 Obligation not to cause Transboundary harm- The essence of this obligation, often referred to

as the no-harm rule or the prohibition of transboundary environmental harm, is that states

may not conduct or permit activities within their territories, or in common spaces, without
regard to other states or for the protection of the global environment.

 Sustainable Development- is development that meets the needs of the present without
compromising the ability of future generations to meet their own needs.

 Living standards that go beyond the basic minimum are sustainable only if consumption
standards everywhere have regard for longterm sustainability.

 Sustainable development is a process of change in which the exploitation of resources, the

direction of investments, the orientation of technological development; and institutional change
are all in harmony and enhance both current and future potential to meet human needs and
aspirations.

 In its broadest sense, the strategy for sustainable development aims to promote harmony
among human beings and between humanity and nature. In the specific context of the
development and environment crises of the 1980s, which current national and international
political and economic institutions have not and perhaps cannot overcome, the pursuit of
sustainable development requires:
1. a political system that secures effective citizen participation in decision making.
2. an economic system that is able to generate surpluses and technical knowledge on a
self-reliant and sustained basis a social system that provides for solutions for the
tensions arising from disharmonious development.
3. a production system that respects the obligation to preserve the ecological base for
development, a technological system that can search continuously for new solutions
4. an international system that fosters sustainable patterns of trade and finance, and
5. an administrative system that is flexible and has the capacity for selfcorrection.

These requirements are more in the nature of goals that should underlie national and
international action on development. What matters is the sincerity with which these
goals are pursued and the effectiveness with which departures from them are corrected

 There is a tension between inter- and intragenerational equity, just as there is a tension
between inter- and intraregional equity. The aggregate geographical level at which equity is
measured will have an impact on the degree of inequity (hence the political process of
gerrymandering, or dividing an area unfairly to one’s own political advantage by concentrating
the opposition’s strength into as few districts as possible – or distributing it over many districts
to dilute the strength of a social group). Equity needs to be understood as a systemic process
operating at interconnected scales, so that equity at a global scale has implications for equity at
national, regional, community, family, and individual levels. It also needs to be understood as a
form of strong discourse that produces normative notions of the human body and the places
that human bodies occupy. In an affirmative and very practical sense, work by geographers on
 the inter-relationship of physical and social environments has shown how adjustments to
physical environments can promote social equity. For example, functional limitations associated
with physical impairments can be changed with basic measures and environmental design (e.g.,
installing railings, ramps at appropriate angles, appropriate flooring or street materials, GPS
navigation systems, etc., and providing physical training to increase strength). Socially, the
degree of impairment associated with many psychological and physical conditions is highly
related to the degree of social stigmatization or acceptance of people with those conditions, a
concept fundamental to the social model of disability. Other forms of physical access, such as
access to transportation, also emphasize that equity can be a spatialized condition. Finally, the
issue of equity appears increasingly in discussing access to the discipline of geography. The
discipline has been dominated by males of European background since the Enlightenment and
recent studies show that although the academy is becoming more diverse, change happens
slowly. Analysts who have questioned why change occurs slowly find that it is partly a question
of scale: decisions are made at the level of individual departments, often on the basis that all
candidates are treated equally, but the cumulative result when scaled up is a discipline that
shows the systemic results of years of differential access to education, of the location (in the
world) of those who have enjoyed access to education, and the sociospatial reproduction of
privilege. As geography struggles to achieve equity, so equity struggles over geography.

 Common but differentiated responsibilities (CBDR), principle of international environmental law

establishing that all states are responsible for addressing global environmental destruction yet
not equally responsible. The principle balances, on the one hand, the need for all states to take
responsibility for global environmental problems and, on the other hand, the need to recognize
the wide differences in levels of economic development between states. These differences in
turn are linked to the states’ contributions to, as well as their abilities to address, these
problems. CBDR was formalized in international law at the 1992 United Nations Conference on
Environment and Development (UNCED) in Rio de Janeiro.

 The precautionary principle (or precautionary approach) is a broad epistemological,

philosophical and legal approach to innovations with potential for causing harm when extensive
scientific knowledge on the matter is lacking.

 It emphasizes caution, pausing and review before leaping into new innovations that may prove
disastrous.

 A petition filed 17 May 2013 by environmental group Greenpeace Southeast Asia and farmer-
scientist coalition Masipag (Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura) asked the
Appellate court to stop the planting of Bt eggplant in test fields, saying the impacts of such an
undertaking to the environment, native crops and human health are still unknown. The Court of
Appeals granted the petition, citing the precautionary principle stating "when human activities
may lead to threats of serious and irreversible damage to the environment that is scientifically
plausible but uncertain, actions shall be taken to avoid or diminish the threat."[39] Respondents
filed a motion for reconsideration in June 2013 and on 20 September 2013 the Court of Appeals
chose to uphold their May decision saying the bt talong field trials violate the people's
 constitutional right to a "balanced and healthful ecology." The Supreme Court on 8 December
2015 permanently stopped the field testing for Bt (Bacillus thuringiensis) talong (eggplant),
upholding the decision of the Court of Appeals which stopped the field trials for the genetically
modified eggplant. The court is the first in the world to adopt the precautionary principle
regarding GMO products in its decision. The Supreme Court decision was later reversed
following an appeal by researchers at the University of the Philippines Los Baños.
 The World Charter for Nature, which was adopted by the UN General Assembly in 1982, was the
first international endorsement of the precautionary principle. The principle was implemented
in an international treaty as early as the 1987 Montreal Protocol, and among other international
treaties and declarations is reflected in the 1992 Rio Declaration on Environment and
Development (signed at the United Nations Conference on Environment and Development).
 No introduction to the precautionary principle would be complete without brief reference to the
difference between the precautionary principle and the precautionary approach.
 Principle 15 of the Rio Declaration 1992 states that: "in order to protect the environment, the
precautionary approach shall be widely applied by States according to their capabilities. Where
there are threats of serious or irreversible damage, lack of full scientific certainty shall be not
used as a reason for postponing cost-effective measures to prevent environmental
degradation." As Garcia (1995) pointed out, "the wording, largely similar to that of the principle,
is subtly different in that: (1) it recognizes that there may be differences in local capabilities to
apply the approach, and (2) it calls for cost-effectiveness in applying the approach, e.g., taking
economic and social costs into account." The 'approach' is generally considered a softening of
the 'principle'.

