The General Obligation to Prevent Transboundary Harm and its Relation to Four Key Enviroumental Principles

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The General Obligation to Prevent Transboundary Harm and its Relation to Four Key Enviroumental Principles

in Austrian Review of International and European Law Online

References

1 Karl Zemanek, Causes and Forms of International Liability in Contemporary Problems of International Law 319, 326 (Bin Cheng & E. D. Brown, Eds., 1988). 2 See Rolf Wagenbaur, Regulating the European Environment: The EC Experience, in The University of Chicago Legal Forum, 17, 36 (1992), discussing the European Commission's adoption of the Fifth Environmental Action Program, in which it is stated that "liability will be an essential tool of last resort to punish despoliation of the environment." (emphasis mine)

3 Corfu Channel (United Kingdom v. Albania) 1949 ICJ Rep. 4; Trail SmelterArbitration (United States v. Canada), 1938; 3 RIAA 1907 (1941); Lac Lanoux Arbitration (France v. Spain) 24ILR 101 (1957). 4 "La France indiqua qu'elle etait 'd'accord pour reconnaitre, en liaison avec le principe 21 de la Declaration de Stockholm de 1972, repris au principe 2 de la declaration de Rio de 1992, 1'existence d'un devoir general de prevention des dommages a 1'environnement" in Philippe Sands, L'affaire des essais nucleaires II (Nouvelle-Zelande c. France): contribution de l'instance au droit international de 1'environnement, Revue Generale de Droit International Public 448, 462 (no. 2, 1997). 5 25 September 1997, Case concerning the Gabcikovo-Nagymaros Pro- ject, (Hungary/Slovakia), General List 92, para. 140 (emphasis mine). . (Visited on November 27, 1997). 6 Stockholm Declaration, principle 21. 1.

7 Hungarian Memorial addressing the Precautionary principle in the Case concerning the Gabcikovo-Nagymaros Project, 201, para. 6.64. "The precautionary principle is the most developed form of the general rule imposing the obligation of prevention." 8 "The legal status of the precautionary principle is evolving. At a minimum, however, there is sufficient evidence of state practice to justify the conclusion that the principle as elaborated in the Rio Declaration and the Climate Change and Biodiversity Conventions has now received sufficiently broad support to allow a good argument to be made that it reflects a principle of customary law." Philippe Sands, Principles of International Environmental Law 213-14 (1995). 9 See James E. Hickey, Jr. & Vern R. Walker, Refining the Precautionary Principle in International Environmental Law, 14 Va. Envtl. L.J. 423, 432-436 (1997), subpart A. entitled "Articulations of the Precautionary Principle," listing the major environmental instruments.

10 14 June 1992, UN Doc. A/CONF 151/26, Vol. I, p. 8. 11 Hickey and Walker, supra note 9, at 448-450. According to this article: The task for treaty drafters is to determine what degree of uncertainty is acceptable in identi- fying covered activities... Unfortunately, the appropriate degree of confidence beyond mere speculation but short of certainty is difficult to define. The standard probably varies from on environmental situation to another, and is dependent on many factors, including the gravity of the harm addressed. The article goes on to recommend that a "required degree of confidence in the scientific information" should be specified, as otherwise the precautionary principle is open to an overly wide set of interpretations. It proposes two levels of confidence as ways to delimit the degree of confidence ("reasonable scientific possibility" and "reasonable scientific probability [or likelihood]), asserting also that general acceptance of these criteria would need to be less than unanimous, but greater than a minority opinion. 12 Jonas Ebbesson, Compatibility of International and National Environmental Law 120 (1996).

