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1 III. Obligation Not to Cause Transboundary Environmental Damages A.

Conception and Development of the Principle The emergence and evolution of international environmental law can be divided into four distinct periods.(93) The first period stretched from a series of bilateralfisheries treaties in the nineteenth century through the creation of the new international organizations in 1945.(94) During that period, people and nations began to understand the necessity of limiting the exploitation of certain natural resources.(95) The second period endured between the creation of the United Nations (U.N.) in 1945 and the 1962 Stockholm Conference on the Human Environment.(96) This period was shaped by the creation of international organizations with competence in environmental matters and the adoption of legal instruments to address environmental problems.(97) The third period occurred between the 1972 Stockholm Conference and the 1992 Rio Conference on Environment and Development (UNCED).(98) During that period the U.N. sought to coordinate responses to international environmental problems.(99) Finally, the post-UNCED period has sought to integrate environmental concerns into all international activities.(100) The obligation not to cause transboundary pollution reflects the obligation of all states to protect within their territory the rights of other states, especially the rights to national integrity and inviolability during peace and way.(101) This obligation was already recognized during the first period in the Trail Smelter case.(102) The Arbitral Tribunal concluded: [u]nder the principles of international law, as well as of the law of the United States, 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.(103) The Trail Smelter award is frequently cited for its role in laying down basic principles,(104) and its formulation concerning transfrontier pollution is accepted by the most qualified authors as a rule of international law.(105) However, the rule laid down in this award does not forbid every kind of interference with the territory of other states.(106) Rather, its restriction is limited to cases of serious consequence.(107) As such, it is patterned after common law nuisance liability for unreasonable interference with the enjoyment of land.(108) Because the rule is only effective when transfrontier damage reaches a certain level of harm, it implies a rejection of two important principles:(109) 1) the principle of absolute territorial sovereignty, which would otherwise allow a state to dispose of its territory without considering neighborly interests,(110) and 2) the principle of absolute territorial integrity, which would otherwise prohibit all external interference on state territory.(111)

The rule of the Trail Smelter case derives from an extension of the principle of good-neighborliness affirmed in the Corfu Channel case.(112) There the International Court of Justice noted that the principle of sovereignty embodies the obligation on a state "not to allow knowingly its territory to be used for acts contrary to the rights of other States."(113) Furthermore, the Arbitral Tribunal in the Lac Lanoux arbitration(114) reaffirmed that a state has an obligation, when exercising its rights, to consider the interests and respect the rights of another state.(115) Moreover, in dicta, the opinion suggested that transboundary water pollution may be prohibited.(116) Today, the prohibition of transboundary pollution likely to cause significant harm to the environment of other states or to areas beyond the limits of national jurisdiction is accepted as an obligation upon all States(117) and may be considered as a rule of customary international law.(118) A majority of international law scholars agree on the validity of this rule.(119) Moreover, state practice regularly confirms its acceptance.(120) B. Principle 21 of the Stockholm Declaration In 1972 the U.N. held the Stockholm Conference on the Human Environment.(121) The Conference form enacted three nonbinding instruments: a resolution on institutional and financial arrangements, a Declaration on the Human Environment listing 26 Principles, and an Action Plan with 109 recommendations.(122) A great success,(123) the Conference was pivotal in the development of international environmental law.(124) Indeed, the rise of modern international environmental law is due in large pan to the Stockholm Declaration.(125) Although the Stockholm Declaration did not seek to formulate legally binding provisions,(126) but to provide inspiration and guidelines for the governments and peoples of the world,(127) it was regarded as a "first step" in establishing the basic rules of international environmental law.(128) This paper will focus on Principle 21 of the Stockholm Declaration, which formally recognizes the relationship between permanent sovereignty over natural resources and responsibilities for the environment.(129) In demonstration of that relationship between sovereignty and responsibility, Principle 21 dictates that 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 firsts of national jurisdiction.(130)

