The Prohibition of Transboundary Environmental Harm: The ICJ and the No-Harm Rule
Master thesis by PluriCourts Research Assistant Marte Jervan. PluriCourts Research Paper No. 14-17. Read the thesis (SSRN).
Jervan's study aims at providing an analysis of the contribution of the International Court of Justice (ICJ) to the development of the law concerning transboundary environmental harm. A cornerstone rule of international environmental law is that states are under an obligation not to cause harm to the environment of other states, or to the areas beyond national jurisdiction. The essence of this obligation, often referred to as the no-harm rule or the prohibition of transboundary environmental harm, is that states may not conduct or permit activities within their territories, or in common spaces, without regard to other states or for the protection of the global environment. The origins of the obligation lie in the old principle of international law that states are obliged not to inflict damage on, or violate the rights of other states, which is often expressed by reference to the sic utere tuo ut alienum non laedas principle (use your own property in such a way that you do not injure other people’s).
This study explores how international jurisprudence has played a role in the process of translating this principle into a fundamental rule of international environmental law. Furthermore, it explores how international jurisprudence has, in interaction with state practice, multilateral environmental treaties and the work of the International Law Commission (ILC), contributed to the crystallization and clarification of the content of this rule. Variations of the no-harm rule have been adopted in numerous environmental treaties and declarations and the rule is widely regarded to have reached status as customary international law. However, many questions arise with regard to the application of the rule in real cases, and its more precise implications in current international law.
- What is meant by transboundary environmental damage?
- Does the rule apply to all types of damage, or only to damage that exceeds a certain threshold?
- Furthermore, does the rule require that all harm exceeding the current threshold is prevented, or is there a standard of care which, if the source state meets it, may free the same state from responsibility for harm?
- If so, what is required by states in terms of conduct under the standard of care?
- Is the standard differentiated, i.e. lower for developing states?
Through an analysis of relevant international jurisprudence, primarily from the ICJ, Jervan attempts to identify the legal content of the rule. The analysis shows that in current international law, it has taken form as an obligation to prevent and control transboundary harm and pollution from activities within their jurisdiction and control, accompanied by an obligation to cooperate to reduce risk of such harm through notification, consultation and negotiation, and by conducting environmental impact assessments.