A critical study on specific legislative examples
Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (CUSAT), LLM (Exeter, UK), Assistant Professor, NLU Jodhpur)).
It is of no doubt that the very first concept of property originated from (or viewed at least theoretically as) either Res Communis or Res Nullius. Hence a particular property was originally conceived as either every one’s property or no one’s property. Having said that, from this there has been a gradual evolution of the concept of property through different schools of law including that of natural law which is clear from the later concept of property based on necessity where occupation as well as the exhaustibility was the criteria. It is true that most of the powers which were inherent in the common man are now vested with the state by way of social contract but it does not mean that natural resources can be exhausted excessively to the detriment of the common mankind as they all belong to the common pool resources. If it is still ‘common but differentiated responsibilities’ that we follow as according to Principle No. 7 of the Rio Declaration at the practical level to the fullest extent possible then it can be said that the common heritage of the environment remains protected and it will continue to be a commons’ environment. There may be express provisions which make us think that the entire step towards environmental protection at the international level ensures the sustainability of the global commons. But there have been many flaws in all those including lack of effective monitoring and implementation. Even though certain resources vests with the state, when it comes to global commons where no state has got exclusive jurisdiction, the use of natural resources by one state will have definite consequences in the use of natural resources by another state. It need not be always hazardous activities employed by one state but also can be innocent activities which may have an adverse impact on the other state. This paper is an attempt to examine certain important legislations coming under the scope and ambit of international environmental law so as to determine whether international environmental law ensures the sustainability of global commons. The paper details out some important piece of conventions which highlights the protection of global commons followed by an insight into the application of the same at the practical level so as to understand whether the objectives are achieved at the practical level or not.
Global commons refer to areas that fall outside the territory of any state where no state has exclusive jurisdiction and it includes high seas, sea bed, its sub soil, outer space, the Antarctic etc ((Philippe Sands QC, Principles of International Environmental Law (2nd edn Cambridge University Press, Cambridge 2003) 14)). Principle No. 2 of the Rio Declaration ((Principle 2: 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 and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction))which ensures that the domestic activities within a state do not cause damage to the environmental areas beyond its jurisdiction itself ensures the sustainability of the global commons as it is directed towards reducing the harm caused to the global commons. The provisions ensuring sustainability of the global commons can also be seen under various specific environmental conventions, as for example, Article 194 of the United Nations Convention on the Law of the Sea, 1982 ((Article 194 (1): States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. (2) States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.))which specifically provides for the requirement to ensure that the activities of one state does not spread beyond their sovereign areas and cause pollution to the marine environment. The precautionary principle expressly mentioned under Principle No. 15 of the Rio Declaration which requires the states to submit proposed activities affecting global commons to scrutiny at the international level so as to prove that it is not harmful is yet another mode of ensuring sustainability of global commons and the principle has been incorporated in various international conventions. Most of the international conventions in regard to environmental protection do not tackle the situation where the state needs to have a right to intervene to prevent an environmental damage being caused to global commons but prefers not to interfere due to the absence of a specific treaty right. In this regard it should be noted that the 1995 Straddling Stocks Agreement is far better than many other international agreements in regard to compliance and enforcement. Articles 20 ((Article 20(1): States shall cooperate, either directly or through sub regional or regional fisheries management organizations or arrangements, to ensure compliance with and enforcement of sub regional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks))and 21 ((Article 21(1): In any high seas area covered by a sub regional or regional fisheries management organization or arrangement, a State Party which is a member of such organization or a participant in such arrangement may, through its duly authorized inspectors, board and inspect, in accordance with paragraph 2, fishing vessels flying the flag of another State Party to this Agreement, whether or not such State Party is also a member of the organization or a participant in the arrangement, for the purpose of ensuring compliance with conservation and management measures for straddling fish stocks and highly migratory fish stocks established by that organization or arrangement. (2) States shall establish, through sub regional or regional fisheries management organizations or arrangements, procedures for boarding and inspection pursuant to paragraph 1, as well as procedures to implement other provisions of this article. Such procedures shall be consistent with this article and the basic procedures set out in article 22 and shall not discriminate against non-members of the organization or non-participants in the arrangement. Boarding and inspection as well as any subsequent enforcement action shall be conducted in accordance with such procedures. States shall give due publicity to procedures established pursuant to this paragraph))provides for an effective international cooperation and sub regional and regional cooperation in enforcement respectively. Similarly, the 1967 Outer Space Treaty permits exploration of outer space, moon and other celestial bodies without their harmful contamination and it is stated that the treaty is the best available indication of general principles applicable to outer space ((Kathy Leigh, “Liability for Damage to the Global Commons” (1992) 14 Australian Year Book of International Law 129, 146)). This system of international co-operation if supported with effective implementation works out well in sustaining global commons and may be incorporated in other areas of international environmental law too.
