INTERNATIONAL
ENVIRONMENTAL
LAW INTRO
Prof David K. Linnan
USC LAW # 783
Unit Nineteen
INTRODUCTION
BACKGROUND
1.
Domestic environmental law itself creation of
1960s-1970s, int’l environmental law
customarily dated from 1972 Stockholm
Declaration
2.
Historical tradition of conservationists
vs ecologists later on, is there a
difference now in ecosystem focus?
3.
Int’l environmental law links closely into
economic tradeoff questions (jobs vs
environment)
STATE DIFFERENCES
BACKGROUND (CONT’D)
4.
Traditionally, differences in state views
a.
Typically, richer states tend to be
greener and poorer states wish to
become richer first
b.
Now legally vague concept of
sustainable development
c.
State views visible in how law is made,
trade-offs in treaty negotiations &
overlap between trade & environmental
law
PLAYERS
BACKGROUND (CONT’D)
5.
Players
a.
Currently intellectual claims often
entwined with human & indigenous
rights analysis via NGOs (plus UN-type
meetings, e.g., Rio 1992 &
Johannesburg 2002)
b.
Pursued seriously at government level
via treaty level via LOS 1982 and now
for example global climate change
framework negotiations (Kyoto
protocol)
MAKING LAW?
BACKGROUND (CONT’D)
6.
Issues re how law is made vs substantive
rules themselves
a.
Customary law slow in face of
challenges
b.
Issues re general principles &
soft law approaches
c.
Treaty speedy, but substance?
i.
Package deal approach
ii.
Framework approach
UNDERLYING CONCEPTS I
CONCEPTUAL REVIEW
Concept of sovereignty buried in
traditional public int’l law
Bearing on how you make law, and
what is default rule (everything not
forbidden is permitted vs. everything
not permitted is forbidden)
UNDERLYING CONCEPTS II
CONCEPTUAL REVIEW (CONT’D)
Customary law requires consistent
practice over a period of time and opinio
juris
[vs. treaty vs. general principles, soft law
too in background]
RE CUSTOMARY LAW, WHAT ARE
SUBSTANTIVE RULES AND IS IT WELL
SUITED TO MAKING NEW LAW IN
RAPIDLY CHANGING WORLD?
STOCKHOLM DECLARATION
BASIC STOCKHOLM (1972)
1.
What kind of law (source) seems behind 1972
Stockholm Declaration?
2.
Conceptual focus (human development)
3.
View of sovereignty implicit in Stockholm
Declaration?
NOTE CUSTOMARY LAW VINTAGES, NAMELY
TRAIL SMELTER (1935), LAKE LANOUX (1957),
NUCLEAR TEST CASES (1973)
TRAIL SMELTER I
TRAIL SMELTER (1935)
Smelter built in Canada just across border
from US, damage in US from highly
polluted emissions blowing across border
How would you compare situation to
modern problem of Midwestern utilities
burning high sulfur coal, acidifying
Canadian lakes?
TRAIL SMELTER II
TRAIL SMELTER (1935)(CONT’D)
What does arbitral convention itself tell us
implicitly?
What happened in the Solothurn-Aargau
Swiss case factually, and implication for
distinguishing between threat and injury
in int’l environmental law?
TRAIL SMELTER III
TRAIL SMELTER (1935)(CONT’D)
Do the law students in the class remember
Rylands v. Fletcher from first year
classes?
What is behind the reference to Alabama
Arbitration (US v. UK), post Civil War?
Sic utere principle, how does it relate to
sovereignties?
TRAIL SMELTER IV
TRAIL SMELTER (1935)(CONT’D)
“[N]o State has the right to use or
permit the use of its territory in such
a manner as to cause injury … in or
to the territory of another or the
properties or persons therein, when
the case is of serious consequence
and the injury is established by clear
and convincing evidence.”
TRAIL SMELTER V
TRAIL SMELTER (1935)(CONT’D)
How does the Trail Smelter rule look
when applied to utilities air pollution
and acidification of Canadian lakes?
What does proof process look like?
TRAIL SMELTER VI
TRAIL SMELTER (1935)(CONT’D)
How does Trail Smelter rule compare with
Principle 21 of Stockholm Declaration?
“States have … the responsibility to
ensure that activities within their
jurisdictions or control do not cause
damage to the environment of other States
or of areas beyond the limits of national
jurisdiction.”