"As Recuerda has noted, the distinction between the 'precautionary principle' and a
'precautionary approach' is diffuse and, in some contexts, controversial. In the negotiations of
international declarations, the United States has opposed the use of the term 'principle' because
this term has special connotations in legal language, due to the fact that a 'principle of law` is a
source of law. This means that it is compulsory, so a court can quash or confirm a decision
through the application of the precautionary principle. In this sense, the precautionary principle
is not a simple idea or a desideratum but a source of law. This is the legal status of the
precautionary principle in the European Union. On the other hand, an 'approach' usually does
not have the same meaning, although in some particular cases an approach could be binding. A
precautionary approach is a particular 'lens' used to identify risk that every prudent person
possesses (Recuerda, 2008)

 The ‘polluter pays’ principle is the commonly accepted practice that those who produce
pollution should bear the costs of managing it to prevent damage to human health or the
environment. For instance, a factory that produces a potentially poisonous substance as a by-
product of its activities is usually held responsible for its safe disposal. The polluter pays
principle is part of a set of broader principles to guide sustainable development worldwide

 Environmental Impact Assessment (EIA) is a process of evaluating the likely environmental

impacts of a proposed project or development, taking into account inter-related socio-
economic, cultural and human-health impacts, both beneficial and adverse. UNEP defines
 Environmental Impact Assessment (EIA) as a tool used to identify the environmental, social and
economic impacts of a project prior to decision-making. It aims to predict environmental
impacts at an early stage in project planning and design, find ways and means to reduce adverse
impacts, shape projects to suit the local environment and present the predictions and options to
decision-makers. By using EIA both environmental and economic benefits can be achieved, such
as reduced cost and time of project implementation and design, avoided treatment/clean-up
costs and impacts of laws and regulations.

 Access and benefit-sharing (ABS) refers to the way in which genetic resources may be accessed,
and how the benefits that result from their use are shared between the people or countries
using the resources (users) and the people or countries that provide them (providers).

 The “common concern of humankind” concept, or CCH, provides a framework for approaching
global problems. International law scholar Dinah Shelton explains that “issues of common
concern are those that inevitably transcend the boundaries of a single state and require
collective action in response.” The CCH model is particularly suited to environmental problems,
which do not respect national boundaries. At the very least, a CCH designation expresses the
need for international cooperation through strong global institutions to face a shared problem.
Where it has appeared, CCH has fostered creative international cooperation and compliance
mechanisms.
 International administrative or governing bodies that act upon issues of common concern
should be equally accountable to all member nations, because of the shared nature of the
problem.

JURISPRUDENCE

 IRON RHINE ARBITRATION

History of the case-

On 19 April 1839, the Kingdom of Netherlands and the Kingdom of Belgium agreed to enter into a treaty
for Separation of their respective territories called as the Treaty of Separation. Article XII of this Treaty
allows for an extension on Dutch territory to construct a new road or dig a new canal on Belgian
territory. In 1873 the Netherlands and Belgium, applying Article XII, entered into a treaty for the
construction of a railway line, in place of a road or canal, and which specified the route of what was
called as the “IJzeren Rijn” (Iron Rhine). On Dutch territory it was to run through the municipalities of
Budel, Weert and Roermond. The railway was completed in 1879.

The Iron Rhine was used heavily between 1879 and 1914. After World War I, international use
decreased sharply, as Belgium had access to another route, the Hasselt- Montzen-Aken line. The use of
the railway in the twentieth century varied, but it was not more than nine trains per day. On 31 May
1991 Belgium stopped the use of the Iron Rhine track for international traffic.

The Iron Rhine track crossed two areas which had a protected status. The Weerter en Budeler Bergen
was a special protection area under the Birds Directive and the Meinweg was a protection area under
both the Birds and Habitats Directives of the European Community. Both areas were also protected
under Dutch national legislation on Nature and Environment. The Belgian Minister of Transport wrote to
his Dutch counterpart that the Dutch plan to form a nature park to the east of Roermond, one of the
municipalities through which the said railway line passed, would limit the use of the Iron Rhine track and
that Belgium would “hold firm to its right of free transport through the Iron Rhine”.

On 10 July 1998, the Belgian Government asked the Netherlands to bring again into activation the Iron
Rhine. The Netherlands acknowledged the Belgian right of transport across Dutch territory, while stating
that the reactivation would be governed by Dutch environmental legislation and EC legislation on the
protection of natural habitats.

Under the Arbitration Agreement, the Parties concurred “to submit their dispute concerning the
reactivation of the Iron Rhine to an arbitral tribunal they are to set up under the auspices of the
Permanent Court of Arbitration in The Hague” and “to execute the Arbitral Tribunal’s decision as soon as
possible”. Thus, the present arbitration took place.

Negotiations between parties-

During attempted negotiations between the two parties, Belgium wished to put the route back into use,
while the Netherlands in accordance with their environmental legislation sought to undertake a study of
alternative and more environmental friendly routes. The Netherlands appealed to Belgium to allow such
an investigation, not only because Dutch laws prescribed it, but also because the situation had changed
since 1879, especially in view of the minimal use during the twentieth century and the complete
stoppage of international traffic in 1991. Belgium did not want to deviate from its right to use the route
given in the 1873 Iron Rhine Treaty – now called “the historic route” – and to accept the Dutch
environmental law.

In March 2000, the Netherlands and Belgium reached a compromise, which they laid down in a
Memorandum of Understanding (hereinafter “MoU”). According to the terms of the MoU, the
Netherlands promised to prepare an environmental impact assessment within a relatively short period
of time. This would not only cover the historic and other possible routes for future use by 43 trains, but
also ensure a temporary and limited use of the historic track without irreversible environmental damage
in the Meinweg area. Belgium would pay for the works necessary to realize this temporary use. The
decisions on the temporary use and the long-term use were to be taken simultaneously. This so-called
dual decision ensured that the temporary solution would not become permanent.
On the basis of a Route Assessment Environmental Impact Study it was decided in 2001 that a
reactivation of the Iron Rhine along the historic route would be the best option, provided that measures
were taken to mitigate the adverse impacts of the reactivation on the environment and nature.

