Human Rights Views Differing; ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)

1/4 Concerning the 1996 Freeport McMoran excerpted complaint, the initial count of the complaint alleging traditional gross human rights violations– meaning involving unlawful use of force, extra-judicial killings, etc.– is not included. It contained also no third generation human rights claim expressly alleging violation of traditional peoples’ rights to continue to live undisturbed in their current location (but that would have been an anachronism, because that kind of third generation claim only became more common in the early 2000s). But look closely at the two counts included, what might be termed the “international environmental law” and “cultural genocide” counts of the complaint. How would you analyze these counts in terms of sources of law? Do you or do you not think that the lawyers in questions stated a valid cause of action in each of these counts of their complaint? Why do you think the complaint was written that way?

2/4 Recognize that the Norwegian Government Petroleum Fund Ethics Council action is not a judicial determination. Instead, it is documentation in a structured “ESG” or Environment, Social & Governance-based investing process practiced increasingly by certain institutional investors, or at least offered in certain fund choices (although the traditional screens in ESG investing were more aimed at excluding companies in “sinful” industries like tobacco, alcohol and pharmaceutical contraceptives– so religious institutions could invest in accordance with their moral precepts). ESG was in the news late in the Trump Administration due to the US Department of Labor’s then effort to ban ESG investing under its supervision of retirement funds, allegedly because of its perceived impact on fossil fuel companies. We shall revisit ESG in more detail in Unit 5, but be aware that it operates by forcing divestiture of non-compliant investment, with a combined effect in terms of depressing the offending enterprise’s stock price (via sales of stock with fewer major buyers of the stock longer term, because ESG investing is traditionally aimed at institutions), or raising companies’ cost of borrowing. What does this ESG process emphasize, as opposed to the elements of a cause of action in a legal complaint?

3/4 Please analyse again what kind(s) of customary international law and similar claims (meaning more general principles of law, which arguably is more the source of human rights law; forget about any treaty law here) might succeed on Freeport’s facts. Glance at the Freeport complaint again to remind yourself what they are pleading presumably as the legal elements of their individual causes of action reflecting their view of the law (as opposed to the Norwegian Petroleum Fund decision memorandum’s factual conclusions). Then look at two different ways to approach the question of what the customary law might be in the Freeport case, understanding it as a “sources of law” question. Here please compare the 1997 CIEL white paper arguing for a broad interpretation of international environmental law, versus the Flores case’s treatment of a cause of action. How do you think the Freeport complaint would be adjudicated employing the CIEL approach versus under Flores’ approach? Now, what is your suspicion, do most other countries around the world follow Flores’ relatively conservative US-style sources interpretation, versus whether other countries’ courts might accept something closer to the CIEL analysis? Is the CIEL analysis really just a rewarmed third generation human rights analysis based upon a right to development as Dr. Marks discussed?

4/4 Now come two hypothetical problems addressing legal risk management, to be assigned to two different groups to resolve and report back. The first addresses monitoring potential foreign actions via the Corporate Legal Accountability Portal, and the second addresses the legal travails of a single company, Royal Dutch Shell, over time as it was pursued in litigation in different countries concerning its Niger River Delta operations in Nigeria. What is going on here?

• Monitoring Potential Foreign Litigation Problem (Potential Foreign vs US Litigation)
• Whatever Happened to the ATCA Shell Litigation? (Actual Foreign vs US Litigation)

Copyright 2020–21 © David Linnan.

Human Rights Views Differing; ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)

Now let us change gears in moving from Unit 3’s more theoretical exploration of rights-based approaches to a preliminary examination of the wisdom of employing human rights law claims. and similar approaches in domestic and foreign courts as a means to address international environmental law concerns. Recognize the traditional lack of litigation fora to challenge environmental and development policy choices of most countries in the international environmental law areas, with sovereign immunity being the least of prospective litigants’ worries. Beyond issues concerning what the law was, from an interested NGO perspective, the biggest practical concern was finding a judicial forum in which to press legal claims in an attempt to develop the law. The technical requirement was for something like a “universal jurisdiction” statute in public international law terms, of the kind employed against piracy and slavers in the 18th–19th centuries.

1/4 So modern litigation was originally pursued as part of the general revival of the 1789 Alien Torts Claim Act (ATCA) from the 1980s through the early 2000s following Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir 1980), which has now been substantially cut back by the US Supreme Court in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), followed by Jesner v. Arab Bank PLC, 138 S. Ct. 1386 (2018).

2/4 The pattern case typically involved a situation in which a multinational corporation would make a multi-billion dollar natural resource investment tied to petroleum or mineral deposits in the backcountry area of a developing country, relations would then deteriorate with local indigenous peoples because over time exploitation of said mineral deposit or oil and gas would seriously damage the local habitat on which the indigenous peoples depended for their livelihoods. At this point threatening incidents and conflict typically occurred (such as damage to jungle pipelines or bow-and-arrow attacks on maintenance crews), leading to the country’s police or armed forces being called in to restore security, at which point the security forces would get out of hand, and gross human rights violations would occur (unlawful killings, woundings, burning of indigenous villages, etc.). At that point, typically via the local branch of an international NGO, the local indigenous peoples would acquire (foreign) legal representation in order to pursue ATCA and related claims in US federal court, so long as personal jurisdiction could be obtained over the multinational corporate defendant. In practice, the same fact patterns might become the subject of different substantive legal claims (via different counts in the same complaint) to test out applicable claims concerning international environmental law, meanwhile it was always clear that traditional gross human rights violations were cognizable as a matter of law. The real legal question was whether the foreign investor could be held legally responsible for excessive actions committed by a foreign sovereign government’s police or armed forces, but which benefited the foreign investor in a practical sense.

3/4 There was high consciousness of the ATCA in the sophisticated corporate bar since the early 1990s, and it became a staple of the white collar criminal practice in many large law firms (alongside the Foreign Corrupt Practices Act). Practically speaking, however, for multinational corporations the problem remains that even while the Supreme Court has cut back on US ATCA jurisdiction, foreign jurisdictions are increasingly entertaining public international (environmental) and human rights law claims resembling the 1980s-early 2000s ATCA challenges. Consider this a forum shopping kind of issue. So it remains important for students to understand the international law (interpretive) character of those challenges, because the client’s general or corporate counsel may need a clearer understanding up front of the client’s exposure in multiple jurisdictions, better than the litigators hired only for local litigation. And here some foreign jurisdictions’ wider legal views of human rights (e.g., second and third generation rights) and potentially international environmental law eventually may come back to haunt those who might have become US litigants once upon a time. In the course of 30+ years of ATCA jurisprudence, the chief result in American law was to articulate in the federal courts a relatively narrow view of permissible substantive human rights and environmental law claims. Similarly, concern exists about other countries’ potentially broader interpretations of public international law doctrine generally, particularly in the area of claims based upon “complicity” of foreign investors in human rights violations committed by police and the armed forces of a foreign country (which is analogous to, but different from, the parallel of accessoryship in traditional criminal law).

