The Principle of Prevention in International Law

in Austrian Review of International and European Law Online
Restricted Access
Get Access to Full Text
Rent on DeepDyve

Have an Access Token?



Enter your access token to activate and access content online.

Please login and go to your personal user account to enter your access token.



Help

Have Institutional Access?



Access content through your institution. Any other coaching guidance?



Connect

The Principle of Prevention in International Law

in Austrian Review of International and European Law Online

References

I Declaration of the U.N. on the Human Environment, June 16, 1972, U.N. Doc. A/CONF.48/14 & Corr. 1 (1973), principle 21, reprinted in 11 ILM 1416 (1972).

2 Palmas Case, 2 Hague Ct. Rep. 2d (Scott) 84, 93 (Perm. Ct. Arb. 1928). 3 Philippe Sands, Principles of International Environmental Law 197, (1995).

4 Trail Smelter Case (U.S. v. Can.), 3 R.LA.A. 1907 ( 1941), citing Eagelton, Responsibility of States 80 (1928). 5 See Jacqmotte's article in this issue.

6 Sands, supra note 4, at 191. 7 Nuclear Tests (Austl. v. Fr.), 1974 ICJ, 253, at 389 (Dec. 20). Judge de Castro stated: "If it is admitted as a general rule that there is a right to demand prohibition of the emission by neighbouring properties of noxious fumes, the consequences must be drawn, by an obvious analogy, that the Applicant is entitled to ask the Court to uphold its claim that France should put an end to the deposit of radio-active fall-out on its territory." 8 Corfu Channel (U.K. v. Alb.), 1949 ICJ 4, at 22 (Apr. 9). 9 The French text reads "1'obligation, pour tout Etat, de ne pas laisser utiliser son territoire aux fin d'actes contraires aux droits d'autres Etats." Article 39(2) of the Statute of the Court provides that when the Court delivers its decision in both French and English, it "shall at the same time determine which of the two texts shall be considered as authoritative." The author of this paper was, however, unable to ascertain the official language of the judgment because neither the I.C.J. report nor any other source located noted which language was determined to be authoritative. 10 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ 14, at 380 (June 27). 11 Sands, supra note 4, at 192.

12 G.A. Res. 1629, U.N. GAOR, 16th Sess., 1043d plen. mtg., at 505-07, U.N. Doc. A/PV. 1043 (1961). 13 Lynton K. Caldwell, International Environmental Policy 55 (2d ed. 1990). 14 David A. Wirth, The Rio Declaration on the Environment and Development, 29 Ga. L. Rev. 599, 600 (1995). 15 Marc Pallemaerts, From Stockholm to Rio: Back to the Future? in Greening International Law 1, 2 (Philippe Sands ed., 1994). 16 UN Doc. A/CONF.48/PC/2, para. 16 (1972). 17 Pallemaerts, supra note 15, at 2. 18 Id. 19 Id. at 5.

20 Report of the Intergovernmental Working Group on the Declaration of the Human En- vironment: Draft of a Preamble and Fundamental Principles for the Draft Declaration on the Human Environment, Preparatory Committee for the U.N. Conference on the Human Environment, Annex I, at 13, U.N. Doc. A/CONF.48/PC.12 (1971) (emphasis in original).

21 Sands, supra note 3, at 190-91. Pallemaerts, supra note 15, at 5. See also Louis Sohn, The Stockholm Declaration on the Human Environment, 14 Harv. Int'l L.J. 423, 485-93 (1972)

(history of the Stockholm negotiations tending to support the view that Stockholm Principle 21 is customary international law). 22 Wirth, supra note 14, at 602. 23 Memorial of Hungary (Hung. v. Slovk.) (Gabcikovo-Nagymoros), para. 6.57.

24 Wirth, supra note 14, at 614. 25 Jeffrey Kovar, A Short Guide to the Rio Declaration, 4 Colo. J. Int'l Envt'l L. & Pol'y 119, 124 ( 1993). 26 Id. at 126. The United States issued an imperative statement at the time the Rio Declar- ation was adopted, declaring that "The United States does not, by joining consensus on the Rio Declaration, change its long-standing opposition to the so-called 'right to development.' Development is not a right. On the contrary, development is a goal we all hold, which depends for its realization in large part on the promotion and protection of the human rights set out in the Universal Declaration of Human Rights. The United States understands and accepts the thrust of Principle 3 to be that economic development goals and objectives must be pursued in such a way that the development and environmental needs of present and future generations are

taken into account. The United States cannot agree to, and would disassociate itself from, any interpretation of Principle 3 that accepts a 'right to development,' or otherwise goes beyond that understanding." 2� Declaration of the U.N. Conference on Environment and Development, May 7, 1992, U.N. Doc. A/CONF.151/5 (1993), principle 2 (emphasis added). 28 Ileana Porras, The Rio Declaration in Greening International Law 20, 31 (Philippe Sands ed. 1994).

29 Id. 30 Kovar, supra note 25, at 125. 31 Wirth, supra note 14, at 622. 32 Pallemaerts, supra note 15, at 5. 33 Wirth, supra note 14, at 623-24.

