Ocean Management 2 ( 1 9 7 5 ) 3 1 5 - - 3 2 2 © Elsevier Scientific P u b l i s h i n g C o m p a n y , A m s t e r d a m -- P r i n t e d in T h e N e t h e r l a n d s
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The International Law Commission and International Environmental Law s B.G. Ramcharan * *
ABSTRACT If t h e o c e a n s are d e s t r o y e d t h r o u g h p o l l u t i o n t h e r e will be n o t h i n g left t o manage. Prot e c t i o n against p o l l u t i o n is t h u s a f u n d a m e n t a l a s p e c t o f o c e a n m a n a g e m e n t . W h a t legal principles are available for t h e p r o t e c t i o n o f t h e o c e a n s ? This p a p e r brings t o g e t h e r t h e r e l e v a n t p r a c t i c e o f t h e f o r e m o s t i n t e r n a t i o n a l b o d y r e p o n s i b l e for the c o d i f i c a t i o n a n d d e v e l o p m e n t of i n t e r n a t i o n a l law: t h e I n t e r n a t i o n a l Law C o m m i s s i o n . It describes t h e w o r k o f t h e C o m m i s s i o n c o n c e r n i n g : (1) p o l l u t i o n of t h e high seas; (2) p o l l u t i o n of intern a t i o n a l w a t e r c o u r s e s ; a n d (3) i n t e r n a t i o n a l r e s p o n s i b i l i t y for e n v i r o n m e n t a l hazards. It c o n c l u d e s b y e x p r e s s i n g t h e h o p e t h a t t h e C o m m i s s i o n will f u r t h e r s t u d y , c o d i f y a n d dev e l o p i n t e r n a t i o n a l e n v i r o n m e n t a l law.
INTRODUCTION
The "Survey of International Law in Relation to the Work of Codification of the International Law Commission"* 1 prepared by the United Nations Secretariat in 1948, which discussed twenty-five topics for inclusion in the work programme of the Commission, did n o t discuss the law relating to the environment. However, the Second Survey of International Law, the working paper prepared by the Secretary-General in 1971 in the light of the decision of the Commission to review its programme of work "2, considered the subject and stated, inter alia, that, for a variety of reasons, greater attention will have to be paid in future to the problems of protecting the environment, so as to enable it to continue to support large numbers of people. *3 In the recent long-term review of the programme of work of the Commission it was suggested both in the Commission and in the Sixth Committee that attention should be given to international environmental law. * 4 * This p a p e r reflects solely the p e r s o n a l views o f t h e a u t h o r . ** Ph.D., D i p l o m e de l ' A c a d 6 m i e de D r o i t I n t e r n a t i o n a l de la Haye, o f L i n c o l n ' s Inn, Barrister-at-Law. *1 A / C N . 4 / 1 / R e v . 1 , U.N. Publ., Sales No. 48. V.1 (1). *2 A / C N . 4 / 2 4 5 , Y.B.I.L.C., 1 9 7 1 , Vol. 2, P a r t II, pp. 1 - - 1 0 0 . *3 Ibid, Ch. XIII : I n t e r n a t i o n a l E n v i r o n m e n t a l Law. *4 B.G. R a m c h a r a n , " T h e I n t e r n a t i o n a l Law C o m m i s s i o n " , 29 Y e a r b o o k o f World Affairs ( L o n d o n ) , pp. 2 8 4 - - 2 8 5 .
316 This paper will seek to assemble the instances thus far in which interna-. tional environmental law has been considered in the International Law C o r n mission. *'~ Substantively, the topic has been discussed in the Commission m relation to three i t e m s ; p o l l u t i o n of the high seas, pollution of international watercourses, and international responsibility for risk.
