Principles of international environmental law

Hi everyone. As we are reaching the end of our exploration of the domains of international law, we are getting, last but not least, to international environmental law. In this first clip, I'd like to introduce some of the general characteristics of this field, as well as the no harm principle. In the second clip, I'll introduce the precautionary principle and the polluter pays principle. Before I get into the details, I'd like to point out that international environmental law has become a real fixture in this course, and for obvious reasons. The climate crisis, but also environmental degradation more generally, count among the most pressing political challenges of our time. And in order to resolve them, we will have to know what we can and cannot achieve within international law. This is particularly so because many of the environmental issues, and in particular, of course, the climate crisis, have a transnational, a cross-border element to them. So in order to find an effective solution, we will have to find it within the community of states and arguably within the language of international law. Now, Kluvers, in the generally critical approach that he takes in this textbook, makes the good point that international environmental law counts among the, as he calls it, most convoluted areas of international law. And I agree with him. There's often a big difference between what there is and what there should be in international environmental law. On the other hand, as you already saw when looking through the chapter, there's a lot going on. And there are, in fact, many specific and complex instruments that, while not very well known, do actually have quite an effect in practice. So before we get to some of the general legal principles that can give us guidance in this field, the first important observation to be made is that there are dozens, if not hundreds, of specific international legal instruments that are currently in force. And while Wikipedia might have its limitations as an academic source, it does provide us with a very good overview of all this wealth, this plethora of legal treaties. So this screenshot here actually provides you only with a small snapshot of the various international environmental agreements that exist out there. But you can already see that they concern a variety of issues ranging from the protection of migratory water birds to the combating of desertification and, of course, climate change. In practice, then, this means two things. First, the specific obligations that exist are sort of spread out among the multitude of international environmental agreements. And in order to understand the scope and the content of environmental protection, you will have to look at a particular treaty and at its provisions. And second, you will have to check whether a state has ratified this specific treaty in question. So as opposed to, for example, international criminal law, where we have the Rome Statute, or even international human rights law, where we have basically a dozen or so treaties, there are hundreds of various constellations here in which states might have ratified some but not other instruments. And this, of course, then determines the specific international legal obligations that exist in each case. One way in which we can find our way through this dense forest of international legal obligations is to keep in mind some of the key general principles that have been established in landmark conferences dealing with environmental issues, namely the 1972 Stockholm Conference and the 1992 Rio Conference. The legal status of these principles often does not yet amount to general principles of international law. But the way that they operate is that they actually become codified or put down in these various environmental agreements. So what you can do is look specifically at the provisions that establish these general principles and lay them down in the particular issue area that any instrument tackles. That said, these principles are not included in each and every international environmental agreement out there, though probably in many, if not most of them. They also do not cover or rather exhaust all the contents of the treaties in question, which of course include many more specific and targeted provisions depending on the object and the environmental problem at stake. So what these principles help us achieve is a sort of orientation and general understanding that helps us give context to the specific provisions that we find in these often very technical environmental agreements. The first of the three principles that I'd like to mention in these clips is the no harm principle or Stockholm principle 21. As laid down in one of the provisions of the Stockholm Declaration and stipulating that states have the sovereign right to exploit their resources pursuant to their own environmental policies and the responsibility to ensure that activities within the jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. This absolutely foundational principle of environmental law has two legs, so to say. The first aspect is that states have the sovereign right to exploit their natural resources and this of course does not surprise us very much because in principle sovereignty means that states are free at liberty to do anything that they like within the jurisdiction and that of course includes to take advantage of these resources that are within their territory. At the same time when pursuing such activities states have the obligation and responsibility and this is where it becomes interesting from the standpoint of environmental law to not cause any damage outside its jurisdiction. And once again we might not find this surprising because the sovereignty of a state of course ends at the borders at the sovereignty of another state which has the right not to see its territory and this includes the environment damaged or harmed. The no harm principle draws and arguably derives from a longer-standing concern in international law to avoid transboundary harm. So, so to say the cross-border bilateral damage that can be caused by environmental pollution. It is concerns above all of course neighboring states but not only as Clemmers also mentions in the textbook imagine you pollute a river this might have effects also on states downstream that are not necessarily your neighboring states but that might just be affected as much as a neighboring state would be. That said it's becoming increasingly relevant to what extent the no harm principle applies outside the context of transboundary harm to include also the global commons. So global common areas such as the atmosphere and oceans giving rise to obligations ergo omnis so obligations that a state might owe to all other states that are of course also impacted by the degradation of these global common areas. Now remember that in and of itself the no harm principle is not binding so particularly when it comes to these questions regarding the global common areas it is important how the no harm principle is being laid down in specific multilateral treaties notably for example now the Paris agreement when it comes to climate change. And this brings me to the last point that I would like to address here which is the scope of the no harm principle. Again it depends very much on the instrument in question but we can say in general that there is a certain threshold to the harm that needs to be caused. So if you look at the ILC articles on transboundary harm it mentions that there needs to be a significant harm so not each and every spill not each and every instance of pollution will actually meet this threshold and therefore give rise to obligations under the no harm principle. The second aspect to understand is that the no harm principle does not give rise to strict liability but that it rather calls for procedural due diligence. What do we mean by that? Well a state has first and foremost the obligation to do everything within its power to avoid environmental degradation that spills over that affects another state and its territory. Now there might be instances in which a state did not have any control in which it in fact took all the necessary steps to identify and avoid any environmental harm and still something bad happened to another state or states. In this particular case a state will not be held responsible under the no harm principle despite environmental damage that in fact another state had to suffer. This procedural aspect of the no harm principle was precisely what was at stake in the pot mills case where the international court of justice had that Uruguay had not done everything in its power to prevent environmental harm to Argentina and was therefore then held responsible under international law. This ends this first clip in the second one I will address two more principles namely the precautionary principle and the polluter pays principle.