that are
Available, Accessible, Acceptable and of High Quality for all (AAAQ).  These are key
principles of a rights based approach to health care.
Building on previous and ongoing work, the RBA-healthdelivery project aims to
facilitate co-creation by stakeholders in partner countries in the operationalization
of RBA-health delivery tools, and to ensure that in doing so they have access to and
actively engage with the best possible knowledge base. This includes findings from
the project itself -internal research on impacts of such tools as that are being
developed, thus enabling continuous improvements by bridging research and
policy. The project also aims to develop a methodology for assessing impacts of
RBAs in health services delivery operationalization.
Environmental enforcement
Environmental enforcement is the set of actions that a government takes to achieve
full implementation of Environmental requirements (compliance) within the
regulated community and to correct or halt situations or activities that endanger
the environment or public health. Experience with environmental programs has
shown that enforcement is essential to compliance because many people and
institutions will not comply with a law unless there are clear consequences for
noncompliance. Enforcement by the government usually includes inspections to
determine the compliance status of the regulated community and to detect
violations; negotiations with individuals or facility managers who are out of
compliance to develop mutually agreeable schedules and approaches for
achievement of compliance; legal action when necessary to compel compliance and
to impose some consequences for violation of the law or for posing a threat
to public health and the environment; and compliance promotion, such as
educational programs, technical assistance, and subsidies, to encourage voluntary
compliance.
Nongovernmental groups may become involved in enforcement by detecting
noncompliance, negotiating with violators, and commenting on governmental
enforcement actions. They may also, if the law allows, take legal actions against a
violator for noncompliance or against the government for not enforcing
environmental requirements. The banking and insurance industries may be
indirectly involved with enforcement by requiring assurance of compliance with
environmental requirements before they issue a loan or an insurance policy to a
facility. Strong social sanctions for noncompliance with environmental
requirements can also be effective to ensure compliance. For example, the public
may choose to boycott a product if they believe the manufacturer is harming the
environment.
Environmental enforcement is based on environmental laws. An environmental
law provides the vision, scope, and authority for environmental protection and
restoration. Some environmental laws contain requirements while others specify a
structure and criteria for establishing requirements, which are then developed
separately. Requirements may be general, in which they apply to a group of
facilities, or facility-specific.
Examples of environmental enforcement programs include those that govern the
ambient environment, performance, technology, work practices, dissemination of
information and product or use bans.
Ambient standards (media quality standard) are goals for the quality of the ambient
environment (that is, air and water quality ). Ambient standards are usually written
in units of concentration, and they are used to plan the levels of emissions that can
be accommodated from individual sources while still meeting an area-wide goal.
Ambient standards can also be used as triggers, i.e., when a standard is exceeded,
monitoring or enforcement efforts are increased. Enforcement of these standards
involves relating an ambient measurement to emissions or activities at a specific
facility, which can be difficult.
Performance standards, widely used for regulations, permits, and monitoring
requirements, limit the amount or rate of particular chemicals or discharges that a
facility can release into the environment in a given period of time. These standards
allow sources to choose which technologies they will use to meet the standards.
Performance standards are often based on output that can be achieved by using
the best available control technology . Some standards allow a source with
multiple emissions to vary its emissions from each stack as long as the total sum of
emissions does not exceed the permitted total. Compliance with emission
standards is accomplished by sampling and monitoring, which in some cases may
be difficult and/or expensive.
20
Technology standards require the regulated community to use a particular type of
technology (i.e., "best available technology") to control and/or monitor emissions.
Technology standards are effective if the equipment specified is known to perform
well under the range of conditions experienced by the source. Compliance is
measured by whether the equipment is installed and operating properly. However,
proper operation over a long period of time is more difficult to monitor. The use of
technology standards can inhibit technological innovation.
Practice standards require or prohibit work activities that may have environmental
impacts (e.g., prohibition of carrying hazardous liquids in uncovered containers).
Regulators can easily inspect for compliance and take action against noncomplying
sources, but ongoing compliance is not easy to ensure.
Dissemination of information and product or use bans are also governed by
environmental enforcement programs. Information standards require a source of
potential pollution (e.g., a manufacturer or facility involved in generating,
transporting, storing, treating, and disposing of hazardous wastes) to develop and
submit information to the government. For example, a source generating pollution
may be required to monitor, maintain records, and report on the level of pollution
generated and whether or not the source exceeds performance standards.
Information requirements are also used when a potential pollution source is a
product such as a new chemical or pesticide . The manufacturer may be required to
test and report on the potential of the product to cause harm if released into the
environment. Finally, product or use bans are used to prohibit a product (i.e., ban
the manufacture, sale, and/or use of a product) or they may prohibit particular uses
of a product.
An effective environmental law should include the authority or power necessary for
its own enforcement. An effective authority should govern implementation of
environmental requirements, inspection, and monitoring of facilities, and legal
sanctions for noncompliance. One type of authority that is used is guidance for the
implementation of environmental laws by issuance of regulations, permits, licenses,
and/or guidance policies. Regulations establish, in greater detail than is specified by
law, general requirements that must be met by the regulated community. Some
regulations are directly enforced while others provide criteria and procedures for
developing facility-specific requirements utilizing permits and licenses to provide
the basis of enforcement. Permits are used to control activities related to
construction or operation of facilities that generate pollutants. Requirements in
permits are based on specific criteria established in laws, regulations, and/or
guidance. General permits specify what a class of facilities is required to do, while a
facility-specific permit specifies requirements for a particular facility, often taking
into account the conditions there. Licenses are permits to manufacture, test, sell,
and/or distribute a product that may pose an environmental or public health risk if
improperly used. Licenses may be general or facility-specific. Written guidance and
policies, which are prepared by the regulator, are used to interpret and implement
requirements to ensure consistency and fairness. Guidance may be necessary
because not all applications of requirements can be anticipated, or when regulation
is achieved by the use of facility-specific permits or licenses.
Authority is also required to provide for inspection and monitoring of facilities, with
legal sanctions for noncompliance. Requirements may either be waived or prepared
for facility-specific conditions. The authority will inspect regulated facilities and gain
access to their records and equipment to determine if they are in compliance.
Authority is necessary to ensure that the regulated community monitors its own
compliance, maintains records of its compliance activities and status, reports this
information periodically to the enforcement program, and provides information
during inspections.
An effective law should also include the authority to take legal action against
noncomplying facilities, imposing a range of monetary penalties and other sanctions
on facilities that violate the law, as well as criminal sanctions on those facilities or
individuals who deliberately violate the law (e.g., facilities that knowingly falsify
data). Also, power should be granted to correct situations that pose an immediate
and substantial threat to public health and/or the environment.
The range and types of environmental enforcement response mechanisms available
depend on the number and types of authorities provided to the enforcement
program by environmental and related laws. Enforcement mechanisms may be
designed to return violators to compliance, impose a sanction, or remove the
economic benefits of noncompliance. Enforcement may require that specific actions
be taken to test, monitor, or provide information. Enforcement may also correct
environmental damages and modify internal company management problems.
Enforcement response mechanisms include informal responses such as phone calls,
site visits and inspections, warning letters, and notices of violations, which are more
formal than warning letters. They provide the facility manager with a description of
the violation, what should be done to correct it, and by what date. Informal
responses do not penalize but can lead to more severe responses if ignored. The
more formal enforcement mechanisms are backed by law and are accompanied by
procedural requirements to protect the rights of the individual. Authority to use
formal enforcement mechanisms for a specific situation must be provided in the
applicable environmental law. Civil administrative orders are legal, independently
enforceable orders issued directly by enforcement program officials that define the
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violation, provide evidence of the violation, and require the recipient to correct the
violation within a specified time period. If the recipient violates the order, program
managers can take further legal action using additional orders or the court system
to force compliance with the order.