4/4 The ATCA litigation circa 1995–2013 in turn sparked a reaction on the side of corporate defendants in the form of private industry sectoral codes, in effect trying to articulate “best practices” in their conduct and foreign investments as a proactive response to the ATCA litigation, but also to address wider reputational and similar damage with capital markets consequences, which approaches we review here and in more detail in Unit 5.

Copyright 2020–21 © David Linnan.

Human, Development & Other Rights-based Legal Approaches to International Environmental Law?

1/5 Read first the philosophically and comparative law oriented material at

a. “The Deep Ecological Movement: Some Philosophical Aspects”. Arne Naess. Philosophical Inquiry vol.8 pp. 10-20

b. Sagasti, Francisco R. and Michael E. Colby. “Eco-Development and Perspectives on Global Change from Developing Countries” in Global Accord:Environmental Challenges and International Response. Ed. Nazli Choucri. Cambridge; The MIT Press, 1993.

c. Bundesverfassungsgericht (BVG) Order of the First Senate of 24 March 2021 (German Federal Constitutional Court order on the failure to adopt suitable legislation and measures against climate change–  a longish decision, so everyone should read the headnotes, and we shall assign a group to study and report back on the entire decision). 

2/5 Read for a representative general third generation rights approach Prof Stephen Marks, “The Human Right to Development: Between Rhetoric and Reality” 17 Harvard Human Right Journal 137 (2004) (NB—note that Marks is actually a medical doctor and public health scholar; the global public health people all rely ultimately on second or third generation ideas about a human right to health or life– listen closely in public health and vaccine discussions of the current COVID-19 pandemic, and you probably will hear some references to rights to health or rights to life, as the public health sector has seemingly adopted rights-analysis to address the issue of the guaranteed delivery of quite often expensive medical services; similarly, gun violence and related deaths may now be included in public health analysis under a rights-based narrative)

3/5 Please reread from the rights perspective the initial international environmental law UN declaration approach the 1972 Stockholm Declaration on the Human Environment as the modern beginnings of international environmental law.

4/5 Read as a bridge between the 1972 Stockholm Declaration era and 1992 Rio Declaration, concerning the Brundtland Report and its critics World Commission on Environment and Development. “From One Earth to One World: an Overview by the World Commission on Environment and Development”. From Our Common Future. New York; Oxford, U.P, 1987. pp 1-23 (note that the Brundtland Commission document, predating the 1992 Rio Conference by five years, is the first time “sustainable development” appears in the upper reaches of the developing international environmental law narrative)

5/5 Then read the 1992 Rio Declaration on the Environment and Development and again the 2002 Johannesburg Declaration on Sustainable Development, recognizing the progression in terms of the various UN meetings from 1972 Stockholm to 1992 Rio to 2002 Johannesburg. How would you describe them in legal terms?

Copyright 2020–21 © David Linnan.

Human, Development & Other Rights-based Legal Approaches to International Environmental Law?

1/5 Concerning the broader rights views like deep ecology and eco-development, ask yourself the following questions:

a. How might “deep” versus “shallow” ecology fit into international environmental law in terms of protected interests (do we have any PETA members in the class?), and what or whose rights seem to be at stake?

b. How might the various stages or levels of eco-development graduated interests (see the Sagasti and Colby Table 5.1 at p. 186-9) fit into international environmental law in terms of protected interests?

c. If views run the gamut from frontier economics to deep ecology, how further do the cited views of the environment work themselves into property law or other protected interests also in domestic law, so what seems to be the hidden rights analysis there (think of current mask wearing disputes in the midst of a pandemic as verging on something close to frontier economics in mask-wearing rights-analysis)?

d. What, if at all, do the above have to do with the “sovereignty” basis of the customary law from which we started our investigation (remember Trail Smelter)?

e. What, if at all, do you think is the domestic law effect of the human rights approach, also in climate change terms, on the example of a social democratically oriented constitutional order like Germany? “Drittwirkung,” or “effect on third parties,” is the technical legal term, for purposes of googling, and human rights are “Grundrechte,” for those attempting a more ambitious googling exercise, via translation software.

2/5 After reading the Marks article on the human right to development, go back and reread Dr. Mahatir’s speech to the developing country government officials in the Unit 1 readings. Was Dr. Mahatir articulating a formal right to development as a legal right or claim, or was he just complaining as a political matter about untoward political shenanigans by perceived political opponents? The difference is that given the proper forum, a legal right presumably can be asserted, meanwhile political demands are the subject of negotiation, where a resolution might never occur. So what do you make of such a distinction, since this is where it matters whether jurists from different countries may differ over legal recognition of second and third generation human rights?

3/5 Now that you have read and reread the 1972 Stockholm Declaration, the 1992 Rio Declaration, and the 2002 Johannesburg Declaration, how would you analyze them in terms of whether they are asserting first, second, or third generation human rights claims in the context of the “human environment,” and what again is the “environment”? Are they statements of aspiration, or are they claims of right, and does it matter from the perspective of developing international environmental law? Do the UN conference declarations reveal any development over time in legal or political terms, and where do you think that comes from? By the way, how would you describe the character of the conference declarations in source of law terms?

4/5 The membership of the Brundtland Commission consisted largely of former Northern European politicians (Gro Brundtland was the former prime minister of Norway) and various developing country politicians who were brought together more or less via the UN, so it was a gathering more like that at Dr. Mahatir’s pep talk in advance of the 1992 Rio Conference, rather than a technical committee. They did officially create the “sustainable development” concept, although ever since there have been questions at a certain level that would tie into the general idea of economic development pursued by developing countries. “Sustainability” is a catchword now, but, these days, are we now looking at sustainability the same way as the late 1980s-early 2000s, when sustainability linked directly to “development”? Does the Brundtland Commission really buy into the idea of a “right to development” in the third generation rights sense, or was “sustainable development” intended rather as a political argument and outcome?

5/5 Could you please offer a legal definition of “sustainable development” as full-fledged international law concept? The “human environment-economic development” concerns in international environmental law are not new. Instead, they have been with us since international environmental law’s foundation in the early 1970s. Meanwhile, concepts like sustainable development are now being written into treaties, so how much of it would you deem “environmentally” oriented, and how much “economic development” oriented? Do you think the perceived balance is the same within government in the average high income industrialized state (think Germany or the US), versus a middle income developing state (think Mexico or Indonesia)? What might those countries’ differing views and approaches be to a rights-based analysis and approach be to a third generation right claimed to be a “human right to sustainable development”? Can you channel Dr. Marks on that one?

Copyright 2020–21 © David Linnan.

Human, Development & Other Rights-based Legal Approaches to International Environmental Law?

We shall cover two distinct areas in units 3 and 4, both implicitly focused on different sides of the issue whether and how legal concepts like human rights law are employed traditionally in the international environmental law sphere. Unit 3 covers mostly theory, while we shall examine how things have worked in practice when such rights were asserted in litigation.