3 Thus, even the "environment-supporting" 1972 Stockholm Declaration recognizes each nation's sovereign right to exploit its own resources pursuant to its own environmental policies.(131) Because of the several U.N. resolutions accepting the principle of permanent sovereignty over natural resources,(132) the Conference intended from the outset that the Stockholm Declaration should include this principle.(133) However, Principle 21 linked a state's right to exploit its natural resources to its obligation to ensure that activities within its jurisdiction or control do not cause damage to the environment of other states.(134) As such, it reformulates the traditional principle sic utere tuo ut alienum non laedas (use your own property so as not to injure that of another).(135) By acknowledging "[t]he right of a state to exploit its own natural resources and its duty not to cause harm to others or to places outside of its territory" in the process,(136) Principle 21 attempts to balance a state's rights and responsibilities.(137) It is noteworthy that proposals to delete the language imposing an obligation to preserve the environment were rejected.(138) Those proposals were based on the argument that the exercise of sovereignty cannot be subject to qualification or limitation.(139) Thus, Principle 21 not only accepts the principle of permanent sovereignty over natural resources,(140) it also recognizes a limitation on that right in order to prevent transbound environment harm.(141) Although the wording of Principle 21 does not explicitly limit the obligation not to cause transboundary pollution to cases of serious consequence, such a limitation is implicit in the balance between a state's right to use its natural resources and its responsibility not to cause damage outside its territory.(142) As a result, not all detrimental transboundary effects arising from the use of natural resources should be prohibited.(143) At least four conditions must exist to prohibit transboundary pollution: The harm from the pollution 1) "must result from human activity"; 2) "must result from a physical consequence of the causal human activity"; 3) "must cross national boundaries"; and 4) "must be significant or substantial."(144) Principle 21 does not solve the problem of transboundary pollution because it does not define when a certain damage reaches the threshold of significance.(145) Furthermore, Principle 21 will be insufficient to solve a dispute over an environmental harm that reaches a certain degree of complexity.(146) Therefore, Principle 21 does not constitute an "ideal normative yardstick."(147) To effectively diminish and prevent transboundary pollution, "more detailed rules have to be worked out and mechanisms for their implementation have to be created."(148) However, the principle of departure is certainly not void of any legal meaning, as it at least sets some ultimate limits beyond which a state causing transboundary pollution cannot cross.(149) Furthermore, the more egregious the external environmental effect, the less persuasive is the polluting state's invocation of its right to freely use its natural resources.(150) Nonetheless, the Stockholm Conference succeeded in establishing the basic rules of international environmental law.(151) Soon after the Stockholm Conference, Principles 21 and 22 of the Stockholm Declaration were expressly adopted in U.N. General Assembly Resolution 2996 (XXVII).(152) The General Assembly recognized those principles as the basic rules governing the international responsibility of states with regard to the environment.(153) Principle 21 now reflects a general rule of customary international law.(154) The potential significance of Principle 21 in the environmental field has even been compared with the significance that the Universal Declaration on Human Rights has come to have with respect to human rights.(155) C. Principle 2 of the Rio Declaration

4 In 1992, twenty years after the Stockholm Conference on the Human Environment, the United Nations convened the Conference on Environment and Development in Rio de Janeiro.(156) This conference produced the Rio Declaration on Environment and Development,(157) widely seen as a successor instrument to the earlier Stockholm Declaration.(158) The Rio Declaration, which is a statement of principles or goals,(159) reaffirmed Principle 21 of the Stockholm Declaration with one addition: Principle 2 of the Rio Declaration declares, while reaffirming the responsibility not to cause damage to the environment of other states or areas beyond the limits of national jurisdiction, that the states have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies."(160) This reference to developmental policies is a consequence of the "Rio paradok": The challenge to My andindissolubly integrat[e] environment and development because development and environment must be one."(161) The addition of the phrase "and developmental" is interpreted in different ways. Some authors understand it as a purposeful shift ... in the direction of the development side of the environment/development debate."(162) A lost sense of urgency regarding environmental considerations flows from the entire Declaration's emphasis on equity, distributional justice, and the resolution of competing policy concern arising out of North-South tensions.(163) Otherscriticize Principle 2 as "turn[ing] the clock back from Stockholm" because "the right to a wholesome environment embodied in the Stockholm Declaration was abandoned in favor of a right to development."(164) The Conference thereby weakened the obligation not to cause transfrontier damage.(165) Moreover, some suggest that the addition of these two words reveals a "skillfully masked step backwards," which by its stronger emphasis on development, upsets the delicate balance struck in Stockholm between the sovereign use of natural resources and the duty of care for the environment."(166) On the other hand, the inclusion of the developmental policies in the definition of a state's right to use its natural resources may also be seen as an extension of the scope of the obligation not to cause transfrontier damage.(167) This parallels the preserved responsibility not to cause damage outside a state's own territory.(168) Under this interpretation, not only national environmental policies, but also national development policies are subject to the duty not to cause transboundary pollution. This seems to be closer to the wording and aim of Principle 2-that sovereign rights and duties are two sides of the same coin and "cannot be analyzed separately."(169) Even if the Rio Declaration does not represent a bold advance, it still is an important step forward and a "careful andincremental improvement on the Stockholm Declaration."(170) Thus, the principle that a state has an obligation not to cause significant transboundary environmental damage is accepted as a rule of international law. Both Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, while recognizing a state's sovereign right over its natural resources,reaffirm this obligation. However, the second part of Principle 21 does not reflect a new obligation on states' sovereign right to exploit domestic natural resources. Rather, as shown below, it has always been accepted that a limitation is inherently included in the notion of sovereignty.(171) IV. Relationship Between the Two Principles A. Permanent Sovereignty over Natural Resources Is an Economic Concept As shown above, the concept of permanent sovereignty over natural resources was originally articulated during the colonial period in response to the perception that inequitable and onerous arrangements had been imposed upon unwary and vulnerable governments.(172) Formerly colonized states invoked the concept to

