Book Chapter
Reference
Principle 14 of the Rio Declaration on Environment and Development
MBENGUE, Makane Moïse
MBENGUE, Makane Moïse. Principle 14 of the Rio Declaration on Environment and
Development. In: Viñuales, J. Commentary of the 1992 Rio Declaration on Environment and Development . Oxford : Oxford University Press, 2015. p. 383-402
Available at:
http://archive-ouverte.unige.ch/unige:56126
Disclaimer: layout of this document may differ from the published version.
1 / 1
18. Principle 14
Dangerous Activities and Substances lv!akanelv!.Jv!bengue*
Prînciple 14
States should effectively cooperate ta discourage or prevent the relocation and rrans- fer to other States of any activities and substances that cause severe environmental degradation or arc found ta be harmful to human health.
1) Origins and Rationale of the Principle 1. Overview
2. 1he Basel Convention 3. The Ba1nako Convention
II) The Principle as Enshrined in the Rio Declaration 1. Preparatorywork and context
2. Scope and dimensions 2.1. Prior informed consent 2.2. Legal nature
3. Normative impact 3.1. Hazardouswastes
3.1.l. The Basel trade ban 3.1.2. Radioactive waste 3.2. Hazardous chen1icals
3.2.1. The Rotterdam Convention 3.2.2. 1he Stockholm Convention 3.2.3. The Minamata Convention 3.3. Genetically modified organisms
3.4. Pragmatism and environmentally sound transfers
4. Jurisprudential relevance
4.1. The International Tribunal for the Law of the Sea 4.2. 1he International Court of Justice
4.3. Investment arbirration III) Relations with Other Principles
1. Principle 14 and 'no-harm' 2. Principle 14 and cooperation
3. Principle 14 and the obligation to conduct an environmental impact assessment
4. Principle 14 and sustainable development
5. Principle 14 and prevention IV) Assessment
V) Select Bibliography
384 384 385 386 387 387 389 389 391 392 392 392 392 392 392 393 393 394 395 396 396
396
397 398 398 398 399 399 400 400 401"' Associate Professor, Faculty of Law, University ofGeneva and InstituteofEnvironmental Sciences (Geneva), Vislting Professor, Sciences Po Paris (School of Law). The author would like to express his gratitude to Susanna Waltman, PhD candidate at the University of Geneva, for her predous help in the preparation of this contribution.
I) Origins and Rationale of the Prindple 1.
OverviewThe transboundary movement of activities and substances that cause environmental deg- radation or are harmful to health is a continuing problem of modernity. Developing coun- tries are particularlyvulnerable to this problem due to reduced labour and operational costs and weaker regulation or enforcement that entice the relocation of hazardous activities and substances to their territories. This includes the exporting of waste for disposai and the dumping of hazardous substances and production activities that industrialized countries find cheaper and easier to dispose of in the less regulated developing world. Principle 14 is of vital importance, as it airns to prevent the dumping of hazardous substances and the relocation of hazardous operations in and to developing (and potentially developed) states.
As will be evidenced below, hazardous substances and activities are not governed by any single international instrument that establishes general principles or rules of general application to all such activities or substances. Principle 14 is the broadest normative enunciation on the matter, and is therefore of particular relevance to the development of the normative framework in this area. International agreements relevant to the discussion of Principle 14 are found in three main areas that create regulatory regimes covering three categories of goods: hazardous wastes, hazardous chemicals, and genetically modified organisms ('GMOs') and other aspects related to biodiversity management.1 Principle 14 refers broadly to 'activities' and 'substances' that harm the environment and/or human health; it is therefore necessary to consider the issues surrounding the hazardous wastes regime, hazardous chemicals regîme, and biodiversity management regime both in terms of the origins of the Principle and for the examination of the scope and impact of the Principle on international instruments.2 These instruments are in the spirit of Principle 14, as a central the1ne throughout all three regimes is the protection of the environment and human health through the prevention or regulation of the transboundary movement of dangerous substances or activities. Since there is no general definition under internationaC law as to what constitutes a dangerous or hazardous substance or activity,3 it is all the more necessary to examine the wide reach of the Principle and the disjointed manner in which it has been implemented.
Due to several publicized incidents in the mid 1980s involving hazardous wastes pro- duced in industrialized countries and dumped in developing countries, international law has focused primarily on the permissibility of international movements and trade in waste and other hazardous substances.4 In this focus, a particular tension has emerged: the desire of many developing countries, particularly African states, to ban international trade in waste, and the opposition by many industrialized countries, desiring to keep their waste disposal options open.5 There are significant economic incentives that influence state policies regarding trade in hazardous substances and activities, and the industries and
1 Langlet, D., Prior Informed Consent and Hazardous Trade: Regu!ating Trade in Hazardous Goods at the Intersection ofSovereignty, Free Trade andEnvironmental Protection (Kluwer Law International 2009), 4.
2 See section II) 3 of this chapter.
3 Sands, P., Princip/es ofinternationalEnvt'ronmental Law (Cambridge University Press 2003), 620.
4 Sands, Princip/es of lnternationaLEnvironmental Law, 690.
5 Sands, Principles of International Environ mental Law, 690.
Origins and Rationale of the Princip le 385
agricultural sectors that produce the substances in question are often of significant eco- nomic and therefore political importance regionally.6 Due ta the high costs of disposal of such activities and substances in developed countries with stronger environmental regula- tion and enforcementi these industries seek to dispose of these substances in the develop- ing world where costs are significandy lower. Moreover, some economic incentives favour the import of these substances and activities even when they pose a significant threat to the environment and/or human health: the import and dismantling of decommissioned ships may create jobs and provide raw materials for other industries; the application of imported hazardous pesticides may be perceived as necessary for the economic viability of certain agriculture or for the fight against disease carrying insects; the import and Use ofGMOs may boost profits in the agricultural sector or make the cultivation of newareas of land possible, etc.7 This has created a vicious cycle that has stagnated the implementation of Principle 14, in that the focus has shifted away from the prevention of such transfers or relocation and towards their regulation for environmentally sound management.
