ENVIRONMENTAL LAW

INTAN SYAKIERA
AMIRUL RASYIDDIN
MOHAMAD HAIDAR

QUESTION
Negara A, B dan C adalah berjiran. A dan B adalah bersebelahan dan keduanya
dipisahkan oleh sebatang sungai. Manakala had keluasan maritim laut wilayah antara
A dan B sudah ditentukan melalui perjanjian antara kedua Negara tersebut. A dan B
terpisah (dari C) oleh laut lepas bersetentangan dengan Negara C pada jarak sekitar
1000 batu nautika dari laut wilayah A dan B. Pada Disember 2012 yang lalu, Negara A
telah menjalankan satu tembakan percubaan bawah tanah senjata nuklear dan
tindakan ini dibantah oleh Negara B. Setakat ini Negara C belum mengeluarkan
bantahan secara rasmi. Sungguhpun kawasan tembakan tersebut berada 300 batu
dari sungai sempadan antara kedua Negara A dan B, Negara B kini merangka strategi
membawa kes ini untuk pengadilan antarabangsa. Negara C pula pada Februari 2013
yang lalu telah merumitkan lagi keadaan dengan cadangannya untuk melancarkan
percubaan senjata nuclear di ruang angkasa lepas. Negara A dan B mengutarakan
bantahan terhadap cadangan tersebut dan Negara C tetap ingin meneruskan latihan
ketenteraannya di ruang angkasa lepas.
Dengan memahami kepentingan-kepentingan A, B dan C, sediakan nasihat
perundangan yang dapat menyokong setiap posisi tersebut berpandungan kepada
sumber-sumber undang-undang antarabangsa.

OVERVIEW

Proposed
nuclear
weapon test

A
Underground nuclear test

300 miles
RIVER

1000 nautical
miles

ISSUES
1. Whether State B can file a suit against State A for
conducting an underground nuclear weapon test.

2. Whether State C can continue to conduct its nuclear

weapon test for military training even though has
been objected by State A and State B.

Answer: 1st issue

Underground Nuclear Test
Refers toexplosionofnuclear weaponsthat are performed
underground. When the device being tested is buried at
sufficient depth, theexplosion may be contained, with no
release ofradioactive materialsto the atmosphere.

Article 1, Limited Test Ban Treaty 1963

1. Each of the Parties to this Treaty undertakes to prohibit, to
prevent, and not to carry out any nuclear weapon test
explosion, or any other nuclear explosion, at any place under its
jurisdiction or control:
(a) in the atmosphere; beyond its limits, including outer space; or
under water, including territorial waters or high seas; or
(b) in any other environment if such explosion causes radioactive
debris to be present outside the territorial limits of the State under
whose jurisdiction or control such explosion is conducted. It is
understood in this connection that the provisions of this
subparagraph are without prejudice to the conclusion of a Treaty
resulting in the permanent banning of all nuclear test explosions,
including all such explosions underground, the conclusion of
which, as the Parties have stated in the Preamble to this Treaty,
they seek to achieve.

Article 1, Comprehensive Nuclear Test Ban Treaty

1. Each State Party undertakes not to carry out any
nuclear weapon test explosion or any other nuclear
explosion, and to prohibit and prevent any such
nuclear explosion at any place under its jurisdiction or
control.
2. Each State Party undertakes, furthermore, to refrain
from causing, encouraging, or in any way participating
in the carrying out of any nuclear weapon test
explosion or any other nuclear explosion.

Principle 21, Stockholm Declaration 1972

States have, in accordance with the Charter of the United

Nations and the principles of international law, the
sovereign rights over their natural 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.
(Equivalent to Principle 2 of Rio Declaration 1992)

Principle 2 of the Rio Declaration emphasises the good

neighbourliness concept that States are to prevent harm
to the environment of other States.
State sovereignty seems somehow to undergo a
metamorphosis from individual State concern for the
utilisation of its natural resources to embrace a cooperative motif with regard to the interests of other
States.

The ICJ has established in its Advisory Opinion on the

Legality of the Threat or Use of Nuclear Weapons
that States must ensure that activities within their
jurisdiction and control respect the environment of other
States or of areas beyond national control.
For example, in the case concerning the GabcikovoNagymaros Dam, the ICJ held that Czechoslovakia, by
unilaterally assuming control of a shared resource, and
thereby depriving Hungary of its right to an equitable and
reasonable share of the natural resources of the Danube,
failed to respect proportionality which is required by
international law. In this case, environmental effects had
a significant impact on the overall equitable balance.

Principle 15, Rio Declaration 1992

In order to protect the environment, the precautionary
approach shall be widely applied by States according to
their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.

Principle 18
States shall immediately notify other States of any natural
disasters or other emergencies that are likely to produce sudden
harmful effects on the environment of those States. Every effort
shall be made by the international community to help States so
afflicted.

Principle 19
States shall provide prior and timely notification and relevant
information to potentially affected States on activities that may
have a significant adverse transboundary environmental effect
and shall consult with those States at an early stage and in good
faith.

Methods for underground nuclear test

Since 1963, in accordance with the terms of the Limited Test
Ban Treaty, nuclear weapon test must be conduct
underground. Hence, complete containment of all nuclear
weapons tests is a dominant consideration in nuclear test
operations.
1. The most common method is to emplace a test device at
the bottom of a vertically drilled hole.
2. Another method is to emplace a test device within a tunnel
that has been mined horizontally to a location that is
sufficiently deep to provide containment.

Steps to conduct Underground

Nuclear
Test
Step1. Site Selection and Drilling.
The event site must be surveyed, staked, and checked for
cultural and biological resources.
Step 2. Event-Site Engineering and Construction.
Step 3. Device Delivery and Assembly.
For safety reasons, the nuclear device is delivered to the
nuclear test site unassembled.
Step 4. Diagnostic Assembly.
A typical diagnostic canister might be 2 m (8 ft) in
diameter and 30 m (120 ft) long and contain all the
instrumentation required to receive data at the time of

Step 5. Emplacement of the Experiment.

The nuclear explosive and special measurement devices are
moved to the hole and lowered to the detonation position.
Step 6. Test Execution.
After the Containment Evaluation Panel accepts the as-built
design of containment and all preliminary tests are
successful, the nuclear device is ready for detonation.
Step 7. Post-shot Operations.
After the temperature of the cavity has cooled, a post-shot
hole is usually drilled into the point of the explosion in order
to retrieve samples of the debris.

Conclusion
Based on the articles and principles laid down, if State A
is the party to the Limited Nuclear Test Ban Treaty 1963
and Comprehensive Nuclear Test Ban Treaty, and State B
has signed and ratified the treaties, then State B can file
a suit against State A for conducting the nuclear test on
the ground that State A has violated the laws.
However, State B must first investigate whether the
nuclear test conducted by State A fulfilled the
requirements needed to conduct such test and whether
the test has contaminated its environment, where if such
case, then State B is entitled to make a claim for

2nd issue: