Principle 21: Part Two

The second part of Principle 21 attempts to address the issue of a State's liability for transboundary harm arising out of activities under its control, as well as a duty to prevent such harm from occurring in the first place. As noted by the Experts Groups of the WCED, Principle 21 mandates that States have a two-fold duty. The first is to prevent transboundary environmental impacts which cause substantial harm. The second is to prevent activities which entail significant risk of transboundary harm. The second part of Principle 21 is based upon prior United Nations General Assembly declarations and recognized legal principles articulated in several famous international arbitration and judicial decisions from the earlier part of this century, including the Trail Smelter arbitration, the Corfu Channel case, and the Lake Lanoux arbitration.

The language used in the second part of Principle 21 contains the same wording which was subsequently employed in Article 30 of UNGA Res. 3281. Article 30 provides, inter alia, that

"All States have 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."

Trail Smelter addressed a complex set of facts between Canada and the United States. The most relevant aspect for the evolution of the normative standard represented by Principle 21 is the following dictum of the arbitration panel:

" Under the principles of international law,...no State has the right to use or permit the use of its territory In such a manner as to cause [environmental] injury ...In or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence."

This standard is considered to be customary international law. But not all claims are actionable; the consequences of the activity must be serious and the injury must be established by "clear and convincing evidence." Additionally, the language does not distinguish between acts which are illegal under international law and acts which are otherwise lawful, but which result in serious transboundary harm.

The matter has been considered by the International Law Commission ("ILC") which drew up 10 draft articles for a proposed instrument. These articles address state liability for injurious consequences of acts that are not otherwise prohibited. The issue of a duty to prevent harm also impacted directly on France's recent decision to conduct underground nuclear tests in its South Pacific territories despite allegations of nuclear pollution to marine life and to the residents of neighboring countries.

Three possible avenues for addressing situations involving injurious consequences arising out of acts not prohibited by international law are under consideration, and suggest means for operationalizing the duty not to cause harm to other jurisdictions. The first is to require that the jurisdiction from where the harm has arisen terminates the activity causing the harm. But there are other considerations, such as whether the activity is otherwise socially or economically useful, and whether its cessation might cause serious economic disruption to the state or area where it is conducted. This latter factor played a role in Trail Smelter, where the arbitration tribunal was concerened about not "unreasonably restricting the output of the [Canadian smelting] plant..." in making its determination regarding future preventive measures.

The second avenue is to permit the state causing the harm to continue the activity, but to require that it pay compensatory damages to the injured state. The third is to permit the offending state to continue the activity, at a more restricted and less environmentally destructive level, and to require that it pay compensatory damages to those jurisdictions suffering injury as a result of the continued activity.

Although the second and third avenues may be acceptable for dealing with cross boundary problems, they also may conflict directly with other emerging norms such as intergenerational equity. Although compensation to present generations for harm seems reasonable, it may be grossly inadequate for addressing long-term damages which future generations will confront.

Lastly, within the second part of Stockholm Principle 21, "areas beyond the limits of national jurisdiction" refers to those so-called "global commons," such as Antarctica, the ozone layer, outer space, and the high seas beyond the EEZ. With the more recent exception of Antarctica, these are areas which fall outside of any state's territory; thus no state has jurisdiction over them. Environmental damage to the global commons resources is an injury to the entire international community.

Implications for Principle 21 in the Development of International Law

Since Principle 21 was formulated in the early 1970s, scientific understanding of the complexities of environmental problems has increased substantially. In the light of this, Principle 21 as currently drafted and understood may become increasingly inadequate for addressing current environmental realities such as degradation of the "global commons" for which there may not yet be recognizable harm. As such, Principle 21 may be an ineffective standard in meeting current environmental protection problems in at least two respects.

First, the activities of one state may not seriously affect the global environment, but the effects of the collective actions of all states may cause severe damage. Where does one state's responsibility end and that of other states begin? Are all states in such a situation jointly responsible or are they severally responsible? International law provides no definite answers at the moment. An obvious example concerns marine pollution. The injection of pollutants by one coastal or riparian state into a body of water may not have a catastrophic impact on the quality of that environment. In the case of the Mediterranean and Baltic Seas, however, the cumulative, collective effect of the polluting actions by several riparian and basin states has jeopardized the ecological viability of those two seas. Additionally, the related issue of "cross-media pollution" through which the combined effect of separate and very different activities from various jurisdictions results in transboundary harm, has yet to be addressed within the context of Principle 21.

Perhaps Principle 21 will eventually be reformulated to include a duty "to ensure that activities within a state's jurisdiction do not cause damage either by themselves or when considered in the light of activities being conducted by other states." This would be a start at focusing on the complex phenomenon of cross-media pollution.

