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A reappraisal of sovereignty in the light of global environmental concerns

Published online by Cambridge University Press:  02 January 2018

Duncan A French
Duncan A French*
Affiliation:
University of Reading
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Abstract

The concept of the sovereignty of the nation state is at the very core of our understanding of public international law. Nevertheless, the concept is under constant pressure to adapt to the changing global situation. This is particularly true when sovereignty is examined in the light of environmental concerns. Is the traditional paradigm still relevant in an age when so many transboundary and global environmental issues confront the international legal order? This paper suggests that whilst sovereignty remains a central pillar of international law, it is one that increasingly must be responsive to the needs and concerns of an interdependent international community. It must not be treated as a static, immovable fact, but rather as a flexible tool through which states can more effectively act in an increasingly interdependent global society.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 3 , September 2001 , pp. 376 - 399
Copyright
Copyright © Society of Legal Scholars 2001

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References

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12. Moreover, ‘the post cold-war globalization of the market shows that the State no longer wants to exercise complete political, economic and administrative authority in the management of its affairs. [The State] hides its powerlessness behind recognition of the importance of national civil societies on the one hand and international organizations like the IMF and the Security Council, on the other’: International Law Association Third Report of the Committee on International Legal Aspects of Sustainable Development (London: ILA, 1998) p 698.

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16. Shearer, n 4 above, p 91.

17. For a more detailed analysis of the potential consequences of climate change, see the work of the Intergovernmental Panel on Climate Change (IPCC): http://www.ippc.ch/.

18. See D French ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’ (2000) 49 ICLQ 1 at 35–60.

19. A third ‘source’ of international law are those ‘general principles of law recognized by civilized nations’ (art 38.1 Statute of the International Court of Justice). Such general principles usually are regarded as a secondary source of international law, used by international courts and tribunals to help them in the administration of justice: see Sands, P. Principles of International Environmental Law (I) (Manchester: Manchester University Press, 1995) pp 123–124 Google Scholar.

20. Article 2.1 (a) 1969 Vienna Convention on the Law of Treaties. But see also art 3 of the 1969 Vienna Convention, which acknowledges the existence of verbal treaties.

21. See generally van Hoof, G Rethinking The Sources of International Law (Deventer: Kluwer Law and Taxation Publishers, 1983)Google Scholar; and Higgins, R Problems and Processes: International Law and How We Use It (Oxford: Clarendon Press, 1994) ch 2Google Scholar.

22. As regards a convention, once a state is bound by a treaty, the Latin maxim ‘pacta sunt servanda’ comes into play; as art 26 1969 Vienna Convention declares ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’.

23. Higgins, n 21 above, p 34: ‘custom is obligation involuntarily undertaken - that is, not based on the consent of any given State. No state has the veto over the emergence of a customary norm

24. UN Doc A/CONF/48/14/REV.l (1972): Report of the United Nations Conference on the Human Environment, Stockholm.

25. R Munro and J Lammers Environmental Protection and Sustainable Development (Report of Experts Group on Environmental Law of the World Commission on Environment and Development) (London: Graham and Trotman, 1987) p 77.

26. Ibid.

27. (1941) 3 United Nations Reports of International Arbitral Awards 1907.

28. K Mickelson ‘Rereading Trail Smelter’ (1993) XXXI Canadian Yearbook of International Law 219–220: ‘While it is one of the best known and most frequently cited international decisions, and is regarded by many scholars as the foundation of modem international environmental law, it is more an object of reverence than a subject of analysis.’

29. See Sands, n 19 above, pp 640–642.

30. Mickelson, n 28 above, at 232.

31. (1949) ICJ Report 4.

32. (1957) 24 ILR 101.