The parties were, however, unable to a reach an agreement with respect to who would bear what costs;
the construction of a tunnel which would cost about 150 million euro for the reactivation of the railway
line. The ongoing negotiations between the parties stalled in 2002. In December of that year, the Belgian
Prime Minister asked the Dutch Prime Minister to initiate arbitration proceedings. [8]

Chapter 2

The Arbitration Process

On 22 July 2003 the Netherlands and Belgium agreed to a treaty which was applied from 23 July 2003
and came into force on 1 July 2005. The Netherlands appointed as arbitrators Professor Alfred H.A.
Soons and International Court of Justice Judge Peter Tomka. Belgium appointed Professor Guy Schrans
and International Court of Justice Judge Bruno Simma and the four arbitrators nominated Judge (now
President) Rosalyn Higgins of the International Court of Justice as President of the Arbitral Tribunal. [9]

Questions raised-

To what limits is Dutch legislation and the decision making power based in reference of the use,
restoration, adaptation and modernization of lines on Dutch territory applicable, in the same way, to the
use, restoration, adaptation and modernization of the route of the Iron Rhine on Dutch territory?

To what limits does Belgium have the right to do or commission work to the use, restoration, adaptation
and modernization of the historical route of the Iron Rhine on Dutch territory, and to make plans,
specifications and procedures related to it according to Belgian law and the decision-making power
based thereon?

In the view of the answers to the previous questions, to what extent should the cost associated with the
use, restoration, adaptation and modernization of the historical route of the Iron Rhine on Dutch
territory be borne by Belgium or by the Netherlands?
These questions were basically based on a request to determine whether, and to what extent, Dutch
legislation, and particularly environmental legislation, is applicable to the reactivation, as well as a
request to allocate the costs of the reactivation.

The tribunal was asked to decide the above questions on the basis of international law and invoke
Article 292 of the EC Treaty to determine party obligations.

Arguments of the Parties-

The Netherlands and Belgium had different opinions on the interpretation of many passages of Article
XII of the Treaty of Separation. The most important were the interpretation of the terms that “a new
road” or “a new canal” on Belgian territory would “be extended” on Dutch territory. They were
important for the decision whether, and to what extent, Article XII [10] could be invoked to the
reactivation of the Iron Rhine. [11]

Belgium had the opinion that its request for reuse was not a request for “a new road, canal or track to
be extended”, as the track was made on territory of the Netherlands in 1879 and still existed. Belgium,
thus submitted that Article XII dealt only with the construction of the Iron Rhine. Belgium also referred
to the fact that the Netherlands maintained the Iron Rhine all throughout the twentieth century and
that it had reached an agreement on maintenance with the Dutch company holding the concession to
explore the Iron Rhine on Dutch territory. Therefore the Netherlands had the responsibility to maintain
and renovate the track of the Iron Rhine in light of what Belgium considered commercially viable. [12]
The Netherlands, with regard to the interpretation of Article XII argued that the request to reactivate
the railway was new, because considerable amount of adaptation and modernization was necessary to
achieve the use by Belgium and that, therefore, Article XII was applicable. The Netherlands was of the
view that Belgium, in view of the text of Article XII, would have to bear the costs of the reactivation. [13]

Chapter 3

Analysis of The Award

The Tribunal interpreted Article XII of the Treaty of Separation, 1839 by applying Articles 31 and 32 of
the Vienna Convention on the Law of Treaties, 1969 (hereinafter, “VCLT”), stating that the Netherlands
and Belgium were both signatories to it and making reference to cases laid before the International
Court of Justice in which these provisions had been applied to treaties concluded before the entering
into force of the VCLT.
The Tribunal adopted the same view as of Belgium and took the approach that the ordinary meaning of
the words “a new road or a new canal to be extended” should be given. Though, it rejected Belgium’s
broad interpretation of the words “maintenance and renovation” saying that these words do not cover
“the significant upgrading costs now involved in Belgium’s request”. According to the Tribunal, the main
object and purpose behind the Treaty of Separation, 1939 was “to resolve the many difficult problems
complicating a stable separation of Belgium and the Netherlands” and that of Article XII was “to provide
for transport links from Belgium to Germany”. The object of Article XII “was not for a fixed duration and
its purpose was ‘commercial communication’ ” [14] .

The tribunal observed-

“[E]ven in the absence of specific wording, that such works … as might from time to time be necessary or
desirable for contemporary commerciality, would remain a concomitant of the right of transit that
Belgium would be able to request. That being so, the entirety of Article XII, with its careful balance of
the rights and obligations of the parties, remains in principle applicable to the adaptation and
modernization requested by Belgium.” [15]

The Tribunal applied the principle of effectiveness, stating that this has “relevance in relation to the
object and purpose of a treaty” but “does not entitle a tribunal to revise a treaty”. However, in the 2003
Arbitration Agreement the Netherlands and Belgium agreed that Belgium not only had the right to the
use and the restoration of the iron Rhine railway, but also to its adaptation and modernization. [16] That
the Iron Rhine railway forms a commercial connection between Antwerp and Germany has never been
in dispute between the two States. It was hence made clear that the present-day desires and views of
the parties contain “contemporary commerciality” in line with the 1839 object and purpose of Article XII
construed by the Tribunal, so that there is no reason for either party to object to “a dynamic and
evolutive approach to a treaty that was meant to guarantee a right of commercial transit through time”.
[17]

The Tribunal declared that neither the Netherlands nor Belgium were to bear the costs of adaptation
and modernization alone. These costs, including those for environmental measures, are primarily for
Belgium to take care of. [18] But Netherlands had an obligation to pay for the cost items, for which it
already offered to pay for during the negotiations, as well as for any particular quantifiable benefit it
derives from the reactivation on the part of the route which it uses. Even more so, the costs for the
tunnel in the Meinweg area were to be shared by the Netherlands and Belgium on an equal basis. This,
according to the Tribunal, was “attributable to the past conduct of both of the Parties” as the
Netherlands ignored Belgium’s right of transit, even though Belgium in February 1987 drew the
attention of the Netherlands to this right, whereas Belgium terminated its use of the track in 1991 and
did not inform the Netherlands in a timely fashion of a request for reactivation. [19]
As with regard to sovereignty of the Netherlands, the tribunal held-

“The Netherlands has forfeited no more sovereignty than that which is necessary for the track to be
built and to operate to allow a commercial connection from Belgium to Germany across Limburg. It thus
retains the police power throughout that area, the power to establish health and safety standards for
work being done on the track, and the power to establish environmental standards in that area.” [20]

At the end of the arbitration proceedings, the Parties were more or less left to their own devices where
it concerned the reasonableness of temporary use of the Iron Rhine track by Belgium. Matters to be
discussed in this respect are the financing of such use, the time during which it would be permitted and
the measures necessary from a functional and environmental point of view.