13 For more discussion of the precautionary principle, see Max Valverde Soto, General Principles of International Environmental Law, 3 ILSA J. Int'l & Comp. L. 193 ( 1996); James Cameron and Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 B.C. Int'l & Comp. L. Rev 1 (1991); Lothar Gundling, The Status in International Law of the Principle of Precautionary Action, 5 Int'l J. Estuarine & Coastal L. 23 (1990). 14 Hickey & Walker, supra note 9, at 430, nn 31, stating that: '"[Pollution of the marine environment' means the introduction by man ... of substances or energy into the marine en- vironment, ... which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities..." �5 March 7-8, 1990, Final Declaration of the Third International Conference on the Protection of the North Sea, 1 Y.B. Int'l Envtl. L. 658, 661 (1990). 16 This standard may mean that protection is seen in light of technical development rather than actual need for environmental protection. This may be problematic, because "pollu- tion overload would be accepted as long as the pollution emanates from state-of-the-art technology." Ebbesson, supra note 12, at 106.

1� May 15, 1990, UNECEDeclaration on Sustainable Development, Principle 7 in 20/3 En- vironmental Policy and Law 100 (1990). For a more complete list of international instruments containing the precautionary principle, see Hickey and Walker, supra note 7. See also Philippe Sands' Principles of International Environmental Law, Chapter 6, p 183, and specifically, pp. 208-213 for a discussion of the precautionary principle in general. 18 For the exact wording of the Rio Declaration, see supra note 10. The Convention on Biological Diversity states that "where there is a threat of significant reduction or loss of bio- logical diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat" (emphasis mine). See also the UN Framework Convention on Climate Change, Article 3(3) which speaks of "precautionary measures'' and recommends that "lack of full scientific certainty should uot be used as a reason for postpon- ing such measures, taking into account that policies and measures to deal with climate change should be cost effective so as to ensure global benefits at the lowest possible cost." On the side of the more definite Rio-like phrasing is also the first guiding principle of the Helsinki Con- vention on the Protection and Use of Transboundary Watercourses and International Lakes, which states that: The precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substance, on the one hand, and the potential transboundary impact, on the other hand... March 17, 1992, 31 1LM 1312, 1316. 19 Of course, it is a given that a non-binding document such as a resolution or a declaration can never create a binding rule, whatever its wording may be. If a binding document such as a treaty uses the word "shall," the obligation is binding. If "should" is used i such a document, then the obligation is not meant as binding. However, it is still significant to note the progress- ive evolution of "shoulds" into "shalls" even within the non-binding documents. It may be argued that such a progression shows a will by the States to achieve a binding result. Once the "shall" formulation has been observed in a number of documents, its transition into a binding treaty may be facilitated. 20 Hickey & Walker, supra note 9, at 437.

21 Sands, supra note 8, at 208. West Germany is mentioned as one of such countries. See also Hickey & Walker, supra note 9, at 427, stating that "the rapidly developing body of international environmental law has evolved partly out of domestic tort law principles that require compensation when legally protected interests are injured." (emphasis mine). 22 Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 Wash. & Lee L. Rev. 851 & n. 1 (1996). 23 Id. at 853, nn 11. An example referred to is Proposition 65 List of Carcinogens and Reproductive Toxicants made by the State of California, which makes a mere speculation that a particular chemical is has cancerous effects enough of a reason to discontinue its use unless it can be proven to be harmless (or not to cause the particular harm) by the pos- sessor/user/manufacturer of th chemical. Another example is the Delaney Clause (21 U.S.C. Section 348c(3)(A)(1994)), wt:ich prohibits the use of any food additives that have caused cancer in animals tested, regard ess of whether these animals bear physiological or metabolic similarities to humans. Id. at 855. 24 The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 [hereinafter CERCLA].

25 42 U.S.C. Section 7401. 26 33 U.S.C. Section 1251. 27 Cross, supra note 22, at 921-922. The RTA would require the regulating agencies to consider the "most obvious risks of action, such as probable substitutes, known foregone benefits, and direct risks from remediation. The agencies should be given authority to consider these offsetting risks and a directive to at least consider the magnitude of the risks before regulating." 28 It is not clear whether this approach assumes harm in the absence of regulation without scientific certainty or not. If this were the case, then the RTA would be highly similar to the precautionary principle. 29 Cross, supra note 22, at 856-920 (reviewing the differen: ways in which the precaution- ary principle is applied in the spheres of public health and environment in the United States, focusing mostly on the negative effects - in the author's view - of the principle.) 30 Id. at 925.

