Conflicting Principles of International Environmental Law - Essay Example

?GM CROP CASE Introduction The environment is an important component of human existence1. Unfortunately however, it does not have much means to protect itself unless the people living within it do. It is for this reason that stakeholders including states, international organizations and other non-governmental organizations have played their roles in ensuring that the environment is protected. The present paper looks at a typical case involving two states on the breach of international environmental policies. As it is well known, even though the sovereignty of all states is highly respected, the need for these states to operate within their confines is also enshrined in most international regulations and provisions. It is for this reason that various treaties exist on how states should conduct themselves in terms of environmental actions. Interesting however, the environmental laws and treaties have not come to solve the entire problem. This is because there are several components of the international environmental laws that are seen to be conflicting in their jurisdiction. The major focus of this paper shall therefore be a means to outlining which of the various options that exist in environmental dispute resolution is the most effective. Conflicting principles of international environmental law (IEL) International laws are generally in place to ensuring that inter-national relations and dealings are carried out in a manner of regulated and fair means2. These international laws have therefore often acted as the decision reference points when making legal judgments on international issues involving two nations such as State A and State B in this scenario. This not withstanding, there are instances where one could speak of conflicting legal provisions that seek to address one and the same topical issue. An example of this situation can be found with the International Environmental Law (IEL). Indeed, with the single international environmental law, there are provisions that protect and promote the sovereign rights of States over natural resources within their respective territories as well as laws and provisions that spell out responsibilities to ensure that no environmental damages are caused outside the respective territories of individual States3. Two cornerstone principles of the international environmental law namely the Principle 21: Stockholm Declaration and Principle 2 Rio Declaration can be used to explain the above legal dilemma. The first part of the Principle 21 of the Stockholm declaration clearly states, "States have in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies”4. From the principle above, there can be seen a lot of right given to individual States and Nations to act in the interest of their own territories. If for nothing at all, it has been identified that the production of genetically modified crops is very crucial in reducing incidences of hunger in several parts of the world, especially in developing States5. To this end, this first part of the principle gives such States so much power and authority to use any orthodox methods that they find prudent in the alleviation of their plights. From this perspective, State A can rely on the Charter of the United Nations to defend its right to allow the cultivation of genetically modified crops with two major defenses. The first defense shall be the fact that the State is seeking to take charge of its terrestrial freedom as a sovereign state as stated in the principle. Secondly, the State can claim it is taking advantage of the provision of the principle that states that the state is at liberty to exploit its own resources in pursuit to its environmental policies, which currently legalizes the cultivation of genetically modified crops. After all, as the case is now, State A has not invaded the territory of State B in any way. In the second part of the Principle 21 of the Stockholm declaration however, it is explicitly stated that “…and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction"6. Indeed, Principle 2 of the Rio Declaration is highly similar to the Principle 21 of the Stockholm declaration with the introduction of two words, which are “and developmental”. From this second portion of the Principle 21 of the Stockholm declaration and Principle 2 of the Rio Declaration, State B also comes into the judgment with a lot of defense against State A. this is because even though State A has not directly invaded the borders or lands of State B, the effects that the genetically modified crops would have on the health of crops and people in State B puts State A in a position where by it would be said that it has not lived according to the part of the principle, requiring it “not to cause damage to the environment of other State or of areas beyond the limits of national jurisdiction”. As much as studies speak of the advantages of producing genetically modified crops as a way of reducing the hunger rate in parts of the world7, there are also studies that suggest that genetically modified crops could cause unintended harm to other organisms, transfer gene to non-targeted areas, and cause harm to human health8. Especially for the fact that there can be transfer of genes through the activities of agents of pollination and dispersal, State B may have so much legitimate cause to question the action of State A in legalizing the cultivation of genetically modified crops. Assessment of Specific Case Rulings in relation to Principle 21 of the Stockholm Declaration Trail Smelter Arbitration Summary from the Trail Smelter Arbitration in 1938 and 1941 before the Arbitral Tribunal was set has it that the Consolidated Mining and Smelting Company, otherwise known as COMINCO managed the smelter in question. The smelt had processed and refined zinc and lead from 1896 till farmers within the US-Canada borders made complain of smoke from the lead and zinc causing harm to their forest land and crops. Agitation from residents went up and became intense as they eventually made demands from COMINCO for compensations to be paid to them9. Indeed, but for the coming of the arbitration tribunal, all that can be said is that the case could not be resolved between the affected farmers and the company. In relation to the Principle 21 of the Stockholm Declaration and the fact that there was no substantial resolution between the aggrieved parties until an arbitration tribunal came in, what could be said