1/7 Theoretically, rights-based analysis may only be limited by what sources of rights are recognized. For example, deep ecologists would designate human rights as anthropocentric, claiming flora and fauna should have rights too (think of Earth First in political activist terms, compare “Introducing Earth First!” (Rachel Carson Center Environment & Society Portal), or in the university setting perhaps People for the Ethical Treatment of Animals or PETA as a less aggressive version, with “PETA Slams The Offspring for Harmful Chimpanzee Music Video” (PETA news release, 05/14/21). So we also need to look to the question how broadly whose rights claims might be cast, and to recognize the broad diversity of views once we ask the question. Essentially, we look at “rights analysis” in the international law sphere first more typically in a quasi-political process like UN declarations, then separately in domestic courts where (international) human rights law may be pleaded as a source of law. But for us the ultimate shared question is whether this human rights law approach works any better than the customary law approach to articulating workable international environmental law rules.

Remember, you already have seen this kind of human rights approach in practice when Dr Mahatir in his speech just before the 1992 UN Rio Conference fulminated about foreigners egging on the peaceful indigenous (Malaysian) Penans to raise human rights claims about habitat loss in traditional Malaysian forests where they lived. The underlying substantive human rights claim was that indigenous peoples have a right to continue living as they always have hunting and gathering, etc., which cannot be done if their habitat is lost. (This being a third generation group rights claim, which technical designation we cover shortly.) Meanwhile, Dr. Mahatir argued that the foreign environmentalists really did not care about indigenous peoples. Instead, they were just asserting the alleged human rights violation to preserve the tropical forests, which is the kind of instance where human rights and international environmental law may overlap. But does the human rights analysis incorporate any way of balancing indigenous rights against general ideas about economic development like Dr. Mahatir saying in the same speech that developing countries should have the unlimited right to exploit their natural resources like tropical forests?

2/7 For those who have not yet taken a public international law or human rights law introductory course, let us initially explore some basic human rights law concepts. The first involves the doctrinal niceties of human rights law under which human rights law is largely a post-World War II creation in practical terms, despite law professors’ tendency to highlight legal precursors like armed conflict law reaching back into the Middle Ages (under which, for example, putting losing soldiers to the sword after surrender of a castle was prohibited; so no shooting of prisoners in 1947 Geneva Convention parlance). The further roots of human rights law are best understood as natural law (remember “all men are created equal, and are endowed by their creator with certain inalienable rights…”?), but we can put aside the history for the moment.

The way it works technically is that traditionally under the “law of nations” only states participated in the public international law system and were the repositories of all legal rights.

So, for example, under traditional “law of nations” style public international law, individuals were associated with their states via nationality. An injury by a foreign state to a state’s nationals was conceived of as an injury to the state of nationality itself, rather than creating a claim which could be asserted by the individual (so when you read Trail Smelter, it did not matter whether the damaged trees on the US side of the border were privately or publicly owned, because the cause of action was for damage on US territory, which was technically an injury to the interests of the US itself). And concerning who could plead such a claim, only the state of nationality could plead such a claim (because the injury was to the state’s interests; it did not create an international law claim on the individual level). Then human rights law recognized that international law “rights” might reside in the individual rather than only in the individual’s state of nationality, and in parallel the claims were recognized as erga omnes, meaning technically that a state’s erga omnes legal obligations were owed to all states, or at least a sufficient interest existed so that such violations directed against an offending state’s own nationals could be asserted by all states. Under that approach, a third-party state could assert an alleged violation of a (foreign) individual’s “human rights” against his or her state of nationality. (That differed from the traditional rule, because under the traditional law of nations the relationship between a state and its nationals precluded a third party state from asserting against the state of nationality its alleged mistreatment of its own national, because theoretically the only state with a potential claim would be the state of nationality.)

3/7 So under modern human rights law the national of a state is understood to be able to assert an individual international law human rights claim against his or her state of nationality, as well as third party states being able to challenge the violation too. That involves a further bit of jurisprudential legerdemain, because a claim is normally made that human rights law is customary law, but that is accompanied by an assertion typically that human rights law also is jus cogens, meaning that states cannot withhold themselves from customary law formation. So, for instance, a state that has customarily tortured its prisoners since time immemorial, could not claim that it had withheld itself from the reach of customary law’s human rights prohibition on torture through consistent state practice in opposition to the rule in formation. In practice, human rights law is claimed to be customary law, but in terms of how it is handled, appears closer to general principles of law in a jurisprudential sense (and ultimately natural law is probably the real source, with the idea that states could not withhold themselves from natural law principles). That is presumably its attraction jurisprudentially for proponents of international environmental law. First, it might provide a path to overcome sovereignty complications to the formation of universal international environmental law. And second, it seemed to spring from the egg fully grown, instead of being associated with long and consistence state practice (the aspect that its formation was interpreted in practice to work more like a broad view of general principles of law, rather than following traditional customary law formation rules). But does this lead to a clean “parts per million” statement of any law?

How and where could such human rights be asserted? Well, there is a UN human rights institutional system providing for systematic, periodic examination of individual states’ human rights performance (which the US opposes since it would permit embarrassing questions in areas like racial discrimination and gender equality; remember Nicky Hailey as US ambassador taking offense recently at the UN on the basis of such criticism?). There are also by treaty certain regional human rights courts and conventions, such as Inter-American Human Rights Court or the European Court of Human Rights (under the European Human Rights Convention). Further, human rights claims might also be asserted in domestic courts. For example, in the common law tradition, human rights (or natural justice employing the UK terminology) were part of the common law, as was public international law. So US law incorporated it theoretically directly from the common law upon American independence. But the exact scope of human rights claims remains hotly debated in customary law terms. Meanwhile, even rights clearly recognized as “human rights” under regional human rights treaties are often rejected by states not a party to said treaties. So, for example, the European Human Rights Convention recognizes under privacy a “right to be forgotten.” Theoretically, under the EHRC individuals have the right to control their personal information and after some period of time a right to suppression of knowledge of their past misdeeds. So, for example, lifelong branding of an French individual as a convicted sex offender might violate their human rights after they have paid their debt to society (so under the EHRC google may be required to remove from its search lists any damning local newspaper article about a convicted pedophile’s 1980s French conviction on child sexual abuse charges, for which he was sentenced to five years in prison, and which sentence he fully served). Such differing views of human rights clearly has practical effects in the internet age, and the same may be said about the scope of human rights generally claimed to exist under customary law.

4/7 The last bit of general human rights doctrine you need to know is that in the parlance of human rights law we speak of “three generations” of human rights law. The first generation represents civil and political rights, commonly understood as negative rights asserted against a state as a prohibition on the state taking action. As example, the fourth amendment to the US constitution asserts a right that citizens cannot be disturbed in their houses, goods and persons by the government, absent special circumstances. That sounds easy, but as noted above the devil is in the details as with privacy and the right to be forgotten. Meanwhile, first generation rights implicitly assume law’s orientation toward the individual rather than society. For example, Asian societies commonly are perceived as putting much more emphasis on protection of society as a whole, as opposed to of the individual. As a result, in some countries fourth amendment rights might not be subject to the same degree of protection, simply because of the conviction that the government must behave proactively in protection of society (so drug dealers might not have that “reasonable expectation of privacy” that fourth amendment jurisprudence might presume).