The Tribunal finally decided that the legislation of the Netherlands was applicable to the reactivation of
the Iron Rhine as long as it did not amount to a denial of Belgium’s right of transit or rendered the
exercise by Belgium of its right of transit unreasonably difficult. [21] The Award should not be seen as
meaning that Belgium had no right to temporary use of the Iron Rhine. And also the Award should not
be interpreted so as containing any pronouncement by the Tribunal upon the circumstances in which
any such right may be exercised.

Conclusion

In the instant case, the Arbitration Agreement between the states requested the Tribunal to render its
decision on the basis of international law, including European law, while taking into account the Parties’
obligations under Article 292 of the EC Treaty. Article 31(3)(c) of the VCLT states that while interpreting
a treaty, “any relevant rules of international law applicable in the relations between the Parties” should
be taken into account. While discussing the applicability of the said Article to the instant case, the
Tribunal asserted that it was to examine provisions of European law for reasons relating to its
jurisdiction. The role of issues concerning European law in the instant case cannot be denied. This gives
rise to the question whether the Iron Rhine Tribunal overstepped and encroached upon the jurisdiction
of the European Court of Justice (ECJ). With respect to this, the Netherlands and Belgium, in the
agreement, took steps to obtain the view of the European Commission and provided the Arbitral
Tribunal with an instrument to obtain the necessary decisions from the EC institutions. In the second
place the Iron Rhine Tribunal dealt with a very specific and relatively isolated case in which it interpreted
a bilateral treaty. The questions thus are whether the Netherlands and Belgium endangered the
autonomy of the Community legal order and whether they did incur legal obligations under public
international law which may conflict with their obligations under Community law.
In conclusion it may be asserted that the Iron Rhine Arbitration Tribunal has found a solution for dispute
settlement cases which concentrate on general international law but still touch upon EC law. Admittedly,
this solution may be feasible for only very few cases where the jurisdiction of the ECJ concurs with one
of the various international courts and tribunals.

Gabcikovo-Nagymaros Project

 Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D) violated the provisions of a
treaty when it appropriated the waters of the Danube River to construct a dam.

 Synopsis of Rule of Law. Watercourse states shall participate in the use, development and
protection of an international watercourse in an equitable and reasonable manner.

 Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams
and other projects along the Danube River that bordered both nations. Czechoslovakia (D)
began work on damming the river in its territory when Hungary (P) stopped working on the
project and negotiation could not resolve the matter which led Hungary (P) to terminate the
Treaty. Hungary (P) based its action on the fact that the damming of the river had been agreed
to only on the ground of a joint operation and sharing of benefits associated with the project, to
which Czechoslovakia (D) had unlawfully unilaterally assumed control of a shared resource.
 Issue. Shall watercourse states participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner?

 Held. Yes. Watercourse states shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Hungary (P) was deprived of
its rights to an equitable and reasonable share of the natural resources of the Danube by
Czechoslovakia (D) and also failed to respect the proportionality that is required by international
law. Cooperative administration must be reestablished by the parties of what remains of the
project.

 Discussion. The Court’s decision was that the joint regime must be restored. In order to achieve
most of the Treaty’s objectives, common utilization of shared water resources was necessary.
Hence, the defendant was not authorized to proceed without the plaintiff’s consent.

Trail Smelter Arbitration

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. Responsibility for pollution of the sea or the existence of a duty to 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.

SOUTHERN TUNA CASES

By notification submitted to Japan on 15 July 1999 New Zealand and Australia instituted arbitral
proceedings before the International Tribunal for the Law of the Sea as provided for in Annex VII to the
United Nations Convention on the Law of the Sea (UNCLOS) in a dispute concerning southern bluefin
tuna.

New Zealand and Australia alleged that Japan had failed to comply with its obligation to cooperate in the
conservation of the southern bluefin tuna stock by, inter alia, undertaking unilateral experimental
fishing for southern bluefin tuna in 1998 and 1999 and had requested an arbitral tribunal to be
constituted. The Applicants asked the arbitral tribunal to declare that Japan had breached its obligations
under Articles 64 and 116 to 119 of UNCLOS.

As a consequence of the said breaches of UNCLOS, Japan should refrain from authorizing or conducting
any further experimental fishing for SBT without the agreement of New Zealand and Australia and
negotiate and co-operate in good faith with New Zealand and Australia with a view to agreeing future
conservation measures and total allowable catch for southern bluefin tuna necessary for restoring the
stock to levels which could produce the maximum sustainable yield.

Pending the constitution of the arbitral tribunal, Australia and New Zealand also requested the Tribunal
to prescribe as provisional measures that Japan immediately cease unilateral experimental fishing and
that the parties ensure that no action of any kind was taken which might aggravate, extend or render
more difficult the solution of the dispute.

Japan contended that the Annex VII tribunal had to have prima facie jurisdiction. This meant among
other things that the dispute had to concern the interpretation or application of UNCLOS and not some
other international agreement. The dispute concerned the interpretation of the Convention for the
Conservation of Southern Bluefin Tuna of 1993 and did not concern the interpretation of the Convention
on the Law of the Sea.

Secondly, Australia and New Zealand had to have attempted in good faith to reach a settlement in
accordance with the provisions of UNCLOS Part XV, Section 1. Australia and New Zealand had satisfied
neither condition. The Tribunal was without authority to prescribe any provisional measures. The
Request for provisional measures by Australia and New Zealand should be denied.