International Conventions and its effectiveness in ensuring sustainability of global commons
Firstly, even though the precautionary principle is expressly or impliedly mentioned or though it forms the back bone of different international conventions, there is no clarity with regard to certain factors like whose responsibility is it to bear the cost of precaution, the exceeded level of precautionary measure, when can we say that a threat actually exists and so on ((Marko Ahteensuu, ‘Defending The Precautionary Principle Against Three Criticisms’ (2007) 11(61/56) 4 TRAMES 366–381, 369)). Similar is the case with polluter-pays principle. Even though it has been made an integral part of different conventions, it is not devoid of any limitations. It creates confusion at times and seems less effective. For example, in case of shipping the polluter can be the operator or the cargo owner or the ship owner or harbor pilot and so on and in many cases it creates confusion as to who will bear the responsibility.
Secondly, the concept of due diligence brought under article 2(1) of the Convention on Transboundary Environmental Impact Assessment, 1991 and Article 3 of the Articles on Prevention of Transboundary Harm, 2003 only makes the state responsible only if they fail to act diligently and not for any failures by any operators ((Birnie, P., Boyle, A. and Redgwell, C., International Law and The Environment (3rd edn OUP, Oxford 2009) 147,8)). The ‘best practical means possible’ mentioned under Article 194 of the United Nations Convention on the Law of the Sea, 1982 and ‘effective measures according to the state’s scientific, technical and economic capabilities’ under the 1972 London Dumping Convention ((Article 2: Contracting Parties shall, as provided for in the following articles, take effective measures individually, according to their scientific, technical and economic capabilities, and collectively, to prevent marine pollution caused by dumping and shall harmonize their policies in this regard.))offers a flexible model of due diligence to the developing states but as these are generalized formulations it does not give a clear idea as to what kind of legislation or technology are required in specific cases ((Birnie, P., Boyle, A. and Redgwell, C., International Law and The Environment (3rd edn OUP, Oxford 2009) 149))which is undoubtedly a drawback when it comes to protecting the global commons. Moreover though there are various conventions expressly emphasizing the need for a precautionary approach the principle has still not achieved the status of customary international law as it is not seen implemented in most of the areas of international environmental law, as for example, in the global forestry policy ((Alexander Gillespie, ‘The Precautionary Principle in the Twenty-First Century: A Case Study of Noise Pollution in the Ocean’ (2007) 22 Int’l J. Marine & Coastal L. 61, 70)).
Convention on Biological Diversity
Even under the Convention on Biological Diversity, Article 5 requires the states to cooperate for conservation and sustainable use of biological diversity concerning areas beyond national jurisdiction but there are no specific guidance with respect to the same and though the convention under Article 14 ((Article 14.Impact Assessment and Minimizing Adverse Impacts: 1. Each Contracting Party, as far as possible and as appropriate,shall : (a) Introduce appropriate procedures requiring environmental impactassessment of its proposed projects that are likely to have significantadverse effects on biological diversity with a view to avoiding orminimizing such effects and, where appropriate, allow for publicparticipation in such procedures))emphasis the requirement of EIA, the clause attached to it which read “as far as possible and appropriate” creates a leeway for the states to be inactive at least in certain cases. Though under the Convention on Biological Diversity the parties have been asked to integrate climate change adaptation measures, most of the obligations are framed in a general nature lacking specific qualified nature and this is considered as a drawback of the convention ((Arie Trouwborst, “International nature conservation law and the adaptation of biodiversity to climate change: a mismatch?” 2009 J. Env. L. 419, 437)).