Against this background, industrialized states accepted that production of hazardous wastes should be minimized as far as possible, that disposai should take place within the state concerned where consistent with environmentally sound management, and that trade should be reduced and take place only on a basis of prior notification and environmentally sound management; but they refused to accept the outright elimination of transbound- ary disposai in its entirety.8 Developing countries asserted that regulation would simply legitimîze an unacceptable practice, and consistendy advocated for its outright elimination.9 Tensions further rose due to the continued emergence of substances that are banned from consumption or sale in developed countries into the markets of some developingcountries.10 Various international legal arrangements arase in the wake of the tension of the 1980s during a two-year period.11 Most notably, one universal treaty and a regional one, each of which established different rules, emerged to regulate the transboundary move- ments of hazardous and other wastes: The 1989 Base! Convention on the Control of Transboundary Movements ofHazardous Wastes and rheir Disposai ('Base! Convention') and the 1991 Bamako Convention on the Ban on the Import intoAfrica and the Contrai of Transboundary Movement and Management of Hazardous Wastes within Africa ('Bamako Convention').12 Principle 14 of the Rio Declatation followed in this wake and directly reflects the tension between the conflicting desires of developing and developed countries. lt is necessary to examine rhese agreements that form the basis of Principle 14 in order to fully inform any understanding of the practical implications of it.
2. The Base! Convention
The 1989 Base! Convention was the first attempt at international regulation of inter- national trade in hazardous and other wastes. Ir establishes rules aimed to regulate trade, not prohibit it, despite the vigorous attempt of African states to secure a trade ban.13
6 Langlet, Prior Jnformed Consent and Hazardous 1'rade, 11. 7 Langlet, 11.
8 Birnie, P. and Boyle, A., International Law and the Environment (Oxford University Press 2002), 428.
" Birnie and Boyle, International Law and the Environment, 428.
10 Sands, Princip/es of International EnvironmentaLLaw, 630.
11 Birnie and Boyle, International Law and the Environment, 428.
12 For a discussion of other regional treaties, sec Langlet, Prior Infarmed Consent and Hazardous Trade, 91-2.
13 Langlet, Prior Jnformed Consent and Hazardous Trade, 429.
The Basel Convention also reflects an approach based on what has become known as the 'proximity principle': rhat wastes should, as far as possible) be disposed of in the state where they were generated.14 lt permits the transboundary movements of waste but sets forth general obligations requiring all parties to ensure that such transboundary move- ments are reduced to a minimum.:
In particular, article 4 of the Basel Convention sets out general obligations designed to minimize waste generation and its transboundary movement, and to ensure its envi- ronmentally sound management.15 The Basel Convention further sets out detailed con- ditions for the international regulation of transboundary movements of hazardous and other wastes between parties, based on a system of 'prior informed consent'. Under the regime, the exporting state must notify the States concerned of any transboundary movement and the importing state responds by giving its consent with or without con- ditions, denying permission, or requiring additional information.16 No transboundary movement can occur until the exporting state has received the written consent of the importing state and confirmation from that state of the existence of a contract between the exporter and the disposer that specifies the environmentally sound management of the wastes.17 In addition, transit states can prohibit transit passage.18 These provisions clearly provided the foundation for Principle 14 of the Rio Declaration and further help inform its scope and dimension, which will be discussed in section II) 2 below. However, they fell short of establishing an outright ban on trade in wastes as advocated by many African states, which led to the establishment of a regional African agreement on the matter.
3. The Bamako Convention
Having been unable to secure a trade ban in the Basel Convention, the 1991 Bamako Convention was adopted by African states following its negotiations under the auspices of the Organization of African Uniry ('OAU'). The OAU has called the dumping of nuclear and industrial waste a crime against the African people. This view is enshrined in the 1991 Bamako Convention, which establishes a regional regime to prohibit trade in waste. The Bamako Convention follo\vs the Basel Convention to a large extent but with an impor- tant deviation: it prohibits trade in hazardous waste
by
requiring parties to prohibit the import of all hazardous wastes into Africa from non-contracting parties and declare such imports illegal and criminal.19 In addition, the definition of hazardous waste adopted therein is broader than that of the Basel Convention and there are a number of other subtle differences between the regimes. Nonetheless, these two regimes are the inspira- tion for Principle 14 of the Rio Declaration and inform its application. Moreover, they14 Sands, PrincipLes of International Environmenta! Law, 693.
15 Basel Convention on the Contrai of Transboundary Movements of Hazardous Wastes and their Disposai, 22 March 1989, ('Basel Convention') 1673 UNTS 57, art 4(2)(d), (e) and (h). These provisions provide that: parties shall not allow exports to parties that have prohibited by legislation ail imports, otwhere they have reason to believe that the wastes will not be managed in an environmentally sound manner, and they are obliged to cooperate to hnprove and achieve environmentally sound management of such waste.
16 Base! Convention, art 6(1), (2) and (3); art 2(13); art 7.
17 Basel Convention, an 6(1), (2) and (3); art 2(13); art 7. 18 Basel Convention, art 6(4).
i9 Bamako Convention on the Ban on the Import into Africa and the Contrai of Transboundary Movement and Management ofHaz.ardous Wastes within Africa, 30January1991, ('Ba1nako Convention') 30 ILM 773, art 4(1). See Sands, PrincipLes of International Environmental Law, 697.
The Princip!e as Enshrined in the Rio Dec!aration
387 demonstrate the tension between developed and developing country positions and the compromise struck in the wording of Principle 14 itself.ln addition, other relevant regimes at the origin of Principle 14 are the 1973 Convention on International Ttade in Endangered Species ofWild Fauna and Flora ('CITES') and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer ('Montreal Protocol'). These regimes form part of the biodiversity 1nanagement regime and the hazardous chemicals regime as referred to earlier. Bath agreements, in addition to regu- lating trade and transfer of such substances, impose trade restrictions with respect to third parties for the regulated substances. These trade restrictions with respect to non- parties support the effective implementation of the respective regimes and are a further expression of Principle 14. In particular, the CITES prohibits trade in species listed in its Appendix l, regulates trade in species included in Appendix II, and encourages states to bring endangered species in their territory under Appendix III. Further, it only permits transboundary movements to non-parties if the non-party provides compara- ble documentath;,n that substantially conforms to the requirements of the CITES,20 thereby supporting the environrnentally sound management of endangered species of wild fauna and flora. The Montreal Protocol prohibits trade with non-parties unless the party uses standards equivalent to those established by the Protocol,21 thereby ensuring the implementation of the regirne and the environmentally sound management of trade in substances that deplete the ozone layer.