Additionally, as suggested elsewhere in this paper, there has also emerged an obligation for states to engage in international co-operation to address international environmental concerns. This duty to co- operate obliges governments to work together and to share information to facilitate a co-ordinated approach for confronting environmental challenges. The obligation to co-operate has been codified in treaty law dealing with conservation of living natural resources. Recent agreements reiterating this obligation include the CBD and the Straddling Fish Stocks Agreement.

Second, traditional notions of "damage and compensation" embodied in Principle 21 are inadequate to address catastrophic or irreversible damage such as ozone depletion, climate change and species extinction. No judgment "after the fact" of the harm occurring, e.g., a life-threatening hole in the ozone layer, can return the environment to its pre-damage state. The same situation would apply to the extinction by a country or countries of a particular species of flora or fauna.

The Precautionary Principle

Along with Stockholm Principle 21, the precautionary principle is the other major normative component used in international instruments to balance economic considerations with equity and environmental protection for promoting sustainable development. The precautionary principle is directed at addressing the issue of potential harm in the face of scientific uncertainty. It has been employed across the spectrum of international environmental issues in many instruments from protection of the global climate in the CCC to regulation of the transport and disposal of hazardous wastes in the Bamako Convention, to conservation of living natural resources, as demonstrated in the CBD and the Straddling Stocks Agreement.

What is generally called the "precautionary principle" is sometimes referred to as "the preventive precautionary approach", the "precautionary approach", or some other similar sounding variant. For example, Principle 15 of the Rio Declaration reads as:

"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."

Applications in International Instruments

The precautionary principle is formulated in a variety ways which can have different implications. Some require positive steps to be taken; others simply require that lack of full scientific certainty should not justify failing to take action. As a result, it is difficult to state precisely what is actually entailed by the concept.

For some instruments such as the Bamako Convention concerning transport and storage of hazardous waste in Africa, Parties have an ongoing duty to take precautionary measures in all of their activities. For others, as the Straddling Stocks Agreement the Parties are only obliged not to use absence of some degree of scientific certainty as an excuse for inaction.

The precautionary principle applies both to the domestic and transboundary environmental spheres under international legal instruments. In the case of the Convention Biological Diversity (CBD), application will almost always concern a state's own activities regarding the utilization of its natural resources. This point is affirmed in Article 3 of the CBD which balances permanent sovereignty over resources with a duty to ensure that a state's activities in its jurisdiction do not cause environmental harm in other jurisdictions.

Under the Straddling Stocks Agreement, the precautionary principle relates both to the domestic and transboundary context. The resources of biological diversity covered under that instrument are catradomous and other fish species which by their nature move between the EEZ, an area of national jurisdiction, and the high seas, a global commons. In the context of state activities which have transboundary impacts, the precautionary principle appears to flow naturally from the admonition in Stockholm Principle 21 that states are responsible for ensuring that "...activities within their jurisdiction and control do not cause harm to the environment of other states or of areas beyond the limits of national jurisdiction."

Implications for Sustainable Development

The above examples suggest that as a standard for regulating state conduct, the various formulations of the precautionary principle can be inconsistent in their requirements. The concept focuses on circumscribing, in a very general way, state behavior where there is an absence of adequate scientific information. The long-term implications of this suggest a major restructuring of the methods employed for socio-economic development. The underlying impact of the precautionary principle is to shift the burden of proof to those who want to undertake a particular activity which results in potential environmental harm, or forego an activity that could avert such potential harm, to employ precautionary measures unless scientific evidence affirms that the action/inaction will not cause environmental harm.

The long-term repercussions of this reasoning could be the frustration or significant modification of many, if not most future socio-economic development efforts. Such a scenario would be unacceptable, particularly in developing countries seeking to improve living standards and boost economic productivity. Diligent application of the precautionary principle will require difficult choices for both industrialized and developing states. It might entail foregoing development options in the face of scientific uncertainty on resource use implications.

Environmental Impact Assessments (EIAs)

The regular and effective employment of environmental impact assessemnts (EIAs) could provide a framework to enable states and international development organizations to make decisions which are at least reasonably informed concerning potential environmental and social consequences. EIAs are thus a valuable tool for operationalizing the precautionary principle. Use of the EIA in facilitating realization of the precautionary principle has recently been suggested by Judge Weeramantry in his dissenting opinion in Nuclear Tests 1995.

But even with valuable information that can be obtained from EIAs, states and other actors will still be faced with difficult choices. These will relate to what society determines is valuable in both an intra-generational and inter-generational context. Even after making the value determination, national and international actors will still need to decide what level of scientific uncertainty will be sufficient to invoke precautionary measures and forestall development initiatives. For biological diversity, it will probably mean that, as suggested by Birnie, only certain categories of species or habitats will be designated for conservation. The rest will be converted to other uses.

