PRINCIPLES SHAPING INTERNATIONAL secriox II ENVIRONMENTAL LAW AND POLICY In its application to the environment, “common concern” contains both spatial and temporal elements. The spatial clement considers the Earth as a whole and the state of the biosphere in its entirety because of the interdependence of all its clemonts. This aspect calls for equitable burden sharing among States in their efforts to resolve global environmental problems through acceptance of “common but differentiated responsibilities". The temporal clement recognizes that the consequences of environmental degradation are often long-term and that duties to protect the environment are owed to future generations. IUCN, Draft Covenant on Environment and Development, 39-41 (6th ed., 2017). In general, the principle of common concern does not yet imply specific legal obligations beyond cooperation, but rather provides the conceptual framework for international lawmaking with respect to what would otherwise be activities or resources considered wholly within the sovereign control of individual States. Put another way, the principle arguably constrains State sovereignty in favor of a global concern for environmental protection. QUESTIONS AND DISCUSSION 1. The concept of common concern should not be confused with common ‘heritage. Common heritage was specifically considered and rejected by the negotiators of both the Climate Change and Biodiversity Conventions. Developing countries rejected application of the common heritage principle because they thought it would subject their natural resources to too much international control. Developed countries rejected common heritage because of the implication that benefits would have to be shared from these resources, Common concern was accepted in part because it did not carry with it any preconceived notions of benefit sharing or of joint management. In fact, the ambiguity of the concept of common concern is viewed positively in that it can provide the framework for international negotiations (and thus for the abdication of some aspects of State sovereignty), while allowing flexibility in negotiating each specific regime. What significance should be placed on the fact that “common concern” ‘not mentioned as such in the Rio Declaration? Is it implied? 8. Do the ecological constraints on development and the recognition of the goal of sustainable development at Rio suggest that there is now mmon concern” that all States achieve sustainable development? Is this implicitly ‘suggested by Principles 4 and 8 of the Rio Declaration, which seem to assume achieving sustainable development ia the goal of international cooperation? Consider Laura Horn, Globalisation, Sustainable Development and the Common Concern of Humankind, 7 MACQUARIE L. J. 53 (2007). 2, E. INTERGENERATIONAL EQUITY Protection of the global environment as well as sustainable development requires a long view. Indeed, the definition of sustainable development offered by the Brundtland Commission in Our Common Future refers to meeting the needs of present generations without 441442, PRINCIPLES AND CONCEPTS IN INTERNATIONAL ENVIRONMENTAL LAW sacrificing the needs of future generations. This focus on future generations as a rightful benoficiary of environmental protection has led to the principle of intergenerational equity. In essence, the principle is one of fairness, that present generations not leave future generations worse off by the choices we make today regarding development. Intergenerational equity thus requires that we take into consideration the impact of our activities on future generations, giving them a “seat at the table” in making current decisions. At a minimum, implementing this principle requires using natural resources sustainably and avoiding irreversible environmental damage. It may also require modifications to our procedures for conducting environmental impact assessments and expansion of our concepts of judicial standing to future generations. ‘The importance of intergonerational equity can be seen, for example, in climate change. Because of the long lag-time between when greenhouse gas emissions occur and when they are naturally removed from the atmosphere (measured in decades to centuries, depending on the substance), decisions we make today to reduce our emissions will have profound impacts on the quality of life 100 years hence. Similarly, investments made today in researching and developing environmentally sustainable energy sources (as opposed to, for example, investing further in coal-fired power plants) also constrain the energy choices available to future generations, Beginning with the Stockholm Declaration, international environmental instruments have emphasized the interests of future generations. The Stockholm Declaration’s preamble notes that “To defend and improve the human environment for present and future generations has become an imperative goal of humankind. .. .” Principle 1 states that “Man ... bears a solemn responsibility to protect and improve the environment for present and futuro generations,” and Principle 2 requires the safeguarding of natural resources and ecosystems “for the benefit of present and future generations,” Similarly, Principle 3 of the Rio Declaration states: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” ___ Professor Edith Brown Weiss, the leading scholar on the principle of intergenerational equity, describes intergenerational equity as the basis for the duty of the current generation to protect the natural system for future generations. Each generation has a right to use and enjoy the natural system, but must not allow that system to be destroyed or compromised in a way that diminishes the inheritance left for the next generation. CHAPTER EiouyPRINCIPLES