II) The Principle as Enshrined in the Rio Declaration
1.Preparatorywork and context
Due to the conflicting desires of developed and developing states regarding the trans- boundary movement ofhazardous wastes and activities, several variations of Principle 14 were proposed and discussed throughout the preparatory process of the Rio Declaration.
The Group of77 alongwith China proposed the following formulation:
Principle 12. International and transboundary movement ofhazardous actîvities and substances:
Measures taken in a specific country ta reduce and/or control activities or projects harmful to the environment shall notlead ta the displacement and transfer of these activities or projects ta another country. Toxic and hazardous substances and wastes, dangerous genetically modified organisms, and radioactive wastes shall be treated at the point of generation. Transboundary treatment or disposa! of these substances shall be banned. Measures shall also be taken to halt the international illicit traffic in taxie and hazardous substances and wastes. The countries of origin and entities involved in such activities shall bear the liabiliry for compensation.22
Another proposa! formulated the Principle in the following manner:
As the largest part of the current emission of pollutants into the environment, including taxie and hazardous wastes, originates in developed countries, they shaH be responsible for combating such
2
°
Convention on International Trade in Endangered Species ofWild Fauna and Flora (CITES), 3 March 1973, 993 UNTS 243 art X.21 See Montreal Protocol on Substances that Dep!ete the Ozone Layer, 16 Scptember 1987, ('Montreal Protocol') 1522 UNTS 29, art 4.
22 Report of the Preparatory Committee for the United Nations Conference on Environment and Development on the Work of its Fourth Session, 1992, A/CONF.151/PC/128.
pollution and ensuring that taxie and hazardouswastes, including <langerons genetically modified organisms and radioactive waste, are disposed of in the proximity of their production.23
The following proposal was also formulated and discussed:
Principle 15
Measures taken in a specific country to reduce or control activities and projects harmful to the environment shall not lead to the displacement and transfer of these activities or projects to another country.
Prindple 16
All States shall promote agricultural development policies based on the economically rational, efficient and sustainable use of the factors of production and resources, and shall avoîd production practices which, in addition to distorting internat and externat markets, have environmentally detrimentat effects.
The United States, in its proposal for consideration, formulated the Princip le as provid- ing that:
environment and development objectives and policies should be integrated with economic and trade policies, including through appropria te harmonization of the international regimes for inter- national trade and environmental protection.24
These varying formulations demonstrate the tension between developed and devel- oping countries: in particular, the desire to ban all trade and transboundary move- ment in hazardous activities and waste by the developing world, and the desire by the developed world to leave their options open in this regard while ensuring environmen- tally sound management. Further, it is evident that many states would have preferred ta enshrine the 'proximity principle'~the prînciple whereby waste is disposed of in its state of generation. This was not possible to achieve given the position of the US and other industrialized States who preferred a softer formulation of a moral objec- tive ·rather than a binding legal obligation. In fact, many industrialized states argued against the inclusion of the Principle altogether.25
The formulation of Princip le 14 as adopted in the Rio Declaration is a direct result of this tension and a compromise between the conflicting views. The Principle as agreed upon is therefore significantly weaker than developing countries would like as it uses persuasive rather than mandatory language ('should' instead of 'shall') and is significantly less detailed than most of the formulations proposed and discussed throughout the preparatory process. The original formulations were stronger and covered a broad range ofhazardous wastes, including radioactive wastes and GMOs;
although 'substances' can be interpreted ta include such materials as they cause environmental degradation or are harmful to human health within the meaning of Principle 14.26
23 Report of the Preparatory Committee for the United Nations Conference on Environment and Development, 1992, A/CONF.151/PC/128.
24 Report of the Preparatory Committee for the United Nations Conference on Envitonment and Development, 1992,A/CONF.151/PC/128.
25 Ling, C. Y., 1he Rio Dec!aration on Environment and Deveiopment: An Assessment (The 1hird Wotld Network 2011), 47.
26 Ling, 1he Rio Declaration on Environment and Development, 47.
7he Principle as Enshrined in the Rio Declaration 389 It is significant that the Preparatory Committee noted 'the need to adopt norma- tive measures to protect the interests of all countries, particularly developing countries, against illegal or unwarranted export ofhazardol\s wastes.'27 This intention to create nor- mative measures in this regard should inform any interpretation of Principle 14 of the Rio Declaration. The Committee further highlighted:
the wish to communîcate to relevant bodies the recommendation to examine the feasibility of establishing an international mechanism to regulate and, as appropriate, prohibit the trade în, or dumping of, hazardous substances, products, processes and technologies that, having been con- sidered harmful for health and environment, have been prohibîted or seriously restricted in their counu·y of origin.28
2. Scope and dimensions
2.1. Prior informed consent
Principle 14 establishes a norm of international cooperation to discourage or prevent the relocation and transference of substances and activities that harm the environ1nent or human health in a context where it is understood that economic incentives favour their relocation or transference to states without adequate protection.29
The UN Secretary-General, in his report on the application and implementation of the Rio Declaration therefore observed in relation to Principle 14:
At a minimum, the principle requires prior informed consent of the importing State or State of relocation and imposes a duty on the originating State to ensure that the State ta which the hazard- ous activity or substance is ta be transferred has the appropriate capacity to minirnize the risks. As a principle of cooperation, it further requires that if a State chooses to ban or restrîct the importation ofhazardous substances or the translocation ofhazardous activities, the ban or restriction should be respected by other States.30
In this regard, the principle of'prior informed consent' ('PIC') has been defined as:
the principle that international shipment of a chernical that is banned or severely restricred in order to protect human healrh or the environment should not proceed without the agreement, where such agree1nent exists, or contrary to the decision, of the designated national authority in the importing country.31
The PIC procedure was established in the legally binding arrangements for international trade in hazardous wastes in the Basel Convention, the Bamako Convention and numer- ous other instruments, which will be discussed in sub-section 3 later in this chapter.
It has been observed that Princîple 14 is of crucial importance in light of the rapid expansion of agricultural chemical production over the last few years in the Asia-Pacific
27 Report of the Preparatory Comrnittee for the United Nations Conference on Environment and Development, 1991, Volume I, A/46/48, 39.
28 Report of the Preparatory Con1mittee for the United Nations Conference on Environmcnt and Development, 1991, Volume I, A/46/48, 42.
29 Report of the Secretary-General, 'Rio Dedaration on Environment and Development: Application and lmple1nentadon', 1997, E/CN.17/1997/8.