The types of harms anticipated by the formulations in the Rio Declaration, the CCC, and CBD are those causing irreversible or catastrophic damage. And it is scientific certainty which will inform whether catastrophic or irreversible damage shall occur. But very little can ever be understood with complete scientific certainty. It is not necessary to take the avenue of "scientific certainty" to absurd and counter- productive lengths. Use of EIAs is perhaps the most reasonable appropriate step for providing adequate information for mitigating anticipated environmental harm and consequent human rights violations.

Cost-Effective Measures

Another attempt by some states to make the precautionary principle more operational is through insertion of the words "cost effective." This tactic is seen in the qualification in Principle 15 of the Rio Declaration and in Article 3 of the CCC. Both predicate use of the precautionary principle to the extent that measures taken are "cost effective." As with scientific uncertainty, however, cost effective is a relative term. What may be cost effective to a wealthy industrialized state may be financially untenable for a poor developing country.

"Cost-effective measures" can be usefully employed as a yardstick for helping to determine what is practically possible. It directly relates to the concept of common but differentiated responsibilities; "cost effectiveness" is relative to a state's financial ability to outlay clean-up and preventive expenditures. Provision of technical and financial assistance as mandated under Articles 1 and 20 of the CBD, and Article 4 of the CCC, could be the means for enabling developing countries to take state of the art cost-effective" measures that are comparable with those available to industrialized countries. As noted in the CBD, provision of technical and financial resources "...can be expected to make a substantial difference in the world's ability to address the loss of biological diversity."

De Klemm has identified some of the difficulties that might be encountered in applying the precautionary principle in the case of conservation of biological diversity. A compromise geared towards reconciling economic development and environmental protection objectives on primarily political considerations may be ineffective or counterproductive for conserving species and habitats. Even a decision addressed at achieving intra-generational equity in access and distribution of resource amenities may facilitate social considerations but jeopardize the long-term viability of species, genetic or ecosystem diversity.

Despite these and other reservations made by commentators, some states have developed reasonably specific formulations of the precautionary principle for implementation in their national legislation. Additionally, the normative status of the precautionary principle as a principle of international law was suggested by Judge Weeramantry most recently in his dissenting opinion in Nuclear Tests 1995. He described the precautionary principle as "a principle which is gaining increasing support as part of international law of the environment..." Weeramantry also mentioned "...several environmental treaties [that]...have already accepted the precautionary principle..."

Judge Weeramantry linked the evolution of the precautionary principle with the "...principle of Environmental Impact Assessment...." State practice before the ICJ reveals that some states have adopted the precautionary principle as a full-fledged obligatory legal norm for protecting their national interests. For example, besides noting that the precautionary principle has been applied in a wide variety of domestic and international instruments, including treaties, New Zealand in Nuclear Tests 1995 stressed that that it is incorporated in France's own domestic environmental protection legislation.

There have been very few international cases to date which have addressed directly issues of international environmental law. It is therefore significant that in recent cases which are now emerging in international fora, notions such as the "precautionary principle," "Stockholm Principle 21" and "inter-generational equity", are now put forth by state Parties to the disputes as principles of customary international law. The arguments of New Zealand in Nuclear Tests 1995 and the expected position of Hungary in the upcoming Case Concerning the Gabcikovo-Nagymaros (Hungary v. Slovakia), suggest a trend for arguing that these norms are obligatory. This reasoning may assist in solidifying the legal status of these international principles, especially since the arguments of states before the ICJ constitute valuable evidence of both state practice and opinio juris on particular issues.

The precautionary principle poses serious implications for national socio-economic development objectives by requiring that countries take or forego action in the context of scientific uncertainty. In the light of relevant scientific information suggesting catastrophic or irreversible harm to the environment, and correspondingly to the quality of human life, the willingness of nations to implement the principle in good faith reamins to be detmined.

"For both the North and South, economic growth and employment may be perceived as jeopardized if too many resources are devoted to environmental protection. In many developing countries the issues are harsh: priorities revolve around attempting to meet the basic needs of its population today, even if this is ultimately at the expense of long-term survival. In industrialized countries, the hard-line stance on access to technology may reflect a political unwillingness to regulate the private sector for the achievement of objectives that will only be rewarded beyond the next election."

Inclusion of the precautionary principle, without attached reservations, interpretative statements or declarations, in a diverse number of broadly accepted hard and soft law documents indicates that the international community at large, both North and South, views it at as a norm in international environmental law. Although this norm may not entail specific consequences if it is violated, its presence in international instruments modifies state perceptions and informs decision-making regarding development activities having environmental impacts. In this way it creates expectations among states regarding their behavior in relation to each other concerning utilization of resources.

Given the increased focus on the relevance of non-state entities such as transnational corporations concerning environmental degradation and human rights abuses, it is suggested that the precautionary principle should be applied to the activities of these entities. The types of controversies brought before the ECO would be very appropriate contexts for wider application of the precautionary principle.

Proceed to Part IV

For more information, contact: Owen J. Lynch (olynch@ciel.org).