The Tribunal decided that the fact that the Convention of 1993 applied between the parties did not
exclude their right to invoke the provisions of the Convention on the Law of the Sea in regard to the
conservation and management of southern bluefin tuna.

Japan also contended that Australia and New Zealand had not exhausted the procedures for amicable
dispute settlement under Part XV, section 1, of the Convention, in particular article 281, through
negotiations or other agreed peaceful means, before submitting the disputes to a procedure under Part
XV, section 2, of the Convention.

The Tribunal found that negotiations and consultations had taken place between the parties. A State
Party was not obliged, though, to pursue procedures under Part XV of the Convention when it concluded
that the possibilities of settlement had been exhausted.

The Tribunal therefore had to decide whether provisional measures were required pending the
constitution of the arbitral tribunal. It took into consideration that Australia and New Zealand contended
that further catches of southern bluefin tuna, pending the hearing by an arbitral tribunal, would cause
immediate harm to their rights. It also emphasized that the conservation of the living resources of the
sea was an element in the protection and preservation of the marine environment, and that the stock of
southern bluefin tuna was severely depleted and was at its historically lowest levels and that this was a
cause for serious biological concern.

For the above reasons, provisional measures were appropriate in the view of the Tribunal. It prescribed,
intern alia, the following measures:
Australia, Japan and New Zealand should each ensure that no action was taken which might aggravate
or extend the disputes submitted to the arbitral tribunal.

Australia, Japan and New Zealand should each ensure that no action was taken which might prejudice
the carrying out of any decision on the merits which the arbitral tribunal may render.

Australia, Japan and New Zealand should resume negotiations without delay with a view to reaching
agreement on measures for the conservation and management of southern bluefin tuna.

MOX Plant Case

The MOX Plant Case was the tenth case handled by the International Tribunal for the Law of the Sea.
The MOX plant was located in Sellafield, Cumbria in the Irish Sea. Its objective was to “reprocess spent
nuclear fuel, containing a mixture of plutonium dioxide and uranium dioxide, into a new fuel which is
known as mixed oxide fuel, or MOX” (Press Release 59). After the power plant was installed and began
operating, Ireland quickly became concerned with the safety and protection of their territory.
Distribution of radioactive materials and the pollution of their sea lead the Irish government to file a
formal complaint with the Tribunal. Filed on November 9th, 2001, the article requested that the United
Kingdom “immediately ensure that there are no movement into or out of the waters over which it has
sovereignty or exercises sovereign rights of any radioactive substances or materials or wastes which are
associated with the operation of, or activities preparatory to the operation of the MOX plant; that the
United Kingdom ensure that no action of any kind is taken which might aggravate, extend or render
more difficult of solution the dispute submitted to the Annex VII tribunal; and that the United Kingdom
ensure that no action is taken which might prejudice the rights of Ireland in respect of the carrying out
of any decisions on the merits of the Annex VII tribunal may render” (Press Release 59). These demands
were taken to the International court for further deliberation with the members of various
organizations. During these hearings, Ireland “pointed out that the operation of the plant will contribute
to the pollution of the Irish Sea and underlines the potential risks involved in the transportation of
radioactive material to and from the plant” (Press Release 62). Ongoing arguing between the
government officials of Ireland and the United Kingdom forced the Tribunal to reach a decision in a
timely manner.

Conclusion of Case

On December 3rd, the International Tribunal delivered its order to both parties involved. The court
“noted and placed on record the assurances given by the United Kingdom that there will be no
additional marine transports of radioactive material either to or from Sellafield as a result of the
commissioning of the MOX plant until summer of 2002” (Press Release 62). Due to the complexity of the
justice system, the Tribunal prescribed a number of provisional measures which both sides were legally
bound to follow. This measures stated, “Ireland and the United Kingdom shall cooperate and shall, for
this purpose, enter into consultations forthwith in order to: exchange further information with regard to
possible consequences for the Irish Sea arising out of the commissioning of the MOX plant; monitor risks
or the effects of the operation of the MOX plant for the Irish Sea; and devise, as appropriate, measures
to prevent pollution of the marine environment which might result from the operation of the MOX
plant” (Press Release 62). While this was the final order given by the International Tribunal regarding
this case, the case was not closed until 2008. Discussions between the two countries prohibited the end
of the trial and allowed the court to intervene if necessary. On February 15th, 2007, Ireland “Formally
withdrew its claim against the United Kingdom” (Hague Justice Portal). It was not until June 6th, 2008
that the Tribunal legally dismissed the case and terminated its proceedings.

Pulp mills on the river of Uruguay

Introduction

On April 20, 2010, the International Court of Justice (ICJ) announced its judgment in a high-stakes
environmental dispute between Argentina and Uruguay, concerning Uruguay’s authorization for pulp
mills on the banks of the Uruguay River, which forms the international boundary between the two
countries. Over strenuous objections from Argentina, Uruguay authorized construction of one of the
largest pulp mills in the world in 2005, which has been converting wood chips into paper pulp on the
banks of the River since November 2007.[1]

The Court ruled that Uruguay was obligated by treaty to notify and consult with Argentina before
authorizing the pulp mills and letting construction start; and that Uruguay breached this obligation.
[2] However, the Court found that its declaration of Uruguay’s breach was in itself a sufficient
remedy for Argentina’s claim.

The Court also examined Argentina’s claim that Uruguay breached substantive treaty obligations to
coordinate with Argentina through a bilateral river management agency, and to monitor and prevent
pollution of the water and riverbed. The Court scrutinized factual evidence from both sides in detail, and
found no breach had occurred. The Court rejected all other claims in light of these two decisions.

This judgment is a significant step forward in the ICJ’s jurisprudence on environmental law and on
shared watercourses. The Court recognized environmental impact assessment as a practice that has
become an obligation of general international law in these situations. It further found that general
international law does not prescribe the scope or content of such assessments. The Court has also
fleshed out the definitions of “sustainable development” and “equitable and reasonable
use” of shared transboundary watercourses by interpreting those terms in light of the facts of this
case. For the most part, the decision relies on the 1975 Statute of the River Uruguay (1975 Statute),
[3] which was the basis for the Court’s jurisdiction. The Court does not interpret other multilateral
environmental agreements, despite an effort by Argentina to bring them in. This Insight highlights some
points of particular interest in the judgment of the Court and discusses the multiple advocacy strategies
used by both parties.