5/7 The second generation represents economic and social rights, which require some active promotion or involvement on the state’s part. Economic and social rights tend to be regarded in the US as claims belonging more to the political sphere rather than the legal sphere, except we litigate them commonly under state constitutions. The recent local example of long-running SC Supreme Court litigation involved the state constitutional question whether a right to “free public education” implies that the state has a duty to provide special school funding to upgrade schools in poorer areas, so that the schools in the I-95 “corridor of shame” become as well-resourced as schools in Columbia’s well-to-do Shandon neighborhood? (And the federal constitutional analogue is typically prison overcrowding litigation under the eighth amendment prohibition on cruel and unusual punishment.) The thing to understand from a legal perspective is that Civil Law jurisdictions for technical and historical reasons are much more open to civil and political rights claims than Common Law jurisdictions. (This is both as a technical matter of more theoretical Civil Law interpretation, and because their Civilian public law now supported by modern constitutions may rest upon social democratic ideals.The classic comparative constitutional law question focusing on this issue is whether your local legislature or parliament could simply abolish the crime of murder?  The technical answer is no in a social democracy because the state must embrace the criminal law as the highest order means to protect the highest order legal and social goods like human life.  On the other hand, it may be atrociously bad policy, but nothing similar prevents the abolition of the crime of murder under US views (at most there might be equal protection concerns). Meanwhile, a recent German Constitutional Court Decision applied this approach recently to force climate change legislation, see “Reshaping Climate Change Law: The German Federal Constitutional Court Orders the German Legislator [sic] to Set Clear CO2 Emission Reduction Goals Beyond 2030” (White & Case client letter, 07/14/21)

6/7 The third generation represents “group rights,” such as the claim that indigenous people like the Malaysian Penans have a right to live as they have traditionally, living off the land, with the result that their habitat must be left undisturbed. Another prominent third generation claim involves a “right to development,” which might be understood as asserted by Dr. Mahatir in his speech when he stated that developing countries generally have a right to exploit their forest resources (as opposed to having any legal obligation to leave their tropical forests in place as carbon sinks to avoid climate change). The whole group rights claims dance around the edges of international environmental law, because they typically may be asserted in conjunction with claims for resources also from other states (so what we referred to as the “who pays” question in international environmental law; poorer developing countries typically want richer industrialized countries to pay in terms of technology-transfer for free or at concessional rates for green technology, as under the 2015 Paris Agreement). So the group rights are now associated more with groups than individuals in human rights terms, which makes them malleable in terms of assertion of “rights” in the international law context (for example, groups might consist equally of indigenous peoples like the Penans, or alternatively all the citizens of a developing country). The characteristic disagreements reflected by jurisprudential splits referred to above between Common Law and Civil Law systems carry over from second to third generation rights, only more so. They affect the general recognition of second generation “economic and social rights” human rights claims as judiciable legal rights as opposed to negotiable political claims, but they have led to much sharper disagreements as between second and third generation rights, particularly whenever the third generation claims are novel and asserted on behalf of groups.

7/7 How does this come up in practice? Remember about second and third generation claims, particularly when you read UN declarations connected with international environmental law matters going back to the 1972 Stockholm Declaration (remember the “human environment”?). We asked the question in class already whether various articles in the Stockholm Declaration were accurate statements of the customary law (article 21, in particular). Two jurists from different countries could read the same text, however, and one would perceive valid second or third generation human rights law claims behind the individual articles, while the other might just ask whether article 21 correctly states the Trail Smelter customary law rule formulated under traditional “law of nations” customary law rules emphasizing sovereignty, such as you recently studied in the Trail Smelter, Nuclear Test Case and Lake Lanoux precedents. But stop and ask yourself another question, namely does it make sense that all of the focus in the UN-type documents is on the “human environment,” and what looks like “sustainable development” as something like a third generation right? So why apparently emphasize human rights over sovereignty aspects in the UN context?

Now does this admittedly sophisticated stuff in terms of differing understandings of generations of human rights law come up in practical terms, meanwhile you are just studying or practising law in the US? Well, for the practical view, how do you think multinational corporations deal with the idea that they may have operations in many different countries, and presumably they may be hauled into court in any of those countries? As example, we have the locally incorporated BMW Group Plant Spartanburg as manufacturing entity, but do you think the multinational BMW worries more about US or German law in conjunction with human rights issues (which we shall look into under Alien Tort Claims Act or ATCA develops in Unit 7)? Google was until recently embroiled in litigation before the European Court of Justice in conjunction with the right to be forgotten. And the financial sector is a wonderful example of “local” clients who do business all over the world. So if you interview in Charlotte, ask in-house bank counsel how they deal practically with overseas matters like financing a natural resource project or electricity generation facility in [name your developing country], and whether they can just rely on dispute resolution in the US?

Copyright 2020–21 © David Linnan.

Customary Law as Basis for International Environmental Law?

1/3 Read closely the three following leading precedents which ultimately define the scope of international environmental law obligations outside treaty under traditional customary law:

a. Trail Smelter Arbitration excerpt

b. Lake Lanoux Arbitration excerpt

c. France-Australia Nuclear Test Case excerpt

2/3 Then please read
a. 1972 Declaration of the UN Conference on the Human Environment (commonly known as the Stockholm Declaration), regarded as the foundational document marking the start of modern international environmental law.

b. Handl, “Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) 1972, and the Rio Declaration on the Environment and Development, 1992 (UN Audiovisual Library of International Law, 2012) (Handl is comparing provenance of the 1972 Stockholm Declaration and the 1992 Rio Declaration produced twenty years later at the Rio conference, in preparation for which Dr. Mahatir delivered the pep talk to developing country representatives read for Unit 1; read things with a view to the process Handl describes, asking yourself whether he is describing either or both of the Rio and the Stockholm Declarations as stating customary law, and, if not, what exactly is their character as a matter of international law? We shall eventually read the Rio Declaration, but you need not yet; study it as closely as the Stockholm Declaration.)

3/3 Finally, I assume everyone in class has some recollection of the nuclear reactor meltdown commonly referred to as the Fukushima reactor incident, but the details are important, so for purposes of our subsequent Fukushima problem analysis assigned to one student group, I would like everyone to read the Fukushima Daiichi nuclear disaster Wikipedia entry.

Copyright 2020–21 © David Linnan.

Rotunda is a small Caribbean nation and longtime thorn in the side of its nearby Northern neighbor, the Confederate States of America. Paralleling the CSA’s secession from the United States of America in the mid-19th century, Rotunda left the Spanish Empire at the beginning of the 20th century. In the mid-20th century, Rotunda went communist under firebrand revolutionary leader El Fuerte. The CSA has been at loggerheads with Rotunda ever since. The CSA has attempted to isolate Rotunda. It has no diplomatic relations with Rotunda, whose contacts with the outside world are limited to communist nations in Europe and the invidiously liberal USA. The USA is full of social democrat apologists for Rotunda’s oppressive regime, who also carp about how the CSA’s containment policy is both ineffective and ill-considered as an impingement on Rotunda’s sovereignty.