is that the Principle 21 does not come clear with its stand and seem to be highly unfavorable in finding a one sided judgment in the case of the use of methods that seem to negatively affect the environment10. In the light of all of this, it can be said that the ruling that came from the arbitral tribunal came to change the face of the debate as it gave some credence to the second part of the Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. This is because the ruling resulted in the establishment of the Polluter Pays Principle in environmental law11. Again, where there were visible evidence to prove that damages were caused to farmlands and forests, the arbitrator awarded a sum of $78,000 in damages to the affected burns12. Even though some legal experts say that the ruling of the arbitrator served as victory for COMINCO in the light of the fact that they were first billed to $350,000 in 1931, the fact that there was still some payment still reject the thinking that it was the first part of the Principle that won at the end of the day and not the second part. In conclusion however, they remain some pundits who would still question why no settlement was made in court against COMINCO so that the issue of cross border pollution could be judged as a criminal offence13. The Trail Smelter Arbitration still represents victory for the first part of the Principle 21 of the Stockholm Declaration over its second part. International Court of Justice’s 1996 Advisory Opinion in The Legality of the Threat or Use of Nuclear Weapons In January 1995, the International Court of Justice accepted a request by the United Nations General Assembly to pass judgment on the legality of the threat or use of nuclear weapons. In this regard, the United Nations General Assembly posed the question: “Is the threat or use of nuclear weapons in any circumstances permitted under international law?”14 The ruling that was made was more of an advisory opinion rather than a legal court judgment, based on which civil or criminal suits could be taken. In a sharp response from the advisory opinion, the International Court of Justice also indicated that: “The Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake”15. In reference to the Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, the International Court of Justice’s 1996 Advisory Opinion in The Legality of the Threat or Use of Nuclear Weapons gives one clear indication and that, the first part of the principles has a supremacy over the second part. This is because from every indication, the advisory opinion justifies the need for nations to defend themselves and protect their interests through any means possible that is non-orthodox and in consonance with their existing rules and regulations. International Court of Justice in its 1997 ruling on the dispute between Hungary and Slovakia in the case concerning the Gabcikovo-Nagymaros Project. The inter-boundary legal tussle involving Hungary on one side and Slovakia on the other side give another interesting twist to the Stockholm Declaration and Principle 2 of the Rio Declaration, which currently under discussion. The background to the case has it that on September 16, 1977, both Hungary and Slovakia entered into what became known as the Budapest Treaty. The treaty was a background to the construction of a large barrage project on the Danube16. Along the line, Hungary suspended their part of the agreement to undertake the construction due to environmental reasons. Slovakia however went ahead to complete its part of the project. It was actually a diversionary solution adapted by Slovakia dubbed “Variant C” to serve the country’s interest in the agreement that started the dispute between the two countries because Hungary made attempts to terminate the treaty in May 199217. The two countries fell on the International Court of Justice for a resolution on the issue and for the first time, the court paid a site visit to the location of the part of the dam that had been completed by Slovakia to ascertain the environmental impact of the dam as claimed by Hungary. After days of investigations, the International Court of Justice actually ruled that both countries had breached their parts of the legal agreement and were thus both found equally guilty. The resolution was therefore for the two States to negotiate their own ways out into ensuring that the objectives that were spelt out in the Budapest Treaty of 1977 were achieved18. Each of the parties was also to compensate the other for any forms of damages caused. In relation to the Stockholm Declaration and Principle 2 of the Rio Declaration, this ruling brings about a new twist in legal reference19. In effect, for State B to have a very clear legal position for its demand against State A, State B must in a lot of regard must be a position to producing backing documents as it was with the 1977 Budapest Treaty that State A committed itself to an agreement that binds the two States to each other’s interest. Extraterritorial application of National Environmental Protection Measures States all over the world have their own ways of ensuring that their territories are adequately protected, especially when it comes to environmental protection. In such circumstances, these States take cover from the sovereignty of States to put in place all forms of regulations and rules that ensure that all people within their territories abide by the environmental provisions that are made. Some States even go to the extent of having special agencies set up that spell out rules and laws binding all environmental operations within their territories. But in some few cases and under some circumstances, these States try to go beyond their territorial mandates to have extraterritorial powers that try to push other sovereign States into complying with the internal provisions even as those States live independently in their own States. The latter is indeed a clear case of what is presented in the case study between State A and State B on the genetically modified crops. Bering Sea Fur Seals Arbitration (1893) Background to this case has it that in 1886, Carolena, Thornton and Onward who were all British sealers were captured by revenue cutters who were also Americans. The capture was made 60 miles from land and as such condemned by a judge for an offense of sealing in the area and limits of the Alaska territory. The Americans found their act contrary to regulations because earlier in 1867, the American government had taken legal possession