30 Report of the Secretary General, 'Rio Declaration on Environ ment and Developn1ent: Application and lmplementation' 1997, E/CN.17/1997/8.
31 Adopted by UNEP Governing Council Dedsion 14/27 of27 June 1987, arnended by UNEP Governing Council Decision 15/30 of25 May 1989, para 1 (g); found in Sands, Princip/es oflnternationa!Environmentaf Law, 630.
390 Principle 14: Dangerous Activities and Substances
region.32 Developing countries are going into the business of chemical experts, which is effectively an endorsement of chemical use and the introduction of potentially hazardous industries in the region.33 Principle 14 is of fundamental importance in this regard as it provides the normative framework for preventing the transfer and relocation of such activities and substances that cause environmental degradation or harm human health, and works in conjunction with other Principles and instruments to reduce their occur- rence. Although, as noted above, Principle 14 is notas detailed and specific as desired by developing countries, the terms 'activities' and 'substances' are broad enough to apply to any material or practice that harms the environment and/or human health. lt is therefore the guiding principle for many international instruments regulating hazardous wastes, hazardous chemicals, and biosafety management.
However, it should be noted that Principle
14
only addresses the transfer or reloca- tion of substaQ.ces that cause severe environmental degradation or are harmful to human health. Further, the wording of the Principle itself does not reflect any particular degree of precaution, for example, by requiring states to act when a substance or activity \nay cause' or 'is likely to cause' severe degradation.34 Nonetheless, the need for precaution is generally recognized in Principle 15, and the elaboration of PIC-applying international agreements can be seen as a means bywhich states 'heed the call' for effective cooperation in Principle 14.35 lt has been further noted in rhis regard that the general requirement that transboundary shipments ofhazardous wastes be minimized may also be considered a regulatory approach founded on precaution, although it is hardly a radiçal version since the wastes in question are already defined as hazardous.36While the applicable legal arrangements on the matter arase out of concern over high profile incidents involving the dumping of hazardous wastes, developing countries are increasinglyvulnerable to the dumpingofhazardous industries and technologies.37 In fà.ct, a survey report released in 1991 by the former UN Centre on Transnational Corporations revealed that the bulk of technologies that exist in industrialized states are hazardous in nature.38 It therefore follows that the bulk of technology transferred ta developing states is also hazardous to the environment and human health.39 Principle
14
therefore persuades States to invest further in cleaner technologies so that the transference of such hazardous activities can be prevented. This will be returned to in section III) 4 of this chapter in the discussion of the relation ship with the principle of sustainable development.The 'polluter pays' principle and the environmental impact assessment as a national instrument, included in Principles 16 and 17 of the Rio Declaration respectively, are important in order to enforce Principle
14.
40 In this regard, the International Court of Justice (ICJ) has held that:in accordance wîth a practice, which in rccent ycars has gained sa much acceptance among States thar it may now be considered a requirement under general international law to undertake an envi- ronmental impact assessment where there is a risk that the proposed industrial activity 1nay have a significant adverse impact in a transboundary contexr.41
31 Ling,47. 33 Ling,47. 34 Langlet,61.
35 Langlet, 61. See section II) 3.2 of this chapter for a discussion of these developments,
36 Langlet, 209. However, the precautionary approach is expressly referred to in the Cartagena Protocol, which will be discussed in section Il) 3.3 of this chapter,
37 Langlet, 48. 38 Langlet, 48. 39 Langlet, 48.
40 Ling, 46. See the commentary for rhese Principles in this volume for furrher elaboration on their content.
41 Pulp MiLLs on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010 (1), 83, para 204.
7he Principle as Enshrined in the Rio Declaration
391 1he JCJ has recently developed rhis in rhe conrext of the tight to be free from transboundary harm, which will be discussed in section Il) 4 of this chapter.Agenda 21 is offurther interest as it elaborated upon the general objective espoused in Prînciple 14. Having been adopted at the same time as the Rio Declaration, it further înforms the understanding of the Principle. It includes several relevant chapters for Principle 14, particularly Chapter 19 on 'Environmentally Sound Management ofToxic Chemicals, Including Prevention oflllegal International Traffic in Toxic and Dangerous Products'.
Chapter 19 proposed six programme areas; of particular relevance here is the prevention ofillegal international traffic in toxic and dangerous products. This programme called for the strengthening of international cooperation to prevent illegal transboundary move- ment of dangerous and toxic products. It does not, however, call for the strengthening of United Nations Environmental Programme ('UNEP') and Organisation for Economie Cooperation and Development ('OECD') non-binding instruments, or for the develop- mentof a binding international agreement.42 It therefore does little ta strengthen Principle
14, but does elaborate upon the implementation of the Principle. Chapter 20 of Agenda 21 on hazardous wastes further seeks to eliminate or reduce transboundary movements to a minimum, and implements the 'proximity principle' to ensure that management should, as far as possible, take place in the country of origin.43 Chapter 20 includes four programme areas: promoting the prevention and minimization of waste; strengthen- ing institutional capacities for management; strengthening international cooperation in management of transboundary movements; and preventing illegal traffic.44
2.2. Legat nature
Principle 14 of the Rio Declaration is ultimately a treaty-based principle, grounded in the Basel and Bamako Conventions most notably, and is an echo of the views and tensions expressed throughout the negotiating process of those agreements. The spirit behind the Principle is further grounded in customary law through the formation of the duty of prevention, no-harm, the obligation to conduct an environmental impact assessment, and sustainable development. This will be further elaborated upon in section III of this chapter. It has been noted that the Rio Declaration includes provisions rhat were either understood to already reflect customary international law at the rime of their adoption or were expected to shape future normative expectations.45
Principle 14 is a provision that bas shaped normative expectations and continues to do sa today. lt served to strengthen the moral force behind the objective to the extent that the Basel Convention eventually adopted a ban on trade in all such substances.46 ln addition, the ICJ has recently ruled that the right to be free from transboundary harm is a corollary of the no-harm principle.47 These developments demonstrate that Principle 14 plays an important role in developing the normative framework in this area of the lavv.
42 Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th Sess.,Agenda Item 21, UN Doc A/Conf.151/26 (1992), paras 19.66 to 19.76; see Sands, Princip/es of International Environmental Law, 672.
43 Agenda 21: Programme of Action for Sustainable Development, para 20.7(a). 44 See Sands, 706.
45 Handl, G., 'Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 1972 and the Rio Declaration on Environment and Devdopment, 1992', United Nations Audio- visual Library of International Law, 2012, available at: <http://legal.un.org/avl/pdf/ha/dunche/dunche_e.pdf>.
