Restricting Sovereignty Transboundary Harm in International Environmental Law

Restricting Sovereignty Transboundary Harm in International Environmental Law Nayantara Ravichandran 1 ABSTRACT. This paper considers the manner in which international environmental law restricts the sovereignty that States have over their natural resources. The International Court of Justice has contributed towards the development of international environmental law both through judgments and through separate opinions of judges. Particularly relevant has been the evolution of the law relating to transboundary harm. Transboundary harm refers to the harm caused in the jurisdiction of another State by activities carried out within the jurisdiction of one State. Thus the sovereignty of States over their natural resources may be restricted in cases where it infringes the territorial sovereignty of another State to cause significant harm. The paper considers the manner in which these principles may be applied in the case of migratory species. Such species are shared resources that fall under the jurisdiction of various States. It has been recognised that no single state has sovereignty over such resources and they should be utilised in a manner that takes into consideration the rights of other States. 1 Student, 4th Year, B.A., LL.B (Hons.), National Law School of India University, Bangalore; The author may be reached at nayantara@ravichandran.net. 91

THE ENVIRONMENT, LAW AND SOCIETY JOURNAL 2014 CONTENTS INTRODUCTION 93 DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW 93 TRANS-BOUNDARY HARM IN INTERNATIONAL LAW 96 Permanent Sovereignty over Natural Resources 96 Restrictions on Exercise of Sovereignty 96 Significant Harm 98 TRANS-BOUNDARY HARM AND MIGRATORY SPECIES 99 SHARED RESOURCES 100 MIGRATORY SPECIES 100 PRECAUTIONARY PRINCIPLE 102 CONCLUSION 103 92

RESTRICTING SOVEREIGNTY TRANSBOUNDARY HARM, ETC. INTRODUCTION International law has evolved after World War II and has gone from a means of dealing with conflicts to furthering the interests of mankind as a whole. This is best demonstrated by the manner in which international environmental law has developed to deal with the various environmental problems that currently exist. One of the most important manner in which the law deals with environmental problems is seen by the manner in which it has developed to restrict the exercise of sovereign rights by states in different cases. This may be done when the activities of a state cause harm to the environment of another state, or the environment in general. These principles have evolved from when they were first recognized in the United Nations Conference on Environment and Development in Stockholm in 1972 and have gained recognition in international law. Numerous treaties have incorporated this principle of good neighbourliness to restrict sovereign rights of states. Trans-boundary harm refers to the harm caused in the jurisdiction of another State by activities that are carried out within the jurisdiction of one State. This has been discussed widely, most significantly by the International Law Commission that subsequently formulated draft articles to reflect the law related to transboundary harm. One of the growing environmental concerns is the conservation of endangered species. Many species spend parts of their life cycle in the jurisdiction of different states. No one state can claim to have absolute sovereign rights over them and numerous states are concerned with their conservation status. This paper looks at such migratory species as constituting shared resources and thus examines the manner in which the principles of trans-boundary harm could apply in ensuring the activities of one State do not cause harm to those of other States that are also home to the species. It is also relevant to consider other principles of international environmental law that would govern the law relating to conservation. DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW International law has undergone numerous changes and is very different today from the traditional conception. It is no longer merely confined to State activities but takes into account other dimensions such as human rights, economic rights and environmental protection. 2 It has now evolved past dealing with conflicts of political interest but also looks at the interests of humanity as a whole. 3 It is widely accepted that our planet faces numerous challenges that may be addressed through international cooperation. Acid rain, loss of biodiversity, ozone depletion, transmission of toxic waste and pollution of rivers are only some of the issues that are faced by the international community. 4 It is important to note that 2 Sumudu Atapattu, Latest Trends in International Environmental Law, 10 SRI LANKA JOURNAL OF INTERNATIONAL LAW 47 (1998). 3 Federico Lenzerini, The Interplay Between Environmental Protection and Human and Peoples Rights in International Law, 10 AFRICAN YEARBOOK OF INTERNATIONAL LAW, 63 (2002). 4 Philippe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, 3 (2nd edn., 2003). 93