33. Sands, n 19 above, p 33.

34. Third preambular para, 1972 London Dumping Convention.

35. Principle 3.1 UNEP Principles.

36. Fifth preambular para, 1979 Geneva Convention.

37. Article 194.2 1982 UNCLOS.

38. Second preambular para, 1985 Vienna Convention.

39. Article 10: ‘Prevention and abatement of a transboundary environmental interference.’

40. Thirteenth preambular para. 1989 Bade Convention.

41. The Espoo Convention also states at art 2.10 that the ‘provisions of the Convention shall not prejudice any obligations of the Parties under international law with regard to activities having or likely to have a transboundary impact’.

42. J Kovar ‘A Short Guide to the Rio Declaration’ (1993) 4 Colorado JI Environmental Law and Policy, 125. Emphasis added.

43. Article 3 1992 Biodiversity Convention.

44. Principle/Element 1 (a) Forests Principles.

45. Eighth preambular para, 1992 Climate Change Convention.

46. Fifteenth preambular para, 1994 Desertification Convention.

47. Foundation of International Environmental Law and Development (FIELD) Report of a Consultation on Sustainable Development: The Challenge to International Law (London: Field, 1993) p 3.

48. See eg Principle 6 of the 1995 Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development; art 11.1 (b) of the 1995 Draft International Covenant on Environment and Development; and Principle F of the 1996 Final Report of the Expert Group Workshop on International Environmental Law aiming at Sustainable Development.

49. P Sands ‘International Law in the Field of Sustainable Development’ (1994) LXV British Yearbook of International Law 342.

50. ICJ Report (1995) 288 at 347. Arguably, Judge de Castro made a similar point in 1974 when in his dissenting opinion in Nuclear Tests Case (Australia v France) (ICJ Report (1974) 253 at 389) he cited, with apparent approval, the statement in the Trail Smelter Arbitration that Canada was responsible in international law for the environmental damage that was caused to the United States.

51. Legality of the Threat or Use of Nuclear Weapons (Request by the General Assembly) (Advisory Opinion) ICJ Report (1996) 226 at 241–242. On the advisory opinion, see D Akande ‘Nuclear Weapons, Unclear Law? Deciphering the Nuclear Weapons Advisory Opinion of the International Court’ (1997) LXVIII British Yearbook of International Law 165–217.

52. Report of the Secretary General: Rio Declaration on Environment and Development: Application and Implementation, para 23. For a discussion of some of the same issues in relation to state responsibility and law of the sea, see Smith, B State Responsibility and the Marine Environment: The Rules of Decision (Oxford: Clarendon Press, 1988) pp 67–99.Google Scholar

53. ‘Jurisdiction’ is a wider term and is intended to include a state's sovereign rights as regards (i) its exclusive economic zone (EEZ) and (ii) ships that fly its flag, whatever territorial jurisdiction they might be in when the incident occurs.

54. 1995 Draft International Covenant on Environment and Development, n 48 above, pp 38–39.

55. Ibid. This approach is, of course, very different from recent attempts to impose liability, not because of any breach of state responsibility, but simply to compensate for harm suffered. See eg, the International Law Commission's 1990 Report on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (UN Docs. NCN. 4/428(1990) and A/45/10 (1990)); arts 11 and 12 of the Final Report of the Experts Group on Environmental Law of the World Commission; and art 48 of the 1995 Draft International Covenant on Environment and Development. Interestingly, the International Law Commission (ILC) made significant amendments to its earlier draft articles in 1998, focusing on prevention rather than liability. The ILC, in its commentary to these new draft articles, also emphasised the role of due diligence in environmental protection - thus somewhat confusing the concepts of state responsibility under the ‘no harm’ rule, and international liability for environmental damage. See the 1998 Report on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (Prevention of Transboundary Damage from Hazardous Activities) (UN Doc. NCN.4iL.554 and Corr. 1-2, Add. I and Add. 1/Corr. 1-2, and Add.2 and Add.2/Corr.1 (1998)).

