More than just wishful thinking? : existence and identification of environmental obligations erga omnes

More than Just Wishful Thinking? Existence and Identification of Environmental Obligations Erga

Omnes

University of Eastern Finland Law School

Master’s Thesis Seminar 27 March 2018

Writer: Tuomas Palosaari 242477 Supervisor: Päivi Leino-Sandberg

Abstract

UNIVERSITY OF EASTERN FINLAND Faculty

Social Sciences and Business Studies

Unit

Law School

Author

Tuomas Palosaari

Name of the Thesis

More than Just Wishful Thinking? Existence and Identification of Environmental Obligations Erga Omnes

Major

Environmental and Climate Change Law

Description

Master’s Thesis

Date

27.3.2018

Pages

XXV + 104

Abstract

The concept of erga omnes, as introduced in the 1970 Barcelona Traction dictum, encompasses obligations of general international law, which – contrary to the traditional reciprocal understanding of the law of State re- sponsibility – are owed to all States, and consequently, all States have the legal right of enforcement if a State breaches its erga omnes obligation. Although the known and recognized obligations erga omnes have been in the fields of human rights and humanitarian law, this master’s thesis takes the ambitious goal of analysing the legal framework for applying the concept of erga omnes to global environmental issues, since they too are a concern to all States and affect the international community as a whole. The greatest task in an analysis of erga omnes obligations is their identification. I argue that there are two ways in which an obligation may emerge as erga omnes: firstly, the material approach, according to which the importance of the obligation is the deter- mining factor in distinguishing erga omnes obligations from ordinary customary obligations. If a norm is jus cogens, that is, a non-derogable rule of international law protecting some of the most fundamental values of the international community, it is also necessarily erga omnes, although it is not excluded that an obligation may be important enough to be erga omnes without being jus cogens. Secondly, this thesis establishes the hybrid approach: for those obligations which are structurally non-bilateralizable, that is, they do not emerge responsibility in reciprocal relations between States (for example, no-harm rule towards areas outside of na- tional jurisdiction), the determining factor for erga omnes status is the binding customary nature of the obliga- tion. This is due to necessity: responsibility is the necessary corollary of an obligation, and without de jure enforcement right there is no obligation at all. As a result of the analysis on international environmental case law, this thesis concludes that there has not been any recognized environmental erga omnes obligations, neither through the material approach or by recognizing the customary character of a non-bilateralizable obligation.

However, authoritative recognition has to be distinguished from the existence of such obligations. Increasing valuation of the global environment may emerge recognition of environmental erga omnes in the future.

Key words

Erga Omnes, International Environmental Law, Hybrid Approach, State Responsibility, Jus Cogens, Erga Omnes Partes

We all know here that the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth. – Jean Giraudoux, a French novelist

But with all due deference to Giraudoux, law is whatever we want, but surely not the "best school of the imagination" – Alain Pellet, Emeritus Professor and a former member and chairperson of the ILC