THE ENVIRONMENT, LAW AND SOCIETY JOURNAL 2014 none of these threats are faced by one country in isolation but have cross-border impact. Thus the activities of one state are likely to have an effect in the environment of other States as well. In the 19 th century, the Attorney General of the United States propounded what is known as the Harmon Doctrine which was essentially a claim of absolute sovereignty. He expressed the opinion that the Mexican Government had no right to protest the water pollution in the boundary of the Rio Grande River which lowered water quality in Mexico and damaged Mexican agriculture. He contended that the principles of international law did not impose any obligations and the harm to Mexico was political rather than legal. International practice is virtually unanimous in condemning this view of sovereignty. Further the doctrine offers no legal solutions to reconcile the rights of opposing states. 5 Today, restrictions on sovereignty are a result of accounting for environmental considerations as well. The sources of international environmental law are the same as traditional sources of international law since it is merely a branch of the latter. However, there has been a need for the development of law to be quicker and more flexible than in the past considering the various environmental concerns. Thus, there has been the adoption of new concepts and principles that account for sustainable development. 6 These are reflected in soft law instruments, and are important in environmental law. This term is used to describe ambiguous obligations in binding texts as well as the clear obligations in non-binding texts. The latter is more common and may be used to refer to obligations in instruments such as the Rio Declaration, 1992 and the Stockholm Declaration, 1972. These instruments are relevant to the extent that they restrict state practice and may be important in the formulation of customary international law. 7 Contribution of the International Court of Justice The ICJ has contributed to the evolution of International Environmental Law both through its judgments and by separate opinions of judges, especially Justice Weeramantry. 8 These judgments have contributed to the development of the law regarding the duty of states to refrain from activities that would cause damage to other states. In the Request for an Examination of the Situation case 9 New Zealand reactivated an earlier application seeking that France be directed to carry out an environmental impact assessment before proceeding with its nuclear tests in the South Pacific. It was argued that the tests would be illegal unless the assessment showed that there would be no consequent pollution of the marine environment. The court found 5 Alexander Kiss and Dinah Shelton, INTERNATIONAL ENVIRONMENTAL LAW, 119-120, (1991). 6 P.W. Birnie and A.E. Boyle, INTERNATIONAL LAW AND THE ENVIRONMENT, 14, (2nd edn., 2002). 7 Attapatuu, supra note 1. 8 Jorge E. Vinuales, The Contribution of the International Court f Justice to the Development of International Environmental Law: A Contemporary Assessment, 32(1) FORDHAM INTERNATIONAL LAW JOURNAL, (2008). 9 Request for an Examination of the Situation in Accordance with the Court s judgment in the Nuclear Tests case, (New Zealand/France), 1995 ICJ (September 22). 94

RESTRICTING SOVEREIGNTY TRANSBOUNDARY HARM, ETC. itself without jurisdiction and thus did not hold on these issues. However, three judges in their dissenting opinions, made several observations relevant for international environmental law. Judge Palmer noted the general trend to establish a set of norms that were increasing environmental protection while Judge Weeramantry noted the obligation to conduct an EIA and ensure no harm would result to the marine environment. He and Judge Korona also noted that States have an obligation to not cause serious damage under the Stockholm Declaration of 1972. In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 10 the Court affirmed for the first time that the obligation to ensure that activities within the jurisdiction and control of a State with respect to that of other States and areas beyond national control is now a recognized part of customary international law. One of the most significant contributions of the ICJ was through the decision in the Case Concerning the Gabcikovo-Nagymaros Dam. 11 Here, Hungary argued for the termination of a treaty with Slovakia to build numerous hydro-electric dams on the Danube on the ground that it was ecologically necessary. It was alleged that Slovakia had not accounted for these environmental considerations while implementing its part of the project. This was demonstrated by the fact that Slovakia did not conduct an environmental impact assessment regarding the project. The Court recognized that a state of necessity could include one of grave and imminent danger to the environment but that the situation did not apply in this case. It applied concepts like sustainable development to recommend that the parties renegotiate the terms of the agreement based on a fresh assessment of the environmental effects. Judge Weeramantry in his separate opinion expressly stated the need to ensure continuous monitoring of the environment. Finally, the Pulp Mills on the River Uruguay 12 case also saw the ICJ reaffirm principles of sustainable development and environmental protection. Argentina attempted to ensure the halting of construction of paper mills in Uruguay on the grounds that it would not proceed unless shown to be harmless. The Court ruled in favour of Uruguay which attempted to balance its obligations by conducting an impact assessment and engaging in public consultation. It is thus clear that there have been great developments in International Environmental Law over the past decades and many concepts such as sustainable development have now been incorporated into the corpus of international law. Further, as has been demonstrated from the above cases, it is now clear that States do not have the right to exercise their sovereignty without accounting for environmental considerations. 10 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ 226 (July 8). 11 Gabcikovo-Nagymaros (Hungary/Slovakia), 1997 ICJ 7 (September 25). 12 Pulp Mills on the River Uruguay, (Argentina/Uruguay), 2010 ICJ (April 20). 95