SHAPING INTERNATIONAL secrion IT ENVIRONMENTAL LAW AND PoLIcy EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS; INTERNATIONAL ‘Law, COMMON PATRIMONY, AND INTERGENERATIONAL EQuITY 37-39 (1996) To derive the principles of intergenorational equity, it ia necessary to return to the underlying purpose of our stewardship of the planet: to sustain the welfare and well-being of all generations. As indicated, this purpose has three aspects: to sustain the life-support systems of the planet; to sustain the ecological processes, environmental conditions and cultural resources necessary for the survival of the human species; and to sustain a healthy and decent human environment. This means passing on a robust planet to future generations. The theory of intergenerational justice says that each generation has an obligation to future generations to pass on the natural and cultural resources of the planet in no worse condition than received and to provide reasonable access to the legacy for the present generation. What then are the principles of intergenerational equity that will fulfill these purposes? Four criteria should guide the development of principles of intergenerational equity. First, the principles should encourage equality ‘among generations, neither authorizing the present generation to exploit resources to the exclusion of future generations, nor imposing unreasonable burdens on the present generation to meet indeterminate future needs. Second, they should not require one generation to predict the values of future generations. They must give future genorations flexibility to achieve their goals according to their own values. Third, they should be reasonably clear in application to foreseeable situations. Fourth, they must be generally shared by different cultural traditions and be generally acceptable to different economic and political systems, We propose three basic principles of intergenerational equity. First, each generation should be required to conserve the diversity of the natural and cultural resource base, so that it does not unduly restrict the options available to future generations in solving their problems and satisfying their own values, and should also be entitled to diversity comparable to that enjoyed by previous generations. This principle is called “conservation of options.” Second, each generation should be required to maintain the quality of the planet go that it is passed on in no worse condition than that in which it was received, and should also be entitled to planotary quality comparable to that enjoyed by previous generations. This is the principle of “conservation of quality.” Third, cach generation should provide its members with equitable rights of access to the legacy of past generations and should conserve this access for future generations. This is the principle of “conservation of access.” These proposed principles constrain the actions of the present generation in developing and using the natural and cultural resources of our Blanet, They do not, however, dictate the detaile of how membere of the present generation should manage their resources. The principles ae reasonably clear in application and should, if respected, ensure i e ‘ustainability of the living environment, and the cultural heritage. They appear to be shared generally by the world’s major cultural traditions, an are consistent with different political and economic systems 443444 PRINCIPLES AND CONCEPTS IN INTERNATIONAL ENVIRONMENTAL LAW Cuarrer Eigur ‘The principles can appropriately be viewed as implementing the poignant call of the World Commission on Environment and Development for “sustainable development,” which the Commission defines as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” They are intended to ensure equitable access to our planetary natural and cultural environment and at the same time to recognize limits on how we use our environment so we cant pass it to future generations in as good condition as we received it, QUESTIONS AND DISCUSSION 1. Are the generational principles Professor Brown Weiss proposes reflected in the Rio Declaration or the other materials on sustainable development? For more on intergenerational equity, see Chapter 2, page 89, 2. The principle of intergencrational equity affirms the need to commit to the long-term protection of the environment and to give a voice to future generations, including through the extension of judicial standing to future generations. For example, the Philippines Supreme Court in 1994 specifically endorsed the concept of intergenerational equity, allowing a case to stop deforestation to be brought on behalf of present and future generations: Petitioners minors assert that they represent their generation as well fas generations yet unborn. We find no difficulty in ruling that they can, for themsclves, for others of their goncration and for the succeeding generations, file a class suit. Their personality to auc in bohalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right toa balanced and healthful ecology is concerned. Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations, Needless to say, every generation hhas a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. Minors Oposa v. Secretary of the Department of Environment and Natural Resources, 33 1.L.M. 173, 185 n. 18 (1994), Tony Oposa, the lawyer who filed the case naming his children as the petitioners, has said the international literature on intergenerational equity helped convince the national court to allow standing on behalf of succeeding generations. See also Imperial Oil Lid. v. Quebec (Minister of the Environment), [2003] 2 8.C.R, 624, 2003 SCC 58 (‘The Quebec legislation reflects the growing concern on the part of legislatures and of society about the safeguarding of the environment. That concern does not reflect only the collective desire to protect it in the interests of tho people who live and work in it, and exploit its resources, today. It may also be evidence of an emerging sense of inter-generational solidarity and acknowledgement of an environmental debt to humanity and to the world of tomorrow.”). How is the concept of intergenerational equity reflected in U. law? Could future generations be granted standing in the United States’‘PRINCIPLES SHAPING INTERNATIONAL sacTion IL ENVIRONMENTAL LAW AND POLICY, Consider this in light of Juliana v. United States, and the other “Iids' climate cases” brought by Our Children’s Trust and discussed in chapter 11. 3. The emphasis on intergenerational equity in international environmental law should not lead to neglect for equity within the current generation. The principle of equity in international environmental law must also address current issues of social, economic, and environmental justice. Intragenerational equity is concerned with environmental justice within countries (a3 well as between countries) but without the temporal element of infergenerational equity, At the core of environmental justice is the intragenerational equity principle that environmental costs and benefits should not be disproportionately placed on certain classes, races, or ethnic groups. It euggests a right not to be diacriminated against in environmental terms (i. not to have to bear a disproportionate burden of environmental pollution or costs), As you read various international environmental instruments, consider whether or how the instruments conaider equity. The Rio Declaration, for example, emphasizes the indispensable role of poverty alleviation in achieving sustainable development (Principle 5) and the specific role and plight of historically underrepresented groups, including women, youth, and Indigenous peoples. Equity is also a principle in the UN Framework Convention on Climate Change, where it is strongly defended by developing countries and just as strongly opposed by the United States. 4, What concrete steps would be required in our national laws if we took seriously the rights of future generations? How do the principles of intor- and intra-generational equity relate to the environmental justice movement in the United States? Or to the climate justice movement internationally? 5. ‘The principle of intergenerational equity is forward looking—it prescribes how we should act today to safeguard the quality of life of future generations, Intergenerational equity has thus far had Jess to say about debts we owe to past generations. A backward facing principle of intergenerational equity could strengthen calls for liability for historical chemical and radioactive contamination, abandoned stockpiles of. ‘hazardous materials, or loss and damage due to climate change. More fundamentally, to what extent could an expansive viow of the principle support demands for intergenerational justice, for example calle for repatriation of Indigenous lands as part of decolonization, for reparations of the wealth gained from slavery, or reparations for the historical impact of disproportionate chemical burdens being placed on communities of color? What are the differences between intergenerational equity and intergenerational justice? For more on tho principle of intergenerational justice, see THOMAS COTTIER, ET AL, EDS. DePRaENRRATIONAY EQUITY: ENVIRONMENTAL AND CULTURAL CONCERNS 19). F. COMMON BUT DIFFERENTIATED RESPONSIBILITIES According to the principle of common but differentiated responsibilities, all States have common responsibilities to protect the environment and promote sustainable development, but because of different social, economic, and ecological situations, countries must shoulder different responsibilities. The principle reflects core elements of equity, placing more responsibility on wealthier countries and those that ate more responsible for eausing specific global environmental problems. 445448 ‘PRINCIPLES AND CONCEPTS IN INTERNATIONAL ENVIRONMENTAL LAW Cnaprer Eraur Differentiated responsibility also allows for ecological differences in countries—for example, the particular vulnerability of small island states to the flooding that may result from global warming. Perhaps most importantly, “common but differentiated responsibilities” presents a conceptual framework for compromise and cooperation in meeting future environmental challenges, because it allows countries that are in different positions with respect to specific environmental issues to be treated differently. "The principle is affirmed in various international instruments that recognize generally the different responsibilities and capabilities of industrialized and developing countries. According to Principle 7 of the Rio Declaration, for example: In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. ‘The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. ‘As another example, the Climate Change Convention's guiding principles ask developed countries to take the lead in combating climate change and its effects, while considering fully the needs and special circumstances of disproportionately burdened developing countries. See Climate Change Convention, Article 3; see also, ¢.g., Montreal Protocol on Substances that Deplete the Ozone Layer, Article 5; Stockholm Convention on Persistent Organic Pollutants, Preamble. ‘The concept of common but differentiated responsibilities remains a cornerstone of international environmental treaty-making, albeit a persistently controversial one. The concept aims at promoting equity between countries, requiring industrialized countries to make certain commitments to developing countries