CONTENTS

REFERENCES ... VI ABBREVIATIONS ... XXIV

1 INTRODUCTION ... 1

1.1Introduction ... 1

1.2 Background of Erga Omnes and State Responsibility ... 2

1.3 What is the Relevance to Environmental Issues? ... 5

1.4 Research Questions, Method and Outline ... 7

1.5 Preliminary Notions on State Responsibility ... 9

2 STANDING TO ENFORCE ERGA OMNES OBLIGATIONS ... 12

2.1 Outline of the Chapter ... 12

2.2 Enforcement Through ICJ Proceedings and Countermeasures ... 12

2.2.1 Outline ... 12

2.2.2 ICJ Proceedings in Contentious Cases and Advisory Opinions ... 13

2.2.3 On “Lawmaking” by the Court, Avoiding Decisions and Dissenting/Separate Opinions ... 18

2.2.4 Countermeasures... 22

2.3 Standing ... 24

2.3.1 The Basis of Standing ... 24

2.3.2 Restrictive Approaches before the Barcelona Traction Dictum ... 26

2.3.3 Expansive Approaches before the Barcelona Traction Dictum ... 32

3 SOURCES OF ERGA OMNES OBLIGATIONS AND THEIR IDENTIFICATION ... 37

3.1 Background Information and Outline ... 37

3.2 Other Uses and Meanings of the Concept of Erga Omnes ... 37

3.2.1 Traditional Use of Erga Omnes Terminology ... 37

3.2.2 Erga Omnes Denoting Territorial Limitation of Obligations ... 39

3.2.3 Descriptive Use of Erga Omnes ... 40

3.3 The Sources and Identification of Erga Omnes Obligations ... 40

3.3.1 Barcelona Traction and Erga Omnes ... 40

3.3.2 Erga Omnes Partes and the Question of Sources ... 41

3.3.3 Erga Omnes Obligations as Rules of Customary International Law ... 46

3.4 Identifying Obligations Erga Omnes ... 51

3.4.1 General Remarks and Outline ... 51

3.4.2 Structural Approach ... 52

3.4.3 Material Approach ... 55

3.4.4 Hybrid Approach ... 56

3.4.5 Interim Conclusions: Two Patterns of Erga Omnes Identification ... 62

3.5 Peremptory Norms (Jus Cogens) ... 63

3.5.1 The Legal Basis of Jus Cogens and the Ontological Questions Surrounding it ... 63

3.5.2 Are Jus Cogens Necessarily Erga Omnes? ... 68

3.5.3 Dispositive Erga Omnes ... 69

4 ENVIRONMENTAL ERGA OMNES ... 71

4.1 Preliminary Notions and the No-Harm Rule ... 71

4.2 Environmental Jus Cogens ... 77

4.3 Dispositive Environmental Erga Omnes In International Practice ... 81

4.3.1 Preliminary Notions on the lack of Practice on Environmental Erga Omnes ... 81

4.3.2 Areas and Entities Outside National Jurisdiction ... 82

4.3.3 Environment Under National Jurisdiction ... 91

4.3.4 Some Concluding Remarks ... 99

5 CONCLUSIONS ... 103

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Waldock, Humphrey: Third report on the law of treaties, UN Doc. A/CN.4/167 and Add. 1–

3, YbILC 1964 Vol. II, p. 5.

Other Documents

Great Britain Foreign Office: British & Foreign State Papers, 1893–1894, Vol. 86.

CASE LAW

Arbitration Tribunals

Affaire du Lac Lanoux (Spain v. France) 1957, Award, XII RIAA, p. 281 (Lac Lanoux - case).

Award Between the United States and the United Kingdom Relating to the Rights of Juris- diction of United States in the Bering’s Sea and the Preservation of Fur Seals (Great Britain v. United States) 1893, Award, XXVIII RIAA, p. 263 (Bering Sea Fur Seals).

– The Case of the United States before the Tribunal of Arbitration to convene at Paris under the provisions of the treaty between the United States of America

and Great Britain, concluded February 29, 1892, including the reports of the Behring Sea Commission, United States No. 6, London Harrison 1893.

Case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France (United States v. France) 1978, Award, XVIII RIAA, p. 416 (Air Service Agreement).

PCA Case No. 2013-19 In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China (Republic of the Philippines and the People’s Republic of China) Award of 12 July 2016, (South China Sea Arbitration).

Responsibility of Germany for Acts Committed Subsequent to 31 July 1914 and Before Por- tugal Entered into the War (Germany v. Portugal), Award, 1930, II RIAA, p. 1035 (Cysne).

Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of Africa 1928, Award, II RIAA, p. 1011 (Naulilaa).

S.S. “I’m Alone” (Canada v. United States of America), 30 June 1933 and 5 January 1935, Award, III RIAA, pp. 1609.

Trail Smelter Arbitration (United States v. Canada), 3 RIAA, p. 1905 Awards of April 16, 1938 (1939 33 AJIL 182) and March 11, 1941 (1941 35 AJIL 684).

