Which of the international environmental law principles we studied in this course has had the greatest impact in treaty and court practice and why? Use examples.Ranga Udoch Gabriel Simon20172710600313000, WordsIntroductionThe Principle of Sovereignty over National Resources and the responsibility not to cause damage to the environment of other states or to area beyond National Jurisdiction had the greatest impact in treaty and court practice.Conceptual origins Sovereignty over Natural Resource and The Responsibility not cause damage to the Environmental of other States or to Area beyond National JurisdictionThe essay begins with some of the basic analysis on the origin of Permanent Sovereignty over Natural Resources.
Then it would examine the relevant application of Principle of Sovereignty over National Resources the responsibility not to cause damage to the environment of other states or to area beyond national Jurisdiction in the various treaties and in courts practices. Finally, the essay ends with concluding remarks.The right to Permanent Sovereignty over Natural Resources is the right of all States to dispose their natural resources within their territory freely from of any kind from any kind of foreign interference found.
During 1950s and 1960s, the former colonies were in the fight to recover back their permanent sovereign rights over their own natural resources from colonial Masters and to prevent continuous economic colonization through the work of foreign investors. Many states now considered principle of permanent sovereignty over Natural Resource as being part of the right of self-determination. One of the most important statements that called for the right to permanent sovereignty over national resources is the United Nations General Assembly Resolution 1803(XVII) (1962) This resolution did grant the states to exercise their inherent and overriding right” to control and use its own natural resources without and foreign limitation or influence. The only limitation to the rights is that it is to be used for the benefit of the citizen of that state concern.The Influence of the principle on Court and the Tribunal before Stockholm Declaration (1972)In the Trail Smelter case (1941), it is generally belief that the basis of the sic utere principle under international environmental law was driven from its award. The case was about atmospheric emissions of Sulphur dioxide from the Canadian territory which serious damage to Agricultural crops in United States territory. Through the Convention for settlement of difficulties arising from operation of The Trail, Smelter signed in Ottawa in 1935; the two governments agreed to submit the dispute to the Arbitration.The tribunal stated that;Under the principle of international law, no State is allowed to the use its territory so as to cause serious injuries to the territory of another state or properties or person when the case is of serious consequence and injury is established by clear and convincing evidence.However, this Arbitral Tribunal clear caution the state in engaging in activities that can particularly causes Transboundary environmental Damage. By referring to United States law, the Tribunal was indicating that the obligation not to causes environmental damage to territory of other states is a general principle of law. That means that not state has freedom to be engage in activities that is likely to cause environmental damage to a territory of another state.In the Corfu Channel case (1949). Which particularly deals with the case of damage’ inflicted upon British ships passing through the Corfu Channel as a result of mines exploding in waters under Albania’s jurisdiction, the court ruling in this case was influence by Trial Smelter ruling. The norm that has now become part of international obligation not causes transboundary damage to the property of another state. This similar statement that reaffirmed the Trail Smelter ruling tend to have been general acceptable in more terms at International level even today.In the Corfu Channel case the court rules that: States are under an obligation not to allow its territory to be used for acts contrary to the rights of other States. In this case, the International Court of Justice has recognized the existence of a general principle of law prohibiting states from violating the rights of or inflicting damage on other states. The Court thus generalized the Trail Smelter principle, and furthermore found that it can also be violated by an act as well as an omission. This is particular the reason why the court had rule that Albania has responsible for the death and damage to British ship because it did not send any warning for the danger in their territorial water which is International water way. In the Lac Lanoux arbitration (1917), which was about the danger of construction of a dam by France that may change the course of streams that would definitely affect the Spain irrigation, the tribunal in deciding the case did recognized that territorial sovereignty is not unlimited by stating that: Admittedly, there is a rule prohibiting the upper riparian State from altering the waters of a river in circumstances calculated to do serious injury to the lower riparian State.The arbitral tribunal in this case was only laying the procedure that France was to consult with Spain before carrying out its project but it was not that the