In this article, Siddharth Jain discusses the concept of Transboundary Harm in International Law.
That large scale modern, agricultural, and technical activity, directed in the domain of one nation, can cause adverse impacts in the region of another nation or to territories of the worldwide commons is in no way, shape or form a novel issue in international law. Such transboundary harm has offered ascend to various speculations of State obligation, concentrating on remedial principles.
Transboundary Harm
In the midst of the overall interest for expanded environmental security, international law specialists, scholarly and practicing, have again raised the subject of transboundary harm, encouraging progressively and stricter guidelines of worldwide risk for the “insurance of the environment”. Some contend that strict liability (liability without proof of fault on the part of the actor) should be recognized as a general principle of international law, applicable to all transboundary damage cases, as already accepted by many national laws and as adopted by some international treaties. But actual practice, as witnessed in the aftermath of the Chernobyl nuclear catastrophe, has not sustained such normative claims.
The discrepancy between theory and practice raises basic questions. First of all, as the tragedy of the Chernobyl accident unfolded, international lawyers asked what kind of responsibility a State should bear under international law to prevent and remedy damage caused to other States. If the law is to impose strict liability on States, what legal mechanisms are required? Should these only be specified on an ad hoc basis, in particular contexts, by treaty? Or should customary rules be recognized as applicable on a more general basis, by analogy with the general practice of States at the domestic level in the field of civil liability?[1] Such questions are being raised vociferously as current situations hint the lack of strict rules and the presence of only “soft laws”.
“Transboundary harm” means harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border.[2] In practice, this harm can be easily understood by glancing at the much illustrious Trail Smelter case. Almost all discussions of international environmental law and liability take as their foundation the Trail Smelter arbitration, among the earliest expressions of the principle that a state has responsibility for environmental damage extending beyond its territorial limits.
The Trail Smelter arbitral tribunal stated in dicta that, under principles of international law: “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 person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” This sic utere tuo concept has become the core rule of international transboundary pollution, and is often known (not entirely accurately) as the “Trail Smelter rule” or “Trail Smelter principle”.
Convention on Biological Diversity and the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities 2001
Coming to the legal aspect, strictly confining the scope to transboundary harm, two laws rule this field, namely, the Convention on Biological Diversity and the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities 2001. While the former is forceful for its binding obligation on nation states, the paramountcy of the latter cannot be ignored, owing to the fact that it has been invoked and alluded to in a number of international cases as well as conventions.
Speaking about the Convention on Biological Diversity, it goes well beyond conservation of biological diversity per se and comprehends such diverse issues as sustainable use of biological resources, access to genetic resources, the sharing of benefits derived from the use of genetic material, and access to technology, including biotechnology. Article 1 sets out as the Convention’s three main objectives: (a) the conservation of biodiversity, (b) the sustainable use of its components, and (c) the fair and equitable sharing of the benefits arising from the utilization of genetic resources, leaving the details of law and policy required to achieve these to be subsequently developed, to the extent that this is not already provided for in existing international and regional agreements and national laws.
Article 14 of the same convention provides for the remedial measures and confirmed that environmental impact assessments are now required by general international law, particularly in respect of environmentally harmful activities which may have trans-boundary consequences, in order to meet a state’s obligation to ensure that activities within its jurisdiction and control ‘respect the environment of other States or of areas beyond national control’.
Moreover, the interpretations of the ILC, for “transboundary harm” can be regarded to encompass four major elements namely, first, the physical relationship between the activity concerned and the damage caused; second, human causation; third, a certain threshold of severity that calls for legal action; and lastly, transboundary movement of the harmful effects. In light of national limits, the term ”transboundary” stresses the component of border crossing as far as the immediate or prompt results of the act which the source State is considered culpable.
Major International Issues relating to Transboundary Harm
Coming to the issues related to the transboundary, they may be categorised into substantive and procedural issues. To start with the procedural issues, rules of international environmental law have developed within the context of two fundamental objectives pulling in opposing directions: that states have sovereign rights over their natural resources; and that states must not cause damage to the environment.[3]
The international community continuously witnesses a faceoff between outright territorial sovereignty and Limited Sovereignty. Outright territorial sovereignty, as the name suggests, is the hypothesis that a riparian state has full control over all resources existing in its region, and may use those resources without respect for the impacts on the downstream or co-riparian states. As opposed, limited territorial sovereignty is an international law analogous to the Roman law adage sic utere tuo ut alienum non laedas (utilize your property so as not to harm that of another).
Moreover, the substantive issues also ache the international body. As is unavoidable in this style of system arrangement, with expansive targets of especially wide degree, rising up out of exceedingly petulant transactions among spellbound gatherings, the Biodiversity Convention has numerous grey areas. Both its Preambular presentations and its substantive articles are communicated in wide terms, the necessities of which are often additionally debilitated by such extra qualifications. These include such phrases as ‘as appropriate’, ‘as far as possible’, ‘practicable in accordance with particular conditions and capabilities’, ‘taking into account special needs’, ‘likely to’, ‘grave and imminent’, ‘significant’, and such limited requirements as to ‘endeavour’, ‘encourage’, ‘promote’, and ‘minimize’.[4]
So far, it can be safely concluded that there are no substantive rules specific to the transboundary harm, except the ILC Draft Articles, which too have no binding force, thereby making it a part of those “soft law” conventions that are hardly referred back once signed. However, if we scratch to the surface of the ILC Articles, it seems an ideal law framework for transboundary framework, which not only defines the harm within a decent scope but also provides decent remedial measures after such harm has occurred. Moreover, invocation of state responsibility has also been provided in the same draft, making it exhaustive enough to cover all foreseeable situations.
Simply Put – Should strict global risk be forced on States for transboundary harm as a general guideline of international law?
In conclusion, we should maybe return to the exceptionally essential issue which started this examination: should strict global risk be forced on States for transboundary harm as a general guideline of international law? There is no basic ”yes” or ”no” response to this inquiry. Following three decades of legitimate advancement since the 1972 Stockholm Conference, the international group is presently like never before aware of its delicate living conditions, and more prepared to embrace stricter standards of direct for the insurance of its constrained common assets and environment. This motivating advancement likewise shows that transboundary harm is a pragmatic and relevant issue, requiring solid standards and standards, both procedural and substantive.
[1] Xue Hanqin, Transboundary Damage in International Law (Cambridge University Press, 2003, p 2).
[2] Draft articles on Prevention of Transboundary Harm from Hazardous Activities 2001, art. 2(c).
[3] Philippe Sands, Jacqueline Peel and Adriana Fabra,Principles of International Environmental Law (4th Edn.,Cambridge University Press 2017) p 191.
[4] Among others, see the American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the United States (St. Paul, American Law Institute Publishers, 1987), vol. 2, § 601, and comment (c), pp. 103—105.