Rotunda has no significant local fossil fuel energy resources, which lack of energy self-sufficiency is problematic in El Fuerte’s eyes. He is paranoid that the CSA will cut off Rotunda’s access to foreign energy sources and so decides to embrace nuclear energy for national security purposes (since Rotunda has uranium deposits, although its nuclear technology base is rather limited). Rotunda has access to subpar European nuclear reactor technology essentially on a cost-free basis. While no formal offer has been made, El Fuerte believes that, if asked, the USA would be willing to provide its sophisticated nuclear reactor technology to Rotunda on a concessional basis. Rotunda would not even think of approaching the CSA concerning licensing of its similarly sophisticated nuclear reactor technology (because Rotunda perceives the CSA as its enemy). El Fuerte would never allow the CSA to interfere with any prospective energy self-sufficiency program, given that Rotunda is launching the program in reaction to a perceived threat from the CSA.

On May 1, 1995, at the “Heroes of the Revolution” parade, El Fuerte announces to all Rotundans that the nation will embark on a crash program to build reactors to triple its production of electricity by the end of the third five year cycle of Rotunda’s second longterm development plan. He tells cheering crowds that in the name of self-sufficiency Rotundans must finance the actual construction of the reactors, but that, in line with internationalist principles, Rotunda’s revolutionary brothers in Europe will provide their reactor plans free of charge. What El Fuerte does not tell them is that the European reactor plans represent outdated technology (lacking sufficient redundant systems and similar failsafe technology to ensure against dangerous nuclear accidents). As national leader, El Fuerte calculates that the risk of accidents is acceptably low (balanced against the greater threat of CSA-sponsored interruption of fossil fuel shipments to Rotunda, or the painful cuts in social services that would be necessary were Rotunda to divert the limited funds available to purchase safer, sophisticated reactor technology from the USA even on favorable terms). Following the end of the parade, the USA’s ambassador to Rotunda offers El Fuerte technical assistance to help Rotunda construct and operate safer nuclear facilities.

On May 8, 1995, President Helmsley of the CSA appears in Miami to deliver a long-scheduled foreign policy address. Speaking as the CSA’s national leader, he states that Rotunda’s announced construction of nuclear reactors “of outmoded and dangerous design” is totally unacceptable to the CSA. Portions of CSA territory are located within 100 nautical miles of the reactors’ mooted location, including heavily populated resort areas of the Florida Keys. Helmsley states that reactor operations will endanger CSA territory and so impinge on its sovereignty. Rotunda cannot be allowed to construct reactors incorporating safety technology any less sophisticated than that which keeps the CSA’s domestic reactors running safely. Helmsley also states that economic pressure and similar measures directed against Rotunda will be increased in the attempt to hinder reactor construction.

El Fuerte ignores Helmsley’s statements and proceeds immediately with reactor construction. However, he does inquire further on a confidential basis of the USA’s ambassador to Rotunda about the offer of technical assistance concerning reactor safety. When told the price of the necessary technology, even on a concessional basis, El Fuerte exclaims that Rotunda is a poor country because of the CSA’s economic measures against it. If the CSA is so concerned about Rotundan reactors, it can pay the USA directly for sophisticated safety technology to be installed in Rotundan reactors. He, El Fuerte, will countenance that impingement on Rotunda’s plans. He will not agree to the waste of precious hard currency in order that CSA coastal residents might sleep more soundly at night. Let the norte americanos pay for redundant safety measures if they want them that badly, since the reactor constructed employing European safety standards will be in full compliance with Rotundan law. The USA ambassador in Rotunda sends an informal message to that effect to President Helmsley via the CSA’s ambassador in Washington, D.C. President Helmsley rejects the idea out of hand and threatens sanctions against any nation assisting Rotunda in its reactor building efforts.

On May 1, 1996, the first Rotundan reactor is ready for testing. Due to the inexperience of its new operators, a small amount of highly radioactive gas is vented during this initial test phase. The material is blown out to sea in the direction of the CSA, and shortly thereafter radiation monitors in Miami register a marginal increase in radioactivity. The CSA government treats this development as a confidential matter. CSA government epidemiologists calculate that the observed increase in radioactivity will lead to higher longer term mortality from increased cancer rates. However, the end result will be that no fewer than five nor more than twelve additional cancer deaths will result in the CSA from the increased radioactivity. No other negative effects are anticipated, since the increased radioactivity will disappear from CSA territory within three days. Winds will blow the atmospheric radiation away with the passage of time. None of this is made public in the CSA during the period of heightened atmospheric radioactivity over CSA territory.

The incident involving increased danger of cancer deaths is announced on June 1, 1996 by President Helmsley in yet another foreign policy speech in Miami. His speech makes the danger to CSA territory from Rotundan reactors sound so convincing that within 48 hours all vacationers in South Florida have fled. Economists calculate shortterm economic losses to South Florida at no less than $100,000,000. Shortly thereafter, the first Rotundan reactor is placed in full operation generating electricity.

On May 1, 1997 the cooling system in the first Rotundan reactor fails, resulting in vaporization of radioactive material (and resulting leaks). Given the lack of a robust containment vessel, the amount of radioactivity spewed into the atmosphere increases tenfold from the May 1, 1996 accident. Had USA or similar reactor safety technology been in place, no such release of radioactive material would have resulted. Rotunda is aware that the prevailing winds will blow the radioactive cloud towards Miami, but El Fuerte omits to inform the CSA of the accident through diplomatic channels (since Rotunda and the CSA do not maintain diplomatic relations). The CSA eventually learns of the second Rotundan radioactivity leak through a radiation monitoring facility in Miami, which reactor problem is confirmed via discrete inquiries of the USA through the CSA ambassador in Washington, D.C. CSA government epidemiologists calculate that exposure to the new radioactive atmospheric pollution will lead in the longer term to approximately 50 – 120 increased deaths from cancer on CSA territory.

President Helmsley immediately denounces this in a May 8, 1997 public speech as what he calls a “dastardly new threat” from Rotunda. Economists calculate resulting economic losses to South Florida at no less than $1,000,000,000, since now tourists will boycott South Florida in fear for several years. Further, a significant number of South Florida residents leave the area permanently claiming that they do not wish to gamble their lives on any third Rotundan nuclear accident. However, there is indeed a silver lining to everything. The same economists who calculate significant economic losses indicate that, with fewer hard drinking tourists on its roads, traffic deaths in South Florida will fall by 100 – 200 in the longer term (leading to jokes on talk radio drawing parallels to the claim that smoking actually saves money, since what states lose on increased health costs they more than make up for on pension and social security costs saved given increased mortality).

Congratulations on your appointment as a staff attorney in the CSA’s Ministry of Foreign Affairs. You have been asked to write a memorandum of law addressing Rotunda’s liability, if any, for construction and operation of its reactors under customary law principles of international environmental law. Take care to distinguish the several different incidents in your analysis, applying the customary law principles to Rotunda’s facts.