European Court of Human Rights (ECtHR)

Ireland v. the United Kingdom, 5310/71, Series A No. 25, 18.1.1978.

International Committee of Jurists, entrusted by the Council of the League of Nations

Åland Islands Question, Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the task of giving an advisory opinion upon the legal aspects of the Aaland Islands question, LNOJ, Special Supplement No. 3, Octo- ber 1920.

International Court of Justice (ICJ) & Permanent Court of International Justice (PCIJ)

Aerial Herbicide Spraying (Ecuador v. Colombia), Memorial of Ecuador Volume 1, 28 April 2009.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p.

43.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, ICJ Reports 2008, p. 412.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3.

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), ICJ Reports 1972, p. 53 (ICAO).

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1970, p. 3 (Barcelona Traction).

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), ICJ Reports 1996, p. 595.

Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, ICJ Reports 1963, p. 15 (Northern Cameroons).

Continental Shelf Case (Libyan Arab Jamahiriya v. Malta), ICJ Reports 1985, p. 13.

Corfu Channel Case (United Kingdom v. Albania), Merits, ICJ Reports 1949, p. 4.

East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 90.

Fisheries (United Kingdom v. Norway), Judgment, ICJ Reports 1951, p. 116 (Anglo-Nor- wegian Fisheries).

Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Reports 1997, p. 7.

Interpretation of the Statute of the Memel Territory (United Kingdom v. Lithuania), 1932 PCIJ:

– Series A/B No. 47, Judgment on Preliminary Objection.

– Series A/B No. 49, Judgment.

–Series C No. 59 Part II, Public Sittings and Pleadings.

Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment, ICJ Reports 2012, p. 99.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276(1970), Advisory Opin- ion, ICJ Reports 1971, p. 16 (Namibia).

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136 (Israeli Wall).

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p.

226.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p. 66.

Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judg- ment, ICJ Reports 2004, p. 279.

Mavrommatis Palestine Concessions (Greece v. United Kingdom), Objection to the Juris- diction of the Court, Judgment, PCIJ Series A No. 2 1924, p. 7.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14 (Nicaragua).

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, ICJ Reports 1984, p. 169 (Nicaragua Provisional Measures).

Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States), Preliminary Question, ICJ Reports 1954, p. 19 (Monetary Gold).

North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Reports 1969, p. 3.

Nuclear Tests (Australia v. France; New Zealand v. France), ICJ Reports 1974, pp. 253 &

457.

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, ICJ Reports 2016, p. 833 (Nuclear Arms Race).

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949 (Reparation Advisory Opinion).

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p. 15.

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court S Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France), Re- quest for an examination of the situation - Request for the Indication of Provisional Measures, ICJ Reports 1995, p. 288 (Nuclear Tests II).

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962 ICJ Reports 1962, p. 319.

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ Reports 1966, p. 6.

S.S. Lotus (France v. Turkey), PCIJ Series A No. 10, September 7th, 1927.

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), ICJ Reports 1980, p. 3 (Hostages).

Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ Reports 2012, p. 422.

International Criminal Tribunal for the former Yugoslavia (ICTY)

Prosecutor v. Anto Furundžija, International Criminal Tribunal for the former Yugoslavia (ICTY) 1998, Trial Judgement, IT-95-17/1-T.

International Tribunal for the Law of the Sea (ITLOS)

Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, p. 10 (Straits of Johor).

Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10.

Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advi- sory Opinion, 2 April 2015, ITLOS Reports 2015, p. 4.

Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280.

The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 De- cember 2001, ITLOS Reports 2001, p. 95.