by, for example, providing financial assistance, proactively working to build developing-country capacity, transferring technologies, and granting developing countries more time to meet a particular standard or target, Although there is a broad consensus supporting the principle conceptually, its application in specific contexts is far more controversial. How much’ financial suppor: should be committed? How much differentiation should there be with respect to a specific target or timetable? Are the developing countries’ legal obligations to meet environmental commitments dependent on the developed countries meeting their financial commitments? Even which countries should qualify for differentiated treatment has been controversial. The principle and the associated questions have been particularly resonant in the climate change negotiations. As noted above, the principle is explicitly endorsed in the Framework Convention, but its interpretation has been both critical and controversial. The failure to impose any substantive obligations on China or other developing countries was cited (often disingenuously) as one of the reasons the United States refused to ratify the Kyoto Protocol. As China became the largest annual contributor to climate change in 2007, the United StatesPRINCIPLES SHAPING INTERNATIONAL ssncTion TT ENVIRONMENTAL LAW AND POLICY resisted the continued bi-polar interpretation of the principle—that differentiation is split between industrialized countries and developing countries, The United States argued that the growing economic power and higher emissions of middle-income countries like China, Brazil, and India warranted some differentiation from historically high emitting countries, but certainly not the same differentiation afforded to sub- Saharan Africa and other poorer countries. ‘This more nuaneed view of the principle prevailed to some extent in the Paris Agreement's reliance on Nationally Determined Contributions—which maintains some differentiation between the historically industrialized countries and others, while permitting some differentiation across all countries. For further discussion of the principle's application to climate change, see Chapter 11. QUESTIONS AND DISCUSSION 1. Consider the following discussion of “differentiated responsibilities,” offered by Ileana Porras, op. cit., at 29: There are two distinct ways in which Principle 7 of the Rio Declaration begins to define “differentiated reaponsibility.” First, it imputes differentiated responsibility to States in accordance with their different levels of responsibility for causing the harm. Second, it ties differentiated responsibility to the different capacities of States, by referring to the differentiated responsibility for sustainable development, acknowledged by developed countries in view of the “technologies and financial resources they command.” Together, these two elements of differentiated responsibility provide the beginnings of a philosophical basis for international cooperation in the fields of environment and dovelopment. It is a basis that allows the characterization of the transfer of resources from developed to developing countries as “obligation” rather than as “aid” or assistance and provides a theoretical basis to justify different environmental standards, in view of the different capacities of States and their different contributions to environmental degradation. What difference does it make to developing countries whether foreign assistance and different environmental standards are provided based on sense of obligation as opposed to aid? 2 In signing the Rio Declaration, the United States attached an interpretive statement to Article 7 clarifying that it entailed no legal responsibility for global environmental problems. ‘The United States understands and accepts that principle 7 highlights the special leadership role of the developed countries, based on our industrial development, our experience with environmental protection policies and actions, and our wealth, technical expertise and capabilities, The United States does not accept any interpretation of principle 7 that would imply a recognition or acceptance by the United States of any international obligations or liabilities, or any diminution in the responsibilities of developing countries. What exactly do you think concerned the United States? As you read Chapter 11, consider whether the U.S. statement is consistent with the increasingly explicit linkage between the industrialized countries’ commitments to 447448 PRINCIPLES AND CONCEPTS IN INTERNATIONAL ENVIRONMENTAL LAW. CHAPTER Eicrt provide financial assistance and developing countries’ mitigation commitments. 8, Some economists argue that poor countries should be allowed to continue polluting as they develop their economies, and that this is a legitimate “comparative advantage” they should be able to exploit in international trade. See Chapter 17. Should this be considered as part of common but differentiated responsibilities? 