Breach of International Law by Transboundary Harm Triggered out of Hazardous Activities

Anmol Agarwal,

Maharashtra National Law University[1]




International law strives on the basic roots of maintaining sovereignty, i.e., the most important and long maintained customary rule is on the idea of sovereignty which gets violated during transgression or in scenarios of transboundary harm. The hazardous activities performed by a country should have an ambit within which they affect the resources within one’s own territory and thus maintaining the sovereignty and by that means respecting the sovereignty of another country as well. In furtherance, it has violated the sole principle propounded by the ICJ in the trail smelter case. The obligation of the duty of the neighbouring country to comply with its rights also brings about certain obligations or the liability of the party who is violating the sole principle of sovereignty. The article thus attempts to highlight these effects by giving an overview into the liability arising out of it as well as the effects of the violation of international law, that is, how it affects other countries.


Keywords: Transboundary Harm, Sovereignty, International Environment Law, Hazardous Activities


Introduction

Every country has the right to use its resources which has been laid down under Article 3 of the Act on ‘Prevention of Transboundary harm from hazardous activities’, which states of harm and the to the exploitation of resources of another country. The term transboundary harm could be understood as the idea of transboundary harm highlights the shift of harm from the original state to a state sharing across borders. [2] The right to exploit their own resources has been given to every country but it is limited till the time it is not affecting any other country’s territory. Principle 2 of the Rio Declaration states that implying that the damage should stay within the limits of natural jurisdiction. In furtherance, the researcher has discussed the obligation of the party or the liability upon the party violating the International Law. The liability cannot be waived off at any circumstances like the nature of transboundary harm is to affect the general public or the public interest, hence it is prolific to maintain the obligation in such a manner that it cannot be waived off and thus the party should be absolutely liable.

Violation of Basic Concomitants of IEL: An Overview

Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration states that:

“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.”[4]

These transboundary harms are not in accordance with the principles listed within these declarations and thus having a negative impact. Moreover, these declarations are not only in consonance with the first world countries rather certain exceptions are provided to flourish and look into the upbringing and interests of the third world countries, as in the developing and the least developed countries. It can be seen during negotiations by India and China that they won’t be part of any declarations if the declarations do not look into the interests of the developing countries, hence providing an exception for developing and least developed countries, as mentioned in Principle 6 of the Rio Declaration, which eventually also included financial assistance by the developed countries towards the developing and the least developed countries.[5]


Violation of the Principle of ‘sic utere tuo ut alienum non laedas’


The principle of ‘sic utere tuo ut alienum non laedas’, has been laid down under Article 3 of the Act on ‘Prevention of Transboundary harm from hazardous activities’, states that:

“use of [your] own property in such a manner as not to injure that of another and should not affect another party but the effect should be limited to the ambit provided within the state.”[6]

It was observed in various cases[7] that the intrusion in the jurisdiction in another person land is in violation of international law. This principle was propounded and discussed in depth in the Trail Smelter case, which widened the scope of transgression of harmful activities.[8] In the trail smelter case, involved federal governments of both Canada and United States. The trail smelter company, situated in Washington generated sulphur dioxide from the activities which affected the crops and fields of farmers working in Canada and this damage grew concerns within the concerns within the farmers. USA claimed that the government was not responsible for the activities of the company. Although ICJ held and broadened the ambit of state responsibility during transboundary harm. The court listed down certain grounds on which the country could be held liable for any actions of such nature, these grounds were in adherence to Article 8 of the ILC’s Draft articles,

i. The person acting must be a state agent
ii. The act of the state agent must have an effect on people
iii. The state agent must intend to have the resulting effect or at least known about this effect” [9]
The scope of liability of state was broadened by this case which ensured that there is no violation perhaps which affects another state. The case ensures that the actions within a country need to guided by the government of the country and any lacuna on the part of the government won’t discharge them from the liability.

Liabilities Involved

In furtherance, any violation of such principles arises of liability of the country violating the principle. Under principle 13 of the Rio declaration, the countries are liable and to compensate the affected parties for any kind of environmental damage on part of the affected party.[10] Similarly, it was seen under principle 22, of the Stockholm declaration.[11] The Chorzow Factory case, is a remarkable example to concede:

[It] is a principle of international law, and even a general conception of law, that any breach of an engagement involves a [obligation] to make reparation. The Court had already said that reparation was the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.[12]

The same was affirmed in the Gabrikovo Nagymaros Project.[13] In Queen in Right of Ontario v. US Environmental Protection Agency, it was held that any person could invoke the liability if it is violating any public interest.[14]Missouri v. Illinois[15] it was said that there should be no unreasonable interference with a right common to the general public. This was also followed in the case of The Secretary of State for Energy and Climate Change v NNB Generation Company Limited.[16] Thus, the liability of the party violating or causing transboundary harm is something which can never be waived off.


[1] Anmol Agarwal, Maharashtra National Law University, Mumbai [2] Prevention of Transboundary Harm from Hazardous Activities, art. 2(c) (2001) [3] Rio Declaration, Principle 2 (1992) [4] Rio Declaration, Principle 2 (1992); Stockholm Declaration, Principle 21 (1972) [5] Rio Declaration, Principle 6 (1992) [6] Prevention of Transboundary Harm from Hazardous Activities, art. 3 (2001) [7] Albert v. Fraser Companies Ltd., 11 M.P.R. 209, (1937) 1 D.L.R. 39 (N.B.C.A.); Brereton v. C.P.R., 29 O.R. 57 (H.C. 1898); S.S. "Lotus" Case France v. Turkey, Judgment, (1927) ICGJ 248 (PCIJ 1927); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); Case of Gabcikovo-Nagymaros Project, Hungary v. Slovakia ICJ GL No 92, [1997] ICJ Rep 7, [1997] ICJ Rep 88, (1998) 37 ILM 162, ICGJ 66 (ICJ 1997); Nicaragua v. United States of America 1984 ICJ REP. 392 [8] Trail Smelter Arbitration (United States v. Canada) ,1938 and 1941, 3 R.I.A.A. 1905 [9] Trail Smelter Arbitration (United States v. Canada,1938 and 1941 , 3 R.I.A.A. 1905 [10] Rio Declaration, Principle 13 (1992) [11] Stockholm Declaration, Principle 22 (1972) [12] Chorzów Factory, Germany v Poland 17, ICGJ 255 (PCIJ 1928) [13] International Covenant on Economic, Social and Cultural Rights, Art. 7 (1976) [14]Queen in Right of Ontario v. US Environmental Protection Agency, 912 F 2d1525(1990) [15] Missouri v. Illinois, 200 U.S. 496 (1906) [16] The Secretary of State for Energy and Climate Change v. NNB Generation Company Limited, [2013] EWHC 4161 (Admin)

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