ABBREVIATIONS

ARSIWA Articles on the Responsibility of States for

Internationally Wrongful Acts

Asst. ed. Assistant Editor

CAT Convention against Torture

Cf. Confer/conferatur (compare)

CSD Commission on Sustainable Development

Doc. Document

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

Ed. Editor

Eds. Editors

E.g. Exempli gratia (for example)

Et seq. Et sequens (and the following pages)

GA General Assembly

Ibid. Ibidem (in the same source)

ICTY International Criminal Tribunal for the for-

mer Yugoslavia

I.e. Id est (that is)

ILC International Law Commission

ILO International Labour Organisation

ITLOS International Tribunal for the Law of the

Sea

LNOJ League of Nations Official Journal

Ltd Limited company

No. Number

UN United Nations

UNEP United Nations Environment Programme

UNTS United Nations Treaty Series

UK United Kingdom

USA United States of America

Para. Paragraph

Paras. Paragraphs

P. Page

Pp. Pages

RIAA Reports of International Arbitral Awards

Yb Yearbook

VCLT Vienna Convention on the Law of Treaties

Vol. Volume

WHO World Health Organization

1 INTRODUCTION

1.1 Introduction

Writings on the concept of erga omnes and general interest of the international community are numerous and diverse: as noted by Byers, “[f]ew concepts in international law have at- tracted as much attention or created as much controversy as jus cogens and erga omnes rules.”¹ Regardless of these efforts, the exact scope, contents and implications of the concept of erga omnes remain unclear. This is mostly because the full potential of the concept has not yet been realized in practice: for example, authoritative pronouncements by the Interna- tional Court of Justice (ICJ or the Court²) are few in number.³ Consequently, “it may be no coincidence that its implementation has proven tortuous.”⁴

Yet this thesis takes the ambitious goal of bringing something fresh to the scene through environmental law perspective. As such, applying erga omnes to environmental issues is nothing new: some of the most renowned international lawyers in history and contemporary writers have discussed the topic since its introduction to international law.⁵ This thesis aims at building on their existing theoretical framework and findings on the nature of international law by presenting, inter alia, my explanation why the contemporary international environ- mental law has not confidently adopted customary environmental rules outside transbound- ary relations.⁶

1 Byers 1997, p. 211.

2 When this thesis refers to “the Court” or “the ICJ” in discussion of case law, it denotes the majority of the ICJ. This majority can range from unanimous to being decided by the President of the Court when there is a tie in a vote by the judges.

3 This issue is returned to several times during this study, but it should already be mentioned that there are only few judgments where the ICJ has confidently identified certain obligations as erga omnes: see e.g. the Barce- lona Traction (erga omnes obligations included in the judgment are discussed below e.g. in chapters 1.2 and 1.3), see Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1970, p.3, at p. 32, paras. 33–34, East Timor (recognizing self-determination as erga omnes), see East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 90, at p. 102, para. 29, Israeli Wall Advisory Opinion (again self-determination and unspecified humanitarian obligations), see ICJ Reports 2004, p. 136, at p. 199, paras. 155–157 and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3, at p. 47, para. 87 (unspecified erga omnes obligations which “the Genocide Convention contains”, making it unclear if this was erga omnes in the Barcelona Traction sense, or the “territorial restriction” erga omnes discussed in chapter 3.2.2, or even erga omnes partes, a con- cept discussed in chapter 3.3.2.

4 Tams 2005, p. 4.

5 See e.g. Ragazzi 1997, pp. 154–162, Gaja 1999 & 2010, Birnie – Boyle 2002, Sands 2003, pp. 187–189, Scovazzi 2005, p. 219, pp. 195–198, Beyerlin – Marauhn 2011, pp. 286–288 & 363, Johnstone 2014, pp. 213–

225, Bodansky – Brunnée – Rajamani 2017, pp. 49–52, among others.