I: P O L L U T I O N OF THE HIGH SEAS The Commission's draft articles of 1956 on the Law of the Sea contained an article .8 on pollution o f the high seas, the t e x t o f which was as follows: "1. Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation of the sea-bed and its sub= soil, taking account of existing treaty provisions on the subject. 2. Every State shall draw up regulations to prevent pollution of the seas from the dumping of radioactive waste: 3. All States shall co-operate in drawing up regulations with a view to the prevention of pob lution of the seas or air space above, resulting from experiments or activities with radio~ active materials or other harmful a g e n t s " . . 7
Paragraph 1, in identical wording, became Article 24 o f t he Geneva Convention on the High Seas. Paragraphs 2 and 3 were modified and included as Article 25 o f the same C o n v e n t i o n . . 8
II : PO L L U T I O N OF I N T E R N A T I O N A L WATE RCOURSES In the consideration given thus far to the subject, the law of the non-navigational uses of international watercourses, one of the principal aspects men-
*5 See Y.B.I.L.C. 1956, Vol. II, pp. 285--286 (Draft Article 48 on the Law of the Sea, on Pollution of the High Seas, together with commentary thereto); A/CN.4/245, pp. 173--175; I.L.C. Report 1969, A7610/Rev.1, para. 83; Y.B.I.L.C. 1969, Vol. 2, p. 233; I.L.C. Report 1970, A/8010/Rev.1, paras. 66 and 74; Y.B.I.L.C. 1970, Vot. 2, pp. 306--308; A / C N . 4 / 2 4 8 a n d Add. 1--3, paras. 5 a n d 20; Y.B.I.L.C. 1973,Voi. 1,pp. 5--18; Y.B.I.L.C. 1969, Vol.I, pp. 104--117; 239--242; Y.B.I.L.C. 1970, Vol.I, pp. 175--192; 209--222; Report of the Sixth Committee on the Report o f the I.L.C. on its 25th session, 1973, A/9334, paras. 30--35; Report of the Sixth Committee on the Report of the I.L.C. on its 26th session, 1974 A/9897, paras. 173--175; General Assembly resolution 3315 (XXIX) : Report of the International Law Commission. .6 Article 48. .7 See Y.B.I.L.C. 1956, Vol. 2, pp. 28,5--286, Article 24. *8 Article 25 of the Convention states : "1. Every State shall take measures to prevent pollution of the seas from the d u m p i n g of radio-active waste, taking into account any standards and regulations which m a y 'be formulated by the competent international organizations. 2. All States shall co-operate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radio-active materials or other harmful agents."
317 tioned has been t hat of the pollution of international watercourses. *9 The views o f States have been requested on a n u m b e r of questions on which the Commission wishes t o be guided before it proceeds further. These questions make it clear t hat at this stage the Commission is minded to give emphasis to the legal aspects of the pollution of international w a t e r c o u r s e s . . 1 0 The Commission has e n u m e r a t e d the uses o f fresh water as including, (a) agricultural uses; (b) e c onom i c and commercial uses; and (c) domestic and social uses. Under each of these headings it has identified the element of "waste d i s p o s a l " . . 1 1 States have been asked to c o m m e n t on the following question: "Are y o u in favour o f the Commission taking up the problem of pollution of international watercourses as the initial stage in its s t u d y ? " *12 In the Sixth C o m m i t t e e in 1974, some representatives answered this question in the affirmative. It was urged that the Commission's study on the topic would fit in very well with the a t t e n t i o n which the international community is currently giving to the problems o f the e n v i r o n m e n t and the prevention o f pollution. Other representatives, however, while recognizing the seriousness o f the problem of pollution and the need for international legal regulation, expressed doubts as to the appropriateness of giving priority to it. It was p o in te d out t hat as pollution was an inevitable consequence of use, it would be b et t er to study the uses first and to d e d u c t from t hat study the underlying principles which could then be applied to pollution. Further, it might perhaps be b e t t e r first to establish the norms on which the study as a whole would be based and then deal with pollution. It was said that the problem o f pollution had very different aspects depending on the latitude involved and the econom i c d e v e l o p m e n t o f the c o u n t r y concerned. T he scarcity o f State practice and the difficulty of identifying c o m m o n legal principles were p o i n t e d out. It was also poi nt ed o u t t h a t the problem of pollution could lend itself to specific approaches; since each river or drainage basin had its own peculiar characteristics, its particular r~gime should be developed by agreement between the States concerned, bearing in mind the general principles f o r mu l a t e d by the Commission. The Commission should concent rat e on establishing the basic principles and closing the gaps t h a t still existed, for example, with regard t o State responsibility for pollution dam ages. . 13
*9 See the Report of the I.L.C. on the work of its 26th session, G.A.O.R. 29th session, Supplement No. 10; Chapter V. See also Doc. I.L.C. (XXVI)/S.C.1/WP.1 .10 Ref *9, paras. 17A, 30A, and 32--35. .11 Ref *9, para. 30A. .12 Ref *9, para. 35. .13 Report of the Sixth Committee on the Report of the International Law Commission on its 26th session, A/9897, paras. 173--175.
318
I!1: I N T E R N A T I O N A L RESPONSIBILITY FOR E N V I R O N M E N T A L HAZARDS In the current phase of its work on State Responsibility, the Commission has decided to concentrate initially on responsibility for internationally wrongful acts, though it announced its intention to consider separately the topic of responsibility arising from lawful activities such as environmental hazards, space and nuclear activities. *la However, the vmw expressed by some members of the Commission that the latter aspect of State responsibility should be kept in mind and that the Commission should take into account the problem of acts, the results of which are n o t entirely predictable, buL might be irreversible if damage occurs..15 The General Assembly has now in fact recommended that the Commission should take up, as soon as appropriate, the topic of international liability for injurious consequences arising oul of acts n o t prohibited by international law..16 The views expressed in the Commission (and in the Sixth Committee as well} during the discussion of this question are very pertinent to such aspects of international environmental law as responsibility for hazardous risks, mcluding risks for technological development, the quality of responsibility for pollution, and general principles of international environmental law. In the Commission in 1973, Mr. Kearney, referring to the difference between the responsibility of a State for an internationally wrongful act and its responsibility for an act which is not wrongful as such (a case in which he felt there was liability without fault), noted that current developments are tending to make the distinction between these two cases less and less clear. Environmental pollution raises a whole series of problems of responsibility as to circumstances in which the probability of risks, as compared with the fact of wrongful action, is a governing factor. He cited the use of outer space as involving such problems and referred to an experiment carried out by the U.S.A. a few years ago, in which a quantity of small copper needles had been launched by rocket into the upper atmosphere in order to obtain certain scientific information. That experiment had called forth protests by astronomers all over the world, who had feared that it might interfere with their own scientific work. Was there a question of responsibility there? Protests had also been made against the proposed introduction of supersonic transport aircraft, since it had been feared that their discharges might change the • 14 See I.L.C. R e p o r t s 1 9 6 9 , para. 8 3 ; 1 9 7 0 , paras. 66 a n d 74. T h i r d R e p o r t o n S t a t e R e s p o n s i b i l i t y b y R o b e r t o Ago, Special R a p p o r t e u r , UN Doc. A / C N . 4 / 2 4 6 a n d Add. 1-3, Y.B.I.L.C. 1 9 7 1 , Vol. 2, p. 200, para. 5 ; p . 203, para. 20. • 15 Mr. R. K e a r n e y , Y.B.I.L.C. 1 9 7 3 , Vol.I, p. 15, para. 23. See o n t h i s t h e R e p o r t of t h e S i x t h C o m m i t t e e o n t h e R e p o r t o f t h e I.L.C. 1 9 7 4 , A ] 9 8 9 7 , paras. 1 0 6 - - 1 0 7 . • 16 G A R e s o l u t i o n 3 3 1 5 ( X X I X ) : R e p o r t o f t h e I n t e r n a t i o n a l Law C o m m i s s i o n .
319 ozone c o n t e n t of the upper atmosphere and thus indirectly increase the incidence of cancer. " 1 7 Mr. Hambro expressed the view t h a t consideration should be given to the problem of State responsibility for acts which had formerly been regarded as lawful, but which, in the light of recent scientific developments, should now be considered wrongful. There, he said, progressive lawyers had a role to play; it was their d u t y to shift the frontier between what is legal and what is illegal. They had to come out squarely in favour of international law, international responsibility and international organization, and move away from an unduly narrow emphasis on national interests and national sovereignty. • 18 Mr. Tammes stated t h a t a study of such instruments as the Declaration of the United Nations Conference on the Human Environment ( 1 9 7 2 ) a n d the recent Oslo and L o n d o n Conventions on dumping, as well as of several of the drafts to be considered by the forthcoming United Nations Conference on the Law of the Sea, revealed, inter alia, that there was a trend in the direction of making States absolutely responsible for internationally wrongful acts of all persons under their jurisdiction or control. Principle 21 of the 1972 Stockholm Declaration laid down t h a t States had " t h e 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". If that principle hardened into a strict rule, it would mean that in certain important matters States would become identified with their subjects and that it would be difficult to determine the borderline between acts of the State and private acts. The responsibility was absolute and not restricted by due diligence or similar excuses, which had to be excluded in view of the tremendous interests at stake. The Commission should not postpone the study of these problems of absolute responsibility of the State for wrongful acts by private persons under its jurisdiction or control..19 Mr. Castaneda, the Chairman, speaking as a member of the Commission, said that the whole question of possible risk from technological developments was in a fluid state and that it was difficult to apply to it the existing rules of international law. For example, article 2 of the Geneva Convention on the High Seas, of 29 April 1958, proclaimed certain freedoms with respect to the use of the high seas by all nations, but also stated that "these freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas". It • 17 Y . B . I . L . C . 1 9 7 3 , Vol. I, p . 7 p a r a . 3 1 . • 18 Ibid, p a r a . 3 2 . S e e f u r t h e r A / 9 8 9 7 , p a r a s . 1 0 6 - - 1 0 7 . • 19 Y . B . I . L . C . 1 9 7 3 , V o l . I, p. 9, p a r a s . 8 a n d 9.