construction of the dam did alter the water for Spanish River.Generally, Trail Smelter tribunal’s reasoning was based on the concepts of sovereignty and the obligation not to cause environmental harm to the area beyond national territory which greatly influences the decision of the subsequence case such as the Corfu Channel which fundamental confirmed general obligation for state not use their territory in away may causes danger to their territory. The Corfu Channel case rules were reaffirmed under the context of international watercourses law. For the Lac Lanoux case, the case ruling did strengthen old sic utere principle which was first asserted in Trail Smelter case and later continued to be used today to avoid transboundary environmental harm which all together gave rise to the development of important rules of environmental law. The Influence of the Principle on Soft law and TreatiesDue to flexible nature of the norms expressed in the Trail Smelter Arbitral 1941, the 1972 Stockholm Declaration found it easily to adopt the norm in principle 21, which was again reaffirmed by principle 2 of Rio Declaration ten years later. The wording of principle 21 shows that the state has: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.The principles 21 have expand the Trail Smelter, Corfu Channel and Lac Lanoux rule. The rule was based on limiting state not to cause damage to environment of another state when exercising territorial sovereignty over natural resources to more environmental protection in the areas beyond the limits of national jurisdiction. The post Stockholm Conference was followed by emergence of various environmental treaties which tends to reaffirmed principle 21/2 of Stockholm and Rio Declaration Respectively. Although there has been some modification to the principle 21/2 as per the purpose and object of the particular environmental treaties, these changes have in no way or the other has any practical effect on principle 21/2. The reason is because states can still pursued their developmental policies when exploiting their natural resourced based on principle 21 as agreed during the Stockholm Conference. Surprisingly, 1991 Espoo Convention and the 1992 Convention on the Trans boundary Effects of Industrial Accidents Industrial Accidents Convention have expressed a similar principle as that found in Principle 21/2 of Stockholm and Rio Declaration that places an obligation on states to take appropriate measures in terms of preventing Transboundary effect of environmental pollution happening in their territory not to affect the environment of other States. This convention clearly reaffirmed the principle 21/2 on the responsibility not to cause environmental damage to environment of another state or to area beyond their national jurisdiction.More other international treaties have also incorporated the sovereign right of all coastal States over their marine resources. For example, United Nations Convention on the Law of the Sea (LOSC) expressly recognizes the sovereign rights of all coastal States to exploit their marine resources. In particularly Article 193 of the LOSC provides a general provision stating that: States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. To be more specific, articles 56 (1) (a) and 77 of the United Nations Convention on the Law of the Sea recognize the sovereign rights of coastal States to explore and exploit, conserve and manage the natural resources of the Exclusive Economic Zone (EEZ) and the Continental Shelf respectively. More other convention like the Convention on Biological Diversity (CBD), which regulates both terrestrial and marine resources, explicitly recognizes the sovereign right of all States to exploit their own resources pursuant to their own environmental policies.Article 6 of the Nagoya protocol to the Biological convention, which govern access to genetic resources within the territory of the state parties, did also established a requirement for prior informed consent of the party providing such resources to fully exercise their sovereign rights over natural resources.The 1971 Ramsar Convention made it clearer that the inclusion of a national wetland site in the convention List of Wetlands does not prejudice the exclusive sovereign rights of … the party in whose territory the wetland is situated.Article 9(6)1 London convention 1933 have similar language that, reaffirmed the principle sovereignty by declaredly that all animal trophies that were hunted in the territory of particular state belong to the Government of that State. Article 1 of the 1983 International Tropical Timber Agreement and now the Preamble para (d) of the 2006 International Tropical Timber Agreement also do maintain that the producing member have the sovereignty right over their natural resource (Tropical timbers).The preamble of 1989 Basel convention recognized the principle of sovereignty by affirming that all states have the sovereign right to ban the entry or disposal of foreign hazardous wastes and other wastes in their territory.The 1992 United Nation Framework Convention on Climate Change do contained a language that reaffirmed the principle of Sovereignty of states by calling for international cooperation so as tackle climate change. This call means that without collective responsibility of all states it would not be possible to realize the fight against the climate change since