56. One of the most interesting questions is the relationship between the ‘no harm’ principle (and the notion of ‘due diligence’) and the principle that states have common, but differentiated, responsibilities. Is it a matter of reconciliation or should the ‘no harm’ principle not be affected by developmental concerns? See French, n 18 above, pp 52–55.

57. Munro and Lammers, n 25 above, pp 75–77.

58. Draft art 10: ‘States shall…prevent or abate any transboundary environmental interference or a significant risk thereof…’ (emphasis added).

59. Draft art 11.1(b): ‘States have… the obligations… to ensure that activities within their jurisdiction or control do not cause potential or actual harm’ (emphasis added).

60. 1995 Draft International Covenant on Environment and Development, n 55 above, p 48.

61. Munro and Lammers, n 25 above, p 78.

62. Ibid. See below for an analysis of the precautionary principle.

63. 1995 Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, para 54.

64. 1996 UNEP Final Report of the Expert Group Workshop on International Environmental Law aiming at Sustainable Development, para 36.

65. Ibid, para 37(b).

66. Judge Weeramantry in Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v France) ICJ Report (1995) 288 at 344: ‘[the principle of environmental impact assessment] is gathering strength and international acceptance, and has reached the level of general recognition at which this Court should take notice of it.’ Moreover, the whole court in The Gabcikovo-Nagymaros Project (Hungary v slovakia) ICJ Report (1997) 7 at 77–78 noted: ‘[the Court is mindful that, in the field of environmental protection, vigilance and protection are required… not only when States contemplate new activities but also when continuing with activities begun in the past.’ Vice-President Weeramantry, as he became, referred to it as a principle of ‘continuing assessment and monitoring’ (ICJ Report (1997) 7 at 111). One particularly important development, already mentioned, is the adoption of the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context.

67. See generally O'Riordan, T and Cameron, J (eds) Interpreting the Precautionary Principle (London: Earthscan, 1994)Google Scholar; Freestone, D and Hey, E (eds) The Precautionary Principle and International Law: The Challenges of Implementation (The Hague: Kluwer Law International, 1996)Google Scholar.

68. UN Doc. NCONF.151PC/4, Annex I, para 7.

69. 1996 UNEP Final Report of the Expert Group Workshop on International Environmental Law aiming at Sustainable Development, para 47(a).

70. Bremen, 1 December 1984: ‘[States] must not wait for proof of harmful effects before taking action.’

71. Fifth preambular para: ‘Mindful also of the precautionary measures for the protection of the ozone layer which have already been taken at the national and international levels.’

72. Sixth preambular para: ‘Determined to protect the ozone layer by taking precautionary measures…’

73. UNEP/GC. 15/27 (1989): ‘waiting for scientific proof regarding the impact of pollutants discharged into the marine environment could result in irreversible damage to the marine environment and in human suffering.’

74. O'Riordan and Cameron, n 67 above, 16: ‘the German concept of Vorsorgeprinzip means much more than the rough English translation of foresight planning. It absorbs notions of risk prevention, cost effectiveness but in a looser economic framework, ethical responsibilities towards maintaining the integrity of natural systems, and the fallibility of human understanding.’

75. Article 3.3, 1992 Climate Change Convention.

76. Ninth preambular para, 1992 Biodiversity Convention.

77. See eg third preambular para, 1994 Sulphur Protocol: ‘Resolved to take precautionary measures to anticipate, prevent or minimize emissions of air pollutants and mitigate their adverse effects.’

78. Article 3.1 1996 Protocol to the 1972 London Convention; and art 3.3(c)of Annex 11 of the 1992 OSPAR Convention.

79. The 1995 Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks includes numerous examples of precautionary action; in particular, art 5(c) states that the precautionary approach will be one of the central principles for states in implementing the Convention, and Annex II sets out ‘Guidelines for the application of precautionary reference points in conservation and management of straddling fish stocks and highly migratory fish stocks’ . In addition, see also the arguments of the parties and some of the separate decisions in the Southern Bluefin Tuna Case heard before the International Tribunal for the Law of the Sea (1999) (http://www.un.org/Depts/los/ITLOSiTuna_cases.htm), where the precautionary approach was discussed.