You do not have to concern yourself with any special nuclear treaties or similar sources of law treating nuclear activities as sui generis when writing this tutorial. This hypothetical can be resolved using only the principles articulated in the Trail Smelter arbitration, ICJ Nuclear Tests cases and Lake Lanoux arbitration in your instructional materials along with what we have generally said about customary law in class.

Copyright 2020–21 © David Linnan.

Customary Law as Basis for International Environmental Law?

1/5 The first problem to be prepared and worked by all students is the Rotunda Problem. Please answer this after reading carefully the three precedents, namely Trail Smelter, Lake Lanoux and the France-Australia Nuclear Test cases. Recognize that you are asked to address the problem as a matter of public international law, rather than whether companies or individuals might be subject to suit in a domestic tort disaster lawsuit, etc. This problem is instead about the legal responsibility of and between states under customary international law.

2/5 The three customary law precedents in the readings are all you need to resolve this Rotunda problem, but you need to understand them in terms of how national sovereignty means a sovereign state’s activities on its own territory would normally not be subject to questioning under the customary law (and the state is in effect responsible for controlling private party actions on its own territory, not in terms of an absolute guarantee, but more in terms of reasonable efforts to regulate their behavior and activities, etc.). So traditional ideas of sovereignty entail that a first state is not subject to challenges from a second state for actions on the first state’s own territory. However, theoretically the first state is responsible for prevention of a second state being subject to injury on its own territory resulting from actions or effects on the first state’s territory. The scope of the exact rules balancing sovereignty and state responsibility in legal terms is in the decisions, and the traditional law of nations recognized also areas beyond the sovereignty of any state, with the high seas being the classic example.

3/5 The Daiichi Nuclear Disaster Problem is the second problem, but there we shall assign a group of students to analyze and present this problem. The basic facts involve a nuclear electric generation facility operated by Tokyo Electric Power Company (TEPCO). The electric plant was located in Fukushima as coastal city in a geologically active area. An earthquake caused a local tsunami, which rushed on land and took out the main and back up electric power generators cooling the TEPCO reactors, with the result that the reactors overheated and eventually breached inside their containment buildings. The rest of the sad story can be read in the wiki entry, which all students should read. Bottomline, considerable amounts of contaminated, radioactive material and water flowed into the entire coastal area from the reactors and into the Sea of Japan as a result of tsunami and reactor breach. After Chernobyl, Fukushima is probably the most significant nuclear reactor accident of the modern era. Again, please answer this after reading carefully the three precedents, namely Trail Smelter, Lake Lanoux and the France-Australia Nuclear Test cases. Recognize that you are asked to address the problem as a matter of public international law, rather than whether companies or individuals might be subject to suit in a domestic tort disaster lawsuit, etc. This problem is instead about the legal responsibility of and between states under customary international law.

4/5 What is your group’s opinion also of an indirect question concerning what is the actual legal principle behind Trail Smelter with special reference to the 1972 Stockholm Declaration? Look particularly at Stockholm Principle 21, and ask yourself whether it is an accurate statement of the customary law principle you see articulated in Trail Smelter (and for those of you without any prior background in public international law, understand that the reference to areas beyond the jurisdiction of states traditionally means the high seas, which is itself a term of art under the Law of the Sea (LOS)– so the question is whether radioactive runoff into the high seas is covered, why or why not, at least under customary law (which is the heart of the Fukushima issue). Further on the Stockholm Declaration, I want you to ask yourself what is exactly its legal status as a “source of law” (traditional public international law terminology for from where public international law comes) of something like a UN “declaration,” which is not a “treaty” within the mean of traditional formal “source of law” doctrine in public international law. Instead, it is essentially the closing conference document for a UN meeting of states. So ask yourself whether and why such a declaration either declares or makes customary law? This is asking essentially how do we make customary law in the modern international setting, which question Handl at times dodges in his comparison of the 1972 Stockholm Declaration and the 1992 Rio Declaration. This arguably represents the border between “soft” and “hard” law here, what many think the law should be, versus what the law is (up to the point where you either execute a treaty addressing the problem, or you satisfy the technical rules for the formation of customary law). Other than pedantry, why the focus on formal requirements in customary law formation?

5/5 Finally, for all students, if you look closely at the rest of the Stockholm Declaration, most of it looks more aspirational in terms of “principles” versus what you might call “law,” at least in public international law terms. Then ask yourself one more question looking at the Stockholm Declaration as a whole, namely what is the “human environment,” and is it somehow different from the “environment-environment” as you might understand it under domestic environmental law? So for purposes of international environmental law, what is the “environment” and so how do we conceive of international environmental law, if the Stockholm Declaration is the modern foundational document?

Copyright 2020–21 © David Linnan.

Customary Law as Basis for International Environmental Law?

Let us start with a quick exploration of two doctrinal aspects before turning to the question whether customary law is well-suited to regulation of the kinds of problems we face in modern international environmental law. The first is “sources doctrine” (shorthand for sources of international law), which classical public international law conceived of as the answer how to find definitive statements of international law (and how international law is formed). The second is the concept of “sovereignty,” which can have any number of meanings in the legal context.

1/6 Regarding sovereignty, it is theoretically what renders public international law ultimately consensual. Theoretically, sovereign states are not subject to international law as restraint absent consent, with much theoretical effort then being dedicated to discerning consent. The immediate difficulty for environmental concerns is that, in the absence of binding rules, the tragedy of the commons is to be expected. There are formal tricks in terms of whether sovereignty is vested in individual states, versus being found perhaps in a “community of states.” But formalism aside, the chief issue is reaching agreement in articulating any binding legal rule, as with most of modern international environmental law.

2/6 The classic approach to sources doctrine in the classroom setting is to analyze Article 38(1) of the Statute of the International Court of Justice (ICJ) as its definitive statement, including as sources of international law:

a. Treaties, understood as international agreements among states (and some international organizations) intended to have the force of law (as opposed to political agreements as legally unenforceable undertakings)

b. Customary Law, understood as a general practice accepted as law, formed by consistent state behavior over time under legal compulsion as witnessed by opinio juris (a formal belief that the behavior is required by law, as opposed to perhaps being good politics or policy)

c. General Principles of Law “recognized by civilized nations” (here you recognize the ICJ League of Nations language, pre-post WW II decolonization)

d. Subject to limitations on precedent as such, judicial decisions and opinions of highly qualified academic sources as subsidiary means to determine legal rules

3/6 In practical application, judicial decisions and academic opinion are really just evidence of existing rules, since in public international law judges as a formal matter do not make law as in the common law system. When faced with a determination that a gap in the “law” exists on a given question, the proper technical response is “non liquet,” meaning the case is returned without a judgment because the judges are not authorized to fill the gap in the law as a technical matter. Formally speaking, public international law normally follows civil law principles, and academic sources normally just canvas state practice and agreements to discern rules. So judicial decisions and academic sources are more evidence of the law, rather than anything else, but that does not mean that any law review article or similar academic opinion suffices as authority.

