A FOOTNOTE TO ALL CONVENTIONS: ARTICLE 21 OF THE STOCKHOLM DECLARATION
By Pritha Jha,
V BSL LLB, ILS Law college Pune
In order to discuss International environmental law within the purview of Principle 21 of the Stockholm declaration, it would be appropriate to elucidate the basic terminologies that will be used in the discussion:
Human beings have been using their surroundings for centuries to better their lifestyles. However, the impact of such usage has only been coming into focus recently. The usage might be with respect to flora, fauna, minerals, oils or anything material, which we might touch, smell or see. Such environment continues to be exploited, and although the human population and its needs continue to grow at an exasperating rate, the environment does not. Such exploitation has been causing harm to the eco system, causing irreparable damages. Larger amounts of carbon dioxide, depleting ozone layer, massive deforestation, desertification, air, water and marine pollution and more frequent natural disasters are some of the harmful consequences that have devastated countries and robbed millions of people of a decent life. In order to save environment and to reduce the ill effects of the continuous environmental exploitation, nations of the world agree to some certain basic principles, which must be followed while using the environment to satisfy our needs. Such rule of conduct that may be established through custom, agreement or authority is called international environmental law.
A State is an internally autonomous territorial and political body, which consists of a federation under a sovereign government. Sovereignty may be defined as the supreme power in a State and which is not bound by the rules of any other State except its own.
National jurisdiction is the power, right or authority to take cognizance and decide any matter according to law, the limits or territory within which authority may be exercised; controlled.
Global Commons are areas beyond the control of any one particular government.
Principle 21 of the Stockholm declaration clearly states, "States have in accordance with the Charter of the United Nations and the principles of international law, 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 practices of States can be affected consciously by various international actions and conventions are adopted in the hope that they follow and act in the particular way stated and may even suggest that they are legally obliged to do so. Principle 21 has now become a customary law, which generally applies to all states and not only to the parties to a particular instrument. Principle 21 focuses on transboundary harm or State responsibility.
Large-scale industrial, agricultural and technical activities of one country can cause damage to the environment of another nation or simply cause detrimental effects to its people at large. Such damage can be caused through water, soil, and air and to one or more nations or quite possibly to the global commons. Such transboundary damage gives rise to the question of State responsibility and compensation for damage caused.
State responsibility and international liability for injurious consequences have been two of the major issues on the agenda of the International Law Commission. International treaties of various numbers have come into existence, pollution of international waters, long-range air pollution, land source damage to the ocean and oil pollution to give a few examples. Most treaties only lay down preventive methods and norms to be followed by states and very few lay down firm rules regarding liability and compensation. Another challenge posed before Nations is how State liability for environmental damage caused accidentally and non accidentally should differ, and, what liability can be imposed; who decides such liability compensation; whether or not such liability can be imposed for damage arising from acts which are legal and what can make such decisions binding on States and whether or not such mechanisms will be of use in the future. What may be effective in theory may not be effective in practice. Some believe that more emphasis should be laid on the preventative factor rather than focusing on who will take up responsibility.
Such damage may, however, be caused not just by human activities but also by natural factors. Earthquakes, floods, volcanoes, landslides and hurricanes can also bring tremendous destruction to human life and property. For such "acts of God", liability rules do not apply. In principle, transboundary damage should have "some reasonably proximate casual relation to human conduct."
Environmental damage thus poses a menace not just to one nation but also to the environments of States as a whole. "All states parties to such instruments have the responsibility to protect the natural environment and the common areas, and correlative rights to see that others do so."
In the Rio conference of 1992 a number of global environmental issues were raised for international action, such as-the depletion of the ozone layer, global warming, reduction of biological diversity, forestry and desertification. Such issues were discussed in order to preserve the global commons at large. During and after the Rio Conference, many treaties were concluded which gave deadlines and targets to reduce and to control the source of damage. The Rio Conference thus marks a departure from the traditional norms of consequential damage.
In fact, Principle 2 of the Rio Declaration is almost the same as Principle 21 of the Stockholm Declaration adding only two important words, "and development" in its second principle, giving greater liberty and freedom to the developing countries for their development. Thus even the Rio Declaration emphasizes on state responsibility. There are many other treaties and conventions besides the Rio Declaration and the Stockholm Declaration which speak of State responsibility. In fact, it would be difficult if not impossible to find one such declaration or convention that does not.
Convention On Biological Diversity
Principle 3 of the Convention of Biological Diversity also speaks of the same Principle in the same manner as the previous two conventions mentioned above. The Convention on the conservation and sustainable development of all types of forests mentions in its very first principle the very same ground for exploitation of natural resources by nations.