Further legal action includes the use of field citations, which are administrative
orders issued by inspectors in the field. They require the violator to correct a clear-
cut violation and pay a small monetary fine. Field citations are used to handle more
routine types of violations that do not pose a major threat to the environment.
Legal action may also lead to civil judicial enforcement actions, which are formal
lawsuits before the courts. These actions are used to require action to reduce
immediate threats to public health or the environment, to enforce administrative
orders that have been violated, and to make final decisions regarding orders that
have been appealed. Finally, a criminal judicial response is used when a person or
facility has knowingly and willfully violated the law or has committed a violation for
which society has chosen to impose the most serious legal sanctions available. This
response involves criminal sanction, which may include monetary penalties and
imprisonment. The criminal response is the most difficult type of enforcement,
requiring intensive investigation and case development, but it can also create a
significant deterrence.

Environmental enforcement must include processes to balance the rights of

individuals with the government's need to act quickly. A notice of violation should
be issued before any action is taken so that the finding of violation can be
contested, or so that the violation can be corrected before further government
action. Appeals should be allowed at several stages in the enforcement process so
that the finding of violation, the required remedial action, or the severity of the
proposed sanction can be reviewed. There should also be dispute resolution
processes for negotiations between program officials and the violator, which may
include face-to-face discussions, presentations before a judge or hearing examiner,
or use of third party mediators, arbitrators, or facilitators.

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