6 This deduction is presented under the title of “hybrid approach”, and as the name suggests, it combines ele- ments from existing theories to give an explanation on how certain rules may emerge as erga omnes. Tentative

New and speculative discussion on the theoretical scope and possibilities of erga omnes is enabled by the fact that – as mentioned – jurisprudence on the topic is scarce. As for envi- ronmental obligations, in the ICJ jurisdiction there is none, and consequently the topic is judicially unmarked territory. However, there are enough cases in international courts and tribunals where the topic has been brought up – as well as other authoritative sources – to enable one to draw conclusions on the possible existence of environmental erga omnes. Also, the lack of jurisprudence does not mean that something does not exist⁷: instead, the situation should be seen as an opportunity and a duty of formulating and exploring the legal implica- tions of the concept.

But before further discussion, we need to answer what erga omnes is and what it is not as discussed in this study. After introducing the concept in the next chapter, I will briefly justify its application to environmental issues in chapter 1.3. Finally, the method, outline and key findings of the study are presented in chapter 1.4 and preliminary notions on State responsi- bility and International Law Commissions’ work on the topic in chapter 1.5, before turning to the main discussion.

1.2 Background of Erga Omnes and State Responsibility

On 5 February 1970 the International Court of Justice delivered a judgment concerning a dispute between Belgium and Spain on damages that Belgium claimed to have been caused to its nationals, the shareholders in the Barcelona Traction, Light and Power Company Ltd, by acts of the organs of the Spanish State which Belgium argued to be breaches of interna- tional law.⁸ One part in that Barcelona Traction judgment, known as the dictum,⁹ took a life of its own and became arguably more significant to international law than the main merits of the case. In the dictum the Court stated that

presentation on the hybrid approach is given in chapter 1.4 in relation to the outline of this study and its key findings. Hybrid approach itself is comprehensively presented in chapter 3.4.4 and applied in the analysis of existing international environmental case law in chapter 4.3.

7 See e.g. Hännikäinen 1988, p. 15, pointing this out in relation to jus cogens.

8 ICJ Reports 1970, at p. 6, paras. 1–2.

9 Obiter dictum (roughly translating to “a remark in the passing” or “by the way”) is a concept borrowed from the common law systems, meaning “[s]omething said by a judge while giving judgment that was not essential to the decision in the case.” In common law systems, such statements are “part of the ratio decidendi of the case and therefore creates no binding precedent, but may be cited as persuasive authority in later cases”, see Law 2015, obiter dictum. However, international law, or at least the judicial system under the ICJ, does not work like this through precedents: obiter dicta are not necessarily less significant for subsequent jurisprudence than ratio, which is shown by the remarkable weight of the Barcelona Traction dictum itself. See Tams 2005, pp. 167–173 discussing criticism against the concept of erga omnes based on the fact that it was given as obiter dictum.

“[w]hen a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obli- gations, however, are neither absolute nor unqualified. In particular, an essential dis- tinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplo- matic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. - - Such obligations derive, for exam- ple, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corre- sponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by inter- national instruments of a universal or quasi-universal character.”¹⁰

The Court thus acknowledged a category of obligations, which, in view of their im- portance,¹¹ can be enforced by all States. The Court distinguished a contrario diplomatic protection – which was the issue in the case – from obligations erga omnes by defining what the latter concept was.¹² This was the first time the Court confirmed the existence of such concept of general international law. Prior to Barcelona Traction judgment, the traditional view in international law had a tendency of being restrictive towards the concept of standing:

as a rough simplification, only the directly or tangibly injured States could invoke the re- sponsibility of the wrongdoing State.¹³ The possibility of actio popularis – of which the erga

10 ICJ Reports 1970, p. 32, paras. 33–34.

11 The material approach discussed in chapter 3.4.3 is strongly based on this “importance” statement by the Court. However, the importance given to the obligation is a necessary element in the emerging of any erga omnes obligation, as will be shown in chapter 3.4.4. In this respect, it should already be noted that erga omnes and jus cogens, i.e. peremptory norms of international law as representing some of the fundamental values of the international community, overlap to certain extent, an issue which will be discussed in chapter 3.5.