46 See section IV) of this chapter.
47 Order on Request presented by Nicaragua for the indication of provisional measures in the Construction of a Road in Costa Rica Along the San juan River (Nicaragua v. Costa Rica), 13 December 2013, 6 para 19, sec section II) 4 for further discussion.
3. Normative impact
3.1. Hazardous wastes
3.1.1. The Base! trade ban
Perhaps the most significant development since the adoption of Principle 14 is the trade ban on hazardous wastes established in the Basel Convention. As discussed above, devel- oping nations argued for a trade ban from the very beginning, but developed countries were unable to agree. The Conference of the Parties ('COP') agreed to Decision llil2 in 1994, however, which immediately banned the export of hazardous wastes from OECD to non-OECD countries for final disposa!, and by 1998, banned those wastes intended for recovery and recycling.48 This amendment was formally incorporated in the Basel Convention in 1995.19 However, the failure of the US to commit to the Basel Convention has limited its effectiveness in this regard.
3.1.2. Radioactive waste
The 1997 Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management regulates radioactive waste management. Article 27 therein deals with the transboundary movement of radioactive wastes and provides that the importing state must be notified and give its consent to such imports.50 However, notification and consent are not required for transit states, whereas they are required for transit states in the movement ofhazardous wastes. This Convention therefore does less to fulfil the spirit of Principle 14 than the Base! Convention currently do es.
3.2. Hazardous chemicals
3.2.1. The Rotterdam Convention
Another development that echoes Principle 14 is the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the 'Rotterdam Convention'). The objective of the Rotterdam Convention is:
to promote shared responsibility and co-operative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to conrribute to rheir environmentally sound use, by facilîtating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties.51
lt applies the PIC procedure for chemicals listed in Annex III to the Convention, which is, subject to certain exceptions, applicable to banned or severely restricted chemicals and severely hazardous pesticide formulations.52
48 Krueger, J., International Trade and the Base! Convention (The Royal lnstitute of International Affairs 1999).
49 Decîsion II/12 Rept. of 2nd COP, UNEP/CHW.2/30 (1994); Decîsion III/1, Rept. of 3rd COP, UNEP/CHW.3/35 (1995), inserting newpreambular para 7bis, new art 4A, and new Annex VII. Only Russia expressly refused to accept the ban. Found in Bir nie and Boyle, International Law and the Environ ment, 448.
50 The Convention applies a similar PIC procedure as the Base! Convention and others, for a fuller discus- sion and comparison, see Langlet, Prior Informed Consent and Hazardous Trade, 199.
51 Rotterdam Convention on the Prior lnformed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998, 2244 UNTS 337, found in Sands, Princip/es of International Environ mental Law, 633.
52 Rotterdam Convention on the Prior lnformed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, ('Rotterdam Convention') 10 September 1998, 2244 UNTS 337,
The Principle as Enshrined in the Rio Declaration
393 Although the objective of the Rotterdam Convention is often perceived as being to prohibit trade, its objective is in fact to promote shared responsibility with respect to the regulation of trade in certain chemicals through domestic regulatory measures taken by jndividual parties, combined witha review byascientîfic body and final decisions made by rhe COP.53 Consequently, Principle 14 did not influence the area ofhazardous chemicals as it did hazardous wastes, since a trade ban was eventually adopted in the latter,54 but could not be agreed upon in the Rotterdam Convention. Nonetheless, the Rotterdam Convention provides for the environmentally sound management of such hazardous chemicals and is therefore in the spirit of Principle 14 of the Rio Declaration.3.2.2. The Stockholm Convention
'Ibe 2001 Stockholm Convention on Persistent Organic Pollutants ('Stockholm Convention') goes further than other international instru1nents addressing interna- tional trade in hazardous wastes, hazardous chemicals, or biodiversity management by directly limiting the production and release of certain chemicals as well as regulating the transboundary movement of those that are not prohibited.55 It therefore pursues the objective of Principle 14 and goes further to ensuring environmental and health protection.
The Stockholm Convention regulates the production, use, and transboundary move- ment of hazardous chemicals known as Persistent Organic Pollutants ('POPs'). These chemicals remain intact in the environment for extensive periods, are widely dispersed geographically, accumulate in the fatty tissue of living organisms, and are toxic to wildlife and humans.56 The Stockholm Convention therefore requires states to prohibit and/or eliminate the production and use of chemicals listed inAnnexA ta the Convention,57 and to restrict the use of other harmful chemicals, such as DDT, listed in Annex B.58
3.2.3. The Minamata Convention
Most recently, the 2013 Minamata Convention on Mercury ('Minamata Convention') follows in the same vein, but provides for a much more strict regime. lt too falls short offully realizing Principle 14 by not banning trade in mercury, but is in the spirit of the Principle along with the other instruments as it establishes a PIC procedure and regula- tory framework for the environmentally sound management of mercury, including issues surrounding its transboundary movement.59 However, the Minamata Convention goes further than other international instruments by providing that parties may not trade in mercury with non-parties unless such non-parties
de facto
implement the substantiveart 3(1), arts 2 (b), (c) and (d). See Langlet, Prior lnformed Consent and Hazardous Trade, 122-31 for an in-depth analysis of the Rotterdam Convention, induding a detailed discussion of the PIC procedure.
53 Langlet, 144. lt is noted therein that 'The PresLdent ofCOP 3 felt prompted to stress that the inclusion of a che1nical in Annex III of the Convention does not have the effect ofbanning or even restricting the use of such chemical. UNEP/FAO/RC/COP.3/26, para 73.'
54 See section II) 3.1.l of this chapter.
55 See Wirth, D.A., 'Hazardous Substances andActivities', in Bodansky, D., Brunnee, J., and Hey, E. (eds), Oxford Handbook of International Environmental Latu (Oxford University Press 2007), 394, at 403 for furtheranalysis and discussion of the Stockholm Convention.
56 Sands, 683.
57 Stockholm Convention on Persistent Organic Pollutants ('Stockholm Convention') 22 May 2001, 40 !LM 532 (2001), rn 3(l)(a)(;).