THE ENVIRONMENT, LAW AND SOCIETY JOURNAL 2014 TRANS-BOUNDARY HARM IN INTERNATIONAL LAW Permanent Sovereignty over Natural Resources The principles of sovereignty and equality of States includes prima facie exclusive jurisdiction over a territory and the permanent population living there. There is also a duty of non-intervention in another State s area of jurisdiction. Finally, additional obligations arising from customary law and treaties may bind a state. 13 Permanent sovereignty over natural resources is a principle that developed after 1945 as a response to the problems associated with foreign ownership of mineral resources in countries that had recently gained independence. Thus the control of natural resources is generally dependent on the acquisition of the territory whether land or sea. It was referred to by the UN General Assembly in a 1962 resolution that recognized the rights of peoples and nations over their natural wealth and resources. 14 Restrictions on Exercise of Sovereignty The principle of territorial sovereignty is limited when its exercise touches upon the territorial sovereignty and integrity of another State. Consequently, the scope of discretionary action is determined by principles of good neighbourliness or sic utere tuo, ut alienum non laedas. 15 This is similar to the principle that a State, despite territorial supremacy, should not be permitted to alter its natural conditions to the disadvantage of the territory of a neighbouring State. 16 There is a requirement to ensure that a State s activities do not cause any transboundary harm. The elements to be fulfilled are that there should be a physical relationship between the activity and the harm caused; there should be a transboundary movement of harmful effects and it should meet the threshold of severity that calls for legal action. 17 The International Law Commission has had transboundary harm on its agenda since 1978 but the initial work of the Commission was not very valuable in understanding the subject. The first significant contribution was in 1996 when there were draft articles and commentaries that were released. They offered a more realistic view of the law dealing with prevention, cooperation and liability for damage. The final articles were adopted in 2001 and codified additional obligations like those regarding environmental impact assessment, notification, consultation, monitoring, prevention and control of activities. These articles draw heavily from principles in previous instruments as well as the existing regime for the regulation of the marine environment. 18 13 Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, (7th edn., 2008). 14 P.W. BIRNIE & A.E. BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, (2nd edn., 2002). 15 Nico Shrijver, SOVEREIGNTY OVER NATURAL RESOURCES, 233, (1997). 16 OPPENHEIM ON INTERNATIONAL LAW, 220, (1912). 17 Xue Hanquin, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, 3-4 (2003). 18 Birnie and Boyle, supra note 5 at 141. 96