12 In paragraph 35 the Court stated, inter alia, that “[o]bligations the performance of which is the subject of diplomatic protection are not of the same category. It cannot be held, when one such obligation in particular is in question, in a specific case, that al1 States have a legal interest in its observance. - -“

13 See e.g. Root stating in 1916 that “[u]p to this time breaches of international law have been treated as we treat wrongs under civil procedure, as if they concerned nobody except the particular nation upon which the injury was inflicted and the nation inflicting it. There has been no general recognition of the right of other nations to object”, in view that the international community should change in this respect after the experiences of the First World War, see Root 1916, pp. 7–8. However, this does not mean that actio popularis or general standing was unheard of or never suggested: for example, Hugo Grotius argued in 1625 that kings had the right

omnes is a manifestation of¹⁴ – was not recognized in international law before the Barcelona Traction, although there were several conventional international instruments recognizing general interest long before the dictum.¹⁵ As defined in the dictum, all States can be held to have a legal interest in the protection of obligations erga omnes. By definition, erga omnes is therefore closely related to enforcement of international law.

Enforcement of international law concerns “attempts to induce a State to cease its wrongful conduct and to remedy its consequences”,¹⁶ and the concept of erga omnes suggests that for certain obligations the right of enforcement belongs to all States. Thus, although it is clear that erga omnes and enforcement are interrelated, it is not excluded here that the erga omnes status of an obligation may also imply other legal effects.¹⁷ However, similarly to Tams, it is assumed here that the concept is mostly linked to enforcement, and in this relation two measures are focused on in this thesis: ICJ proceedings and countermeasures.¹⁸

of actio popularis, see Grotius 1625, Book 2 Chapter 20 para. XL(1) (p. 1021 in Tuck 2005), see also Nolte 2002 for comprehensive discussion on the topic. According to Crawford, the reciprocal concept of responsi- bility was closely related to the consolidation and positivist movement in international law of the nineteenth century, see Crawford 2012, p. 581. The traditional philosophy of bilateral (or reciprocal) responsibility is also shown by the fact that still in first reading of the 1996 Draft Articles on State Responsibility there were sug- gestions to amend the Article 1 by inserting the phrase “towards another State” or “to an injured State” to the definition of to whom responsibility may be owed to. However, these suggestions were rejected by the ILC, see Crawford 2002, p. 11. See more on restrictive and expansive approach to standing pre-Barcelona Traction in chapters 2.3.2 and 2.3.3.

14 In this thesis discusses actio popularis and erga omnes as denoting the same concept. However, they may also be seen as separate, but at the least very closely linked concepts, as demonstrated by e.g. the Joint Dis- senting Opinion of Judges Onyeama, Dillard, Jiménez De Arechaga and Sir Humphrey Waldock in Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 253, at pp. 369–370. See Sands 2003, p. 188 making this point.

15 See chapter 2.3.3.

16 Tams 2005, p. 5.

17 See e.g. Judge Weeramantry arguing that the presence of erga omnes obligations may result in legal grounds for estoppel, Separate of Opinion of Vice-President Weeramantry, Gabčikovo-Nagymaros Project (Hungary v.

Slovakia), Judgment, ICJ Reports 1997, p. 7, starting at p. 88, and for more detailed discussion on this in chapter 4.3.3 footnotes 488–489. See also Ragazzi 1997 p. xii, pointing to actio popularis as a “corollary” of erga omnes, thus indicating that the concept may encompass other legal effects. Some other effects, such as the “territorial depth” discussed in chapter 3.2.2, which may be the kind of “corollary” of the erga omnes obligations. However, in this relation the overlap between erga omnes and jus cogens makes the assessment of these effects difficult, which further justifies leaving the topic out of the present study.

18 Tams 2005, pp. 5–6. Case law by other courts and tribunals than the ICJ are also discussed in this thesis, but the focus is on the ICJ as the main institution for the enforcement of erga omnes obligations. Including ICJ proceedings in the discussion seems obvious from the context in which erga omnes has been considered by the ICJ, see Ibid., p. 11, whereas countermeasures are a necessary element in a vertical international system as it is still today, see Bederman 2002, p. 818, and chapter 2.2.4 of this study. Other “circumstances precluding wrongfulness”, as codified in Part 1 Chapter V of the ARSIWA, are applied in this study when adequate (e.g.

necessity is briefly discussed in chapter 4.3.2).