4/6 Treaties are conceptually sound as voluntary undertakings once state parties reach agreement, and treaties are adaptable to rapidly changing circumstances, subject to the idea that states not parties to the agreement are not bound by it. There is also a hidden assumption that reaching agreement is even possible (which may be difficult in the case of states perceiving their essential interests as too divergent). So treaties would be a good way to articulate modern international environmental law in theory, but how to reach the necessary agreement (e.g., difficulties with the 1992 Greenhouse Gas Convention, 28 years-on as a framework convention, judging by US issues with the Kyoto Protocol and Paris Agreement)?

5/6 Customary law assumes state consent, subject to the idea that a state can withhold itself from coverage by consistent opposition to a customary law rule during its formation period. On a technical level, consistent state behavior means undertaking a meaningful action, rather than just voting for or against a resolution in the UN General Assembly. So, for example, the US Navy intentionally sailing ships through parts of the South China Sea is conduct challenging China’s claims to those waters as part of its territorial sea. But merely voting for a resolution or declaration at the UN opposing China’s claims would not constitute state behavior (although it may be evidence of opinion juris). Meanwhile, consistent state behavior does not lend itself well to the kinds of “parts per million” regulatory issues involved in much modern environmental law. But the chief problem in the modern setting is the requirement of consistent behavior over time, when state behavior may differ, and modern environmental problems may require answers in a period of time too short for the traditional formation of customary law.

6/6 The difficulty with general principles of law involves a disagreement about whether such a concept should be interpreted narrowly in terms of administrative-style rules like those you last thought about in civil procedure (such as res judicata), versus a broader concept almost like comparative law favoring recognition of “general principles” if enough states adopt a specific legal practice or rule (for example, in the environmental law area a requirement that environmental impact statements be required for any project needing government approval or permitting, because model environmental law statutes have spread to many countries). The formal advantage of general principles is that there is no formal provision for states withholding themselves from a rule’s coverage, but the narrower approach to general principles seems a better reflection of state expectations. There are more modern expressions of international law like human rights law post-World War II that may be congenial with the general principles approach, but we shall delay their consideration until Unit 3.

So now, let us look at readings containing the leading customary law precedents in the international environmental law area, then apply them to a few hypotheticals to see whether existing customary law, much less future customary law, might serve well as the basis for the prospective development of international environmental law.

Copyright 2020–21 © David Linnan.

Trail Smelter Arbitration (US v. Canada) [1]

Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B.C. U.S. Treaty series No. 893.

Signed at Ottawa, April 15, 1935; ratifications exchanged Aug 3, 1935.

The President of the United States of America and His Majesty the King of Great Britain, Ireland and the British dominions beyond the Seas, Emperor of India, in respect of the Dominion of Canada,

Considering that the Government of the United States has complained to the Government of Canada that fumes discharged from the smelter of the Consolidated Mining and Smelting Company at Trail, British Columbia, have been causing damage in the State of Washington, and

Considering further that the International Joint Commission, established pursuant to the Boundary Waters Treaty of 1909, investigated problems arising from the operation of the smelter at Trail and rendered a report and recommendations thereon, dated February 28, 1931.

Recognizing the desirability and necessity of effecting a permanent settlement, have decided to conclude a convention for the purposes aforesaid. …

ARTICLE I.

The Government of Canada will cause to be paid to the Secretary of State of the United States, to be deposited in the United States Treasury, within three months after ratifications of this convention have been exchanged, the sum of three hundred and fifty thousand dollars, United States currency, in payment of all damage which occurred in the United States, prior to the first day of January, 1932, as a result of the operation of the Trail Smelter.

ARTICLE II

The Governments of the United States and of Canada, hereinafter referred to as “the Governments”, mutually agree to constitute a tribunal hereinafter referred to as “the Tribunal”, for the purpose of deciding the questions referred to it under the provisions of Article III. The Tribunal shall consist of a chairman and two national members.

The chairman shall be a jurist of repute who is neither a British subject nor a citizen of the United States. He shall be chosen by the Governments. or, in the event of failure to reach agreement within nine months after the exchange of ratifications of this convention, by the President of the Permanent Administrative Council of the Permanent Court of Arbitration at The Hague described in Article 49 of the Convention for the Pacific Settlement of International Disputes concluded at The Hague on October 18, 1907.

The two national members shall be jurists of repute who have not been associated, directly or indirectly, in the present controversy. One member shall be chosen by each of the Governments.

The Governments may each designate a scientist to assist the Tribunal.

ARTICLE III.

The Tribunal shall finally decide the questions, hereinafter referred to as “the Questions”, set forth hereunder, namely:

(1) Whether damage caused by the Trail Smelter in the State of Washington has occurred since the first day of January, 1932) and, if so, what indemnity should be paid therefor?

(2) In the event of the answer to the first part of the preceding Question being in the affirmative, whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future and, if so, to what extent?

(3) In the light of the answer to the preceding Question, what measures or regime, if any, should be adopted or maintained by the Trail Smelter?

(4) What indemnity or compensation, if any, should be paid on account of any decision or decisions rendered by the Tribunal pursuant to the next two preceding Questions?

ARTICLE IV.

The Tribunal shall apply the law and practice followed in dealing with cognate questions in the United States of America as well as international law and practice, and shall give consideration to the desire of the high contracting parties to reach a solution just to all parties concerned.

…

ARTICLE XII.

The Governments undertake to take such action as may be necessary in order to ensure due performance of the obligations undertaken hereunder, in compliance with the decision of the Tribunal.

…

[From the Award of March 11, 1941]
…

The second question under Article III of the Convention is as follows:

In the event of the answer to the first part of the preceding question being in the affirmative, whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future and, if so, to what extent?

Damage has occurred since January 1, 1932, as fully set forth in the previous decision. To that extent, the first part of the preceding question has thus been answered in the affirmative.

As has been said above, the report of the International Joint Commission (1 (g)) contained a definition of the word “damage” excluding “occasional damage that may be caused by S02 fumes being carried across the international boundary in air pockets or by reason of unusual atmospheric conditions”, as far, at least, as the duty of the Smelter to reduce the presence of that gas in the air was concerned.

The correspondence between the two Governments during the interval between that report and the conclusion of the Convention shows that the problem thus raised was what parties had primarily in mind in drafting Question No.2. Whilst Canada wished for the adoption of the report, the United States stated that it could not acquiesce in the proposal to limit consideration of damage to damage as defined in the report (letter of the Minister of the United States of America at Ottawa to the Secretary of State for External Affairs of the Dominion of Canada, January 30, 1934). The view was expressed that “so long as fumigations occur in the State of Washington with such frequency, duration and intensity as to cause injury”, the conditions afforded “grounds of complaint on the part of the United States, regardless of the remedial works … and regardless of the effect of those works” (same letter).

The first problem which arises is whether the question should be answered on the basis of the law followed in the United States or on the basis of international law. The Tribunal, however, finds that this problem need not be solved here as the law followed in the United! States in dealing with the quasi-sovereign rights of the States of the Union, in the matter of air pollution, whilst more definite, is in conformity with the general rules of international law.