Origins of the Conflict

The ICJ characterized the present case as highlighting “the importance of the need to ensure
environmental protection of shared natural resources while allowing for sustainable economic
development.”[4] On both sides of the river, citizens worried about dioxin, furan, and other pulp
plant pollutants harming fish, birds, honeybees, and fruit crops.[5] In Uruguay, many argued that they
needed the jobs and export income from the pulp mills, but on the Argentine side of the river people
expected no economic benefit from the mills and feared harm to agriculture and tourism. A bilateral
mechanism established by the 1975 Statute – the Administrative Commission of the River Uruguay
(CARU) – exists to provide joint management of the river, but it was unable to prevent or resolve this
conflict.

In 2005, the Finnish company Botnia started construction on one cellulose pulp plant, and the Spanish
Empresa Nacional de Celulosa de España received authorization to begin ground clearing on a second
plant. Together, the mills represented an investment of $1.7 billion, the largest in Uruguay’s history.
[6] The International Finance Corporation (IFC)[7] financed $175 million of the total, and the Multilateral
Investment Guarantee Agency guaranteed up to $350 million.[8]

IFC financing is subject to Environmental and Social Safeguard Policies, which address: sustainability;
disclosure of information about IFC and its activities; and a review procedure that guides its
implementation of the sustainability policy and its oversight of private sector projects.
[9] Nongovernmental organizations (NGOs) and community groups attacked the project financing
through the IFC compliance procedure. An Argentine NGO, the Center for Human Rights and the
Environment (CEDHA),[10] argued that flaws in the projects meant that the investors were violating
their voluntary commitments under the Equator Principles.[11] This resulted in one lender pulling out of
the project and allowed CEDHA to make a formal complaint to the IFC. CEDHA also filed a complaint
against Uruguay with the Inter-American Commission on Human Rights and initiated lawsuits in
Argentina and Uruguay.[12] The Spanish company building the smaller of the two mills withdrew in 2005
as a result of public pressure.

ICJ Provisional Measures and Mercosur

After months of unsuccessful negotiation with Uruguay, on 4 May 2006, Argentina submitted its dispute
to the ICJ along with a request for provisional measures.[13] Argentina claimed two substantive rights:
that Uruguay “shall prevent pollution”, and that Uruguay should prescribe pollution control
measures for the mills in accordance with international standards.[14] Argentina argued that suspending
construction of the pulp mills was necessary to preserve its rights because the potential consequences
of the mills’ operation—harm to public health and the river environment—could not be made
good with financial compensation.[15]

Soon after the June 2006 oral proceedings on provisional measures, the Court decided that provisional
measures were not required under the circumstances.[16] The Court’s Order stated that the Court
was not convinced that procedural breaches or continued construction of the mills would lead to any
harm that could not be reversed later if Argentina prevailed on the merits;[17] if Argentina prevailed,
Uruguay would bear all risks of having authorized and constructed the mills.[18] The Court further
reminded both parties of their obligations under international law and the 1975 Statute to consult,
cooperate, and refrain from making resolution of the dispute more difficult; it also reminded Uruguay of
its offer to conduct joint monitoring with Argentina.

In the past, the Court has sometimes declined to order provisional measures, while reminding a party
that proceeds with construction during the litigation that it will be liable to remove the project at issue
should it lose.[19] However, once a major capital project is constructed, it may not seem realistic to
expect a State to dismantle it. An alternative possibility is that the scrutiny provided by the ICJ itself, in
this case with the IFC’s review, may improve the project to the point where it will be, in fact,
acceptable.[20]
Meanwhile, protestors were blockading bridges between the two countries, including the bridge nearest
to the project site, and forcing commercial and tourist traffic to detour sixty miles north to the next river
crossing, to the detriment of towns in Uruguay.[21] Uruguay initiated a complaint under the procedures
of the common market Mercosur, demanding that the government of Argentina take steps to remove
the protesters.[22] The Mercosur ad hoc arbitration tribunal found that the blockades were not
compatible with Argentina’s Mercosur obligations to guarantee free circulation of goods and
services; however, it did not require Argentina to put an end to the blockades.[23]

When Mercosur failed to provide an effective remedy for the blockades, Uruguay filed a request for
indication of provisional measures with the ICJ. The Court found that the blockades⠀™ interference
with construction of the pulp mills provided a sufficient link to the proceedings to confer jurisdiction.
However, it denied the request on the grounds that construction was progressing significantly, and it
was not apparent there was any imminent risk that Uruguay’s rights might be irreparably harmed.
[24]

Finally, the Environmental Civic Assembly of Gualeguaychú, an Argentine community group, submitted
a second complaint to the IFC Compliance Advisor/Ombudsman alleging that environmental monitoring
of the now-operational pulp mill was inadequate, and that it was causing odors, air emissions, water
pollution, impacts to community health, and trans-border issues.[25] After an assessment by the
Ombudsman that included review of the status of the case “in other international fora”, the
Compliance division determined that the IFC had taken the necessary steps, and there were no grounds
for further audit or other action.[26]

Jurisdiction and the Merits

Jurisdiction

Avoiding a common procedural battle, Argentina and Uruguay agreed that the ICJ had jurisdiction under
Article 60 of the 1975 Statute. Article 60 provides that any dispute over interpretation or application of
the treaty which cannot be settled by negotiation may be submitted to the ICJ. The parties also
stipulated that negotiations had failed. However, Uruguay contended, and the Court agreed, that
jurisdiction was narrowly limited to the interpretation or application of the 1975 Statute. This decision
excluded Argentina’s claims of air, noise, and visual pollution; except air pollution affecting the
River’s water quality.[27]