4. Consider the principle in light of the following from Chris Stone: On first acquaintance, the wide appeal of CDR seems unsurprising. Is it not right that the law should subject the rich to higher demands than the poor? But a moment's reflection will chow that the principle is neither universal nor eolf-ovident. True, tho rich pay a higher marginal tax rate than the poor. But differentiations in municipal legal systems are the exception. Poverty docs not excuse theft. Domestic environmental regulations do not hold marginally profitable polluters to lower standards than their wealthy competitors. Why should our posture be different—that is, why should we differentiate more liberally—in the international arena? ‘To begin with the principles of “customary international law,” I can think of none that docs difforentiate on the basis of wealth. Surely, the customary rules against piracy and abusing diplomats carve out no exceptions for the needy. * * * Under the conventions governing the conduct of war, a belligerent’s use of poison gas is not excused because it cannot afford cannonry. The Stockholm Declaration’s Principle 21 speaks in universal terms. .. . There is no qualification that a lack of resources to mitigate damage constitutes defense. No one proposes adjusting the international standards for radioactive emissions to account for a nation’s difficulties in meeting them. Christopher D. Stone, Common But Differentiated Responsibilities in International Law, 98 AM. J. INL L, 276, 281-82 (2004). For further discussion of common but differentiated responsibilities, see ANITA HALVORSSEN, EQUALITY AMONG —UNEQUALS IN INTERNATIONAL ENVIRONMENTAL LAW: DIFFERENTIAL TREATMENT FOR DEVELOPING COUNTRIES (1999). 5. Principle 7 of the Rio Declaration also affirmed the concept of a “global partnership” for protecting the environment: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Barth's ecosystem.” This principle of global partnership reflecta the ecological interdependence of all states, and the need for broad North-South cooperation and compromise to resolve global environmental issues. How does this global partnership relate, if at all, to the principle of common coneern, discussed supra? G. STATE RESPONSIBILITY Under the principle of State responsibility, States are generally responsible for breaches of their obligations under international law. AS Ian Brownlie puts it:PRINCIPLES SHAPING INTERNATIONAL sgonioN IL ENVIRONMENTAL LAW AND POLICY Today one can regard responsibility as a genoral principle of international law, a concomitant of substantive rules and of the supposition that acts and omissions may be categorized as illegal by reference to the rules establishing rights and duties. Shortly, the law of responsibility is concerned with the incidence and consequences of illegal acts, and particularly the payment of compensation for loss caused. Brownlie, op. cit., at 420. Asset forth in Article 1 of the International Law Commission (ILC’s) 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, “Every internationally wrongful act of a State entails the international responsibility of that State.” And according to Article 2, an internationally wrongful act is any action or omission “attributable to the State under international law” and constituting a “breach of an international obligation of the State.” State responsibility is thus the set of rules that define the consequences of one State's breach of its international obligations, State responsibility is a ‘secondary’ set of rules, depending on a ‘primary’ substantive set of rules to establish what in. fact the obligations of international law are. Under the ILC Draft Articles, States responsible for an internationally wrongful act are under an obligation to make restitution (ie. to re-establish the situation which existed before the wrongful act was committed), to compensate for any damage caused, and to give satisfaction (for example acknowledge the breach, express regret, or formally apologize). See Draft Articles 34-37. International tribunals have several times affirmed the role of State responsibility, In the Chorzow Factory case, for example, the Permanent Court of International Justice, the predecessor to the International Court ofdustice, held “that any breach of an engagement involves an obligation to make reparation.” The Court alao affirmed that “reparation ia the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.” PCIJ (1928), Ser, A, no, 17, p. 29. The Corfu Channel case, discussed in Chapter 13, also affirmed the State responsibility principle. The Court found that in allowing its waters to be mined Albania had breached its international obligation to ensure that its territory was not used in a way that harmed others. The Court concluded that Albania was “responsible under international law” for the explosions and was required to pay ‘compensation for the loas of property and human life. State responsibility extends to breaches of international environmental law, as well. Thus, the general rules of state responsibility—e.g., when can a private actors’ conduct be attributed to the State, what general defenses are available to justify a breach, and what remedies are available for a breach of international law, are all applicable to breaches of international environmental law. QUESTIONS AND DISCUSSION 1, Accritical question regarding State responsibility is the extent to which the conduct of non-State actors, such as multinational corporations or non- 449450 PRINCIPLES AND CONCEPTS IN INTERNATIONAL ENVIRONMENTAL LAW Cuarrer E1ony governmental organizations, can be attributed to the State for purposes of holding the State responsible under international law. This is particularly important given that pollution and other types of environmental damage are often caused by private industry. Thue, for example, in the Trail Smelter arbitration Canada agreed to be held responsible for the injury caused by ita private industry. According to the ILC Draft Articles of State Responsibility: “The conduct of any organ of a State shall be considered an act of the State ‘under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.” That is clear enough, but the Draft Articles also attribute to the State conduct of any person or entity: that has the status of a State organ under the internal laws of the State (Article 4.1), + empowered by the law of that State to exercise elements of the governmental authority (Article 5), * acting on the instructions of, or under the direction or control of, that State (Article 8), ¢ exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. (Article 9), * to the extent that the State acknowledges and adopts the conduct in question as its own, (Article 11). Would any of these apply to pollution caused by a corporation incorporated in and permitted by the State? What if the corporation were a State-owned corporation? Would any apply to the development assistance or export eredit agencies of a State? 