31Id. at 859, nn 47. 32 Letter from Gerhard Hafner (Nov. 5, 1997) on file with author. 33 See Ian Brownlie State Responsibility (Part I), I68-69 (1983), citing a letter dating from 1888 by the U.S. Secretary of State, Mr. Bayard, who states that: The Measure of diligence to be exercised by a government in the repression of disorder is not that of an insurer but such as prudent governments are, under the circumstances of the case, accustomed to exercise... [T]he diligence good governments are accustomed to exercise under

the circumstances must be exercised in each case; and every government is liable to foreign powers for injuries to them or their subjects from lack of such customary diligence in the preservation of order. So, in a sense, the custom is subordinated to particular conditions. 34 Encyclopedia of Public International Law, vol. I (A-D), edited by Peter Macahster- Smith, 11 10-1115 (1992). The term "due diligence'' was first used in the 1871 Treaty of Washington, which set out the rules which the Tribunal should use in deciding the U.S. claims. Rules one and three, "dealing with the responsibility of a neutral State for damages caused by private persons acting within its jurisdiction" state that: A neutral Government is bound... to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or to carry on war as above... Id. at 1ll00II 11. 35 The Harvard Law School commentary to the 1929 draft on State Responsibility stated that: "the phrase due diligence implies... jurisdiction to take measures of prevention as well as opportunity for the State to act, consequent upon knowledge of impending injury or circum- stance which would justify an expectation of a probable injury. Due diligence is a standard and not a definition." Id. at 1112. 36 Patricia W. Birnie and Alan E. Boyle, International Law and the Environment, 92-93 (1992). 3� Robert Lewis, "Environmental Due Diligence in the UK," in Environmental Liability, 373 (1991). See further his comment about the inheritance of environmental problems becoming more risky due to the "increased rights given to the public to have access to environmental

information held by public bodies" after the Royal Commission on Environmental Pollution recommended that "there should be a presumption in favour of unrestricted access for the public to information which the pollution control authorities obtain or receive by virtue of their statutory powers..." Id. at 374-5. 3g 1972 Stockholm Declaration, principle 7 (emphasis mine). 39 Johan G. Lammers International and European Community Law -Aspects of Pollution of International Watercourses in Environmental Protection and International Law (Winifried Lang, Hanspeter Neuhold et al., eds. 1991). 40 Ebbesson, supra note 12, at 106. 4� Id. at 106.

42 See also Turner T. Smith, Jr. & Jessine A. Monaghan, The Impact of Environmental Laws on Transactions: Due Diligence and Other Means of Coping with Environmental Risks, 277- 320, & Robert Lewis, Environmental Due Diligence in the UK, 373 in Environmental Liability, supra note 37, for more information about environmental due diligence in a domestic setting (with particular emphasis on Western European State practice and the U.S.). 43 William J. Denton et al. of Gage & Tucker, and Environmental Audit, Inc., Environmental Due Diligence Handbook, 2nd edition, ix (1991). 44 Lewis, supra note 37, at 378. Lewis also defines due diligence as a '`study carried out to ascertain the extent to which a purchaser is at risk in acquiring a company or a property." Id. at 376. 45 42 U.S.C. Section 9601. 46 A joint and several strict liability standard was imposed upon all parties which had owned or currently owned the site which was claimed to be contaminated, or carried a risk of releasing hazardous substances. David Jacoby and Abbie Eremich Environmental Liability in the USA, in Environmental Liability74 (1991). 47 See Gage & Tucker, supra note 44, at 2-3. SARA excluded from the responsible parties those landowners who "a) did not know that the property was contaminated at the time of acquisition, b) reacted responsibly to the contamination when found, and c) bad made reas- onable inquiries into the past uses of the property before acquisition to determine whether the property was contaminated." Furthermore, the "underlying purposes for conducting envir- onmental due diligence are to a) document necessary actions to support the assertion of the Innocent Landowner Defense; b) identify environmental risks associated with the transaction, c) evaluate the potential costs associated with management of those risks, and d) integrate this information into the decision-making process regarding whether to continue with the