80. The 1992 Treaty on European Union, agreed just before UNCED, introduced a requirement (art 130r.2 EC Treaty) that the Community's environmental policy be based on the precautionary principle. Following the 1997 Treaty of Amsterdam, art 130r.2 became art 174.2. See also the Commission Communication on the Precautionary Principle (Brussels 2.2. 2000/COM (2000) 1 final).

81. See eg the 2000 Cartagena Biosafety Protocol to the 1992 Biodiversity Convention, which provides for risk assessments. Paragraph 4 of Annex 111 to the Protocol notes that ‘[l]ack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating a particular level of risk, an absence of risk, or an acceptable risk’.

82. ICJ Report (1995) 288 at 342.

83. ICJ Report (1969) 3. Cf J Cameron ‘The Status of the Precautionary Principle in International Law’ in O'Riordan and Cameron, n 67 above, p 262: ‘I cannot share in the concern about the principle in respect of vagueness and/or generality. The precautionary principle is a general principle. To say so says nothing about its legal effect.’

84. 1995 Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, para 71.

85. What is, and what is not, an issue for the exclusive domestic jurisdiction of a state seems largely for the international community to decide. The Permanent Court of International Justice in the Advisory Opinion - Tunis-Morocco Nationality Decrees noted: ‘[t]he question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations’ (PCIJ (1923), Ser B, no 4, 24).

86. This emphasis on national sovereignty can be seen in the earlier UN Resolution on the Permanent Sovereign over Natural Resources (UNGA Res. 1803 (XVII) (1962)).

87. UNGA Res. 37/7 (1982). Annex.

88. Paragraph 14. See also para 1: ‘Nature shall be respected and its essential processes shall not be impaired.’

89. In fact, elsewhere UNCLOS makes it very clear that areas of national jurisdiction are specifically included within a state's obligation to protect the marine environment.

90. See eg arts 6-10 1992 Biodiversity Convention, as discussed further below.

91. See in particular art 5(c) 1994 Desertification Convention: ‘affected country Parties undertake to… address the underlying causes of desertification and pay special attention to the socio-economic factors contributing to desertification processes’.

92. See eg art 3 1971 Ramsar Convention: ‘… Contracting Parties shall formulate and implement their planning so as to promote… as far as possible the wise use of wetlands in their territory.’

93. See eg art 4 1972 Heritage Convention: ‘Each State Party… recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage… situated on its territory, belongs primarily to that State.’

94. See arts II-V 1979 Bonn Convention on the conservation obligations of ‘Range States’.

95. 1995 Draft International Covenant on Environment and Development, pp 45–47: art 11.1 (a).

96. Ibid.

97. Moreover, if such an obligation is (or becomes) a rule of customary international law, a related argument would be that a state would not be bound by such a rule if it persistently objected thereto (See Brownlie, n 4 above, p 10).

98. UN Doc E/CN. 17/1997/8: Report of the Secretary-General: Rio Declaration on Environment and Development: Application and Implementation (10 February 1997), para 44.

99. See, for example, 1948 Universal Declaration of Human Rights UNGA Res. 217A (111) (1948): ‘This universal declaration of human rights as a common standard of achievement for all peoples and all nations;’ and art 2 1966 International Covenant on Civil and Political Rights: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…’

100. See eg 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 (XV) (1960)): ‘Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory’ (preamble) and ‘[t]he subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights’ (para 1).

101. 1995 Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, para 82.

102. 1995 Draft International Covenant on Environment and Development, n 95 above, pp 32–33.

103. See Pt XI on ‘the Area’ as it is referred to in UNCLOS. Following the 1994 Agreement Relating to the Implementation of Part XI of the UN Convention of the Law of the Sea, the fundamental elements which go to make up ‘common heritage’ have, to some extent, been revised. As the 1995 Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development noted: this Agreement was designed to respond to political and economic changes in the 12 years since 1982, in particular ‘a growing reliance on market principles’ and ‘the growing concern for the global environment’ (para 104).