2, Jurisdiction and Control. Under Principle 21 of the Stockholm Declaration, a State is responsible for environmental harm caused by its own. activities, but also for harm caused by activities under a State's ‘jurisdiction and control.” How far does a state's responsibility extend under such language? Does it extend farther than that contemplated by the ILC’s Draft articles discussed in Question 1 above? Consider Comments c and d to Section 601 of the U.S. Restatement (Third) of Foreign Relations Law: © “Activities within its jurisdiction" and “significant injury.” An juriediction under this section if the state may exercise jurisdiction to prescribe law with respect to that activity under sections 402-403, The phrase “activities within its jurisdiction or control" includes activities in a state's territory, on the coastal waters that are under ita jurisdiction, ... as well as activities on ships flying its flag or on installations on the high seas operating under its authority. ... International law does not address internal pollution, but a state is responsible under this section if pollution within ite jurisdiction causes significant injuries beyond its borders. “Significant injury” is not dofined but references to “significant” impact on the environment are common in both international law and United States law. The word “significant” excludes minor incidents causing minimal damage. .. . In special circumstances, the significance of injwy to another state is balanced against the importance of the activity to the state causing the injury.PRINCIPLES SHAPING INTERNATIONAL secnion Il ENVIRONMENTAL LAW AND POLICY d, Conditions of responsibility. A state is responsible under Subsections (2) and (3) for both its own activities and those of individuals or private or public corporations under its jurisdiction. The state may be responsible, for instance, for not enacting necessary legislation, for not enforcing its laws against persons acting in its territory or against its vessels, or for not preventing or terminating an illegal activity, or for not punishing the person responsible for it. In the case of ships flying ita flags, a state is responsible for injury due to the state's own defaults under Subsection (1) but is not responsible for injury due to fault of the operators of the ship. In both cases, a state is responsible only if it has not taken “euch measures as may be necessary” ‘to comply with applicable international standards and to avoid causing injury outside its territory, as required by Subsection (1). In general, the applicable international rules and standards do not hold a state responsible when it has taken the necessary and practicable measures; come international agreements provide also for responsibility regardless of fault in case of a discharge of highly dangerous (radioactive, toxic, ete.) substances, or an abnormally dangerous activity (eg., launching of space satellites)... In all cases, however, some dofenses may be available to the state; e.g., that it had acted pursuant to a binding decision of the Security Council of the United Nations, or that injury waa due to the failure of the injured state to exercise reasonable care to avoid the threatened harm.... A state is not responsible for injury due to a natural disaster such as an eruption of a volcano, unless auch disaster was triggered or aggravated by a human act, such aa nuclear explosion in a voleano's vicinity. But a state is responsible if after a natural disaster hes occurred it does not take necessary and practicable steps to prevent or reduce injury to othor states. 3, The draft ILC articles also set out general excuses or defenses to the daim of state responsibility for a wrongful act, including: consent, self- defense, countermeasures taken in response to another State’ ul acts, force majeure, distress, and necessity. See Draft Articles 20-27. How ‘would these defenses arise in an environmental case? See, e., the discussion of necessity in the Gabéfkovo-Nagymaros case, excerpted in Chapter 18, at page 841. 4, Is the United States responsible for harm caused to Mexico's environment from air pollution omanating from a coal-fired power plant located ten miles north of the U.S.-Mexico border? What if the company is incorporated in the United States, but the pollution that is harming Mexico isemanating from a company facility located ten miles south of the Mexican border? Would it change your analysis or strengthen the case for State responsibility if the electricity from the facility was all being exported to the United States? What if the power plant located in Mexico was built with financial support from the Overseas Private Investment Corporation, an export-promotion agency of the U.S. government? What is sufficient involvement of the state to eupport a claim of state responsibility for environmental protection? : 5. State responsibility claims are rare in the environmental ficld, dospite many examples of retsboundary envirenmental harm. Consider the 1986 failure of the Chernobyl nuclear reactor, which spread eco ir emissions over many European countries, No affected State brought a claim 451PRINCIPLES AND CONCEPTS IN INTERNATIONAL ENVIRONMENTAL LAW CHAPTER Eiout against the Soviet Union. Why? Does the failure to bring such claims affect the legal status of the underlying principles? Could private parties bring such claims? 