this problem affects all mankind irrespective of a state being industrial states or not. The effect of climate change is a threat to all and did not respect state sovereignty.The Influence of the principle on Court and Tribunal after Stockholm Declaration (1972)The Resolution 1803(XVI) of 1962 was further cited by the Arbitral Tribunal in the of Libyan American Oil Co. (“LIAMCO”) v Libya (1981). In this case the Arbitral Tribunal accepted the principle of Sovereignty over natural resources by stating that: “The said Resolutions, if not a unanimous source of law, are evidence of the recent dominant trend of international opinion concerning the sovereign right of States over natural resources.” The same point was followed by the Texaco Overseas Petroleum Co. and California Asiatic oil Co. v Libya in 1974), when the Arbitral Tribunal called on the Resolution 1803 as reflecting customary International Law.Another incident where the Courts cited the principle of sovereignty over natural resources was the decision of the International Court of Justice on East Timor case and the case concerning Democratic Republic of Congo V. Uganda Case. In these cases the International Court of Justice does affirm that principle of Sovereignty over natural resources and the obligation not to cause the transboundary environmental damage has now become part of the customary norm and it operation would still have effect at all-time even during armed conflict or in the event of territorial occupation.In the Tuna/Dolphin case, which happens when the US had banned the import of Yellow-Fin Tuna caught by Mexican vessels using purse-seine nets in Mexico’s Exclusive Economic Zone and on the International high Seas, The GATT panel rejected the US application of the extra-jurisdictional environmental standards. The panel sees the US Measures as being contrary to the GATT. The US decision was seen as if they were trying to unilaterally determine the conservation policies of Mexico. Allowing US to continue unilaterally determine the conservation policies means compromising the Mexico Sovereignty over it natural resources.In Nuclear Test Ban (1974), the ICJ was not able to reflect and use principle 21/2 due to procedural reasons. During that period, the legal status of principle 21/2 in the protection of environment for the first Nuclear Test Ban was not widely accepted as being principle customary law at the time. But in the second ICJ 1996 Advisory opinion on the legality of the threat or the use of Nuclear weapon, the court confirmed the responsibility not to cause transboundary environmental damage during the time reflects customary international law. This acceptance of the principle as customary law by the international court Justice lied on view that obligations of States to respect and protect the natural environment was based on state practice of that time. This stand was reflected in Gabkovo-Nagymaros and later in Pulp Mills case where tribunal place their statement accepting a newly developed norms due clarify from some aspects state that it must conduct itself in a way that to fulfil their obligation to ward environmental protection. Conclusion Conclusively, BibliographyList of books Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, 4th ed., Cambridge University Press, 202 2018Yearbook of International Law Commission (1974), vol. 2 part 2 p. 194 UNEP Environmental law ManualJournal ArticlesAlice Farmer, Towards a Meaningful Rebirth of Economic Self-determination: Human RightsRealization in Resource-Rich Countries, Journal of International Law and Politics 39 (2006): 421.Nico J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge UniversityPress, 1997), 36.Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge UniversitySangwani P. Ng’ambi Permanent Sovereignty over Natural Resources and The Sanctity Of Contracts, From The Angle Of Lucrum Cessans, 12 Loyala University. Chi. Int’l L. Rev. 155-157 (2015) Accessed On 24/Dec /2018Legal InstrumentsUN.G.A. Res. 1803, U.N. GAOR, 17th Sess., 1194th Plen. Mtg., Supp. No. 17, At 15, U.N. Doc. A/5217 (1962)Rio Declaration on the Environment and Development, 1992Espoo Convention, Industrial Accidents Convention United Nations Convention on the Law of the Sea 1989 Basel conventionNagoya protocol to the Biological convention,1971 Ramsar Convention 1933 London convention,The 1983 International Tropical Timber Agreement The 2006 International Tropical Timber AgreementThe 1992 United Nation Framework Convention on Climate ChangeWorld Trade Organization (WTO) in 1995Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992,International Tropical Timber Agreement, 1983,CasesTexaco Overseas Petroleum Co. and California Asiatic Oil Co. v. Libya, 53 I.L.R. 87 (Mar. 24, 1982); Kuwait v. Independent Am. Oil Co., 21 I.L.M. 976.The Trail Smelter Arbitration: The United States V. Canada, 1938 And 1941, RIAA Vol. 3, Pp. 1905-1982 Reports Of International Arbitral Awards Trail Smelter Case (United States, Canada) 16 April 1938 And 11 March 1941 Volume Iii Pp. 1965, United Nations Document 2006.The Corfu Channel case, the United Kingdom v. Albania, ICJ Rep. (1949) p. 4 The Lac Lanoux arbitration, Spain v. France,Libyan Am. Oil Co. (LIAMCO) V. Gov’t of Libyan Arab Republic, 20 I.L.M. 1, 53 (1981East Timor Case (Portugal V. Australia.) (1995)Democratic Republic of Congo V. Uganda, Report of Judgment, 2005 I.C.J. 168.