RESTRICTING SOVEREIGNTY TRANSBOUNDARY HARM, ETC. The ILC s Draft Articles on Prevention of Transboundary Harms (hereafter the ILC Draft Articles ) deal with activities that fulfill four criteria i) they are not prohibited by international law; ii) they are planned or carried out in the jurisdiction of one State; iii) there is a risk of the activities causing significant transboundary harm; and iv) significant transboundary harm is a physical consequence of these activities. 19 The definition of damage will differ depending on the activity in question. The UN Task Force on Responsibility and Liability regarding Transboundary Water Pollution defined damage to mean loss of life, impairment of health or injury; damage to any property; and detrimental changes to ecosystems. 20 The Convention in the Law of the Non-navigational Uses of International Watercourses provides that there should be no appreciable harm which implies that the harm must be more than simply noticeable. 21 Transboundary harm the need for an Environment Impact Assessment Article 7 of the ILC Draft Articles provides that the authorization of any transboundary activity that has the potential to cause trans-boundary harm shall be based on the assessment of the harm that may be caused, including an environmental impact assessment. 22 The 1991 Convention on Trans-boundary EIA and the UNEP s EIA Goals and Principles both discuss the information that should be contained in an impact assessment. This includes a description of the activity in question, the likely impact, possible ways to mitigate the harm to be caused, alternatives and inconsistencies in the knowledge of the same. However this detailed content is not included in the ILC s 2001 articles which is unfortunate, given the wealth of literature and practice regarding the same. This is now arguably part of customary international law and thus imposes a higher obligation on states to ensure that their activities do not cause loss of biodiversity. In Gabcikovo-Nagymaros, Hungary claimed that the treaty to construct dams had to be terminated on account of ecological necessity and alleged that Slovakia by unilaterally implementing the project failed to account for ecological implications. The Court concluded that the parties would have to look afresh at environmental impact before implementing the provisions of the treaty and proposed that an EIA be conducted. 23 Similarly, the Pulp Mills case as discussed earlier permitted the constructions of the mills in question only because Uruguay first proposed to conduct an EIA. 19 Article 1, Draft Articles on Prevention of Transboundary Harm, 2001. 20 Barboza 6th Report on Int Liab for Injurious Consequences arising out of acts not prohibited by international law 369 (March 15, 1990) Reproduced in ILC Yearbook (1990) Vol II p. 83, 88-89, 105 21 Cunningham, Do brothers divide shares forever? 21 UNIVERSITY OF PENNSYLVANIA JOURNAL OF INTERNATIONAL ENVIRONMENTAL LAW, 131 (2000). 22 Birnie and Boyle, supra note 5 at 167. 23 Gabcikovo-Nagymaros, supra note 10. 97

THE ENVIRONMENT, LAW AND SOCIETY JOURNAL 2014 Significant Harm Considering that all human activities have some harmful effect on the environment, it is clear that sovereignty of States may be restricted only when the damage reaches a degree of severity. 24 Thus states are prohibited from causing trans-boundary harm that is serious, significant, substantial, appreciable or similarly qualified. There is clearly a lack of precision on the threshold to be met. 25 The ILC in its commentary on the Draft Articles recognized that this ambiguity exists and provided that a determination must be made in every specific case. It broadly states that significant is something more than detectable but need not be at the level of serious or substantial. 26 The Arbitral Tribunal in Trail Smelter dealt with issues relating to air pollution but the principles outlined are now considered to be a general part of international law. It was decided that Canada has to take protective measures to reduce air pollution caused by sulphur dioxide emitted by zinc and lead smelter plants. These plants were only seven miles from the US-Canada border and had caused damage to crops, trees, etc. in the United States. The Tribunal observed that no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes 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. 27 The Trail Smelter decision was significant since it showed that restrictions on sovereignty could occur only once the transboundary damage reached a certain level of harm, thus rejecting two principles that of absolute territorial sovereignty i.e. State can dispose of its territory without considering neighbourly interests and that of absolute territorial integrity which prohibits all external interferences on State territory. 28 In the Lac Lanoux case, it was recognized that a restriction on sovereignty could follow from exceptional circumstances such as joint ownership. The case dealt with the manner in which France was utilizing water from Lake Lanoux. Spain claimed that the diversion of water to generate electricity affected its users. The Tribunal held that France has an obligation to consult Spain and account for its interests and had adequately fulfilled these obligations in this case. Some kinds of trans-boundary pollution may be considered wrongful instead of merely being a legal activity with an adverse effect. This is true in cases of continuous pollution since the State of origin may be presumed to know about the nature of the harm caused. This kind of causal conduct will be internationally wrong 24 Hanquin, supra note at 8. 25 Gunther Handl, Transboundary Impacts, 535, THE OXFORD HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW, (Daniel Bodansky, Jutta Brunnee, Ellen Hey eds., 2006). 26 International Law Commission, Report on the work of its fifty-third session: Commentary on Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 152, (2001). 27 Trail Smelter, (U.S./Canada), 3 R.I.A.A. 1905 (Arbitral Tribunal 1938/1941). 28 Franz Xaver Perrez, The Relationship between Permanent Sovereignty and the obligation not to case transboundary environmental damage, 26 ENVIRONMENTAL LAW 1187 (1996). 98