5 support the nationalization of foreign enterprises engaged in the exploitation of natural resources and to resolve the question of compensation.(173) Consequently, "discussions on the principle of permanent sovereignty over natural resources were marked by a sharpening conflict of interest between capital exporting and capital importing countries."(174) Recognizing that the trend towards economic interdependence might have resulted in new forms of subordination and dependence,(175) developing countries asserted sovereignty over their natural resources during their struggle for political self-determination and economic development.(176) They argued that sovereignty over natural resources is an essential prerequisite for economic independence and development and therefore a cardinal component of state sovereignty.(177) Thus, in order to safeguard their economic sovereignty, the developing countries extended the principle of nonintervention to the economic field by claiming the right to possess arid freely dispose of their natural resources.(178) Emerging from this "economical decolonization,"(179) the notion of permanent sovereignty over natural resources is aimed against the freedom of treaty and the principle pacta sunt servanda ("contracts (treaties) are to be kept).(180) The notion is "opposed to the structures of economic domination of the present international system ... and it aims to combat the egoism of a group of (developed) States."(181) Its essence is the promotion of national independence and economic self-determination.(182) These characteristics especially make the principle "initially acceptable."(183) Permanent sovereignty is an economic concept dealing with the economic rights of sovereign nations in their natural resources, with the goal to establish a new international economic order,(184) and may be called "economic sovereignty."(185) The understanding of permanent sovereignty over natural resources as an economic concept is underlined by the fact that the U.N. study, The Status of Permanent Sovereignty over Natural Wealth and Resources,(186) deals only with questions concerning economic rights, concessions, and nationalization.(187) The content of the U.N. study shows that discussion regarding this principle focused, as does much of the relevant legal literature,(188) on economic aspects, on the relation between capital exporting and capital importing countries, and mainly on questions concerning foreign-owned properties, such as compensation.(189) Chapter One of the study analyzes national measures affecting the ownership or use of natural resources by foreign nationals or enterprises.190 Chapter Two addresses international agreements affecting the foreign exploitation of natural resources.(191) Chapter Three considers the responsibility of states in regard to the property and contracts of aliens.(192) Chapter Four discusses the status of permanent sovereignty over natural wealth and resources in newly independent states and in non-self-governing and trust territories.(193) Finally, Chapter Five gives a survey of economic data regarding the status of sovereignty over natural wealth and resources in various countries.(194) With regard to interstate relations, permanent sovereignty over natural resources is a "legal expression of the economic aspect of political sovereignty of states."(195) It is an economic concept dealing with the question of economic rights over natural resources.(196) It emphasizes a state's domestic jurisdiction over the natural resources within its national boundaries, without exempting it from other rules or principles of international law.(197) It can be concluded that the principle of permanent sovereignty over natural resources is essentially intended to deal only with economic questions. Thus, it does not interfere with duties and obligations under general international law. Most notably, there is no conflict with the obligation not to cause transboundary pollution. B. Permanent Sovereignty over Natural Resources Is