6. State Liability. The International Law Commission and other observers separate “State responsibility” from “State liability”. In their view, State responsibility is the obligation to make restitution for damage caused by a violation of international law; State liability is the obligation to compensate for harm caused where there is no violation of law. After many years of trying to develop the law of liability, the ILC in 2006 had a “second reading” of draft principles relating to liability arising from transboundary harm arisii of hazardous activities: Principle 4 Prompt and adequate compensation 1, Each State should take all necessary measures to ensure that prompt and adequate compensation is available for victims of transboundary damage caused by hazardous activities located within its territory or otherwise under its jurisdiction or control. 2. ‘These measures should include the imposition of liability on the operator or, where appropriate, other person or entity. Such liability should not require proof of fault. * * * 3, Those measures should also include the requirement on the operator or, where appropriate, other person or entity, to establish and maintain financial seeurity such as ineurance, bonds or other financial guarantees to cover claims of compensation. 4. In appropriate cases, these measures should include the requirement for the establishment of industry wide funds at the national level. 5, Inthe event that the measures under the preceding paragraphs are insufficient to provide adequate compensation, the State of origin should also ensure that additional financial ‘resources are made available, Principle 5 Response measures Upon the occurrence of an incident involving a hazardous activity which results or is likely to result in transboundary damage: (a) the State of origin shall promptly notify all States affected or likely to be affected of the incident and the possible effects of the transboundary damage; (b) the State of crigin, with the appropriate involvement of the operator, shall ensure that appropriate response measures are taken and should, for this purpose, rely upon the best available scientific data and technology; (©), the State of origin, as appropriate, should also consult with and seek the cooperation of all States affected or likely to be affected to mitigate the offects of damage and if possible eliminate them; (@) the States affected or likely to be affected by the damage shall take all feasible measures to mitigate and if possible to eliminate the effects of damage;PRINCIPLES SHAPING INTERNATIONAL sxcTion IT ENVIRONMENTAL LAW AND POLICY. (@ the States concerned should, where ay te, nsiatance of competent international organisatiore nd otter Statawen mutually acceptable terms and conditions. Principle 6 International and domestic remedies 1. States shall provide their domestic judicial and administrative bodies with the necessary jurisdiction and competence and ensure that those bodies have prompt, adequate and effective remedies available in the event of transboundary damage caused by hazardous activities located within their territory or otherwise under their jurisdiction or control, 2. Vietims of transboundary damage should have access to remedies in the State of origin that are no lesa prompt, adequate and effective than those available to victime that suffer damage, from the same incident, within the territory of that State 3. Paragraphs 1 and 2 are without prejudice to the right of the victims to seek remedies other than those available in the State of origin. 4, States may provide for recourse to international claims settlement procedures that are expeditious and involve minimal expenses. 5. States should guarantee appropriate access to information relevant for the pursuance of remedies, including claims for compensation. UNA, International Law Commission, 58th Session, AJCN.4/L.686 (26 May 2008). The ILC’s draft articles on liability have not been adopted by the General Assembly, reflecting in large part many governments’ lack of interest in advancing the rules of liability for environmental harm. Some progrees has been made with the negotiation of several liability conventions and protocols relating to specific environmental activities, most of which have not entered into force. As one example, the liability protocol under the Basel Convention, completed in 2000, is discussed in Chapter 14 (discussing licbility under the Basel Convention); see also Council of Europe's Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (1993); ‘The Nagoya—Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (2010). 1. What is the practical significance in the environmental context of the distinction between state responsibility and state liability? After all, whether certain transboundary environmental harm is lawful or unlawful—e. whether it violates the obligation not to cause environmental harm (iscussed below)—is dependent at least in part on the nature and Significance of the harm as well as the reasonableness of the state's actions. ‘Thus, for a state to be held responsible for violations of that obligation, courts Would make essentially the same inquiry as if they were trying to determine vhether certain environmental harm is so significant as to require an shligation of state liability, even in the absence of any violation of an international legal standard, What additional issues are covered by the draft ttticles on Hiability presented above? See Alan E, Boyle, State Responsibitity ‘nd International liability for Injurious Consequences of Acts Not Prohibited 7 Jnternational Law: A Necessary Distinction?, INT'L & Come. L. @ 39(1), at lan. 1990). 453454, PRINCIPLES AND CONCEPTS IN INTERNATIONAL ENVIRONMENTAL LAW. H. OBLIGATION Nor To CAUSE ENVIRONMENTAL HARM ‘A central principle in international environmental law is the obligation of States not to cause transboundary environmental harm, ‘This principle has been elaborated in arbitral decisions, in Article 21 of the Stockholm Declaration and Article 2 of the Rio Declaration, and several OCJ opinions. The principle is now generally considered a part of customary international law. The contours of this principle, probably more than any other, determines the legal rights and responsibilities in ‘most disputes regarding transboundary environmental damage and can be considered a part of customary international law. ‘The obligation not to cause environmental harm has its roots in the common law principle of sic utere to ut alienum non laedus (j.e., do not use your property to harm another), In the international law context, States are under a goncral obligation not to use their territory, or to allow others to use their territory, in a way that can harm the interests of another State, This general obligation not to cause harm has been confirmed in several rulings by the International Court of Justice (CJ), including for example in the Corfu Channel ease, which concerned damage to British warships caused by mines placed in Albanian waters. In holding Albania responsible, the ICJ ited “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” Corfu Channel (U.K. v. Alb.), Merits, 1949 I.C.J. Rep. 4, 22 (Judgment of April 9). ‘The general obligation not to cause harm to other States was extended to environmental damage as early as 1941 in the well-known Trail Smelter arbitration, In that case, fumes from a Canadian smelter were damaging U.S, citizens and property. After the two countries agreed to arbitration, the U.S.Canada International Joint Commission concluded; The Tribunal, therefore, finds that .... under the principles of international law, as well as of 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 fumea in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is eatablished by clear and convincing evidence. United Nations, Reports of Int’ Arbitral Awards, Vol. III, 1905-81 (emphasis added), For a more thorough treatment of the Trail Smelter Arbitration, see Chapter 9, page 494. The Trail Smelier Arbitration technically provides little legal precedent (because the parties had agreed to a closely circumscribed arbitration proceeding), but the principle has been frequently repeated in many international environmental contexts. Most notably the principle not to cause environmental harm was further elaborated as Principle 21 of the 1972 Stockholm Declaration: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. CHAPTER EionyPRINCIPLES SHAPING INTERN/ iNTIONAL secon Il ENVIRONMENTAL LAW AND Pouicy ‘The phrase “areas beyond the limits of national jurisdic includes, for example, the oceans and Antarctica. The principle prohibits only impacts from activities under a State's “jurisdiction or control.” See also Rio Declaration, Principle 2; Lac Lanoux Arbitration, (Spain v. Fr.) XI ee ae 281 (1967); United Nations Convention on the Law of the Sea, Part ‘Most commentators assumed that Principle 21 reflected customary international law as supported by Trail Smelier and Corfu Channel. Yet, until 1996, the ICJ had never explicitly confirmed that environmental interests were among those interests that should not be harmed by another State. In a 1996 advisory opinion on the Legality of the Threat ot Use of Nuclear Weapons, the ICJ made the following observation: ‘The Court recognizes that the environment is under daily threat and that use of nuclear weapons could constitute a catastrophe for the onvironment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The exisience of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other ‘States or of areas beyond national control is now a part of the corpus of international law relating to the environment. Paras. 29-30 (emphasis added). The Court's formulation is different from that of Principle 21, but it nonetheless endorses the general obligation not to cause environmental harm. The ICJ subsequently reaffirmed the obligation not to cause environmental harm to neighboring states in the Uruguay-Argentina Pulp Mills Case, para. 193, and the principle is now clearly established as a principle of customary international environmental law. See, eg., Costa Rica v. Nicaragua San Juan River Cases, Judgment, I.C.J. Reports 2015, para. 118; In the Matter of the Indus Waters Kishenganga Arbitration (Ind. v. Pak), Partial Award, INT'L Cr oF ARB. paras. 448-449 (18 Feb. 2013) (referring to the rule in Trail Smelter as a “foundational principle of customary international environmental law."). Each of the above cases is described further in Chapter 13. QUESTIONS AND DISCUSSION 1. Because the obligation not to “harm” the environment of other States reflects customary law, States will be held responsible for transgressions of the principle, To apply the principle, however, requires detailed answers to several significant issues, including, for example, what level of harm should trigger the obligation? To what standard of care should the State be held? What activities should be considered under the “jurisdiction and control" of 4 State? What remedies should be available to States who suffer such damage? See discussion of state responsibility in Section G, supra, 2. Principle 21 clearly outlines the underlying tension between the Principle of State sovereignty and the obligation not to cause damage to ancther State, How should this balance be struck? When should all damage be prohibited and when should one State be responsible for compensating another State for such damage? 455