Vienna Convention for the Protection of the Ozone Layer & Montreal Protocol
The 1985 Ozone Convention, though incorporates verbally the principle 21 of the 1972 Stockholm Declaration, has been very weak in regard to its effectiveness and implementation. The convention failed to define the nature of the measures to be taken against adverse effects ((Birnie, P., Boyle, A. and Redgwell, C., International Law and The Environment (3rd edn OUP, Oxford 2009) 350))and merely required states to corporate thereby giving large amount of discretion to them. The 1987 Montreal protocol on Substances that deplete the Ozone Layer is much more effective when compared to the earlier 1985 Ozone Convention. This is because the 1987 protocol has been successful in getting more and more parties adhering to the protocol basically signifying high level of participation and greater compliance thereby controlling ozone depleting substances. Moreover as per the protocol one party may, if it finds that another party has failed to fulfill the obligations under the protocol, invoke non compliance or dispute settlement mechanism without the requirement of showing an actual material damage ((Philippe Sands QC, Principles of International Environmental Law (2nd edn Cambridge University Press, Cambridge 2003) 187)). There are some new substances capable of depleting the ozone layer which the protocol doesn’t cover and it is high time that the protocol addresses this issue for the better sustainability of global commons.
United Nations Convention on the Law of the Sea, 1982
The United Nations Convention on the Law of the Sea, 1982 is a very good example wherein provisions do exist which ensures implementation and which has provisions giving responsibilities to flag states, port states and coastal states. Article 193 though provides a sovereign right to states to exploit natural resources it makes it a point that it should be in accordance with their duty to protect and preserve the marine environment. This can be traced as a general provision ensuring sustainability of global commons. Similarly article 194 is an evidence for the fact that the provisions of UNCLOS are intended to protect the global common areas such as the marine environment as a whole ((Article 194(2):)). Though in general, the flag state is responsible under article 217 ((Article 217: Enforcement by flag States: 1. States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established throughthe competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag States shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs.))for compliance with applicable pollution laws and standards irrespective of the place of violation, the port states and the coastal states have been given due responsibilities. Under article 218  ((Birnie, P., Boyle, A. and Redgwell, C., International Law and The Environment (3rd edn OUP, Oxford 2009) 348)), the port state has the responsibility to investigate and institute proceedings in regard to harmful discharges from a vessel outside the internal waters, territorial sea or exclusive economic zone. The coastal states also do have a responsibility, for example under article 220  ((Article 220: Enforcement by coastal States: 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State.)), to institute proceedings including sanctions like detention in case of environmental violations in territorial sea or exclusive economic zone or where there has been a substantial discharge causing marine pollution. Moreover Part XI of UNCLOS mandates that the activities of state parties with respect to sea bed and its sub soil are in conformity with the provisions laid down under the said part. All these have been stated in this paper to suggest that in one way or the other the responsibilities have been shared between the states to ensure the protection and preservation of the marine environment which is so specific to the United Nations Convention on Law of the Sea, 1982.
Though the United Nations Convention on Law of the Sea, 1982 allows some amount of flexibility in certain parts which is clear from the wordings such as “best practical means at their disposal and in accordance with their capabilities’, there exists other provisions which ensures states’ compliance in accordance with “generally recognized international rules and standards ((Articles 208, 210, 211)).”
Taken as a whole, to a very large extent the convention has been successful in making the states bound to control and regulate marine pollution. At the same time, most of the flag states other than a few developed states fail to report non-compliance to International Maritime Organization (IMO) and moreover International Maritime Organization has no effective process to deal with issues of non-compliance. In short, the supervisory role of IMO is not very effective. There are also shortcomings connected with state responsibility, as for example, according to Article 139, states are not liable for damage caused by national operators if appropriate measures have been taken by the state. At this point, to ensure more protection it would be more fruitful if a stricter approach is mandated under the convention. States should be in a position to control and restrict national operators and if they fail to do to so it’s their fault and hence be made liable because ultimately in order to protect the global commons it is necessary that someone bears the burden of preserving the same and if the state itself is excluded from liability then there are more chances for the global commons to get depleted.
Air Pollution and Climate Change
After coming into force of the SO2 Protocol to the 1979 Geneva Convention on Long Range Transboundary Air Pollution, there has been considerable reduction in the Transboundary air pollution mostly within the Europe and most of the nations even exceeded the thirty percent target limit fixed ((Birnie, P., Boyle, A. and Redgwell, C., International Law and The Environment (3rd edn OUP, Oxford 2009) 348)). But on the other hand there are also shortcomings especially with regard to non-compliance by certain states with the NO2 and VOC Protocols thereby affecting biodiversity in a very large extent by uncontrolled NO2 emissions.