RESTRICTING SOVEREIGNTY TRANSBOUNDARY HARM, ETC. and involves question of state responsibility. 29 A similar reasoning may be extended to activities other than pollution. For example, the use of explosives close to the frontier may cause harm beyond the limits of the State of origin. This was the situation in the Corfu Channel case where the State knowingly permitted the use of its territory in a manner detrimental to the rights of other States. 30 This may be distinguished from the Trail Smelter case where the activity of smelting metals was itself considered legal but had harmful trans-boundary effects. In such cases, only the illicit act should cease. However if the two are inseparable, the activity itself cannot continue. 31 International law does not require the State to refrain from all technological or industrial activities that may cause environmental harm since these might be considered lawful. It only requires the State to ensure that the activities do not cause any significant harm. Thus the limits to sovereignty does not entail the prohibition of any pollution but an obligation to undertake appropriate measures that would prevent substantial pollution i.e. following a due diligence standard. 32 The law related to trans-boundary harm is important since the ecosystems of different nations are related and it is not possible for a country to contain the effect of its activities within its territorial limits. The development of the law and the formulation of the ILC Draft Articles are both significant in regulating instances where the activities of States are legal but have a harmful effect in the jurisdiction of another State. TRANS-BOUNDARY HARM AND MIGRATORY SPECIES This notion that states have a responsibility not to harm the environment was formulated as early as in 1972 with Principle 21 of the Stockholm Declaration. This was later crystallized into customary international law. 33 Subsequently, multilateral environmental treaties like the Convention on Biological Diversity recognized that States have sovereignty over their natural resources. However, Article 3 of the CBD also states that while States may exploit their resources pursuant to their policies, they have a responsibility to ensure that activities within their jurisdiction do not cause damage to the environment of other States. 34 Article 193 of the UNCLOS shifts the emphasis from a negative obligation to prevent harm to a positive commitment to protect and preserve the marine environment. It provides that the sovereign right to exploit natural resources has to 29 Gunther Handl, Liability as an Obligation Established by a Primary Rule, XVI NETHERLANDS YEARBOOK OF INTERNATIONAL LAW, 58-9 (1985). 30 Barboza, supra note 19 at 247 316. 31 Barboza, supra note 19 at 329. 32 Riccardo-Pisillo-Mazseschi, Forms of International Responsibility for Environmental Harm, 24, 35, INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, (Franceso Fancioni and Tullio Scovazzi eds., 1991). 33 Catherine Tinker, Responsibility for Biological Diversity Conservation under International Law, 28 VANDERBILT JOURNAL OF TRANSNATIONAL LAW, 777, 778 (1995). 34 Article 3, Convention on Biological Diversity, 1992. 99