Procedural Obligations: Notification, Consultation, Coordination

Argentina claimed that Uruguay failed to notify and consult with Argentina on the two planned pulp
mills thereby breaching its procedural obligations under the 1975 Statute, and that it aggravated the
dispute by authorizing the Botnia pulp mill.[28] Uruguay argued that there was effective notification and
consultation through meetings in 2005-2006 between the countries’ foreign ministers and a High-
Level Technical Group;[29] moreover, the 1975 Statute did not give either party a right of veto over
projects undertaken by the other.[30] In the Court’s view, Uruguay should have informed Argentina,
through CARU, when it was prepared to issue initial environmental authorizations for the pulp mills.
[31] As it did not do so, Uruguay was in breach of its obligation under the 1975 Statute.[32]

Use of the River, Cooperation, and Pollution Prevention

The ICJ found that the 1975 Statute defines Uruguay’s substantive obligations, consistent with the
principles of pollution prevention and cooperation that it invoked in the GabcÃkovo-Nagymaros case
and the Legality of the Threat or Use of Nuclear Weapons advisory opinion.[33]

Argentina tried to justify a more restrictive view of Uruguay’s rights to use the river than the Court
was ultimately willing to accept. In interpreting the principle of equitable and reasonable use of the
River,[34] Argentina argued that account must be taken of pre-existing legitimate uses of the river,
including recreational and tourist uses.[35] In Uruguay’s view, new and pre-existing uses should be
on an equal footing. The Court stated that a balance must be struck between the rights and needs of
each riparian State to use the river for economic and commercial purposes and their obligation to
protect it from environmental damage.[36]

The Court called on both parties to coordinate their regulatory activities to preserve the ecological
balance of the river, as required by Article 36 of the 1975 Statute. The role of CARU in coordination and
rulemaking was particularly relevant here, reflecting the common interest expressed in the 1975
Statute.[37]

Argentina claimed that Uruguay had failed to take all necessary measures as required by the
undertaking in Article 41 of the 1975 Statute, “[t]o protect and preserve the aquatic environment
and, in particular, to prevent its pollution, by prescribing appropriate rules and measures in accordance
with applicable international agreements and in keeping, where relevant, with the guidelines and
recommendations of international technical bodies.” Argentina asked for the Botnia pulp mill to be
shut down, and requested future compliance with Article 41 obligations and reparation for any injury
caused.[38] Uruguay responded that the plant complied with applicable laws and regulations and
satisfied best available technology (BAT) standards.[39] After reminding the parties of their customary
international law obligation “to ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control,”[40] the Court found that Article 41
requires the parties to adopt domestic pollution prevention regulations and measures that meet
international standards.

Argentina tried to use the reference in Article 41 to “applicable international agreements” to pull
in other international environmental agreements, as a benchmark for evaluating compliance with Article
41. The Court refused, finding that the agreements were outside its jurisdiction and not applicable.[41]

The Court concluded that the question of Uruguay’s possible breach of its obligation to prevent
pollution should be measured against the 1975 Statute; positions and rules coordinated with Argentina
through CARU; and regulations adopted by each party.[42]

In an important statement, the Court observed that the practice of environmental impact assessment
(EIA) “has gained so much acceptance among States that it may now be considered a requirement
under general international law to undertake an environmental impact assessment where there is a risk
that the proposed industrial activity may have a significant adverse impact in a transboundary context,
in particular, on a shared resource.”[43] In this case the 1975 Statute did not require an EIA, but the
parties agreed that an EIA was needed.

The Court observed that general international law does not specify the scope and content of an EIA.
[44] The judgment evaluated the scope of the EIA that was carried out, Uruguay’s consideration of
alternative sites for the pulp mills, and the extent of public participation provided to populations likely
to be affected in both countries. Somewhat surprisingly, given the emphasis on public consultation in
modern treaties such as the ESPOO and Aarhus Conventions,[45] the Court did not find a legal obligation
to consult. However, it did find that Uruguay in fact consulted with affected populations of both nations.
[46]

Environmental claims can be notoriously difficult to prove, and Argentina argued that the precautionary
approach of the 1975 Statute shifts the burden of proof to Uruguay, to demonstrate that the plant
would not damage the environment; it also claimed that parties bear equal burdens of proof. The Court
held that Argentina, as the applicant, has the burden to substantiate its claims, and that the respondent
must provide information available to it to assist the Court.[47]

The decision was remarkable for the level of detail in the Court’s review of the evidence submitted
on Uruguay’s compliance with its obligation to prevent pollution and preserve the aquatic
environment. The Court examined the technology used to determine whether it met the BAT standard.
[48] It appraised the effects of the Botnia mill on water quality, comparing “a vast amount” of
scientific data and analysis produced before and after the plant started operation, for a number of
specific pollutants.[49] The reports raise possible questions including inadequate baseline data; failure
to enact relevant water quality standards by CARU and Argentina; and potential effects of effluents on
the biota.[50]

Based on the information available to it, the Court found that there is “no conclusive evidence in the
record” to show that Uruguay has failed to act with the requisite due diligence or that pollution from
the pulp mill has had a harmful effect on the water quality or biota.

Use of Experts

Finally, the ICJ made a very pointed remark with respect to the parties’ use of experts. Experts who
are called as witnesses may be examined by the parties and the Court.[51] As is sometimes done in
hearings before the Court, experts were presented as counsel or advocates, and were therefore not
subject to questioning by the other party and the Court. The Court expressed its view that it would have
been more helpful had those who were appearing to provide scientific or technical evidence been
presented as expert witnesses.[52] Article 50 of the Statute of the ICJ and Article 62 of the Rules of
Court also allow the Court to arrange for non-party experts to advise it. The ICJ has used this provision
only once,[53] though it might be advisable in such technical cases.

Conclusion

This case presented the sustainable development conundrum squarely—balancing environmental and
human health with economic development—and it has settled the dispute between Argentina and
Uruguay. However, tensions persist on the ground. Both governments promise to strengthen their
cooperation through CARU to manage water quality in the river. This leaves some stakeholders
dissatisfied with a result that was limited to the issues within the jurisdiction of the ICJ. Air pollution,
odors, and noise were beyond the scope of the Court’s review, and protesters say they remain
committed to blockading the bridges until these and other issues are resolved.