The climate change is designated as a matter of common concern which was declared by the UN GA Resolution 43/53 ((Available at < http://www.un.org/documents/ga/res/43/a43r053.htm>))as the ‘common heritage of mankind’. The explicit basis for different commitments of developed and developing nations was made as ‘common but differentiated responsibilities’ under the UNFCCC 1992 and Kyoto Protocol. Article 4 which provides for funding and technology transfer is based on the assumption that developed nations have contributed more to the greenhouse emissions and hence they should bear the responsibilities more than the developing ones thereby creating an obligation to sustain the global commons. Article 4 of the Convention is a good example of a proper convention system because even though there is no compulsion to adhere to specific international standards, it allows flexibility in the states’ approach and is a good example of the principle of common but differentiated responsibilities. Even under the Kyoto Protocol, the three flexibility mechanisms such as the Clean Development Mechanisms ((Article 12)), Joint Implementation ((Article 6))and International Emissions Trading ((Article 7))achieves considerable reduction in emissions with the help of market mechanisms such as emissions trading. CDM which is most effective for the developing states helps in achieving sustainable development and to achieve the quantified emission limitations. The other flexibility mechanism which is the Joint Implementation is also a cost effective mechanism as the other state will receive funding and get benefits from technology transfer. The supervisory and compliance mechanism with an in-depth review mechanism under the Convention and Protocol is another innovative mechanism to ensure sustainability. But it should not be left out that element of absence of an effective sanction mechanism and the non binding compulsory procedures ((Articles 14 and 19))create a slight doubt in its effective implementation.
The mechanism created under the climate regime is not fully perfect. The emission reductions under the Kyoto Protocol are inadequate and moreover the technology transfer has been a failure especially when we take into account the situation of India and China. The ineffectiveness of the Protocol is again proved by the fact that the global CO2 emissions are estimated to increase to a considerable extent and the developed nations instead of putting more effort to tackle the problem of increase in emissions are responsible of emitting more and more CO2 into the atmosphere affecting the global commons at large ((The global CO2 emission is expected to increase from 28.1 billion metric tons in 2005 to 42.3 billion in 2030; <http://theenergycollective.com/tbhurst/29991/eia-predicts-50-increase-world-energy-consumption-2030>)).
The developing states have the benefit of additional funding, CDM, technology transfer and so on, but it seems unjustified not to apply emission limitations on them on the basis that they have to develop their economy which once the developed nations did. Such an argument cannot be accepted at any cost. Once there are a set of regulations, even though based on common but differentiated responsibilities, it does not however mean that pollution or rather activities that affect the common’s environment may be encouraged in the name of industrialization. A more effective reduction in pollution so far as the climate regime is concerned will be achieved once this discriminatory approach is taken away.
Another point which is of relevance here is that the classification made in the Annexure of the Convention and Kyoto Protocol poses certain difficulties. The obligations of China, Brazil, and India are in effect identical to countries that are poorer, less developed and less polluting ((Jorge E. Vinuales, “Balancing Effectiveness and Fairness in the redesign of Climate Change Regime” 2011 L.J.I.L. 223, 243))which needs specific attention so that some amendments may be made as soon as possible.
It is true that as per article 119 of UNCLOS ((Article 119: Conservation of the living resources of the high seas: 1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall: (a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.))measures must be based on the best scientific evidence available to produce the maximum sustainable yield but it is very clear from the observation made in Agenda 21 that UNCLOS is not very successful in preventing the over exploitation of fisheries in the high seas ((Para 17.45. However, management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, is inadequate in many areas and some resources are overutilized. There are problems of unregulated fishing, overcapitalization, excessive fleet size, vessel reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between States. Action by States whose nationals and vessels fish on the high seas, as well as cooperation at the bilateral, subregional, regional and global levels, is essential particularly for highly migratory species and straddling stocks. Such action and cooperation should address inadequacies in fishing practices, as well as in biological knowledge, fisheries statistics and improvement of systems for handling data. Emphasis should also be on multi-species management and other approaches that take into account the relationships among species, especially in addressing depleted species, but also in identifying the potential of underutilized or unutilized populations.)).