THE ENVIRONMENT, LAW AND SOCIETY JOURNAL 2014 be in accordance with the duty to protect and preserve the marine environment. 35 There has thus been a focus not on merely preventing harm to another State but ensuring that a State minimizes any damage to the environment in general. Xue Hanquin, former judge in the International Court of Justice, observed that trans-boundary damage in international environmental law is referred to as international environmental damage or international environmental harm. He also observed that the term environment has broad connotations. 36 Considering the increasing number of endangered species, it seems clear that the obligation to prevent harm to the environment should include ensuring their conservation status is not impacted. It is interesting to look at whether migratory species qualify as shared resources and how the law related to transboundary harm may be applied to them. SHARED RESOURCES The concept of shared resources were first recognized in the Charter of Economic Rights and Duties of States, 1974. This was passed by a General Assembly resolution by 100 votes to 8 (with 28 abstentions) and recognized that when natural resources are shared by two or more States, States must cooperate to ensure optimum use of these resources without damaging the legitimate interests of others. 37 Shared resources have been defined by the United National Environment Programme as those that do not fall within the territorial jurisdiction of a single State but straddle political borders or migrate from one territory to another. 38 States are required to avoid to the maximum extent and reduce to the minimum extent adverse environmental effects beyond its jurisdiction of shared natural resources. This has been emphasized as particularly important in the following situations when it causes environmental damage that will affect the utilization of the resources by another State; when it threatens the conservation of shared renewable resources; and when it may endanger the health of the population of another State. 39 This was indirectly recognized by the ICJ in the Gabcikovo- Nagymaros case where it considered that Slovakia, by assuming control of a shared resource, deprived Hungary of its right to an equitable share of natural resources thus violating the concept of proportionality which is recognized in international law. 40 MIGRATORY SPECIES Water, oil and gas deposits and other resources may straddle State boundaries and thus give rise to trans-boundary issues between two States. Issues may also arise with 35 Sands, supra note 3 at 244. 36 Hanquin, supra 16 note at 3-4. 37 Article 3, Charter of Economic Rights and Duties of States, 1974. 38 United Nations Environment Programme, Environmental Law Guidelines and Principles on Shared Natural Resources, (UNEP/GC.9/5/Add.2; 1981). 39 Principle 3, United Nations Environment Programme, Environmental Law Guidelines and Principles on Shared Natural Resources, (UNEP/GC.9/5/Add.2; 1981). 40 Gabcikovo-Nagymaros, supra note 10. 100

RESTRICTING SOVEREIGNTY TRANSBOUNDARY HARM, ETC. respect to living resources such as migratory species and straddling fish stock. 41 Animals that migrate from one jurisdiction to another will be subject to the sovereignty and jurisdictions of all States en route. 42 The consequence of the extinction of one species will have cross-border impact, especially in the case of migratory species. 43 Certain treaties also apply restrictions on sovereignty in the case of shared living resources. The UNCLOS and the Straddling Stocks Agreement deal with the case of straddling stocks i.e. species that are in the EEZ of one or more coastal states and recognize the importance of cooperation in their conservation. 44 Treaties like the Agreement on Conservation of Polar Bears of 1973 and Preamble to the Convention on the Conservation of Antarctic Marine Living Resources, 1980 imply a limitation on sovereignty by the recognition that other States on the migration route also possess sovereign rights over the same species. It is recognized that the action or inaction of one State affects the rights of others to the continued survival of the species. 45 According to the esteemed jurist Cryil de Klemm there is no rule in conventional international law recognizing the special nature of migratory species in the absence of treaty obligations and thus there can be only voluntary restrictions on sovereignty. Even when all the range States of a species are considered responsible for its preservation, national sovereignty is also given importance. 46 Problems with conservation arise when States with strict environmental standards attempt to extend its application to activities carried out beyond their territory when they believe that damage may be caused to shared resources or economic interest. 47 In the 1893 Fur Seals Arbitration, the tribunal rejected the claim that the US may extend its laws to protect fur seals beyond its jurisdiction. The Tuna-Dolphin GATT Case saw the US ban the import of yellow-fish tuna caught by Mexican vessels since the methods used led to an increased number of dolphin killings. This extra-jurisdictional application of US environmental standards was rejected. However, the ruling of the WTO Appellate Body in the Shrimp-Turtle case changed the manner in which shared resources are viewed. The case related to the US requiring shrimp exporters from other countries used Turtle Excluding Devices to ensure that shrimp trawlers do not impact conservation of turtles. It was recognized that turtles are a shared resource by virtue of being a migratory species 41 Nico J Schrijver, SOVEREIGNTY OVER NATURAL RESOURCES, 129, (1997). 42 Cyril de Klemm, Migratory Species in International Law, 29 NATURAL RESOURCES JOURNAL, 936 (1989). 43 Sands, supra note 3. 44 Chris Wold, The Status of Sea Turtles under International Environmental Law and International Environmental Agreements, JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY (September 8, 1997). 45 Cyrille de Klemm, Biodiversity, Conservation and the Law, Environmental Policy and Law Paper No. 29, 52, IUCN, (1993). 46 Cyril de Klemm, Migratory Species in International Law, 29 Natural Resource Journal, 935, (1989). 47 Sands, supra note 3 at 238. 101