58 Stockholm Convention, art 3(1)(b).
59 See art 3 of the Minamata Convention on Mercury ('Minamata Convention') 10 October 2013.
Principle 14: Dangerous Activities and Substances
requirements of the regime, thereby ensuring the environrnentally sound management of mercury.60
The Minamata Convention also goes further than the objective of Principle 14 in sanie ways as it provides for the phase-out of mercury mining,61 and prohibits the manufacture import or export of mercury-added products listed in Part I of Annex A after the phase~
out date specified for those products.62 Article 11 therein is a rather particular provision that implements Principle 14 to a certain extent by providing rhat, for Parties to the Basel Convention only, mercury waste shall not be transported across international boundaries except for the purpose of environmentally sound disposaL while other parties shall allow transport 'only after taking into account relevant international rules, standards, and guide- lines.'63 Given that the latter onlyapplies to non-parties of the Basel Convention, it is unclear what international rules would be relevant in this context. The Minamata Convention has nonetheless built on Principle
14
by phasing out mercury as a harmful substance altogether.3.3. Genetically modified organisms
Due to the general understanding that species are becoming extinct and that biodiversity is diminishing at an alarming rate, measures have been taken in response.64 Regulating the safety aspects of GMOs is highly contentious, especially due to the varying percep- tions of the potential risks involved.65 The regulation of transboundary movement of such substances is necessary ta control the exploitation of species and genetic resources or to prevent or control the spread of invasive or alien species and GMOs.66
60 1he Minamata Convention, art 3(6) provides that Each Party shall not allow the export of mercury except:
(a) Ta a Party that has provided the exporting Party>vith its written consent, and only for the purpose of:
(i) A use allowed ta the importing Party under this Convention; or (ii) Environmentally sound interim storage as set out in Article 10; or
(b) To a non-Party that has provided the exporting Party with its written consent, induding certification demonstrating that:
(i) The non-Party has measures in place ta ensure the protection of human health and the environment and ta en sure its compiiance >vith the provisions of Articles 10 and 11; and
(ii) Such rnercury will be used only for a use allowed to a Party under this Convention or for environ- mentally sound interim storage as set out in Article 10.
Article 3(8) further provides that 'Each Party shall not al!ow the import of mercury from a non-Party to whom it wil! provide its written consent unless the non-Party has provided certification that the mercury is not from sources identified as not allowed under paragraph 3 or paragraph 5 (h).'
61 See art, 3(3) and (4). 62 See art 4(1).
63 Art 11(3)(c). Arr 11(3) states that Each Party shall take appropriate measures sa that rnercury waste is:
(a) Managed in an environmenraliy sound manner, taking into account the guidelines developed under the Basel Convention and in accordance with requirements chat the Conference of the Parties shall adopt in an additional annex in accordance with Article 27. In developing requirements, the Conference of the Parties shall take into account Parties' waste management regulations and programmes;
(b) Only recovered, recycled, redaimed or directly re-used for a use allowed to a Party under thls Convention or for environmentally sound disposai pursuant ta paragraph 3 (a);
(c) For Parties ta the Base! Conventîon, not transported across international boundaries except fur the purpose of environmentally sound disposai in conformity with this Article and with that Convention. In circumstances where the Base! Convention does not apply to transport across international boundaries, a Party shall allow such transport only after taking into account relevant international rules, standards, and guidelines.
64 Louka, E., International Envfronmenta! Law: Fairness, Ejfectiveness, and World Order {Cambridge University Press 2006).
65 Langlet, 157. 66 Rayfuse, R., 'Biological Resources', in Bodansky, Brunnee, and Hey, 362 at 384.
7he Principle as Enshrined in the Rio Dec!aration
395 The 2000 Cartagena Protocol on Biosafety ('Caratgena Protocol') is a direct response rhese risks to biodiversity and responds to the call of Principle 14 in this area byaiming con tri bute to ensuring an adequate level of protection in the field of the safe transfer, banwuu15and use of living modified organisrns, specifically foci.Ising on transboundary111,.vem<onts.'67 The Cartagena Protocol does so by introducing an advance informed agreernerlt ('AJA') procedure based on a precautionary approach for the transboundary
1110vement of certain living modified organisms ('LMOs').68 lt further provides that transboundary movements between parties and non-parties shall be consistentwith the objectives of the Cartagena Protocol, thereby ensuring the effective implementation of rhe regime and fulfilling the spirit ofFrinciple 14.69
3.4. Pragmatism and environmentally sound transfers
1he agreements referred to above with provisions that impose trade restrictions on third parties70 fulfil the objectives of Princip le 14 as they ensure such transfers and relocation are clone in an environmentally sound manner. They do not implement Principle 14, in that they do not prevent such relocation or transference, but they retlect the reality that such transfers will occur, and should therefore be regulated so that they are conducted in an environmentally sound manner. Trade restrictions with third parties further provide încentives for non-parties ta
de facto
implement a treaty regime, which is greatly beneficial to its overall implementation. It is therefore a necessary trade-off: it may be impossible to entirely prevent the relocation and transference of such harmful substances and activities, but regulation can ensure some adherence to environmentally sound practices and can serve as an important incentive for states to implement a treaty regime.Rules have further been developed since the Rio Declaration to govern the transport- ation of hazardous goods and substances by rail,71 sea,72 and air.73 Although these rules are not an implementation of Principle 14, in that they do not prevent the relocation and transfer of such substances, they fulfil the spirit of the Principle by ensuring that such transfers are conducted in an environmentally sound manner. This reinforces the objectives of Principle 14.
67 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, ('Cartagena Protocol') 39 ILM 1027 (2000), art l.
66 In terms of content and practical effect, the AIA procedure may be equated with the PIC procedure discussed above, with on!y minorvariations, see Langlet, Prior Informed ConsentandHazardous Tradeat 165 for an in depth comparison of the procedures as applied in the Cartagena Protocol, Rotterdam Convention, and Base! Convention. Iris further noted at 182 that whereas the Basel Convention is clear in recognizing a Party's right to ban or otherwise regulate hazardous waste, and the Rotterdam Convention precisely defines each specific substance to be covered by its PIC procedure, the Cartagena Protocol is unique in this context 'by explicitly referrîng to and regulating the way in which precaution and socio~economic considerations may be taken into account by the Parties when 1naking decisions on import.' For a full comparison of the three regimes see Langlet, 195-213.
69 Art 24.
70 See the restrictions i1nposed by the Minamata Convention and the Cartagena Protocol, as well as by other instruments adopted prior to Principle 14, namely the CITES, the Montreal Protocol, and the Base!