Even while talking about the 1995 Straddling Stocks Agreement, the adjudicatory mechanism to determine the rights and limitations of states seems weak and needs to be made more effective. It is to be noted that the global ocean has lost more than 90% of large predatory fishes which is due to new technologies and inadequate property rights ((Diets et al., ‘The Struggle to govern the commons’ (2003) 302 Science 1907)). In the Estai case ((Judgment of 4 December 1998 <http://www.icj-cij.org/docket/index.php?sum=501&code=ec&p1=3&p2=3&case=96&k=ac&p3=5> In this case, the Spanish fishing vessel was boarded and inspected by Canada and was charged for excessive fishing.))rather than adjudicating the matter brought forth by Spain against Canada’s exercise of sovereignty in high seas, the ICJ rejected Spain’s contention on the ground of reservation made by Canada. If the validity of the reservation itself was looked into as to whether it fits into the object and purpose of international law, we would have obtained a clear picture of the validity of measures taken to promote sustainability of global commons. Similar with the case of the Swordfish Case ((Order No. 2000/3 (2000) Chile v. EC))because if the matter was determined by ITLOS (the matter could not be proceeded as the parties agreed to suspend it) it would have given a concrete idea of the authority of coastal state to take measures so as to conserve fisheries.
Furthermore, in general, the liability regime under the international environmental law needs to be strengthened. The main aim while developing the liability regime under international environmental law was to cover damage within national jurisdiction and not to protect global commons ((Kathy Leigh, “Liability for Damage to the Global Commons” (1992) 14 Australian Year Book of International Law 129)). A change in this approach giving importance to the latter would be much appreciated in the light of sustainability of global commons.
Making the state responsible only for their failures and excluding their liability in regard to the failures of the operators as can be seen in Convention on Transboundary Environmental Impact Assessment, 1991 and Articles on Prevention of Transboundary Harm, 2003 brings in lot of trouble keeping in mind the safety of the environment and it would be appropriate if suitable amendments are made to curb the activities of the operators by the states themselves in anticipation of their responsibility towards the environment and protection of global commons. One of the main problems associated with ensuring sustainability of global commons is that due diligence in place of absolute obligation gives some amount of leeway for the state in case of environmental pollution or depletion of resources. The claims brought by one state with respect to the damage caused to its environment by the activities of another state are not new to international environmental law. There have been several instances including the Trial Smelter Case ((35 AJIL (1941) 716))where the U.S. brought a action against Canada for Transboundary air pollution; the Nuclear Tests Case ((Australia v. France  ICJ Rep. 99))where Australia brought an action against France in regard to radio active deposits caused by French nuclear tests and the Mox Plant Case ((ITLOS No.10 (2001) < http://www.pca-cpa.org/upload/files/MOX%20%20-%20Day%204.pdf>))where Ireland brought a claim against the U.K. in relation to dumping of radio active substances into the Irish sea. These incidents do not prove the fact that the laws regarding international environmental law fails to achieve its primary objective of protecting the global commons because in most of these cases violations have happened against international commitments or in violation of principles of international environmental law. The laws need not be merely adequate but more stringent and enforced at the international level because it is a question concerning the sovereignty of the states on both sides.
As a matter of fact, though all the above cited conventions form part of international law it is the states or the member nations who are parties to all these conventions and because it is either a gain or extent of their sovereign powers or limitation of the same in relation to different aspects of environment, it is more or less what each state or member nation follows which ultimately determines the sustainability of the global commons. At the same time, it should always be kept in mind that a violation of law affecting global commons is affecting the whole community of states and not one state in specific. The absence of final adjudication is a severe problem faced in the international environmental law regime which was clear from the Estai case and Swordfish Case. Moreover even in the Southern Bluefin Tuna Cases ((Australia and New Zealand v. Japan (1999) ITLOS Nos. 3&4 < http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewAnnouncePDF&AnnouncementType=archive&AnnounceNo=7_10.pdf>)), though the order refraining Japan from experimental fishing programme, though a provisional measure, was a welcoming one, the incompetence of the Tribunal prevented from proceeding with the merits of the case. Apart from all these, it is generally said that in most of the cases ex gratia payment cover the environmental damage caused. But is it justifiable not to accept any liability and to resolve these issues merely by way of ex gratia payment? An obligation owed to the international community as a whole (erga omnes) which has been recognized in the Barcelona Traction Case is a desirable option in addition to the concept of paying compensation. The principles of international law must be tuned to fit in the said obligation so as to protect the environment of global commons. An express obligation on the part of the state that causes the damage like in the 1992 Convention on International Liability for Damage Caused by Space Objects (Article 21) would be indeed better to protect global commons. In that regard, the 1999 Protocol on Liability for Transboundary Waste which creates liability for failure to comply with laws implementing the 1989 Basel Convention on Transboundary Movements of Hazardous Waste needs specific mentioning.