Draft Declaration On The Rights And Duties Of States
Article 2 of this particular convention states that every state has the right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognized by international law.
Article 4 states that every State has the duty to refrain from fomenting civil strife in the territory of another state, and to prevent the organization within its territory of activities calculated to foment such civil strife.
Article 7 states that every State has the right to ensure that conditions prevailing in its territory do not menace international peace and order.
Looking at these 3 articles in collusion, one may say that the objective behind these articles was that States should be aware of their responsibilities and that they may be held liable for the losses caused to other nations in case they are unable to live up to their responsibilities. It clearly gives the impression of principle 21 of the Stockholm Declaration. While states have the right to use the resources as they like, they are also, in the light of all fairness, burdened with the duty to make sure that their activities do not cause any trouble to the other nations.
In fact, conventions have been adopted in 2001 by the International Law Commission which speak only of state responsibility and give principles to be followed by nation States regarding Prevention, co operation, Notification, information, National security, Emergencies and Dispute settlement. Draft Articles on Prevention of Transboundary Harm from Hazardous Activities is one such convention.
Chorzou Factory Case
The following paragraph of a judgment given by the International Court Of Justice summarizes the principle governing State Responsibility.
According to the Court:
'The essential principle contained in the actual notion of an illegal act ... is that reparation must, so far as possible, wipe-out all the consequences of an illegal act and reestablish the situation which would, in all probability have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear, the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it-such are the principles which should serve to determine the amount of compensation due for an act contrary to international law'.
From the same judgment:
'It is the principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself'.
There are many ways of viewing this issue on State Responsibility. Some would consider it a way of putting all the nations at par with each other, others as just an international obligation while some would view it as an effort of the international community to make sure that the degradation of the environment does not affect the later generations and a way of enabling Nations to use resources without having to encroach on the territories of others thus causing problems to its people and its environment. Another way of looking at it is that since the environment is so interdependent, activities causing harm to the environment in one place could lead to drastic changes in the environment in other places. It thus becomes necessary to make sure that Nations follow the International Policies and thus do not harm their environment and at the same time, protect the others from facing its consequences.
Thus the very basis of International Environmental Law becomes the rule enshrined in principle 21. It recognizes the Sovereignty of the States but at the same time makes sure that States do not exploit their resources beyond a certain limit. It clearly lays down that States must take responsibility for their acts and that they would be held liable for the damages caused to other Nation States.
The question of how such State Responsibility may be enforced or implemented is yet a debatable issue. Most people would agree that such implementation is possible only with the co-operation of all Nation States. There is no international court or international body, which has jurisdiction over all Nation States and has the authority to dictate its terms and conditions over all Nations.
Various methods have been prescribed for such dispute settlement in the Draft Articles on The Prevention Of Transboundary Harm from hazardous activities, such as negotiations, conciliation, arbitration and judicial settlement. It always depends on the nature of each case as to who has the supreme authority and what would be the best way for the settlement of a dispute. Nations always have the free choice of means and may take recourse to any method of dispute settlement. Although an International Court of Justice has been established for the judicial settlement of disputes, parties are not obliged to go to this international body and decisions of this court are binding on the parties only if they accept the jurisdiction of this court.
From the discussion above, it becomes apparent that there is international realization that global environment is increasingly out of joint. There is, therefore, an urgent need to jointly respond to the problem of environmental deterioration and that the preservation of environment is fundamental to sustainable development. Because environment is indivisible and its misuse or abuse within one State may adversely impact others, States internationally have deliberated together to find ways to demand behavior from each that would not negatively impact environment that may be its own but also of the others. Although no State or group of States has the right to intervene in the internal affairs of a particular Nation, it is a must to promote international universal respect for the international environmental issues. It must be imprinted in the minds of the people that protection of the environment is necessary because what might be lost might never be regained, and the damage caused by harmful human activities might never be undone. Although all States have a right to sovereignty, at the same time, the habitat of the universe must be protected while giving equal importance to the development of States. This thus becomes the very principle of International Law, which has been very aptly described in Principle 21 of the Stockholm Declaration. Every state has the right to develop its political, economic and cultural activities and all States have the inherent right to enjoy their individual personality. The territorial integrity and political independence of States cannot be encroached upon. Despite this, States must carry on their activities in Good faith and without prejudice to other States because not restricting this norm would be violating the very basis of law, justice and above all, equality.