Transboundary Damage in International Law

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The Practice of Shared Responsibility in relation to Liability for Transboundary Harm | SHARES

Desierto comments:. Both the comments of Desierto and Yotova are highly relevant in the context of the decision.

Ramblings 132: Transboundary Harm and EIAs

The Separate Opinion of Judge Donoghue confirms this understanding. For example input from a potentially affected State may be necessary for the State of origin to make a reliable assessment of the risk of transboundary environmental harm. In conclusion, with respect to the threshold question focused on in this note, the ICJ decision in the joined cases Costa Rica v.

Costa Rica has not advanced understandings of international EIA law.

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Commentators alike have noted the deficiencies of the ruling, which has failed to clarify the significance question for EIA in international environmental law. The Separate Opinions of Judges Dugard, Bhandari and Donoghue in particular, raise major concerns about both the ruling, and what it means for jurisprudential development. Some of these commentators and judges also highlight the Espoo Convention as a significant precedent for the international community to follow. In suggesting how the uncertainties and potential conflicts between disputant States can be recognised and pre-empted at an early time, the Espoo Convention can help.

Once the Court is satisfied of the existence of practice by a large enough number of states, an acknowledgment of the customary law status of the obligations in this treaty may well follow. This accords with what is commonly known as the screening stage of EIA. See: Separate Opinion of Judge Donoghue. Both authors indicate that the ILC Commentary on the Draft Articles emphasises the importance of an objective approach. In relation to the potential for an exemption for emergencies, see paras The Court concludes that Costa Rica was not bound by this provision.

Click here to cancel reply. What do you think? QIL Fourth Year. The Journal Vol. Doctrinal thoughts on a doctrinal approach to the problem of diversity in International Law. Hungary , p. China , para This is because the protection of endangered species, in particular, is considered to be in the interest of all States.

While there remains little case law to support this specific claim, it may be recalled that in the case concerning Questions Relating to the Obligation to Prosecute or Extradite Belgium v. Senegal the Court stated that: The common interest in compliance with the relevant obligations under the Convention… implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party.

If a special interest were required for that purpose, in many cases no State would be in a position to make such a claim.

China , para. Tanzania , p. Senegal , para. This configuration of the prevention principle is often framed in terms of a human rights obligation, including, for example, the right to life, the right to health, the right to a clean, safe and healthy environment but also, less robustly, the right to food. Indeed, in the Corfu Channel case of United Kingdom v. This is an important development that imposes a further obligation on States to prevent significant harm within their own boundaries as well. While the reconciliation of the human rights discourse on this issue and the significant harm issue as it is discussed in its classic transboundary context has not yet been strongly invoked.

There are certainly grounds in the case law for a seemingly similar duty incumbent upon States towards individuals. Support for this claim is found in human rights instruments and case law. This would unsurprisingly represent one of the most serious breaches of the duty to prevent significant harm. In addition, the right to health, the right to a clean, safe and healthy environment and the right to food are guaranteed by UNCESCR Articles 11 and As such, in the case of Lopez Ostra v.

Transboundary damage in international law

Spain , para. Italy , para This was partially confirmed by the Tribunal in the Trail Smelter case in which Canadian residents exposed to the fumes of the United States factory who were found to experience an increased risk of lung or skin disease, were highlighted by the Tribunal, despite that no claim for reparations was made on these grounds: It is however to be noted that, whilst no indemnity was actually claimed for damage to the health of the inhabitants, the existence of such damage was asserted by interested parties at the time. The difference in the terms of reference may further be accounted for by the circumstance that the case was presented to this Tribunal, not as a sum of individual claims for damage to private properties, espoused by the Government, but as a single claim for damage to the national territory.

This argument from the perspective of a right to food was also emphasized in an application filed to the ICJ by Ecuador against Colombia concerning Aerial Herbicide Spraying. Colombia , supra note 1, paras The figure below represents such an attempt. May reach the level of substantial in terms of the level of impact, but remains narrower in its scope of harm than a substantial harm Detectable harm: Low impact and narrow scope of harm Substantial harm: high level of impact and wide scope 58 Treaty of the Southern African Development Community SADC , Art.

While not intending to be conclusive on the meaning of significant harm — a fairly open term— this figure can be interpreted as a general reference for what are identified here as the two distinguishing factors in any given level of harm: impact of the effect on any given component of the ecosystem, and scope of the effects across several components of the ecosystem.

Conclusion Any study into the meaning of a legal term requires sufficient regard to both the instruments responsible for its consolidation, but also, to its interpretation in practice. Having reviewed a total of 11 binding and non-binding instruments and considered a total of 15 cases by international courts and tribunals, there are a number of conclusions that can be made with regard to the meaning of significant harm. First and foremost, significant harm is interpreted slightly differently depending on what part of the ecosystem is affected.

Namely, the right of States to reasonable and equitable utilization of a watercourse must be balanced against the duty to prevent significant harm. In matters relating to the prevention of harm to flora and fauna, there is a clear assertion that damage to flora and fauna are indivisibly related. These obligations may to a certain extent be viewed as erga omnes obligations, or at the very least, these obligations are travelling more and more in that direction.

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  • With respect to human health considerations, interpretations of significant harm are showing the greatest potential to evolve. There are some grounds to claim that significant harm is an obligation that is applicable for States within their own territories. The measure of significant harm more generally, requires a proportional approach. There is however, no doubt that the duty to prevent significant harm cuts across any dispute relating to transboundary environmental harm.

    It is without a doubt a customary obligation of international law that requires states to take specific measures to prevent it, including the due diligence obligation to carry out an Environmental Impact Assessment, the duty to notify of a potential significant harm resulting from any given activity and the duty cooperate in good faith so as to prevent transboundary significant harm. Albania , Judgment of 9 April , I. Reports Trail Smelter Arbitration, United States v. Canada , Award 11th March , U. Report on International Arbitral Awards Lopez Ostra v.

    Di Sarno and others v. Pulp Mills on the River Uruguay Argentina v. Uruguay , Judgment, I.

    Transboundary Harm

    Costa Rica , Judgement of 16 December I. Questions relating to the Obligation to Prosecute or Extradite Belgium v.

    Passar bra ihop

    Senegal , Judgment, I. Whaling in the Antarctic Australia v. Japan: New Zealand intervening , Judgment, I. Other References Brandenburg, W. Washington, vol. XXI, p. Institute of International Law. International Law Association. International Law Commission.

    Adopted at 53rd Session of the ILC, Salman M. UN General Assembly. Adopted 21 May Convention on the Law of the Sea. Adopted 10 December Adopted The Rio Declaration on Environment and Development. A Commentary Oxford University Press, , pp. Watts, A. Related Papers. By zewdu mengesha. Principles of international water law: creating effective transboundary water resources management.