of the territorial rights of Alaska through a purchase20. In the eventual end, there was an award in August 1893, which went in favor of Great Britain on all counts involved in the case21. Indeed, the ruling that was made out of the arbitration gives a clear case and incident of the theory of extraterritorial application of law, which has to do with Effects Concept. This is because as part of the ruling, it was established that questions of damages to the territorial area of Alaska, for which reason the capture was made was prevalent. That is, the sealing act of the three British nationals was not found to constitute any environmental harm to the Alaska water territorie22. Meanwhile, it can be seen that the provisions of Effect Concept pays much premium to the result of an act carried out by another entity within a territory that is different from one’s territory. In relation, State B must have enough evidence to back their claim that indeed the effect of allowing genetically modified crop plantation by State A comes with negative effects and repercussion to their State (State B). Until then, it will be extremely difficult for State B to have any justifications based on assumptions as was carried out by the United States government in the Bering Sea Fur Seals Arbitration of 1893. Indeed, if the American government had been patient enough to wait for environmental impact, they would have had a better defense. Shrimp/Turtle Case23 As in the Bering Sea Fur Seals Arbitration of 1893, the Shrimp-Turtle Case of 1998 produced some evidence that indeed even though States that their sovereignty and could operate within their territorial domains, their actions did not have to be seen or interpreted in any way to discriminatory against the actions of other States. The judgment is indeed seen by most legal pundits as a confirmation for extraterritorial application and promoting the sovereignty of States. This is because in the said case, the World Trade Organization sought to seek clarification on the importation of shrimps as it thought it had an impact on turtles24. The United States had ban the importation but Malaysia was not pleased with this action and as such invoked DSU Article 21.5 against the United States. Eventually, the ban was pronounced to be conflicting with the GATT 1994 because the action of the United States was judged as discriminatory against other States25. Again, there is a relation with this case to the current case on the genetically modified crops in the sense that, the ruling seeks to frown on actions taken by sovereign states like State A that do not take the promotion of the welfare of other states like State B into consideration. Therefore, the theory of nationality link could be said to be at work when it comes to the Shrimp-Turtle Case. It would therefore be better for State B to argue in reference to this line as against other extraterritorial arguments. Theories on extraterritorial application of law The application of extraterritorial law has been subjected to a number of theories and legal regulations. Two of these are the nationality link and effects concept. The nationality link speaks more on the issue of citizenship, whereby the legal link between the nations involved is questioned. For example for country A to have some levels of extraterritorial applications over country B, certain nationality links shall be drawn to see the relationships that exist between the two nations. This theory is best applied with the legal issue involved has to do with members of the states involved26. But still beyond the citizens of a country, aspects of nationality such as the trade and economic relations between the countries can be taken into consideration. What this means for example is that the kind of extraterritorial applications of law that Greece would have over Italy will be different from what Greece would have over America. The effects concept is also a theory that distributes power of extraterritorial law in relation to the measure of range of effect of the entity in question27. In most cases, the entities are those that have background to environmental effects. So in simple terms, the measure of measure would determine the allocation of legal powers to a state or nation to exercise its extraterritorial powers. Among bodies of nations that are very loud on the application of effects concept is the entire European Union as an organization. This is because the union has set out regulations on trade, which are supposed to ensure fair competition. Indeed, even though the central theme of the regulation, which is enshrined in the Articles 101 and 102 of the Treaty on the Functioning of the European Union is to promote trade among the member states, it also has aspects that ensures that no forms of undue advantages are taken of one state over the other in terms of the environmental impact that a piece of trading products could have on the other country. Once the law that demands for equity in environmental safety is broken, the room is given for extraterritorial laws to be applied28. The application of the extraterritorial of law can be looked at with specific law cases. SS Lotus Case (France v Turkey)29 Commonly referred to as the Lotus Case, this was a case which bordered on a criminal trail held against the S.S Lotus, which was a French steamer when it collided with a Turkish steamer known as the S.S Boz-Kourt. The collision resulted in the drowning of eight Turkish national who were on the Turkish steamer because the Lotus tore the Boz-Kourt apart30. The resulting judgment came to be known as Lotus Principle and it is in direct consonance with the application of extraterritorial law as discussed above. This is because the principle held that the power to act in anyway it pleased was left in the hands of the sovereign state that was affected31. What this means is that for the Lotus Case, power was given to Turkey to trail and hear the case of the French sailors and offenders. This way, the extraterritorial law had been applied because of the nationalities involved in the case. It must be emphasized however that later developments and adjustments to the principle came to enshrine powers to the state of the alleged offender to have jurisdiction of the case.32 This conflict is often referred to many as part of reasons why some countries including the United States of America do not agree to the powers of the International Court of Justice to trail people outside their own countries. Case C-5/94 