Convention (sce section I) of this chapter).
71 Regulations Concerning the International Carriage of Dangerous Goods by Rail (RIO), 2013, available at: < http://W\vw.otif.org/ fi leadmi n/u scr_ upload/ otif _ver! in kte _files/ 07 _ veroeff /9 9 _geschu etz t / RID_2013_,/RID_2013_E.pdf]>.
72 International Maritime Dangerous Goods Code ('IMDG Code'), as amended.
73 ICAO Technical Instruction for the Safe Transport of Dangerous Goods by Air, DOC 9284-AN/905 (ICAO Tl); Convention Concerning the Safe Transport of Dangcrous Goods by Air (Annex 18 to the 1994 ICAO Convention).
396
4. Jurisprudential relevance
4. 1. Ihe International Tribunal for the Law of the Sea
Princip le 14 has never been expressly referred to or raised in international jurisprudence but the objective of protecting health and the environment from the harm of transbound~
ary movement ofhazardous activities and substances has been discussed in several cases.
In particular, it was raised by Ireland in its request for Provisional Measures ta the International Tribunal for the Law of the Sea ('ITLOS'), during the
MOX Plant
case.Ireland referred to the risks in the transportation of the MOX fuel from the UK to Japan and highlighted its concern as well as the strong protest by many countries against the ship ment of radioactive materials.74 Ir further highlighted the expression of the Caribbean Community (CARICOM) Heads ofGovernment against:
the increasing frequency and volume of the hazardous material being shipped, in spite of the repeated protests by States in and bordering on the Caribbean Sea, and appealed ta
the
Governments of France, Japan and the United Kingdom to desist from such transports through the Carîbbean Sea.75
Ireland therefore requested that ITLOS order the UK to immediately en sure that there are no movements into or out of its waters of any radioactive substances or materials that are somehow related to the opera tian of the MOX plant. This action by Ireland and expression by the CARICOM Heads of Government is in direct pursuit of Principle 14.
4.2. Ihe International Court of justice
More recently, the ICJ has made pronouncements supportingthe evolutîon ofPrinciple 14 into customary law.
In its Order on Provisional Measures in the case concerning the
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica),
the Court noted that 'the claimed right to be free from transboundary harm is the principal right underpinning Nicaragua's Request and is derived from the right of a State ta sovereignty and territorial integrity.'76 The Court then recalled that the no-harm principle is part of the corpus of international law relating to the environment and considered that 'a correlative right to be free from such transboundary harm is plausible.'77 The Court considered Nicaragua)s claimed right to receive a transboundary environmental assessment from Costa Rica. It recalled its previous finding in thePulp Mills on the River Uruguay
and found the rights for which Nicaragua sought protection ta be plausible.78 Given that this is an incidental proceeding to the case, the Court could not prejudge the merits and develop its reasoning in this regard.lt is nonetheless highly significant that the Court has recognized the right to be free from transboundary harm, the objective behind Principle 14, as a correlative right stem- ming from the no-harm principle. This will be further developed in section III) 1 of this
74 See paras 33-43 ofireland's Request for Provisional Measures in theMOXP!antcase (Ireland11. United J(ingdom), ITLOS Case No 10.
75 Ireiand 11. United Kingdom, para 36.
76 Orderon Request presented by Nicaragua for the indication of provisional measures in the Construction of a Road in Costa Rica Along the San juan River (Nicaragua v. Costa Rica), 13 December 2013, 6 para 19.
77 Nicai·agua 11. Costa Rica, 6, para 19.
78 Nicaragua 11. Costa Rica, 6, para 19; see Pulp Mills on the River Uruguay (A1gentina v. Uruguay), Judgrnent, ICJ Reports 2010 (1), 83, para 204.
7he Principle as Enshrined in the Rio Declaration 397
chapter. lt is possible that the Court's judgment on the merits in this case could formalize the objective of Principle 14 as binding customary law ifit develops its reasoning in the sarne manner.
4.3. lnvestment arbitration
Vnfortunately, other tribunals have been less supportive of Principle
14
and the objec- tive espoused therein.79 InS.D. Meyers, !ne. v. the Government of Canada,
an American corporation engaged in the treatment of Polychlorinated biphenyl (PCB), an environmen- tally hazardous chemical compound brought a daim against Canada under the North American Free TradeAgreement (NAFTA) Chapter 11 for Canadas orderprohibiting the export of PCB waste. The Tribunal found that:Canada's policy was shaped to a very great extent by the desire and intenr to protect and promote the market share of enterprises that would carry out the destruction of PCBs in Canada and that were owned by Canadian nationals.80
It therefore found in favour of S.D. Meyers and ordered Canada to pay compensation.
However, as discussed in section II) 1 above, there is considerable support for the 'proxim- ity' prînciple, particularly in its implication that waste should be disposed of in its country of origin. As highlighted above, developing countries tried to enshrine this into Principle 14, but it was rejected by the industrialized states. It is nonetheless included in Agenda 21 and a widely recognized principle.
Consequenrly, even if Canada's order were based on its des ire to protect its own industry related ro the destruction of PCBs, it would be supporred by Princip le 14 and Agenda 21.
The Tribunal, however, does not refer to either. It briefly discusses the Basel Convention based on Canada's argument that the Convention 'imposed obligations upon Canada to ensure that it had adequate destruction facilities within its borders and to ensure that it reduced the transboundary movement of PCBs to a minimum.'81 The Tribunal reviewed the Transboundary Agreement between the US and Canada, and found that it emphasized 'the potential benefits of cross-border movement of toxic wastes in achieving economies and better protecting the environment.'82 It noted the objectives of the Basel Convention, that production of wastes is reduced, that adequate disposa! facilities are avaîlable, and that transboundary movement is reduced to the minimum consistent with
79 lt should also be noted here that the case of Metaclad Corpoi·ation v. United Mexican States (ICSID Case No. ARB (AF)/97/l, Award 30 August 2000) concerning the development and operation of a hazard- ous waste landfill should have taken note of Prindple 14 or considered the objective contained therein, as expressed in the numerous international instruments refened to above. It shockîngly did not consider the Base! Convention or any other cnvîronmcntal issues surrounding the development and operation of a hazard- ouswaste landfi!l. However, the case is complicated bythc fact that Mexican authorities înîtiallyconsented ta the operation throughout the construction of the opcration. Duc ta this initial consent, that was withdra\vn through a complicatcd process for the Claimant, the Tribunal found that Mctadad was not treated fairly or equitably and that Jvfexico's actions were tantamount to expropriation. lt thereforc awarded Mctaclad
$16,685,000.00. Prindple 14 was intended to prevent this very occurrence: the US and othcr developcd counrries dumping its hazardous waste into the devcloping world. It is quitc unfortunate that, regardlcss of whether initial authorization was granted or not, astate cannot rely on its duty to prevent the transfer ofhaz- ardous activities and substances (of which a land fil! for hazardous wastes is both) as articulated in Prînciple 14, as a defence in these drcumstances.
