Documente Academic
Documente Profesional
Documente Cultură
Aggarin Viriyo*
Recently there has been a growing concern for the environment. A number of
International Conventions and bodies like the International Organisations, the Non-
Governmental Organisation (NGOs) have emphasised significantly that environment
needs to be protected. Similarly the States have reflected this in the domestic
legislations. This concern over the environment can also be seen in case of
Gabcíkovo-Nagymaros Projects (Hungary v Slovakia)1, which was the international
dispute brought before the International Court of Justice (the court). The case
involved the issues surrounding the international environmental law and
international watercourse law were considered. The court was presented with the
opportunity to consider the legal status of principles of sustainable development,
the precautionary principles and the environmental impact assessment.
Unfortunately, the majority of the court declined to do so. However, there was a
separate opinion of Judge Weeramantry, who gave a considerable weight to these
issues.
There will be three parts for discussion; the sustainable development,
the precautionary principle and the environmental impact assessment. This is
because the sustainable development is considered as a major principle in the
international environmental law. Other two principles, which are the precautionary
principle and the environmental impact assessment, are considered as the means of
contribution on the sustainable development. In each of these, the legal status of
each principle under the international law will be examined. The analysis will also be
made from the opinion of the court and the separate opinion of Judge Weeramantry
about the impacts on the development of each principle, which these opinions may
have on.
*
LL.B, Monash University, LL.M. (International and Comparative Law), Monash University, Australia,
Legal Officer, International Trade and Intellectual Property Law Bureau, Office of Council of
State: E-mail: i_needu2@hotmail.com
1 37 International Legal materials 161.
1. Sustainable development
The sustainable development implies two main objectives, which are
environmental protection and economic development. The economic development
can also be referred as a mean of the poverty alleviation.2 Although the poverty
alleviation was not mentioned in the opinion of the court, it is understood that
alleviation could be achieved through the economic development but should be
reconciled with the environmental protection.
While the objectives are regarded as non-hierarchical, they are interdependent
and mutually reinforcing. As the result, it is important to understand the two
practical implications embracing these objectives of sustainable development. Firstly,
in the economic development, there should be a priority to the needs of the people,
especially those who are in poverty.3 Secondly, the implication is based on the
principle of inter-generational equity. It is said that while the present generation is
pursuing the economic development and poverty alleviation, this should not cause
harm to the environment which the future generations will depend upon in order to
meet their needs.4 In other word, although the sustainable development recognizes
the economic development as a mean of achieving poverty alleviation, it limits such
development on the ground of environmental protection for the needs of the
present and future generations.
However, the implications do not mean that the economic development
must be unreasonably restricted as this may cause poverty, especially in the
developing countries. While there is an interest in preserving the environment
because of importance of natural resources for economic development and life on
the earth, there is also an interest in alleviating the poverty through the economic
development. As the result, the sustainable development provides a new way of
development, which assists to achieve both interests.5
The paper will firstly examine the legal status of the sustainable
development by referring to a number of international conventions. Unfortunately,
its status was not discussed by the court. Secondly, it will point to the court’s
complete ignorance to the sustainable development and it will analyse the judicial
2 M. B.M. Alhaji., “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in
Sustainable development” (2003), 16 Georgetown International Environmental Law Review Fall, 31.
3 Ibid 32.
4 Ibid 33.
5 World Commission on Environment and Development, Our Common Future 46 (1987) 4.
reasoning behind this and the impact upon which the court’s decision may have on
the international environmental law. Thirdly, the paper will analyse the dissenting
opinion from Judge Weeramantry on the development of sustainable development.
Finally, the focus will be on other principles namely the precautionary principle and
the environmental impact assessment, which can contribute to sustainable
development. Each will be discussed in a separate heading.
many questions unanswered on this issue. Firstly, while the court acknowledged that
sustainable development is important to reconcile the economic development with
the environmental protection, the court did not clearly examine its legal status
under the international law. Instead the court referred the sustainable development
as the basis of obligation and concept. 12 For example, the court regarded the
sustainable development as a basis for obligating the future conduct of Hungary and
Slovakia in relation to the construction of the dams.13 The aim was to re-shape the
manners, which were previously harmful to the environment. Moreover, the court
regarded the sustainable development a concept to reconcile environmental
protection and economic development. The concept does not however sufficiently
place the great importance on the environmental protection. Therefore it can be
said that as the court expressly considered the sustainable development as the
obligatory basis and concept, the court implicitly rejected the sustainable
development to become part of customary international law.