acquisition... or accurately allocate the responsibility among the parties to the transaction." Idem, ad 4-5. 48 Scott C. Seiler, The Environmental Due Diligence Defense and Contractual Protection Devices, 49 La. L. Rev 1405, 1419 (1989). ' 49 CERCLA, 42 U.S.C.A. Section 9601(35)(B). 50 Seiler, supra note 49, at 1422. See also Gage & Tucker, supra note 45, at 96. 51 42 U.S.C. 9601, supra note 48. 52 According to Seiler, the objective are to identify the amount and types of contaminants in the soil or groundwater and to predict the rate and direction of migration of the contaminants... If the audit confirms suspicions of contamination, the lender or purchaser is considered to have actual knowledge of the contamination and may not claim the third party defense. Supra note 49, at 1427. 53 Gage & Tucker, supra note 44, at 103.

54 Brownlie, supra note 33, at 169. 55 Sands, supra note 8, at 579-594 provides a thorough discussion of the environmental impact assessment and an overview of the significant treaties, declarations and instruments. 56 Text in: Lakshman D. Guruswamy, Geoffrey W.R. Palmer, Burns H. Weston, Supplement of Basic Documents to International Environmental Law and World Order, St. Paul 1994, 125. 57 UN Conference on Environment and Development (UNCED) Agenda 21, 13 June 1992. UN Doc. A/CONF.151/26 (1992). For example, Chapter 15.4(f) dealing with biodiversity re- quires that governments "produce regularly updated world reports on biodiversity based upon national assessments." Chapter 17, dealing with protection of the oceans, seas and coastal areas, in its objectives (17)(5)(d) required that "preventive and precautionary approaches in project planning and implementation, including prior assessment and systematic observation of the impacts of major projects" be applied (emphasis mine). Chapter 20, which covers the management of hazardous wastes states that one of its objectives is to "facilitate the assessment

of impacts and risks of hazardous wastes on human health and the environment by establishing appropriate procedures, methodologies, criteria... and standards:'' 58 42 U.S.C. Section 4321 et seq. 59 Council Directive 85/337/EEC, OJ L 175, 5 July 1985, 40. 60 Jacquelyn L. Smith, Consideration of Socioeconomic Effects under NEPA and the EC Directive on Environmental Impact Assessment, The University of Chicago Legal Forum, 355, 365 (1992). The author poses questions such as: "What does the Directive mean by 'material assets and the cultural heritage?' Do any and all effects on 'human beings' require ElAs?" 61 Espoo, 25 February 1991, not in force, 30 LL.M. (1991) Art l(vii). 62 Alexandre S. Timoshenko, The Problem of Preventing Damage to the Environment in Natiomll and International Law: Impact Assessment and International Consultations, 5 Pace Envirl. L.R. 475 (1988).

63 For basic background on EISs, see ALI-ABA Environmental impact assessment: NEPA and related requirements, (1997) and Christopher Wood Environmental Impact Assessment: a comparative review(1995). 64 42 U.S.C. Section 4332(2)c. 65 S�� supra note 59, at 356. 66 42 U.S.C. Section 4332(2)c.

67 42 U.S.C. Section 4331(b)(2). 68 42 U.S.C. Section 4331(b)(4). 69 In Hanly v. Mitchell (Hanly I), 460 F2d 640 (2d Cir 1972), it was found that a con- struction of a new jail in Manhattan could entail a significant environmental impact (because in addition to noise pollution, there would also be a possibility of increased crime and other socio-economic effect). 70 In Metropolitan Edison Co. v. People Against Nuclear Energy ("PANE"), 460 US 766 (1983) it was found that a psychological effect can qualify as an "environmental" effect only if it is proximately caused by a physical event. The psychological stress which would be caused by the reopening of a Three Mile Island reactor was not found to be sufficiently proximate. Another case, Hanly v. Kleindienst (Hanly II), 471 F2d 823 (2d Cir 1972), adopted a two-part test which would involve taking into account of the degree of change from current land use and the absolute quantity of the impact. 71 A summary of EIS requirements states that: "[T]he E1S must detail the environmental impact of the proposed action; any unavoidable adverse environmental impacts it would create; any permanent commitments of resources the project would entail; and alternatives to the proposed action. The E1S procedure requires consultation with other federal agencies with affected jurisdictions or special knowledge, and also requires publication of the EIS in draft form and the solicitation of public input on the EIS." David Jacoby and Abbie Eremich "Environmental Liability in the United States of America" in Environmental Liability, see supra note 37, at 67.

72 Sands, supra note 8, at 213. 73 Ursula Kettlewell, The Answer to Global Pollution? A Critical Examination of the Prob- lems and Potential of the Polluter-Pays Principle, 3 Colo. J. lnt'1 Envtl. L.& Pol'y 429, 431 (1992). 74 OECD Guiding Principles Concerning International Economic Aspects of Environmental Policies, 11 ILM 1172 (1972), states that: The principle to be used for allocating costs of pollution prevention and control measures to encourage rational use of scarce environmental resources and to avoid distortions in intema- tional trade and investment is the so-called "Polluter-Pays Principle." This Principle means that the polluter should bear the expenses of carrying out the above mentioned measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production and/or consumption. Such measures should not be accompanied by subsidies that would create significant distortions in international trade and investment.

75 OECD Council Recommendation C(72)I28(1972), 14 ILM 242 (1975), Annex, Title C, para. 4. 76 Id. However, note that PPP is not binding on member states, who are themselves free to determine how it should be implemented. Bimie and Boyle, supra note 36, at 110. 77 Convention on the Protection of the Marine Environment of the Baltic Sea Area, 9 April 1992, 13 ILM 546 (1974), Art., and Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, 31 ILM (1992), 1312. Art 2(5)(b). 78 Henri Smets The Polluter Pays Principle in the Early 1990s in The Environment after Rio: International Law and Economics, edited by L. Campiglio, et al., 131, 137 (1994).

79 Examples of Conventions where the idea of the developed-developing state dichotomy is carried further are the Montreal Protocol to the 1985 Ozone Convention and the 1992 Framework Convention on Climate Change. The latter convention's article 11 states that "a mechanism for the provision of financial resources on a grant or concessional basis, including for the transfer of technology... shall function under the guidance of and be accountable to the Conference of the Parties." 80 See Candice Stevens, Trade and Environment: The OECD Guiding Principles Revisited, 23 Envtl. L. 607 (1992) and Interpreting the Polluter Pays Principle in the Trade and Envir- onment Context, 27 Cornell Int'l L. J. 577 (1994); Charles S. Pearson, Testing the System: GATT + PPP = ?, 27 Cornell Int'l L. J. 553 (1994), and Ranee Khooshie Lal Panjabi, From Stockholm to Rio: A Comparison of the Declaratory Principles of International Environmental Law, 21 Denv.J.Int'l L. & Pol'y 215, 252 (1993) for more discussions on the PPP. 81 Kettlewell, supra note 73, at 474. 82 Id.

83 See supra note S I and accompanying text.

84 Harris v. Carter, 582 A2d 222 (Del. Ch. 1990). 85 Rylands v. Fletcher, 1868 L.R.-Z & I. App. 330, 339-40 (1868).

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