34 Wirth, supra note 14, at 620 n.57. 35 Id. at n.58. Among the documents using the "pure" restriction on transboundary harm at the Final Act of the conference on Security and Cooperation in Europe (Aug. 1, 1975), 73 Dept. St. Bull. 323 (1975), 14 ILM 1292, 1307 (1975); the Charter of Economic Rights and Duties of States, G.A. Res. 3281, art. 30, U.N. GAOR, 29th Sess., Supp. No. 31, at 50, U.N. Doc. A/9631 (1975); the Agreement on the Conservation of Nature and Natural Resources, July 9, 1985, reprinted in 15 Envtl. Pol'y & L. 64, 68 (1985); and the Declaration on the Progressive Development of Principles of Public International Law Relating to a New Interna- tional Economic Order § 5, in International Law Association, the Report of the Sixty-Second Conference, Seoul (1986). 36 Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources, princ. 3, U.N. Doc. UNEP/IG.12/2 Annex (1978), 17 ILM 1097, 1098 (1978). 3� Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, pmbl. 5, TIAS No. 10,541, 18 ILM 1442 (1979).

38 Convention for the Protection of the Ozone Layer, Mar. 22, 1985, pmbl. 2, TIAS No. 11,097, 26ILM 1516, 1629 (1987). 39 It should be noted that in no other international document contains an explicit definition of developed countries as opposed to developing ones. 40 Bing Ling, Developing Countries and Ozone Layer Protection: Issues, Principles and Implications. 6 Tul. Envt'l L. J. 91, 95-96 (1992), noting that "developing countries, with 75% of the world population, account for less than 15% of global CFC production and consumption. The 35% of the world's population that reside in China and India consume less than 3% of the world's CFCs." 41 Id. Bing Ling cites 1992 statistics claiming that the share of CFCs used by developing countries could double by 2000 if steps were not taken.

42 Report of the Intergovernmental Committee for Negotiation of a framework agreement on climate change concerning the work of its fifth session 24, U.N. Doc. A/AC237/I8 (Part I), cited in Pallemaerts, supra note 15, at 6. 43 Pallemaerts, supra note 15, at 6.

44 Id. at 7. 45 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. -, 35 ILM 809, 821 (July 8). 46 Philippe Sands, Reports from International Courts and Tribunals: International Court of Justice, 1995 Yearbook of International Environmental Law 531, 542. 47 Id.

48 Gabcikovo-Nagymoros (l 'ung. v. Slovk.), No. 92, para. 53 (Sept. 25, 1997), http://www.law.cornell.edu/icj/icj6/ihsjudcontent.html. 49 For further information on the legal proceedings arising from the Chernohyl incident, see Philippe Sands, Chernobyl: Law and Communication (1988).

5o North Sea Continental Shelf. 1969 LC.J. 3, at 43 (Feb. 2C ). 51 See Wirth, supra note 14, at 623 n.65. 52 Peter H. Sand, UNCED and the Development of International Environmental Law, 8 J, Nat. Resources & Envtl. L. 209, 216-17 (1992).

53 G.A. Res. 2995, U.N. GAOR Supp. No. 30 at 42, U.N. Doc. A/8730 (1972). 54 Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order § 5, in International Law Association, the Report of the Sixty-Second Conference, Seoul (1986) 55 G.A. Res. 3281, art. 30, U.N. GAOR, 29th Sess., Supp. No. 31, at 50, U.N. Doc. A/9631 (1975). 56 Conference on Security and Cooperation in Europe: Final Act (Aug. 1, 1975), 73 Dept. St. Bull. 323 (1975), 14 ILM 1292, 1307 (1975). 57 See, e.g., Daniel Magraw, Legal Treatment of Developing Countries: Differential, Con- textual, and Absolute Norms, I Colo. J. Intl' Envtl. L. & Pol'y 69, 84-85 (1992); Sands, supra note 3, at 194-95. 58 Note that under the Vienna Convention on the Law of Treaties, recourse to the preparatory work of the treaty may be had only when the application of general rules of interpretation leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable (Article 32). This fact should not be overlooked if mention is to be made of the travauuoc preparatoires in a legal body, although an argument can certainly be made that Stockholm Principle 21 is ambiguous. Regardless, the purpose of this paper is to detail the principle of prevention as completely as possible and the travauoc are a useful tool for that investigation. 59 Report of the Intergovernmental Working Group on the Declaration of the Human Environment, supra note 20, at 1-3.

60 Id. at 5. 61 Id. at 1. The eighth draft preambulatory clause proclaimed the responsibility of States to "exercise its sovereignty over its natural resources in a manner compatible with the need to ensure the preservation and enhancement of the human environment." 62 Id. at 13. 63 Report of the U.N. Conference on the Human Environment, U.N. Conference on the Human Environment 118, U.N. Doc. A/CONF.48/14 (1973).

64 Scott Hajost, Legal Implications of U.S. Policy on Acid Deposition, in International Law and Pollution (Daniel Magraw ed. 199 1).

65 See, e.g., Bing Ling, supra note 40; Cheng Zheng-Kang, Equity Special Considerations, and the Third World, I Colo. J. Int'l Envtl. L. & Pol'y 57 (1992). 66 Magraw, supra note 57, at 85.

67 Lac Lanoux (Fr. v. Spain), 24 I.L.R. 101, 140 (1957).

Information

Content Metrics

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 24 24 8
Full Text Views 27 27 17
PDF Downloads 0 0 0
EPUB Downloads 0 0 0