Secondly, the court did not clearly identify the normative
content of obligations, which the States should take to achieve the sustainable
development. This means that the States need to develop their own practices until
they can reach the degree of certainty to formulate the normative content of these
obligations. Unless such a degree was reached, otherwise there would be an
uncertainty in future approach to sustainable development.14 Finally, the court did
not consider the relationship between sustainable development and other principles
of international environmental law namely the precautionary principle and the
environmental impact assessment.15 The academic works extensively suggest of such
a relationship though. For instance, it is said that the precautionary principle is a
supporting value for the sustainable development.16
12 A-K Afshin and R. R. Donald., “The ICJ and the Danube Dame Case: a missed opportunity for
international environmental law?” (1998), 22 Melbourne University Law Review 519-520.
13 Ibid 527.
14 H. Günther, “Sustainable Development: General Rules versus Specific Obligations” in L. Winfried (ed),
Sustainable Development and International Law (1995) 35.
15 A-K Afshin and R. R. Donald., “The ICJ and the Danube Dame Case: a missed opportunity for
international environmental law?” (1998), 22 Melbourne University Law Review 527.
16 S. Philippe, “International Law in the Field of Sustainable Development: Emerging Legal Principles”
in L. Winfried (ed), Sustainable Development and International Law (1995), 53, 62.
5 Sustainable Development
in International Environmental Law
17 North Sea Continental Shelf (Fed. Rep. of Germany v. Denmark; Fed. Rep. of Germany v. Netherlands)
(1969) ICJ 3.
18 M. B.M. Alhaji., “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in
Sustainable development” (2003), 16 Georgetown International Environmental Law Review Fall, 49.
19 Ibid 49.
6 Sustainable Development
in International Environmental Law
reconcile such conflict. As a result, the sustainable development in this aspect refers
to an ‘intervening principle’, which mediates between the application of the right for
development and the right for environmental protection.20
1.3 The relationship with the precautionary principle and the environmental
impact assessment
The discussion will move away from the legal status of sustainable
development. It is worthy of considering the normative development of other
principles, which relate to the sustainable development. It is understood that there is
a set of principles, which can contribute to the objectives of the sustainable
development through the legal regimes and the decision-making procedures at the
domestic level. These are the precautionary principle and environmental impact
assessment, which will be discussed respectively.
2. Precautionary principle
The court did not take account of the precautionary principle in valuing
the scientific evidence, which showed the risk on the environment. Because it was
unclear that the principle has attained the status of customary international law, the
court implicitly rejected it as the principle of international law. Instead the court
relied upon the other principle particularly the ecological necessity, under which the
strict test of certainty on the scientific evidence was applied. This paper will argue
that firstly the test of ecological necessity adopted by the court is inappropriate and
20 Ibid 45.
21 Ibid 56-57.
7 Sustainable Development
in International Environmental Law
the precautionary principle should replace. Secondly, it will examine the status of
precautionary principle in the international law with the supporting opinion from
Judge Weeramantry. Finally, it will argue that States have shown their practice in
accordance with the precautionary principle and this would contribute to the
achievement of sustainable development.
22 K. Adrianna., “Damming the Danube: The International I.L.C. of Justice and the Gabcikovo-Nagymaros
Project (Hungary v Slovakia)” (1998), 20 Sydney Law Review 616-7.
23 D. Daniel., “The necessity of precaution: The future of ecological necessity and the precautionary
principle” (2002), 13 Fordham Environmental Law Journal Spring, 395.
24 Ibid 395.
8 Sustainable Development
in International Environmental Law
particularly important because the scientific evidence will never be 100% certain.25
Also the court did not specify the category of evidence, which satisfied the test.
We have seen that reliance upon the scientific certainty does not
give the satisfactory result. On the contrary, the application of precautionary principle
can mitigate the high threshold test of scientific certainty for environmental risk. The
precautionary principle concerns more on the graveness of the risk and not its
certainty. 26 The rational is that the graver risk can be perceived and the more
probable consequences on the environment would result. 27 The precautionary
measures to prevent the consequences therefore depend upon the graveness of the
risk. This means that if the risk is sufficiently grave, the scientific uncertainty cannot
allow the development to be implemented or continued.
While the court preferred the imminence requirement for
environmental risk, which could only be satisfied by scientific certainty, the
precautionary principle should have been adopted to resolve the scientific
uncertainty. As the result, it is important to examine the legal status of precautionary
principle.
25 Ibid 397.
26 Ibid 398.
27 Ibid 399.
28 The principle 15 of the Rio Declaration.
29 M. B.M. Alhaji., “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in
Sustainable development” (2003), 16 Georgetown International Environmental Law Review Fall, 64.
9 Sustainable Development
in International Environmental Law
principle is based on the belief that scientific study in predicting the environmental
consequences can be uncertain.30 However, the uncertainty does not mean that
there are consequences on the environment. As a result, the precautionary principle
provides the basis to deal with this uncertainty.