THE ENVIRONMENT, LAW AND SOCIETY JOURNAL 2014 and thus all States within whose jurisdiction they move have an interest in their conservation i.e. no State can exercise unrestricted sovereign rights over them. 48 The decision recognized that there was sufficient nexus between migratory and endangered turtles in the Asian water and the United States that would permit the latter to claim an interest in their conservation. 49 PRECAUTIONARY PRINCIPLE The basic underlying principle related to the shared resource concept is that the States must cooperate to avoid adverse effect on other States. This may be done by a system of impact assessment, notification, consultation and negotiation. 50 The UNEP Guidelines also specify that in cases where the utilization of shared resources may significantly affect the environment of another State sharing the resource, the State should make an environmental assessment. 51 Significantly affect in the guidelines is defined to exclude de minimis effects and has to be appreciably adverse. 52 These guidelines have led to the development of the precautionary principle and the requirement to conduct environmental impact assessments. The Precautionary Principle mandates that when there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty shall not be used as a reason for postponing measures to avoid or minimize such a threat. 53 Thus rather than waiting for trans-boundary harm to occur, if the possible harm is so significant, States have a duty to prevent it from occurring. It has been applied even in the case of living resources. The International Tribunal on the Law of the Sea applied the precautionary principle in the Bluefish Tuna case to provisionally prevent the exploitation of fish stock. It reasoned that the lack of scientific certainty surrounding conservation should not prevent the States from taking provisional measures. 54 It is also important to note that biodiversity is now argued to be a common concern of mankind 55 In other words, all human beings have an interest in the conservation of endangered species, even if there are no direct effects on the environment of the state they live in. This is relevant since in the case of migratory species, it is not always necessary to show that significant harm has occurred in another State as a result of the first State s activities. In certain cases, the exercise of 48 Appellate Body Report, United Nations Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW (October 22, 2001). 49 Sands, supra note 3 at 238. 50 Birnie and Boyle, supra note at 103. 51 Principle 4, United Nations Environment Programme, Environmental Law Guidelines and Principles on Shared Natural Resources, (UNEP/GC.9/5/Add.2; 1981). 52 Definition, United Nations Environment Programme, Environmental Law Guidelines and Principles on Shared Natural Resources, (UNEP/GC.9/5/Add.2; 1981). 53 Principle 21, Stockholm Declaration, 1972; Convention on Biological Diversity, 1991. 54 Southern Bluefish Tuna Case (New Zealands v. Japan; Australia v. Japan), Order of 27 August 1999. 55 Dinah Shelton, Common Concern of Humanity, 5 IUSTUM ACQUUM SALUTARE, 33 (2009). 102

RESTRICTING SOVEREIGNTY TRANSBOUNDARY HARM, ETC. sovereign rights by States may be restricted merely on the ground that it is impacting biodiversity which is a common concern of mankind. CONCLUSION International law has expanded to account for environmental considerations and it is evident that many principles have passed into the corpus of international law in a short period of time. The law related to transboundary damage is, in essence, very commonsensical. It merely attempts to ensure that the exercise of sovereignty by one State does not impact the manner in which the other State is likely to exercise its own sovereignty. It is clear that the degree of sovereignty that a State has over its resources if waning. Even the law relating to transboundary harm takes on more interesting dimensions when looked at along with environmental concerns. The status of migratory species is particularly illustrative of this. While such species do constitute shared resources, the law relating to transboundary harm did not traditionally apply to them. The doctrine of good neighbourliness was considered far more relevant in cases of non-living resources such as the atmosphere and shared water resources. It is only recently that it has been acknowledged that States have rights over shared resources to the extent that they can apply their domestic laws to prevent another State from causing damage to the same. When transboundary harm is considered in the context of international environmental law, it cannot be considered in isolation of other relevant principles. For instance, the precautionary principle would always be relevant in determining whether or not the activities of a state are permissible. The standard of proof may thus be lowered and it is not necessary that rights are curtailed only in cases where significant harm is caused. Similarly, a different standard may be imposed on developing countries considering the principle of common but differentiated responsibility. It is thus relevant to note that these developments in international environmental law has resulted in a lower threshold to be met for restricting exercise of sovereign rights in cases concerning environmental damage. 103