LAKE LANOUX I
LAKE LANOUX (1957)
French electricity company wants to dam river
flowing from French Pyrenees into Spain to
produce electricity, issue re impact downstream
on Spanish agriculture
What is the practical difficulty of upstream vs.
downstream states/parties in a river/watershed
setting?
Who decides and how, what to do about fresh
water allocation?
LAKE LANOUX II
LAKE LANOUX (1957)(CONT’D)
Is Lake Lanoux about outcome (water
use) or process (how you decide on
water use)?
How do outcome and process relate
to sovereignty from the viewpoint of
France (upstream) vs. Spain
(downstream)?
LAKE LANOUX III
LAKE LANOUX (1957)(CONT’D)
How would you state the Lake Lanoux
principle?
[disregard arguments about whether
intended as treaty interpretation or
customary law, like Trail Smelter
arguments about whether law between US
states and international law simply the
same]
LAKE LANOUX IV
LAKE LANOUX (1957)(CONT’D)
1. “[T]he rule that States may utilize the hydraulic power of
international watercourses only on the condition of a prior
agreement between the interested States cannot be
established as a custom, even less as a general principle of
law.”
2. “[A]ccording to the rules of good faith, the upstream
State is under the obligation to take into consideration the
various interests involved, to seek to give them every
satisfaction compatible with the pursuit of its own interests,
and to show that in this regard it is genuinely concerned to
reconcile the interests of the other riparian State with its
own.”
LAKE LANOUX V
LAKE LANOUX (1957)(CONT’D)
Which trumps, process (how you balance
interests) or outcome (based on
sovereignty views of resource control)?
What do you think happens with major
international rivers/watersheds and why?
LAKE LANOUX VI
LAKE LANOUX (1957)(CONT’D)
Do you see the Lake Lanoux principles
anywhere in the Stockholm
Declaration?
[Principles 21 first half & 24? But
what of Principle 21 second half]
NUCLEAR TEST CASES I
NUCLEAR TEST CASES (1973)
France is conducting atmospheric nuclear tests
on its remote Pacific colony Muroroa Atoll not
unlike US tests on Bikini Atoll late 1950s (just
before moving them underground), Australia is
downwind and complains basically that the
nuclear fall-out all blows downwind into Australia
so France cannot explode nuclear device on its
territory (prior restraint claim)
How does that relate to views of sovereignty
expressed in Trail Smelter and Lake Lanoux?
What is the view of injury compared to Trail
Smelter looking at radioactive fall-out?
NUCLEAR TEST CASES II
NUCLEAR TEST CASES (1973)(CONT’D)
What is the view expressed by IgnacioPinto?
[hierarchy of sovereignties a
possibility, and what is the import for
prior restraints vs. damages?]
NUCLEAR TEST CASES III
NUCLEAR TEST CASES (1973)(CONT’D)
What is the view of Judge Ketron?
[issue of what is the law and what do you do
about rules in process of formation, with analogy
to int’l environmental law vs. political and legal
distinctions– ultimately asks how states behave]
NUCLEAR TEST CASES IV
NUCLEAR TEST CASES (1973)(CONT’D)
What is the view of Judge De Castro?
[why again the issue of political domain vs. int’l
law domain, and why the sic utere tuo non laedas
principle with Trail Smelter cite, but leaves open
damages issue for proof]
NUCLEAR TEST CASES V
NUCLEAR TEST CASES
(1973)(CONT’D)
What is the idea of injury in Nuclear
Test Cases vs. in Trail Smelter?
[think upping thyroid cancer deaths
per 100,000 Australians from 200 to
210 per year as a result of fall-out]
NUCLEAR TEST CASES VI
NUCLEAR TEST CASES
(1973)(CONT’D)
What is the view of competing
sovereignties compared with Lake
Lanoux, and is it reconcilable with
process/outcome analysis?
CUSTOMARY LAW
MAKING LAW, IS CUSTOMARY LAW SUITABLE?
1. Based on analysis of three leading customary
law precedents, how well or badly does
customary law function in determining int’l
environmental law? What else would serve?
[Your opinion?]
2. Reread the Stockholm Declaration and ask
yourself whether the drafters were familiar with
customary law principles, and what reflects that.
HOW TO ACCOMMODATE SOVEREIGNTY ISSUES
IN THE LAW MAKING PROCESS?