Consequently, enforcement of erga omnes obligations is linked to the question of who has standing to invoke the responsibility of the wrongdoing State. Therefore, the philosophy behind the concept is to ensure effective protection for obligations which – in view of their importance – are not just subject to any interest, but legal interest of all States.

1.3 What is the Relevance to Environmental Issues?

In the dictum, the Court stated that erga omnes derive from “the outlawing of acts of aggres- sion, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” Later the Court has confirmed self-determination of peoples as erga omnes.¹⁹ These obligations strongly relate to human rights and humanitarian law and form their most fundamental part: all of the listed obligations are also usually considered to be jus cogens, that is, peremptory norms from which no derogation is allowed.²⁰

So, what is the relevance of environmental obligations to the concept of erga omnes? The connection is clear: erga omnes obligations protect the collective interest of the international community, and global environmental problems are certainly a concern of all humanity. For example, biodiversity and the ozone-layer are crucial to life on earth, and climate change with its resulting and possibly devastating effects affect us all. These resource, entities and phenomena are fundamentally shared by all peoples and they do not follow national borders:

the global environment and human well-being are interdependent with each other and af- fected by actions of all.²¹ These objective values of the environment, our subjective valuation of it and the fact that in many cases of environmental harm or its risk there is no tangibly injured State, all contribute to the potential that the concept of erga omnes entails for envi- ronmental law. Consequently, the environmental matters are brought up as possible and ex- emplary candidates for erga omnes status not only in legal literature²² but by, for example,

19 See East Timor and Israeli Wall as referred to above in footnote 3.

20 See chapter 3.5 for jus cogens.

21 One interesting aspect – environmental rights as human rights and relation to erga omnes – is left out of the scope because of length restriction and since the topic would most likely take a thesis of its own to be discussed comprehensively. The issue was brought up in then discontinued (as the parties reached an agreement before ICJ made its judgment) Aerial Herbicide case between Ecuador and Colombia, where Ecuador in its memorial, with reference to erga omnes character of fundamental human rights, argued that Colombia with its actions endangered the communities that are dependent on the long-term well-being of the environment, and their livelihood. As such, the question may pose interesting effects on their potential erga omnes character, see Aerial Herbicide Spraying (Ecuador v. Colombia), Memorial of Ecuador Vol. 1, 28 April 2009, pp. 5–7, paras.

1.7–1.10.

22 As already noted in chapter 1.1.

the ILC and other institutions.²³ However, what is missing – unfortunately – is an unambig- uous recognition by the ICJ or other international courts.

But do we need environmental erga omnes?²⁴ At present, States may be more willing to establish and lean on treaties containing liability regimes for narrowly defined areas or ac- tivities.²⁵ But these treaties and their liability regimes do not provide a complete or even satisfactory system of protection or legal consequences for severe environmental harm. Fur- ther, in many cases States have been inclined to avoid discussing the complicated issues surrounding environmental responsibility altogether, partly because there have been no ef- fective enforcement mechanisms.²⁶ Therefore, we also need effective judicial means and possibly countermeasures to answer severe environmental harm. This is especially in rela- tion to areas and entities outside national jurisdiction, since at least in the sphere of custom- ary obligations, they cannot be effectively protected without them having an erga omnes character, as will be demonstrated below in chapter 3.4.4. This necessity is created by the fundamental characteristics of international law: the absence of any centralized international law enforcement bodies or official “world police”. Therefore, for the most part, States are considered to be responsible for the enforcement of international law, including invoking of each other’s responsibilities and implementation of judicial decisions.²⁷

And of course, as will be shown in chapter 3.5.2, jus cogens norms are necessarily erga omnes. If an environmental obligation was to achieve the status of jus cogens, it would be also erga omnes, which as such already justifies speculating the topic: after all, “massive

23 See e.g. ILC Commentaries on the Draft ARSIWA p. 127, para. 10. This and other examples are presented in more detail in chapter 4.