Particularly in reaching its conclusions as regards this question as well as the next, the Tribunal has given consideration to the desire of the high contracting parties “to reach a solution just to all parties concerned”.

As Professor Eagleton puts in (Responsibility of States in International Law, 1928, p. 80): “A State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction.” A great number of such general pronouncements by leading authorities concerning the duty of a State to respect other States and their territory have been presented to the Tribunal. These and many others have been carefully examined. International decisions, in various matters, from the Alabama case onward, and also earlier ones, are based on the same general principle, and, indeed, this principle, as such, has not been questioned by Canada. But the real difficulty often arises rather when it comes to determine what, pro subjecta materie, is deemed to constitute an injurious act.

A case concerning, as the present one does, territorial relations, decided by the Federal Court of Switzerland between the Cantons of Soleure and Argovia, may serve to illustrate the relativity of the rule. Soleure brought a suit against her sister State to enjoin use of a shooting establishment which endangered her territory. The court, in granting the injunction, said: “This right (sovereignty) excludes. … not only the usurpation and exercise of sovereign rights (of another State) …. but also an actual encroachment which might prejudice the natural use of the territory and the free movement of its inhabitants.” As a result of the decision, Argovia made plans for the improvement of the existing installations. These, however, were considered as insufficient protection by Soleure. The Canton of Argovia then moved the Federal Court to decree that the shooting be again permitted after completion of the projected improvements. This motion was granted. “The demand of the Government of Soleure”, said the court, “that all endangerment be absolutely abolished apparently goes too far.” The court found that all risk whatever had not been eliminated, as the region was flat and absolutely safe shooting ranges were only found in mountain valleys; that there was a federal duty for the communes to provide facilities for military target practice and that “no more precautions may be demanded for shooting ranges near the boundaries of two Cantons than are required for shooting ranges in the interior of a Canton”. (R. O. 26 I, p. 450, 451; R. 0.41, I, p. 137; see D. Schindler, “The Administration of Justice in the Swiss Federal Court in Intercantonal Disputes”, American Journal of International Law, Vol. 15 (1921), pp. 172-174.)

No case of air pollution dealt with by an international tribunal has been brought to the attention of the Tribunal nor does the Tribunal know of any such case. The nearest analogy is that of water pollution. But, here also, no decision of an international tribunal has been cited or has been found.

There are, however, as regards both air pollution and water pollution, certain decisions of the Supreme Court of the United States which may legitimately be taken as a guide in this field of international law, for it is reasonable to follow by analogy, in international cases, precedents established by that court in dealing with controversies between States of the Union or with other controversies concerning the quasi-sovereign rights of such States, where no contrary rule prevails in international law and no reason for rejecting such precedents can be adduced from the limitations of sovereignty inherent in the Constitution of the United States.

In the suit of the State of Missouri v. the State of Illinois (200 U.S. 496, 521) concerning the pollution, within the boundaries of Illinois, of the Illinois River, an affluent of the Mississippi flowing into the latter where it forms the boundary between that State and Missouri, an injunction was refused. “Before this court ought to intervene”, said the court, “the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side. (See Kansas v. Colorado, 185 U.S. 125.)” The court found that the practice complained of was general along the shores of the Mississippi River at that time, that it was followed by Missouri itself and that thus a standard was set up by the defendant which the claimant was entitled to invoke.

As the claims of public health became more exacting and methods for removing impurities from the water were perfected, complaints ceased. It is significant that Missouri sided with Illinois when the other riparians of the Great Lakes’ system sought to enjoin it to desist from diverting the waters of that system into that of the Illinois and Mississippi for the very purpose of disposing of the Chicago sewage.

In the more recent suit of the State of New York against the State of New Jersey (256 U.S. 296, 309), concerning the pollution of New York Bay, the injunction was also refused for lack of proof, some experts believing that the plans which were in dispute would result in the presence of “offensive odors and unsightly deposits”, other equally reliable experts testifying that they were confidently of the opinion that the waters would be sufficiently purified. The court, referring to Missouri v. Illinois, said: “…. the burden upon the State of New York of sustaining the allegations of its bill is much greater than that imposed upon a complainant in an ordinary suit between private parties. Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.”

What the Supreme Court says there of its power under the Constitution equally applies to the extraordinary power granted this Tribunal under the Convention. What is true between States of the Union is, at least, equally true concerning the relations between the United States and the Dominion of Canada.

In another recent case concerning water pollution (283 U.S. 473), the complainant was successful. The City of New York was enjoined, at the request of the State of New Jersey, to desist, within a reasonable time limit, from the practice of disposing of sewage by dumping it into the sea, a practice which was injurious to the coastal waters of New Jersey in the vicinity of her bathing resorts.

In the matter of air pollution itself, the leading decisions are those of the Supreme Court in the State of Georgia v. Tennessee Copper Company and Ducktown Sulphur, Copper and Iron Company, Limited. Although dealing with a suit against private companies, the decisions were on questions cognate to those here at issue. Georgia stated that it had in vain sought relief from the State of Tennessee, on whose territory the smelters were located, and the court defined the nature of the suit by saying: “This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity, the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.”

On the question whether an injunction should be granted or not, the court said (206 U.S. 230):

It (the State) has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air…. It is not lightly to be presumed to give up quasi-sovereign rights for pay and…. if that be its choice, it may insist that an infraction of them shall be stopped. This court has not quite the same freedom to balance the harm that will be done by an injunction against that of which the plaintiff complains, that it would have in deciding between two subjects of a single political power. Without excluding the considerations that equity always takes into account…. it is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they may have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source…. Whether Georgia, by insisting upon this claim, is doing more harm than good to her own citizens, is for her to determine. The possible disaster to those outside the State must be accepted as a consequence of her standing upon her extreme rights.

Later on, however, when the court actually framed an injunction, in the case of the Ducktown Company (237 U.S. 474, 477) (an agreement on the basis of an annual compensation was reached with the most important of the two smelters, the Tennessee Copper Company), they did not go beyond a decree “adequate to diminish materially the present probability of damage to its (Georgia’s) citizens”.

Great progress in the control of fumes has been made by science in the last few years and this progress should be taken into account.

The Tribunal, therefore, finds that the above decisions, taken as a whole, constitute an adequate basis for its conclusions, namely, that, under 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.

The decisions of the Supreme Court of the United States which are the basis of these conclusions are decisions in equity and a solution inspired by them, together with the regime hereinafter prescribed, will, in the opinion of the Tribunal, be “just to all parties concerned”, as long, at least, as the present conditions in the Columbia River Valley continue to prevail.

Considering the circumstances of the case, the Tribunal holds that the Dominion of Canada is responsible in international law for the conduct of the Trail Smelter. Apart from the undertakings in the Convention, it is, therefore, the duty of the Government of the Dominion of Canada to see to it that this conduct should be in conformity with the obligation of the Dominion under international law as herein determined.

…

1) III R.I.A.A, 1905 (1935)

Copyright 2020–21 © David Linnan.