Responsibility Not to Cause Environmental Damage

The second element of principle 21principle 2 reflects the opinion that countries are subject to environmental restrictions when exercising their rights under the principle of permanent sovereignty over natural resources42. As stated in Principle 21Principle 2, the responsibility of not harming the environment of other countries or areas beyond the jurisdiction of the country has been accepted as an obligation by all countries, but does not affect its application. According to the 1996 advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons, there is no doubt that Principle 21 reflects the norms of customary international law, which imposes international legal restrictions on nuclear weapons. Rights in activities. Implement. In its territory or within its jurisdiction.

However, speaking of Principle 21 Principle 2 reflects that customary international law is not decisive and can only partially help support international claims. In the context of activities that lead to pollution and degradation of the environment, Principle 21 Principle 2 indicates that other issues need to be addressed. What is environmental damage? What environmental damage is prohibited (any damage, or just serious or significant damage)? What is the standard of care applicable to this obligation (absolute, strict, or fault-based)? What are the consequences of violations (including adequate compensation)? What is the scope of any liability (including compensation measures for damages)? These and related topics will be discussed in Chapter 17 below. The responsibility of countries not to cause environmental damage in areas outside their jurisdiction predates the Stockholm Conference and is related to the obligation of all countries to 'protect the rights of other countries in their territories, especially their integrity and inviolability. in peace'.

Subsequently, the arbitral tribunal developed this obligation in accordance with this obligation and in the widely cited Trail Smelter case, in which it was noted that the majority of authors accepted this claim as a rule of customary international law. For example, the rapporteur for the International Bar Association's Committee on Environmental Legal Affairs concluded through a review that state practice is based on the rules in the Trail Smelter case. 45 Judge Castro also cited this point in his objection, apparently in agreement. In the case of nuclear tests. 46 In this case, Australia had requested the International Court of Justice to declare that the additional atmospheric nuclear tests did not comply with applicable international law standards and that 'involved changes in Australian territory and its airspace [and] pollution of the environment. air and marine resources '. 47 In In fact, consistent national practice Not easy to distinguish.

As will be seen in Chapter 17, countries that rely on the rules reflected in Principle. Principle 2 have relatively few claims and can only rely on practice, especially through the participation and support of treaties and other international actions. And the declarations of the countries on the scope of their obligations. After the Chernobyl accident in 1986, a debate was held under the auspices of the IAEA to clarify the views of the country, but the record of this discussion alone does not represent a complete picture. 48 General Rules of Trail Smelter This case originated in the promotion of the good neighbor principle. It does not explicitly address environmental issues and the letter does not explicitly address environmental issues. Article 74 reflects the consensus of the member states of the United Nations that 'the policy of your metropolitan area should be based on the general principle of good neighborly friendship' and take into account the 'interests' and well-being of other parts of the United Nations. the world. The world in social, economic and business affairs.

The principle of good neighborliness is the basis of the order of the International Court of Justice, that is, the principle of sovereignty reflects the obligation of every country not to allow its territory to be used for acts that violate the rights of other countries. u201d 49 In the Lac Lanoux arbitration, the arbitration involved an article submitted by an upstream country. In the diversion of international rivers, the arbitration court held that a country cannot exercise its own rights without ignoring the rights of another country. In 1972, shortly before the Stockholm meeting, the meeting was able to order the meeting to fully respect the exercise of permanent sovereignty over natural resources and the right of each country to develop its own resources in accordance with its own interests.

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Priorities and needs, and avoid harmful effects in other countries regions. The formulation of the second element of Principle 21Principle 2 can also be traced back to previous environmental treaties. The 1951 International Plant Protection Convention expressed the need to prevent plant diseases and insect pests from spreading across national borders. The 1963 Nuclear Test Ban Treaty prohibits nuclear testing on the premise that the explosion will cause radioactive waste to appear outside the national territory. Under whose jurisdiction or control the explosion occurredu201d; 54 and the 1968 African Protection Convention require all parties to negotiate and cooperate when development plans may affect the natural resources of any other country. 55 Both parties agree not to deliberately take measures that may directly or indirectly damage the heritage u201clocated in the territory of other partiesu201d.

Thus, it can be said that the 21 principles formed the prior state practice. Since then, it has been affirmed in many resolutions of the UN General Assembly and actions of other international organizations. Shortly after the Stockholm Conference, UN General Assembly Resolution 2996 clearly established Principles 21 and 22 to establish the basic rules governing the country's international responsibility in terms of the environment. It is also the basis of Article 30 of the Charter of Economic Rights and Duties of States, which states: The final document of the Helsinki Conference on Security and Cooperation in Europe in 1975 recognized that Principle 3 of the 1978 UNEP Draft countries to ensure that activities within the scope of control do not cause damage to natural systems. Areas outside the scope of state or national jurisdiction ') and the 1982 World Conservation Charter (which states the need to' protect and protect the nature of areas beyond the scope of national jurisdiction ').

In a later treaty. It is mentioned in the preambles of several treaties or is fully incorporated into and is reproduced in the full text of the operative part of the treaty for the first time, such as Article 3 of the Convention on Biological Diversity in 1992, but it is not clear to limit 62 Principle 2 Rio Declaration 'Was included in the preamble of the 1992 'Climate Change Convention.' Language similar to the second element of principle 21 also appeared. The 1978 Amazon Treaty compares Article 21. The legal status of this principle has been blurred because it states that the exclusive use and development of natural resources in their respective territories is an inherent right of each countryu2019s sovereignty. The activities carried out 'will not cause damage to others or their environmental pollution, pollution caused by accidents' or the activities under their jurisdiction or control as far as possible do not exceed the area under their sovereignty and jurisdiction.

The 1982 'United Nations Convention on the Law of the Sea' transformed 'responsibility' into 'obligations', although it is not clear what the intention of the change is. According to article 193 of the 'United Nations Convention on the Law of the Sea the sea', countries have the obligation to preserve the marine environment develops sovereignty over their natural resources. The United Nations Convention on the Law of the Sea has shifted its focus from a passive obligation to an active commitment to prevent harm and protect the environment.However, for this purpose, Article 194 (2) does state To achieve this, the 1985 ASEAN Convention went a step further, recognizing the second element of Principle 21 as the 'universally accepted principle of international law'. 66 In this case, the time has come to confirm the customary status of the obligation not to cause transboundary environmental damage. damage. France's 1995 announcement of the resumption of underground nuclear testing provided an unlikely catalyst. In its order rejecting New Zealandu2019s request, the International Court of Justice vaguely stated that its order does not affect the obligations of countries to respect and protect the natural environment.

Both New Zealand and France reaffirmed their commitments in this case. Case 67 A review of the allegations revealed that France did not refute New Zealandu2019s argument that principle 21principle 2 reflects the accepted customary international law proposalu201d68. Judge Willamantree also supported him in his dissenting opinion. 69 Two months after the issuance of the resolution of the International Court of Justice, the International Court of Justice began an oral debate in its advisory opinion procedure on the legality of the threat of use or use of nuclear weapons. Some countries believe that Principle 21 Principle 2 reflects customary law and no one objects to this view (although some countries believe that these principles are irrelevant to the case). 70 The International Court of Justice noted in its advisory opinion: It is worth noting that the International Court of Justice not only reaffirmed the wording of Principles 21 and 2 but also did not immediately indicate that the International Court of Justice intends to achieve important changes to through repetitions. In some respects, the formulation used by the International Court of Justice may be broader than the formulation of Principle 21 Principle 2.72