320 was not clear, however, whether that provision would cover the case oK a~ "oil spill" in the territorial waters of one State, which might spread to th~ waters of another State and cause pollution there. *20 Mr. Yasseen said he was not sure that legal relationships arising from a lawful act could be termed "responsibility". It would be better n o t to p r e judge the issue..21 Mr. Sette C~imara said it could hardly be claimed that there were at present any clear-cut rules of international law covering responsibility created by modern technological developments. The few cases which had arisen had been solved in an anarchic fashion and it would be premature for the Com~ mission to a t t e m p t to deal with the problem. ,22 Mr. Bartos said that the concepts of the quasi-offence and guarantee against risk of injury existed in international law and there could be other sources of responsibility than wrongful acts. *23 Mr. Ramangasoavina said he did n o t think that the obligation to make reparation for any injury resulting from a lawful act was simply a matter of guarantee. It was a matter of responsibility. The existing conventions allowed great freedom to States which had the means to conduct experiments or engage in enterprises that involved increasingly great risks, for example, the exploitation of the sea-bed or outer space, the consequences of which could be very serious for other States. Nor did he quite share the view that responsibility for lawful acts was still vague. The 1944 Chicago Convention on International Civil Aviation, for instance, had already clearly delimited a part of it. There was every reason to believe that the law would continue to evolve in that direction, in view of the rapid development of science and technology and the increasing risk of injury it entailed. ,24 Mr. Ago, responding to some of the comments made by members of the Commission, said that it was not so much that the distinction between the wrongful acts and lawful acts was becoming blurred, but that, as Mr. Hambro had observed, activities which international law had hitherto regarded as lawful were now considered wrongful. Unwritten law was developing quickly and now imposed obligations and prohibitions in fields it had not previously entered. But where that was the case, violation of such obligations and prohibitions was an internationally wrongful act, and it was from such an act that the responsibility derived. *25 It was, indeed, difficult to accept that
.20 .21 .22 .23 .24 .25
Y.B.I.L.C. 1 9 7 3 , Vot.I, p. 15, para. 25.
Ibid, p. 16, para. 27. Ibid, p. 16, para. 34. Ibid, p. 29, para. 30. Y.B.I.L.C. 1 9 7 3 , Vol.I, p. 16, paras. 38 a n d 39.
Ibid, p. 13, para. 3.
321 some acts fell midway between lawfulness and unlawfulness, since it was infringement of the rules of international law that generated responsibility. But those rules were constantly evolving and a rule prohibiting certain activities was now in process of formation. That was why, in some fields, no decision could be taken on the wrongfulness of certain acts. There could be no wrongful act w i t h o u t violation of an obligation existing at the time the act was committed. Hence it could not be claimed that an act which had been lawful at the time it was c o m m i t t e d had since become unlawful. *26 It was true t h a t the consequences of certain activities which had been lawful up to the present were now causing serious concern in view of the rapid progress of science and technology in the modern world. If an activity came to be recognized as really dangerous for mankind, it should be prohibited, and would then become wrongful. Activities such as flying supersonic aircraft or operating giant tankers, which could not be prohibited at present, but which involved risks, and could cause material damage, should be made subject to certain safeguards required under international law, and the person exercising the activity should be liable for reparation in the event of damage. Where such activities were made the subjects of treaties, such as the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, any violation of that treaty constituted a wrongful act. *2v
Quality of responsibility for pollution Mr. Ago, speaking of responsibility in general, whilst introducing his Third Report to the Commission in 1973, stated t h a t "some infringements must be considered more serious, because fulfillment of the obligations imposed by certain rules of international law was essential to the international community. *2s Mr. Hambro, taking up this idea of different qualities of responsibility according to the acts involved, stated that there was "one kind of act which deserved special attention : problems connected with the protection of the h u m a n e n v i r o n m e n t . . . " *29
CONCLUSION From the foregoing brief survey, the following conclusions can be drawn: (1) The Commision, since its early years, has been cognizant of the need
*26 .27 *28 *29
Ibid, p. 17, paras. 47 and 48. See f u r t h e r , A / 9 8 9 7 , para. 111. Y.B.I.L.C. 1973, Vol.I, pp. 5--6, para. 9. Ibid, p. 7, para. 31.
322 to protect the human environment. It demonstrated this first with respect L() pollution of the seas and now, of international watercourses. By calling for international environmental law to be placed on the work programme of the Commission, members of the Commission have shown themselves to be cognizant of the need to protect the human environment and to codify and develop international environmental taw. (2) The Commission has had its attention drawn squarely to the issue of responsibility for pollution and for risk, an issue which it will have to face in the coming years. (3) The discussion in the Commission thus far has brought into focus important actual and potential policies and principles of international environmental law. It is to be hoped that the Commission will decide to place international environmental law upon its work programme and that in time it will study, codify and develop this important branch of international law.