104. Malta had been the state that initially had proposed that the deep seabed be treated as the common heritage of mankind: Note verbale (1967) Permanent Mission of Malta to the UN Secretary General, UN Doc A/6095.

105. UNGA Res 43/53 (1988).

106. First preambular para, 1992 Climate Change Convention.

107. Third preambular para, 1992 Biodiversity Convention: ‘conservation of biological diversity is a common concern of humankind.’

108. For one reason for this, see F Burhenne-Guilmin and S Casey-Lefkowitz ‘The Convention on Biological Diversity: A Hard Won Global Achievement’ (1992) 3 Yearbook Int Environ Law 43: ‘[it was] the first time a comprehensive, rather than sectoral, approach to Conservation’ has been agreed in international law.

109. This situation can, to some extent, be contrasted with the international climate change regime, where the obligations on states are more detailed and where collective supervision is more noticeable, such as the creation of a Subsidiary Body on Implementation (SBI) with its authority to review the national reports of state parties (see 1992 Climate Change Convention, art 10.2). It is expected that this situation will improve further if and when the 1997 Kyoto Protocol to the Climate Change Convention enters into force. Whilst not wanting to overplay the success of the climate change regime, it does seem to have created a better framework for effective action than has the Biodiversity Convention. Of course, one might suggest that this might have something to do with contentious questions over sovereignty and jurisdiction over natural resources, less of an issue when it comes to climate change. But this might be over-emphasising the importance of sovereignty in these negotiations, and that simply there was a greater political will to try to resolve the climate change issues than there was in relation to biodiversity loss.

110. Seen 108 above, p 53.

111. However, the extent to which the international community will fund measures that have solely domestic, rather than global, impact is still subject to much dispute, with the Global Environment Facility (the ‘GEF’, the institution mandated to distribute such funds) authorised only to provide such finance as to ‘meet [the] agreed incremental costs of measures to achieve agreed global environmental benefits’.

112. 1995 Draft International Covenant on Environment and Development, n 95 above, p 32.

113. Text in Churchill, R and Freestone, D (eds) International Law and Global Climate Change (London: Graham and Trotman, 1991) pp 331–333 Google Scholar. See also the General Assembly's 1990 Declaration on International Economic Co-operation, in particular the Revitalization of Economic Growth and Development of the Developing Countries (UN Doc. A/RES/S-18/3 (1990), para 29): ‘The current threat to the environment is the common concern of all.’

114. INC Doc. GE. 91-704433, 24 June 1991, para 2.

115. World Commission on Environment and Development (WCED) Our Common Future (Oxford: Oxford University Press, 1987) p 43.

116. Both the Climate Change and Biodiversity Conventions tie developing state implementation of international commitments with the provision of financial and technical assistance from developed states. As art 4.7 of the Climate Change Convention states: ‘[t]he extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.’

117. For an overview of the development and operation of human rights law, see Robertson, A and Merrills, J Human Rights in the World (Manchester: Manchester University Press, 1996)Google Scholar.

118. The International Monetary Fund (IMF) has wide-ranging supervisory powers in relation to states’ balance of payment deficits. When the IMF grants to a state a loan to rectify any imbalance, that state must comply with a number of stringent conditions, including restructuring any aspect of its political and social structure that, according to the IMF, will impede future economic development.

119. For a recent discussion of the role of collective security in internal situations, see ‘Editorial Comments: Nato's Kosovo Intervention’ (1999) 93 AJIL 824–860.

120. 1996 Final Report of the Expert Group Workshop on International Environmental Law aiming at Sustainable Development, para 39(c).

121. UNEP/GC. 15.2, Annex II - a statement by the Governing Council on Sustainable Development (26 May 1989).