R. v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas33 In this case, much of the focus is on the effect concept as against the nationality link. This is because the case of the issue has it that an undue advantage was taken to prevent the importation of live calve, which breached the fair trade and concept of effect principles. Indeed, as enshrined in the regulations of the European Union through the European Court of Justice (ECJ), markets of member states are supposed to be as open and free flowing as possible. However, in this instance, the directive was broken and a ban was placed on the importation of live calves. As far as the provisions of the regulations are concerned, the ban would have been justified if and only if there were any environmental risks associated with the importations34. These risks could be extended to risks that human consumption could also bring. But hearing the case, it was found that none of environmental risks were existent35. Subsequently, the Ministry of Agriculture, Fisheries and Food was only seen as taking an undue advantage to promote the local market by using localized products from calves. Implementation and enforcement of International Environmental Law States The state is certainly the leader when it comes to the implementation and enforcement of international environmental laws. First, on the issue of implementation, it is important that states come to appreciate the importance of having these international environmental laws in place. It is actually when the states appreciate the fact that the laws are in place to product their citizenry and those of other countries that they can have the will power to implement the laws36. The implementation of the laws is advised to be enshrined in the very constitutions of the states so that there can be a supreme legislative backing to the laws. Then, when it comes to the enforcement of the laws, punishments should be seen as deterrent and corrective measures rather than destructive ones37. Once this understanding is had, the law will be no respecter of persons but would prescribe the right and deserving punishment to whoever breaks it38. International Organizations International organizations also have a lot of role to play in the in the implementation and enforcement of international environmental laws. So far, bodies like the United Nations and World Trade Organization have been seen to be doing very active work when it comes to the introduction of policies that spell out enforcement rules39. It is for example known that as a way of minimizing the green house effect and emission of carbon, the World Trade Organization have come out with cross border shipment policies that forbid the exportation of products that do not meet certain standards. Bodies like the European Union have also been very loud in enforcement of environmental laws by ensuring that all member states enshrine Articles 101 and 102 of the Treaty on the Functioning of the European Union in their court systems. These efforts are achieving but much more remains to be done. This is said because there are research findings that actually point to how some countries have escaped international sanctions for breaking environmental laws duty to their international influences40. Non-State actors As states and international organization play their roles, non-state actors including non-governmental agencies and the media are also charged with some responsibilities to play to consolidate the enforcement process. With non-governmental agents, the formation of watch dog groups for the advancement of implementation of international laws is encouraged. These groups should be unbiased and non-political in their dealings to ensure that they can expose all acts of corruptions in the legal system when it comes to international laws. As this is said, the roles that have already been played by policy think tanks are commended with further calls on them to ensure that the promotion of accountability becomes their hallmark. Finally, the media would be said to have played an enormous role in assisting in the enforcement of international environmental laws especially when it comes to the public attention they give to specific issues. Indeed, but for the media, there are several lawless activities that have been undertaken on the national and local levels that would have gone unnoticed.41 Much research and development and intelligence gathering is recommended to the media to helping it achieve all of its goals of ensuring an accomplished enforcement system with environmental laws. Mechanisms of Dispute Resolution Reading through the discussions and cases that have been studied so far, it is clear that the dispute resolution systems have often taken two major forms. These are court hearing and international arbitrations. But even with the court hearings, most of the cases have been treated as civil liabilities instead of criminal liabilities. In the case of arbitrations also, the most effective means of giving redress has been by the payment of compensations. It is in view of the punitive outcomes of the cases that a conclusion is drawn that the current mechanisms of dispute resolution in addressing international environmental cases are ineffective. But comparatively however, the court system is more ideal than the use of arbitration. This is because with the court system it will be easier to criminalize cases of international environmental offenses especially when the offenses involve risk to human life and health42. What needs to be done in this case therefore has to be with enforcement and will power to give out stiffer punitive rulings so that these rulings will serve as deterrents. In conclusion, even though the need to get resolutions have always been the reasons for dispute resolution, it would be highly important to appreciate the fact that it is only through the use of punitive rulings that the root causes of these problems cease for ever. REFERENCE LIST Ahuja, V. 2007, Everyones' Miracle? Revisiting Poverty and Inequality in East Asia, Washington, D.C.: World Bank. Al-Ghorfa, 2009, Reducing Dependence on Expatriate Labour. Al-Ghorfa, No. 118. Sultanate of Oman: Oman Chamber of Commerce & Industry. Al-Lamki, S. 2008, Barriers to Omanization in the private sector: the perception of Omani graduates. The International Journal of Human Resource Management, 9. Arnheim, R. 2009. Visual Thinking. Berkeley: University of California Press. 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