80 S.D. Myers v. Government of Canada, NAFT A Arbitration under the UNCITRAL Arbitration Rules, Partial Award, 13 November 2000, para 162.
81 S.D. Myers v. Governmento/Canada, para 186.
81 S.D. M)'ers v. Governmento/Canada, para 212.
environmentally sound and efficient management of such wastes. lt concluded that the Basel Convention 'acknowledges that the environmentally sound and efficient manage- ment of waste is not necessarily accomplished by avoiding cross-border shipments.'83
The Tribunal therefore found that since there was no difference in terms of the environ- mental impact in this case between the destruction of the PCBs in Canada or the US, the measurewas in violation ofCanada's obligation under NAFTA. ltfurther found that 'where astate can achieve its chosen level of envitonmental protection through a variety of equally effective and reasonable means, it is obliged ta adopt the alternative that is most consistent with open trade.'84 Principle
14
has therefore not had a great impact in arbitration.III) Relations with Other Principles 1. Principle 14 and 'no-harm'
The no-harm principle, the principle that states have the responsibility to ensure that activities within their jurisdiction do not damage the environment of other states, has become one of the most fundamental customary law rules relevant to environmental protection.85 Principle 14 is a corollary and extension of the no-harm principle, since it discourages the spreading ofharmful activities and substances. It reinforces the no-harm principle by ensuring that harmful activities are not transferred or relocated. It is an exten- sion of the no-harm principle by ensuring any harmful activities and substances carried out within a state's jurisdiction pursuant to its sovereign rîght are not transferred or relocated to other states.
It has been noted, however, that there is little to substantiate a claim that the parties to the relevant agreements relied on or intended to make a connection to the broader 'no- harm' principle when elaborating specific agreements pertaining to trade in hazardous substances.86 While a number of multilateral environmental agreements expressly refer to the principle, it is not referred to in the context of multilateral agreements addressing trade in hazardous substances. It has therefore been asserted that it is not possible to sim- ply expand customary rules on transboundary pollution to caver the export of dangerous goods and technology in addition.87 Nonetheless, the ICJ seems to have clone just that in its recent Order on Provisional Measures.88 In any case, whether the Parties intended to make a broader connection to the 'no-harm' principle is irrelevant; the fact is Principle
14
is a logical extension and corollary of the no-harm principle, but also an issue in îts own right, which is why it is a free-standing Princip le and not dealt with in the context of Principle 21 of the Rio Declaration on the 'no-harm' principle.2. Principle 14 and cooperation
As a corollary to the no-har1n principle, customary law provides for a duty of cooper- ation in the control of transboundary pollution and environmental risks.891his duty of
83 S.D. Myers v. Government o_(Canada, para 212.
84 S.D. Myers v. Governmento/Canada, para 221. For more on rhis aspect of the case see paras 215-21.
85 Kummer, K., International Management of Hazardous Wastes: The Base! Convention and Related Legat Ru/es (Oxford University Press 2000), 13.
86 Langlet, 62. 87 Langlet, 63.
88 See section II) 4.2 ofthis chapter. 8 9 Langlet, 17.
Relations with Other Princip/es 399
cooperation is inherent in Principle 14, and mandatory for any efforts to prevent or regu- late transboundary movements of dangerous substances and activities. The obligations of prior notification and consultation with states likely to be affected by a potentially bannful activity are a concrete expression of this duty.90 Given that this duty is firmly established in customary law, it is on this basis that the duty of prior informed consentis jmplicit in Principle 14, since the Principle is founded upon the duty ta cooperate. These obligations of notification and consultation, inherent in the duty to cooperate, are the foundation of Principle 14.The duties of cooperation and information are significant in the context of trans- boundary movements ofhazardous wastes. It has been observed in this context that:
if the state of origin is required by customary law to give prior information to, and enter into con- sultations with, neighbouring states that are potentially affected by hazardous activities carried out in its own terri tory, it follows, a fortiori, that this duty applies equally to a hazardous activity initiated or authorized within the state of origin but planned to be carried out within the recipient state. The recipient state's right to be notified is essential in that it provides the basis for the exercise of its right to prohibit or control the activities in question. For these reasons, it can justifiably be argued that the duty of prior information and consultation in the case of pollution source transfer is based in customary law.91
lt is further on this basis that Principle 14 implies the operation of the PIC procedure.
3. Principle 14 and the obligation to conduct an environmental impact assessment
It has been noted that an environmental impact assessment is important ta enforce Principle
14.
92 Iris certainly necessary to understand the impact an activity or substance has on the environment in order to determine if it is harmful and therefore necessary to prevent its relocation or transference. The need for an environmental impact assessment is rherefore implicit in Principle 14. Th.e ICJ has recently ruled that Nicaragua's daim to be free from transboundary harm in the context of the construction of a road on its territory by Costa Rica, alongwith Nicaragua's claimed right to receive a transboundary environ- mental impact assessment in this regard, are plausible in the context of the indication of provisional measures.93 As discussed in section II) 4 of this chapter, the Court has con- firmed the require1nent under general international law to undertake an envîronmental impact assessment where there is a risk the proposed activity may have significant adverse transboundary effect.94 This is a necessary practical step in ful:filling the objectives of Principle 14.4, Principle 14 and sustainable development
Principle 14 fully supports the general principle that states should ensure the develop- ment and use of their natural resources in a sustainable manner. By discouragîng the transference of harmful activities, the Principle encourages investment in sustainable
90 Langlet, 17. 91 Langlet, 17-18. 91 Ling, 46.
93 Nicaragua v. Costa Rica. See section II) 4 of rhis chapter.
94 See Pufp ivfills on the River Uruguay (A1gentina v. Uruguay), 83, paras 204-5 for a discussion of the requirement. For a 1nore-in-depth discussion, see the commentary for Principle 17 in this volume.