Notwithstanding that the court failed to address the legal status of
precautionary principle, it is suggested that the principle can be qualified as a general
principle of international environmental law. A number of international conventions
have been incorporated with the precautionary principle, under which the States are
obligated to give weighty consideration in evaluating the environmental
consequences arising out of the development projects.31 The state practice may
therefore be inferred. While the States have generated uniform practice in pursuit of
the precautionary principle, there is still need of evidence for opinio juris – the belief
that States are required by the law to do so. Therefore although the precautionary
principle has not become customary international, it has some normative value for
being the principle of international law.
30 Ibid 65.
31 B.L. Ida., “Flushing the Danube: the World Court’s decision concerning the Gabcikovo Dam” (1998), 9
Colorado Journal of International Environmental Law and Policy 401, 424-425.
32 M. B.M. Alhaji., “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in
Sustainable development” (2003), 16 Georgetown International Environmental Law Review Fall, 70.
10 Sustainable Development
in International Environmental Law
33 Ibid 72.
34 Ibid 72.
35 P.L. Erika., “The international obligation to conduct an environmental impact assessment: The ICJ
case concerning the Gabcikovo-Nagymaros Project” (1999), 7 New York University Environmental Law
Journal 317-323.
11 Sustainable Development
in International Environmental Law
the importance of EIA by stating that EIA is a specific application of the larger general
principle of caution.40 As a result, the States are required to undertake EIA prior to
the implementation of projects.
Secondly, since he accepted EIA as the principle of international
law, he implicitly rejected the Articles 15 and 19 of the Treaty as a ground for his
decision.41 Instead he stated that it is a requirement under the international law that
the States undertake EIA for the projects, which may have the adverse consequences
on the environment. This means that regardless of the existence of the obligations
under the Treaty, the States are required to conduct EIA under the principle of
international law.
Thirdly, Judge Weeramantry also stated that the obligations to
conduct EIA must apply to all projects, which may have the adverse consequences
on the environment. These include the projects, which were initiated before these
obligations emerged under the international law. 42 Finally he stated that the
obligations of undertaking EIA as “continual”. He clearly defined that EIA is a
continuing assessment and evaluation until the projects will be completed.43 He
emphasised that the environmental consequences should be given a careful
attention to the ongoing projects. There is a need for a continuous EIA in order to
prevent unexpected consequences on the environment. The EIA, which is completed
prior to the commencement of the projects, may not be sufficient for long-term
evaluation for future on environmental impacts. Therefore the continuous EIA can be
seen as the best safeguard way on the environmental protection.
4. Conclusion
As we have seen, the sustainable development can be set as the standard
of balancing between the environmental protection and the economic development.
The precautionary principle and the environmental impact assessment can be the
valuable principles, which assist in achieving the sustainable development. Because
these three principles have inter-play roles, they are equally important in the
international environmental law. However, the International Court of Justice in
Gabcíkovo-Nagymaros Projects (Hungary v Slovakia) disagreed with this importance.
The court did not consider these principles fully in making its decision, although
there are a number of international conventions and extensive academic writings,
which make reference directly to these principles. The court, therefore, missed an
opportunity to develop the law in this area.
Furthermore, the court foreshadows the future application of these
principles. The court heavily relied on the principle of treaty law instead. It expressed
its unwillingness to suspend the treaty obligations on the ground of environmental
protection because it feared that this may otherwise undermine the sanctity of treaty
law. However, the court’s failure to adequately deal with these principles more
greatly undermined the development of international environmental law.
Nevertheless, there is a dissenting opinion from Judge Weeramantry, who
gave more valuable consideration to these principles. While his opinion may be
criticised, it responded to the recent concern over the environment, which has been
expressed in the international conventions and academic works. Finally, although
these principles have not attained the status of customary law, they have been
developed through the practice of the states. They have been attached with an
element of state practice and have the wide acceptance from the international
community. As a result, they have some normative value in the international law.
Through the practice of the States, the manner at which these principles are
performed would be more certain from time to time. Importantly, as the States have
indicated their significant practice, the element of opinio juris may be also developed
44 M. B.M. Alhaji., “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in
Sustainable development” (2003), 16 Georgetown International Environmental Law Review Fall, 73.
14 Sustainable Development
in International Environmental Law
so that these principles would have the customary status. This largely depends on
the future decision of the court, the international conventions, the international
organisations, academic writings and the international community as the whole.
References
1. International Cases
Gabcíkovo-Nagymaros Projects (Hungary v Slovakia) 37 International Legal
materials 61.
North Sea Continental Shelf (Fed. Rep. of Germany v. Denmark; Fed. Rep.
of Germany v. Netherlands) 1969 ICJ 3.
2. International Documentations
Declaration of the United Nations Conference on the Human Environment
(1972).
3. Text Materials
Günther Handl, “Sustainable Development: General Rules versus Specific
Obligations” in Winfried Lang (ed), Sustainable Development and International Law
(1995).
Afshin A-Khavari and Donald R. Rothwell., “The ICJ and the Danube Dame
Case: a missed opportunity for international environmental law? (1998), Melb Univ L
Rev 22.