Inherently Limited The concept of permanent sovereignty over natural resources emerged as "a basic constituent of the right to self-determination"(198) as well as "an essential and inherent element of state sovereignty."(199) Because an element of sovereignty cannot give more rights and liberties than sovereignty itself, permanent sovereignty over natural resources -- as an element of both the right of self-determination and the right of state sovereignty -- is subject to the same limitations as these two basic principles.(200) The principle of state sovereignty, as developed by its architects, is not absolute or without limits.(201) Jean Bodin, a main architect of the modern theory of state sovereignty, subjected sovereignty to the law of God and the law of nature.(202) Grotius rejected the "reason of state" principle,(203) subjected thetotality of international relations to the rule of law,(204) and concluded that sovereignty is limited by natural law and positive international law.(205) Oppenheim noted that independence is not boundless liberty for a state to do what it likes without any restriction whatsoever.(206) The fact that a state is a member of the family of nations restricts its liberty to act with regard to other states because it is bound not to intervene in the affairs of other states.(207) Thus, Sovereignty does not mean unlimited freedom.(208) Professor Ian Brownlie enumerates three corollaries to the principles of sovereignty and equality of states: 1) a state has prima facie exclusive jurisdiction over a territory and the permanent population living there; 2) a state has a duty of non-intervention in another state's area of exclusive jurisdiction; and 3) a state has further obligations, subject to "the dependence of obligations arising from customary law and treaties on the consent of the obligor."(209) The secondcorollary clearly indicates the duty of every state not to commit any act that constitutes a violation of another state's independence, or territory or personalsupremacy -- a duty that is "correlative to the corresponding right possessed by the other State."(210) The concept of sovereignty not only gives rights, but also includes the duty to respect the sovereignty of other states. Thus, the concept of sovereignty acts as an instrument to protect the weak from more powerful aggressors, thereby contributing to international order.(211) It is even suggested that sovereignty's most useful and prominent function is delineation and that it is a cardinal virtue of the concept to allocate not only authority, but also responsibility.(212) Thus, the sovereignty of the state itself limits a state's ability to infringe upon the sovereignty of another state.(213) The same can be said about the right of self-determination, which also must be respected by all states.(214) Thus, both the principle of sovereignty and the right of self-determination inherently assign not only rights, but also obligations. Sovereignty includes a correlative duty to respect other states' territorial sovereignty and supremacy.(215) The duty to respect another state's territorial supremacy prohibits a state from violating the territorial supremacy of foreign states.(216) Territorial supremacy, like independence, may not give an unlimited freedom of action.(217) No state is allowed to change the natural conditions of its own territory if that change would harm the natural conditions of aneighboring state.(218) The duty to respect another state's territorial supremacy therefore prohibits a state from acting in violation of another state's territorial supremacy even if such actions normally would be within its competence.(219) Thus, even a state having exclusive use of a particular natural resource isobliged not to misuse or overuse that resource in a manner that would damage the environment of other states.(220) This principle of good neighborliness, which can be traced to the Roman law maxim of sic utere tuo ut alienum non laedas(221) (use your own property so as not to injure that of another), underlies the formulation of the International Court of Justice that the principle of sovereignty embodies "the obligation of every state not to allow its territory to be used for acts contrary to the rights of other states."(222)