24 When this thesis refers to “environmental erga omnes”, it does not suggest that there is erga omnes in the environmental law that is different from the general concept: general international law applies to environmental law as much as it applies to human rights or humanitarian law or other branches of international law. Therefore, the term is only used to indicate “erga omnes concept applied to the environment”.

25 Johnstone 2014, p. 190.

26 In an often-cited example, when the Chernobyl nuclear accident took place, no State invoked the responsi- bility of the Soviet Union in an international court. This was partly because there were no effective mechanisms for enforcement, and partly because States were concerned with possible legal consequences, since they were themselves polluting other countries, see e.g. Malone 1987, p. 207.

27 In Shabtai Rosenne’s words, ”[a] major feature of all international litigation is that unlike national courts, international law has no standing machinery available to the judgment creditor for the enforcement of the decisions of international courts and tribunals, except where this is specifically addressed in the constituent instrument of the court or tribunal.”, see Rosenne 2006, p. 194. Also, when describing “lessons learned” after the South West Africa cases, Gross stated that “[t]here is not, and cannot be, an effective substitute for the willingness of members of the international community to enforce, with vigor and conscience, the principles of their own [UN] Charter, the dictates of their own decrees and the plain terms of their own undertakings.”, see Gross 1966, p. 48.

pollution” was included in the “candidate list” of international crimes – that is, the Article 19 – for a long time in the draft ARSIWA among obligations of which many are also listed in the Barcelona Traction dictum and are usually understood as jus cogens. And finally, it is not excluded that customary obligations of certain type may emerge as erga omnes because of their importance, as laid down in the dictum, without them being necessarily jus cogens.²⁸ Therefore, it can be argued that if the environment was to become valued as important enough by the international community, it may consequently achieve erga omnes status.

1.4 Research Questions, Method and Outline

This study explores the existence and possibility of environmental erga omnes obligations in contemporary international law. To do so, the following questions needs to be answered:

what the legal basis and source of these obligations are, and most importantly, how can ob- ligations erga omnes be identified. Further, this study aims at identifying the possible erga omnes character of the no-harm rule.²⁹ To answer these questions, the study applies tradi- tional doctrinal legal method, as its object is to answer what the law is. However, discussion on such a complex concept also necessarily involves speculation on the development of law.

When this thesis discusses theoretically delicate topics such as jus cogens and legitimization of customary international law, legal and – to certain extent – moral theory treatment will be given in order to justify the slightly critical approach in these parts. However, this criticism should not be taken as a foe to constructiveness on the issue: the critical approach is simply justified by the inner pragmatism of this thesis so as to anchor erga omnes to something concrete and theoretically as firm as possible basis, and therefore to avoid becoming a uto- pian take on contemporary international law.

In an often-quoted foreword Humphrey once observed that “[h]uman rights lawyers are no- toriously wishful thinkers”.³⁰ Such “wishful thinking” – that is – taking aspiration for certain emerging trends in international law as facts³¹ cannot lead to a desirable result in research and poses a pitfall to environmental lawyers as much as it does to human rights lawyers.

Therefore, instead of applying the concept of erga omnes unjustifiably as a legal panacea to global environmental problems, I aim at taking a pragmatic view on the issue and admit that

28 This material approach and dispositive erga omnes are presented in chapters 3.4.3 and 3.5.3 respectively.

29 Therefore, although the analysis in this study relates to erga omnes as an enforcement method (secondary rule), it also attempts to assess if the no-harm rule (a primary rule) has such status. For explanation of secondary and primary rules, see next chapter 1.5.

30 Humphrey 1973, p. vii.

31 Pellet 2000, p. 5.