The decision strengthens some principles of international environmental law, while others remain for
another day. Environmental impact assessment can now be considered an international obligation
where there is a risk that a proposed industrial activity may have a significant adverse impact in a
transboundary context. But the important element of public consultation is not part of that obligation,
according to the Court. The inherent disadvantage that project opponents face, of proving in advance
that a riparian economic development project will have harmful effects on their shared interests,
remains. For the time being, one of their best options will be working through cooperative mechanisms
like CARU. The success story here is the influence of the advocates and IFC Safeguard Policies in
obtaining improvements in the project’s environmental controls and monitoring operational
impacts. This judgment serves notice that countries planning projects that may affect shared natural
resources will be held to a high standard of due diligence to protect those resources from harm.

WHALING IN THE ANTARTIC

On 31 May 2010, Australia instituted proceedings against Japan in respect of

“Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese
Whale Research Program under Special Permit in the Antarctic (‘JARPA II’), in breach of obligations
assumed by Japan under the International Convention for the Regulation of Whaling (‘ICRW’), as well as
its other international obligations for the preservation of marine mammals and the marine
environment”.

As basis for the jurisdiction of the Court, Australia invoked the provisions of Article  36, paragraph 2, of
the Court’s Statute, referring to the declarations recognizing the Court’s jurisdiction as compulsory made
by Australia and Japan on 22 March 2002 and 9 July 2007, respectively.

On 20 November 2012, New Zealand filed in the Registry a declaration of intervention in the case.
Relying on Article 63, paragraph 2, of the Statute, it contended that, as a party to the ICRW, it had a
direct interest in the construction that might be placed upon the Convention by the Court in its decision
in the proceedings.

In an Order of 13 February 2013, having noted that New Zealand met the requirements set out in the
Statute and the Rules of Court, the Court found that the declaration of intervention was admissible.
Public hearings were held from 26 June to 16 July 2013, during which oral arguments were presented by
Australia and Japan, and the experts that each Party had asked to be called were heard by the Court.
New Zealand presented oral observations on the subject-matter of its intervention.

In its Judgment rendered on 31 March 2014, the Court first found that it had jurisdiction to entertain the
case, rejecting Japan’s argument that the dispute fell within the scope of a reservation contained in
Australia’s declaration recognizing the Court’s jurisdiction as compulsory. It then turned to the question
of the interpretation and application of Article VIII of the 1946 Convention, paragraph 1 of which states
that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill,
take and treat whales for purposes of scientific research”.

With respect to the interpretation of this provision, the Court noted that even if a whaling programme
involves scientific research, the killing, taking and treating of whales pursuant to such a programme does
not fall within Article VIII unless these activities are “for purposes of” scientific research. To determine
this point and, in particular, to ascertain whether a programme’s use of lethal methods is for purposes
of scientific research, the Court considered whether the elements of a programme’s design and
implementation were reasonable in relation to its stated scientific objectives.

Regarding the application of Article VIII, paragraph 1, the Court noted that JARPA II could broadly be
characterized as “scientific research”. However, it considered that the evidence before it did not
establish that the programme’s design and implementation were reasonable in relation to achieving its
stated objectives. The Court concluded that the special permits granted by Japan for the killing, taking
and treating of whales in connection with JARPA II were not “for purposes of scientific research”,
pursuant to Article VIII, paragraph 1, of the 1946 Convention.

The Court then turned to the implications of that conclusion, in light of Australia’s contention that Japan
had breached several provisions of the Schedule annexed to the Convention. Having found that Japan
had indeed breached some of the provisions invoked (namely the moratoriums on commercial whaling
and factory ships, and the prohibition on commercial whaling in the Southern Ocean Sanctuary), it
considered the question of remedies. Since JARPA II was an ongoing programme, it ordered Japan to
revoke any extant authorization, permit or licence to kill, or take or treat whales in relation to it, and to
refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in
pursuance of that programme.

NICARAGUA

Summary: In 2011, Costa Rica constructed a Route 1856 parallel to the San Juan River from Los Chiles to
the Delta region. Nicaragua contended that the road caused harmful environmental effects to
Nicaraguan territory through silting of the San Juan River, erosion of the River's banks, and harm to the
surrounding environment and wetlands. Nicaragua further contended that Costa Rica breached its
international obligations by infringing on Nicaragua's territorial integrity, damaging Nicaraguan territory,
and violating general obligations in international law and relevant environmental conventions. On 17
April 2013, the Court joined the case with that of Certain Activities carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua).

On 16 December 2015, the Court issued its decision in both cases. In the dispute related to Isla Portillos,
the Court concluded that Costa Rica held sovereignty over the territory and Nicaragua's actions
constituted an unlawful incursion. In the disputed related to Costa Rica's road, the Court ruled that
Costa Rica violated its obligations to Nicaragua to conduct an environmental impact assessment prior to
constructing the road, a project that could have caused significant transboundary harm. The Court,
however, concluded that Nicaragua failed to establish that the ensuring harm rose to the level of
significant.

The ICJ gave Costa Rica and Nicaragua twelve months to agree on the amount of compensation Costa
Rica should receive from Nicaragua for Nicaragua's territorial incursion. If the Parties are unable to reach
an agreement, either Party may then request the ICJ determine the proper amount of compensation.

Principles of Jurisprudence of IEL

-uncertain on the applicability

-Iron Rhine

Principle 2 Rio Declaration

1. Principle of Good Neighborliness

-Art 74 of UN Charter

2. Responsibility not to cause Environmental Damage

-what constitutes environmental harm? ->Damage must be substantial or significant

-what is the standard care? -> it will be a standard of due diligence -> due diligence [UK vs Albania= a
state must not knowingly allow its territory to be used for acts contrary to the rights of other states]-> 1.
procedural obligations: duty to notify and consult the states with potentially impacted states.

2. substantive: actual obligation not to cause transboundary damage

-what are the consequence of a failure to comply?

-San Juan River case [Nicaragua vs. Costa Rica]

-Pulp Mills case: distinguished substansive an procedural

-states do not have unlimited right of sovereignty over natural resources

Principle of prevention of environmental harm

-prevention of damage to the environment and to reduce, limit or control activities that might cause or
risk such damage..

Principle of Cooperation

-sic utere tuo et alimenum

Intra Inter

->Princ. 1-2 and 3

Common but differentiated responsibilities

->Princ.7