This inherent limitation should be recognized as a factor limiting the permanent sovereignty over natural resources as well. Permanent sovereignty over natural resources generates a corresponding duty to recognize and respect other states' sovereignty over their natural resources(223) and it thus includes the duty to avoid actions which are contrary to the similar rights of other states.(224) Therefore, permanent sovereignty cannot be an absolute or boundless right.(225) Rather, it is a legal response created by the progress of international law to frame the necessary replacement of arrangements for the exploitation of natural resources which were adopted during colonization by more equitable arrangements.(226) Therefore, permanent sovereignty over natural resources not only gives to each state the right to use its natural resources in the interest of its development and of the well-being of its people,(227) it also requires observance of this right by all other states.(228) Thus, the principle of permanent sovereignty over natural resources is not only consistent with the obligation to avoid causing harm to the resources of other states, but this obligation is also an important element of the principle. C. U.N. Resolutions and the Limitation of Permanent Sovereignty over Natural Resources by Other Rules of International Law The preceding subparts have shown that the principle of permanent sovereignty over natural resources is an economic concept that does not limit obligations established by the rules of general international law and that every sovereignty inherently includes a limitation. This subpart will examine several U.N. General Assembly Resolutions and show that those resolutions that establish or reaffirm the principle of permanent sovereignty over natural resources include specific formulations indicating that the principle is not an absolute concept but is limited by the duty to respect the interests of other states. United Nations General Assembly Resolution 626 (VII),(229) one of the earliest resolutions on the subject,(230) recognizes that "the right of people freely to use and exploit their natural wealth and resources is inherent in their sovereignty," and includes a limiting duty on states "to refrain from acts, direct or indirect, designed to impede the exercise of the sovereignty of any State over its natural resources."(231) This formulation not only underlines the right of a state to exercise sovereignty over its natural resources, but also indicates that U& right inherently bears upon the correlative duty to respect the sovereignty of the other states over their natural resources. Later, United Nations General Assembly Resolution 1515 (XV)(232) again declares that "the sovereign right of every State to dispose of its wealth and its natural resources should be respected in conformity with the rights and duties of States under international law."(233) It thereby explicitly links the rights emanating from this principle and the corresponding duties under general international law. General Assembly Resolution 1803 (XVII), often considered a restatement of present-day customary international law,(234) clearly indicates that permanent sovereignty does not give an unlimited right.(235) Instead, it declares that "[t]he free and beneficial exercise of the sovereignty of peoples and nations over their national resources must be furthered by the mutual respect of States based on their sovereign equality"(236) and violation of the sovereignty over natural resources is "contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace."(237) Even the Charter of Economic Rights and Duties of States, proclaimed by U.N. General Assembly Resolution

8 3281 (XXIX),(238) includes several limits to the principle of permanent sovereignty over natural resources. The Charter underscores the aim to protect, preserve, and enhance the environment.(239) It subjects economic, political, and other relations among states to the principles of sovereignty and territorial integrity.(240) Furthermore, it cars on states to use and exploit those natural resources shared by two or more countries in a manner that avoids damage to the legitimate interests of others.(241) Finally, it explicitly declares that all states have 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.(242) Thus, even this Charter, often criticized as favoring the interests of the developing countries,(243) includes in the principle of permanent sovereignty over natural resources the duty to respect the interests of other States and the obligation not to cause transboundary pollution. This short overview of U.N. resolutions establishing and reaffirming the principle of permanent sovereignty over natural resources shows how these instruments refer to other rules of international law.(244) Permanent sovereignty over natural resources supports the domestic jurisdiction of states with regard to the natural resources within their boundaries, while not exempting it from the application of other rules or principles of international law.(245) V. Conclusion This Article commenced by positing whether a conflict exists between the principle of permanent sovereignty over natural resources and the obligation not to cause transboundary environmental damage. These two concepts, both accepted as basic rules of international law, seem to represent two fundamental objectives pulling in opposite directions. Despite that appearance, however, this Article has demonstrated that the two principles are not contradictory; in fact, the obligation to prevent transboundary environmental damage is inherently included in the idea of sovereignty. The principle of permanent sovereignty is limited in three respects: First, the principle of permanent sovereignty over natural resources is an economic concept because it expressly deals with economic rights over natural resources. That economic character, however, limits the principle because it must yield to the duties and obligations established under general and, in particular, environmental, international law. Second, permanent sovereignty over natural resources is based on the notion of sovereignty and the right of self-determination. Both principles inherently include a limitation to respect other states' rights to sovereignty and self-determination. Permanent sovereignty over natural resources includes the same limitation. One element of this limitation is the obligation not to cause transboundary environmental damage. Finally, those United Nations General Assembly resolutions that establish or reaffirm the principle of permanent sovereignty over natural resources indicate that the principle is not an absolute concept. Rather, it is limited by the duty to respect the interests of other states. Thus, neither the principle of permanent sovereignty over natural resources nor traditional principles of state sovereignty condition environmental rights and the obligation not to cause transboundary pollution. However, the obligation not to pollute across political borders inherently conditions and limits permanent sovereignty over natural resources. Every country not only has the right to permanent sovereignty over its natural resources, it also has the duty to recognize and respect the rights of other states. Implicit in such recognition is the corresponding duty not to act in any manner that would deny those rights or impair their exercise.(246) In other words: The principle of permanent sovereignty over natural resources requires each state to respect all other

9 states in the use of their natural resources, which inherently includes the obligation not to cause transboundary pollution.

The prevention principle is the fundamental notion behind laws regulating the generation, transportation, treatment, storage, and disposal of hazardous waste and laws regulating the use of pesticides. The principle was the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal dumping.